RICHARD BRANT; (1); CHARLES SMITH CASE; ONTARIO COURT OF APPEAL MAY 4, "ANOTHER CHARLES SMITH TALE OF HORROR." THE TORONTO SUN;

"Asked for a second opinion, Smith overruled the original autopsy report that determined Dustin had died of pneumonia, saying it should be “filed in the garbage can.” And even though the baby’s brain had decomposed because it wasn’t stored properly, the former chief pathologist still concluded Dustin had died from vigorous shaking because the autopsy had found bleeding behind his eyes and around his brain.

Brant was charged with manslaughter.

Like others in his predicament, Brant was told he was up against Smith, the “God” of his profession, and with his criminal record, his chances at trial were slim. Though he always maintained his innocence, he reluctantly agreed to plead guilty to the lesser charge of aggravated assault.

Much has changed since Brant’s conviction: Smith has been stripped of his medical licence, his reputation is in tatters and many experts now say “shaken baby syndrome” doesn’t even exist."

REPORTER MICHELLE MANDEL: THE TORONTO SUN;
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BACKGROUND: The Goudge inquiry focused largely on the flawed work of Charles Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers. (He has since been thrown out of the medical profession in Ontario);

The 1,000-page report by Justice Stephen Goudge slammed Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation.

The provincial coroner's office found evidence of errors in 20 of 45 autopsies Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges.

William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes.

In another case, Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling.

The inquiry heard that Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, mistating evidence, chronic tardiness, and the catastrophic misinterpretation of findings.

The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."

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"TORONTO - On November 17, 1992, Richard Brant bumped into his cousin on a Belleville street and lifted the rain hood on his baby’s carriage to proudly show off his nine-week-old son, Dustin," the Toeonto Sun story by reporter Michelle Mandel published earlier today under the heading, "Another Charles Smith tale of horror," begins.

"But to his horror, his baby lay lifeless in the stroller with red foam around his nose," the story continues.

"What followed for the young father were almost two decades of tragedy with a conviction for aggravated assault, a six-month jail sentence and years under a cloud of guilt thanks to the now discredited Charles Smith and his fashionable diagnosis of “shaken baby syndrome.”

On Wednesday, the 38-year-old Moncton man will appear before the Ontario Court of Appeal and ask his conviction be quashed and his innocence reaffirmed just as dozens of shaken baby cases around the world have been overturned.

“I did not cause Dustin’s death or assault him in any way, and pled guilty because I felt I had no other realistic option,” Brant states in his affidavit filed with fresh evidence by his lawyer James Lockyer. “I entered my plea because I feared the consequences of flawed pathology. If I knew then what I know now, I would not have done so. I ask the Court to take the burden of having harmed him from my shoulders.”

Asked for a second opinion, Smith overruled the original autopsy report that determined Dustin had died of pneumonia, saying it should be “filed in the garbage can.” And even though the baby’s brain had decomposed because it wasn’t stored properly, the former chief pathologist still concluded Dustin had died from vigorous shaking because the autopsy had found bleeding behind his eyes and around his brain.

Brant was charged with manslaughter.

Like others in his predicament, Brant was told he was up against Smith, the “God” of his profession, and with his criminal record, his chances at trial were slim. Though he always maintained his innocence, he reluctantly agreed to plead guilty to the lesser charge of aggravated assault.

Much has changed since Brant’s conviction: Smith has been stripped of his medical licence, his reputation is in tatters and many experts now say “shaken baby syndrome” doesn’t even exist.

SBS first made headlines in 1997 with the involuntary manslaughter conviction of British nanny Louise Woodward. According to the National Institute of Neurological Disorders and Stroke, SBS has a “classic triad” of signs: bleeding between the brain and skull, bleeding behind the eyes and brain swelling resulting from a baby’s fragile brain being bounced back and forth inside their skull. For years, the presence of all three led to the automatic assumption of foul play.

Over the last decade, though, there’s been a growing split in the scientific community about SBS, with some calling it a “sham” diagnosis. Brant’s appeal lists four neuropathologists and one biomechanical engineer challenging the historical claim that the triad amounts to virtual proof that shaking was the cause of death.

The British court of appeal no longer accepts that the three SBS symptoms automatically means a non-accidental head injury. In Ontario, the Attorney General ordered a review in 2008 of all SBS convictions and last month an expert panel identified four as possible miscarriages of justice.

It’s widely thought Brant is one of them.

“Experts in biomechanical engineering have challenged the ‘science’ and, using an evidence-based approach, demonstrated that a human being having the strength to shake a baby and cause fatal subdural haemorrhage is an unlikely occurrence,” notes Lockyer in his factum.

Dustin’s death was one of 45 cases by Smith re-examined by the Goudge Inquiry. Dr. Helen Whitwell, one of five pathologists who conducted the review, said a cause of death shouldn’t have been determined because the baby’s brain wasn’t preserved properly but believed Dustin’s pneumonia may have been “material” to the baby’s death.

As for Smith’s diagnosis of shaken baby syndrome, she said, “This was a controversial area in 1994 and remains so today.”

In their filing with the court, the Crown acknowledges changing science has meant Brant’s conviction should no longer stand. “Fresh evidence establishes that the plea should be set aside as a miscarriage of justice.”

If the appeal court agrees, that 20-year burden on Brant’s shoulders will finally be lifted at last."

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The story can be found at:

http://www.torontosun.com/2011/04/29/another-charles-smith-tale-of-horror

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com

"JOHN THOMPSON." (19); AFTERMATH; GREG BRIGHT WRITES ABOUT LOUISIANA'S OBSCENE BATTLE AGAINST HIS BID FOR COMPENSATION; THE HUFFINGTON POST;

"And now getting compensation in civil court just got harder. With the recent U.S. Supreme Court ruling against John Thompson, the laws are in place to protect District Attorneys who put innocent men and women in prison. The Court determined that the D.A.'s office is protected from lawsuits, even when there's evidence of prosecutorial misconduct. Justice Clarence Thomas and the other judges who ruled with him let the prosecutors off the hook. I have a lawsuit in civil court against the D.A.'s office still pending, but the U.S. Supreme Court's ruling makes it clear there's going to be a long, drawn out fight when someone like me tries to get any justice.

The people who were responsible for my arrest and conviction went on to enjoy other things -- careers, family, fortune. But for me it's been a living hell, a nightmare both inside and out of prison. When innocent citizens can be sent to prison and nothing happens to the people responsible, we have a serious problem. We have a very serious problem."

GREG BRIGHT; THE HUFFINGTON POST; (Written with Lara Naughton);

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BACKGROUND: The case concerning a prisoner's exoneration is Connick v. Thompson, 09-571, which arose from a $14 million jury award in favor of a former inmate who was freed after prosecutorial misconduct came to light. The former inmate, John Thompson, sued officials in the district attorney's office in New Orleans, saying they had not trained prosecutors to turn over exculpatory evidence. A prosecutor there failed to give Mr. Thompson's lawyers a report showing that blood at a crime scene was not his. Mr. Thompson spent 18 years in prison, 14 in solitary confinement. He once came within weeks of being executed.

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"I spent 27 ½ years in Angola prison as an innocent person. When I walked out of prison, to be honest, compensation was the furthest thing from my mind. I was just happy to be free," Greg Bright's Huffington Post post published on April 27, 2011 begins, under the heading, "The Exonerated Deserve Justice, Not the Supreme Court's Indifference."

"But seven years after proving my innocence, I haven't received an apology or a dime," the post continues.

"I've had no financial support, no medical help, no mental help. To this day I haven't received from the State so much as an aspirin for a headache. I was thrown back into society without receiving job training, housing, or education.

Louisiana's compensation law limits State compensation to $15,000 a year, not to exceed ten years, meaning after 27 ½ years in Angola State Prison for something I didn't do the most I could get is $150,000. But my claim for even that money has been dragged through the criminal court for years, with the State fighting it on procedural grounds. And if I ever do get it, I will still go uncompensated for 17 ½ years of wrongful incarceration. Those years don't count, according to State law. It's a slap in the face. It's like saying "I messed you over and put you in prison. Now that you're out, I'll mess over you again."

And now getting compensation in civil court just got harder. With the recent U.S. Supreme Court ruling against John Thompson, the laws are in place to protect District Attorneys who put innocent men and women in prison. The Court determined that the D.A.'s office is protected from lawsuits, even when there's evidence of prosecutorial misconduct. Justice Clarence Thomas and the other judges who ruled with him let the prosecutors off the hook. I have a lawsuit in civil court against the D.A.'s office still pending, but the U.S. Supreme Court's ruling makes it clear there's going to be a long, drawn out fight when someone like me tries to get any justice.

The people who were responsible for my arrest and conviction went on to enjoy other things -- careers, family, fortune. But for me it's been a living hell, a nightmare both inside and out of prison. When innocent citizens can be sent to prison and nothing happens to the people responsible, we have a serious problem. We have a very serious problem.

I didn't know it'd be so difficult to create a solid foundation in life when I got out. I didn't know I'd have to depend on family members. I didn't know I'd have to pull my own tooth because I couldn't afford a dentist, and hobble around on feet mangled by a prison surgery because I can't afford health insurance. I didn't know there'd be nights I'd sleep in my vehicle. I didn't know I'd go days without eating.

If it comes down to being free and uncompensated or back in Angola, I'll take free. And that's what the state of Louisiana wants me to do -- be grateful I survived prison and quietly find a way to survive out here. But I went into prison at 20 years old, an innocent, illiterate man with no criminal record. I educated myself and fought for 27 ½ years to get the state of Louisiana to correct its wrong and set me free. Money doesn't equal justice, but the 27 ½ years I spent in prison blew a hole through my life. Now I'm trying to establish a new life, and the state of Louisiana should stop fighting me in court and help right the wrong that's been dogging me for more than 30 years."

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The post can be found at:

http://www.huffingtonpost.com/greg-bright/the-exonerated-deserve-ju_b_854463.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

RICHARD BRANT; APPEAL MAY 4: RETRO (3); NATIONAL POST EDITORIAL "CHARLES SMITH'S LEGACY"; JAN. 12, 2009; 14-YEAR OLD CONVICTION MUST BE OVERTURNED;

"When Dustin died, the neuropathologist who first examined him ruled his death was natural, the result of a respiratory blockage caused by pneumonia. But Smith, considered at the time "the king" of child death investigators in North America, insisted the attending doctor had erred and concluded Dustin's death was due to shaken baby syndrome. Brant now insists he took the Crown's plea offer of six months for aggravated assault because of Smith's reputation. But now that Smith -- who was the subject of a public inquiry last year and a review by an international panel of pathologists has been discredited, Brant, rightly, wants his 14-year-old conviction overturned.

He deserves at least that."

THE NATIONAL POST EDITORIAL BOARD; (WRITTEN BY KELLY MCPARTLAND);

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BACKGROUND: (GLOBE AND MAIL); Richard Brant was convicted of aggravated assault in 1995 for the death of his two-month-old son, Dustin. Mr. Brant was taking Dustin for a walk when he noticed red foam around the baby’s nose. Dustin died two days later, on Nov. 18, 1992. (Then) Dr. Smith (but since struck from the register of the College of Physicians and Surgeons of Ontario) concluded Dustin had been shaken to death, despite the fact that the baby’s brain had rotted away after morgue staff mistakenly left it in a container of water. His findings contradicted the findings of a neuropathologist who had examined the child’s brain and concluded he had likely died of pneumonia. Mr. Brant said he felt compelled to plead guilty to aggravated assault to avoid a possible manslaughter conviction. He conceded he had accidentally jostled Dustin during a physical struggle with his wife. In January, 2009, the Ontario Court of Appeal granted Mr. Brant permission to reopen the case and fight his conviction.

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"Richard Brant may be no angel, but that is no reason he should continue to be known as a baby-killer. Brant, who is currently serving out the end of a robbery conviction at a halfway house in New Brunswick, was granted an extraordinary appeal on Tuesday of his 1995 conviction for killing his two-month-old son Dustin in 1992," the National Post editorial published on January 12, 2009 under the heading, "Charles Smith's legacy" begins.

"His is yet another case of a life ruined by the fraudulent testimony of disgraced Ontario pathologist Charles Smith," the editorial continues.

"When Dustin died, the neuropathologist who first examined him ruled his death was natural, the result of a respiratory blockage caused by pneumonia. But Smith, considered at the time "the king" of child death investigators in North America, insisted the attending doctor had erred and concluded Dustin's death was due to shaken baby syndrome. Brant now insists he took the Crown's plea offer of six months for aggravated assault because of Smith's reputation. But now that Smith -- who was the subject of a public inquiry last year and a review by an international panel of pathologists has been discredited, Brant, rightly, wants his 14-year-old conviction overturned.

He deserves at least that.

There is no way to compensate Smith's legal victims in any adequate fashion. Their lives have been ruined by his incompetent quackery.

Consider, for instance, the case of William Mullins-Johnson of Sault Ste. Marie, who spent 12 years in prison for the sexual assault and first-degree murder of his four-year-old niece Valin in 1994 -- a crime he did not commit. Smith insisted there were signs of strangulation on Valin's body and that Mr. Mullins-Johnson was the most likely culprit. Yet after the pathology experts had reviewed his case, Mr. Mullins-Johnson was acquitted of both charges in 2007.

At last year's inquiry into Smith's misconduct, Mr. Mullins-Johnson stated that the pathologist's actions "destroyed my family, my brother's relationship with me and my niece that's still left and my nephew that's still living." These relationships can never be put back the way they were before Smith wrongfully and negligently concluded a trusted uncle had assaulted and murdered his tiny niece. Nor can the hellish years Mr. Mullins-Johnson spent in prison ever be returned to him. (An investigation by John Chipman of CBC Radio's The Current, aired this week, shows that the man's life is still a mess: He has fallen in with drugs, and is having difficulty with personal relationships.)

Nor are Smith's victims the only Canadians to spend long terms in prisons for crimes they did not commit.

There are, of course, famous cases such as that of David Milgaard, who spent 23 years in prison for a rape and murder he did not commit, and Donald Marshall, who was imprisoned for life for murdering Sandy Seale in 1971, a crime he always insisted he was innocent of, and for which he was acquitted in 1983. Thomas Sophonow, Guy Paul Morin, Steven Truscott, James Driskell and others have all spent years behind bars or living with the stigma of crimes they did not commit because there is no effective method within our system to deal with wrongful convictions.

We are not implying that our court system generates miscarriages of justice as a matter of routine, nor that police officers, pathologists or Crown prosecutors set out to convict innocent people. But even scattered instances of wrongful conviction are grounds for societal soul-searching: It is an unconscionable abuse of a citizen's right to freedom to send him to jail when he is innocent of wrongdoing. The infringement is especially egregious because it cannot be remedied: There is no way to give someone time back that has been taken from him.

Ottawa and the provinces should consider an independent public body that can review complaints of wrongful conviction and recommend meritorious cases to provincial appeal courts. The U. K. has such a body, the Criminal Cases Review Commission, which in its 14-year history has received more than 11,000 applications for review and referred just 395--fewer than 4% -- to an appellant court. These numbers show that a panel could be structured in such a way that the truly guilty are not permitted to clog up the court system.

The advantage of such a review commission is that is takes the task of deciding who may have a legitimate grievance away from busy Cabinet ministers in charge of the justice system, and delivers it to experts with the time and resources to review them thoroughly. Several royal commissions and inquiries in Canada have recommended such a body be formed. The case of Dr. Charles Smith serves to reinforce why one is essential."

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The editorial can be found at:

http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/01/12/national-post-editorial-board-charles-smith-s-legacy.aspx

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

KENNETH KAGONYERA AND ROBERT WILCOXSIN; NORTH CAROLINA PANEL FINDS SUFFICIENT EVIDENCE OF "ACTUAL EVIDENCE; ORDERS JUDICIAL REVIEW; ASSOCIATED PRESS;

"The North Carolina Innocence Inquiry Commission met for two days before deciding unanimously Friday that a three-judge panel should review the cases of Kenneth Kagonyera and Robert Wilcoxsin.

The eight-member commission found "sufficient evidence of actual innocence to merit judicial review," the panel's chairman, Judge Quentin Sumner, said."

REPORTER MARTHA WAGGONER: THE ASSOCIATED PRESS;

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"RALEIGH, N.C. — The country's only state agency dedicated to investigating claims of innocence ruled Friday that the cases of two men who pleaded guilty to murder are worthy of further judicial review," the Associated Press story by reporter Martha Waggoner published earlier today under the heading, "North Carolina innocence panel says cases of men who pleaded guilty to murder merit review," begins.

"The North Carolina Innocence Inquiry Commission met for two days before deciding unanimously Friday that a three-judge panel should review the cases of Kenneth Kagonyera and Robert Wilcoxsin," the story continues.

"The eight-member commission found "sufficient evidence of actual innocence to merit judicial review," the panel's chairman, Judge Quentin Sumner, said.

The commission investigated the claims of Kagonyera and Wilcoxsin, who pleaded guilty to second-degree murder in the death of Walter Bowman of Fairview even though both maintained their innocence before and after their pleas.

In videotaped depositions that the commission members watched Thursday, Kagonyera said he felt pressured by his attorney and family members to accept a plea bargain in order to avoid a possible charge of first-degree murder and a death sentence. Wilcoxsin said he feared a life sentence that would prevent him from ever seeing his daughter again.

The commission has heard three other cases, one of which resulted in the release of a man who served almost 17 years in prison for a murder he didn't commit. A three-judge panel found Greg Taylor innocent in February 2010.

The next steps will be to notify the senior resident Superior Court judge in Buncombe County and the chief justice of the state Supreme Court, so that a hearing can be scheduled, said Kendra Montgomery-Blinn, the commission's executive director.

Attorneys for the two men, Chris Fialko and Frank Wells said Friday they had not been able to notify their clients of the commission's decision but knew the men would be pleased.

"It's exciting news for Robert," said Fialko, Wilcoxsin's attorney. "He's thankful that the commission staff investigated as well as they did, and he's looking forward, I'm sure, to the three-judge panel."

The evidence centered on a confession by a federal prisoner who named two other men as his accomplices; DNA results of one of those accomplices found on a bandana at the scene; and DNA results on bandanas that excluded all of the four men who served time for the home invasion.

The two other men convicted in the home invasion during which Bowman was killed have been released.

In lenghty testimony Thursday, Kagonyera's trial attorney testified that he never saw the DNA evidence that excluded all four men. That evidence would have shifted the entire case, attorney Sean Devereux testified.

District Attorney Ron Moore didn't return a phone call to The Associated Press about the DNA evidence. But he told the Asheville Citizen-Times that he didn't recall the DNA report.

"I've had an open-file policy since the first day I came in office," Moore said. "That's been our pattern and practice."

And Friday, the panel learned that four minutes of a videotape obtained as possible evidence have been recorded over with scenes from a soap opera. The Buncombe County Sheriff's Office obtained the videotape as possible evidence on Sept. 19, 2000, one day after Bowman's murder.

The commission learned that Det. George Sprinkle, who saw the video before it was recorded over, described it as showing three black males coming into the convenience store and gas station at 11:19 p.m. Sept. 18, the night of the murder. From 11:17 p.m. to 11:21 p.m., the tape is recorded over with scenes from "The Guiding Light."

"I'm not trying to attach a bad purpose either, but wow, this looks bad," said Wayne County District Attorney Branson Vickory III, a commission member.

The 911 call about the home invasion came at 11:55 p.m., after the surveillance tape shows the three at the store.

An automobile expert identified the car seen in an enhanced version of the tape as a 1971 or 1972 Oldsmobile Cutlass. It's the same type of car driven by Lacy Pickens, who was never charged in the case but was named in a Crimestoppers tip early in the investigation. A federal prisoner who confessed to the crime in 2003, Robert Rutherford, also named Pickens as another person who participated in the home invasion.

Both the current sheriff and Lt. John Elkins, who obtained the videotape from the store, said they weren't aware that the video had been recorded over but said that could have happened inadvertently, commission investigator Lindsey Guice Smith testified. Sprinkle said he didn't record over the video and that it would not have been recorded over inadvertently, Smith testified.

Other testimony concentrated on Rutherford, Pickens and Bradford Summey, whom Rutherford also identified as participating in the home invasion. Rutherford, who is in federal custody for conspiracy to traffic drugs, confessed in a phone call with an agent from the Drug Enforcement Agency, according to that agent, but denied ever confessing when commission attorney Jamie Lau interviewed him.

In addition, results from bandanas found at the Bowman home showed Summey's DNA on one bandana, while the DNA of Rutherford and Pickens could not be excluded from evidence. DNA results excluded any of the four men who have served time or remain behind bars for the murder and home invasion.

The hearing opened with evidence about Matt Bacoate and an organization he manages called New Life Options, previously named Life on Life's Terms. Lau said many of the people whom he interviewed mentioned Bacoate, even without being asked, so he looked into the group. New Life Options counsels people charged with crimes, and participants say they get reduced sentences for their participation.

One attorney said "it was always his understanding that the program operated with a wink and a nod from the DA's office," Lau testified."

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The story can be found at:

http://www.therepublic.com/view/story/3c7d07b7653e4077a15f9d6aebdbb9e8/NC--Innocence-Commission/

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

KENNETH KAGONYERA; FOUR MINUTES OF POLICE VIDEOTAPE RECORDED OVER BY SOAP OPERA NORTH CAROLINA PANEL LEARNS: THE ASSOCIATED PRESS;

"The North Carolina Innocence Inquiry Commission is investigating the innocence claims of Kenneth Kagonyera and Robert Wilcoxsin, who pleaded guilty to second-degree murder in the death of Walter Bowman of Fairview. Bowman was killed during a home invasion in 2000. Two other men sentenced in the case have been released.

The Buncombe County Sheriff's Office obtained the videotape as possible evidence on Sept. 19, 2000, one day after Bowman's murder.

The commission learned that Detective George Sprinkle, who saw the video before it was recorded over, described it as showing three black males coming into the convenience store and gas station at 11:19 p.m. Sept. 18, the night of the murder. From 11:17 p.m. to 11:21 p.m., the tape is recorded over with scenes from "The Guiding Light."

"I'm not trying to attach a bad purpose either, but wow, this looks bad," said Wayne County District Attorney Branson Vickory III, a commission member."

REPORTER MARTHA WAGONNER: THE ASSOCIATED PRESS;

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

"RALEIGH, N.C. (AP) — A panel investigating claims of innocence by two men who pleaded guilty to a murder learned Friday that four minutes of a videotape obtained as possible evidence have been recorded over with scenes from a soap opera," the Associated Press story by reporter Martha Wagonner published earlier today under the heading, "NC innocence panel sees video in murder case," begins.

"The North Carolina Innocence Inquiry Commission is investigating the innocence claims of Kenneth Kagonyera and Robert Wilcoxsin, who pleaded guilty to second-degree murder in the death of Walter Bowman of Fairview. Bowman was killed during a home invasion in 2000. Two other men sentenced in the case have been released," the story continues.

"The Buncombe County Sheriff's Office obtained the videotape as possible evidence on Sept. 19, 2000, one day after Bowman's murder.

The commission learned that Detective George Sprinkle, who saw the video before it was recorded over, described it as showing three black males coming into the convenience store and gas station at 11:19 p.m. Sept. 18, the night of the murder. From 11:17 p.m. to 11:21 p.m., the tape is recorded over with scenes from "The Guiding Light."

"I'm not trying to attach a bad purpose either, but wow, this looks bad," said Wayne County District Attorney Branson Vickory III, a commission member.

The 911 call about the home invasion came at 11:55 p.m., after the surveillance tape shows the three at the store.

The State Bureau of Investigation enhanced the videotape to show men coming into the store and walking back to the car, which an automobile expert said was a 1971 or 1972 Oldsmobile Cutlass. It's the same type of car driven by Lacy Pickens, who was never charged in the case but was named in a Crimestoppers tip early in the investigation. A federal prisoner who confessed to the crime in 2003, Robert Rutherford, also named Pickens as another person who participated in the home invasion.

The chain of evidence for the videotape showed that Lt. John Elkins got the tape on Sept. 19, 2000, and that Sprinkle turned it over to an evidence custodian on Oct. 23, 2000, according to testimony before the commission. That's the same day the soap opera episode aired and the same day that investigators interviewed Shaun Bowman, the victim's son, who identified Kagonyera and Wilcoxsin as invading his home.

Both the current sheriff and Elkins said they weren't aware that the video had been recorded over but said that could have happened inadvertently, commission investigator Lindsey Guice Smith testified. Sprinkle said he didn't record over the video and that it would not have been recorded over inadvertently, Smith testified.

Other testimony concentrated on Rutherford, Pickens and Bradford Summey, whom Rutheford also identified as participating in the home invasion. Rutherford, who is in federal custody for conspiracy to traffic drugs, confessed in a phone call with an agent from the Drug Enforcement Agency, according to that agent, but denied ever confessing when commission attorney Jamie Lau interviewed him.

In addition, results from bandanas found at the Bowman home showed Summey's DNA on one bandana, while the DNA of Rutherford and Pickens could not be excluded from evidence. DNA results excluded any of the four men who have served time or remain behind bars for the murder and home invasion.

The hearing opened with evidence about Matt Bacoate and an organization he manages called New Life Options, previously named as Life on Life's Terms. Lau said many of the people whom he interviewed mentioned Bacoate, even without being asked, so he looked into the group. New Life Options counsels people charged with crimes, and participants say they get reduced sentences for their participation.

One attorney said "it was always his understanding that the program operated with a wink and a nod from the DA's office," Lau testified."

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

The story can be found at:

http://www.timesunion.com/news/article/NC-innocence-panel-sees-video-in-murder-case-1356866.php

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

GEORGE DENKOWSKI (12); COMMENTARY; FOURTEEN DEATH ROW INMATES MAY BE SAVED; TERRY LENAMON AND REBA KENNEDY;

"The sanction was a settlement between the Texas Board and Dr. Denkowski (who has often been labeled "Dr. Death" in the media). The Board heard evidence that Dr. Denkowski's testing methods were not scientifically based. Both his peers (psychologists) as well as death-qualified defense lawyers argued that he was simply unscientific.

In the end, Dr. Death made a deal with the Texas Board: he will not conduct intellectual disability evaluations in future criminal cases. He will pay $5,500 as a fine. He did not admit that he did anything wrong. In return, the Board agreed to dismiss all the charges against him."

TERRY LENAMON AND REBA KENNEDY; DEATH PENALTY BLOG; (Terence M. Lenamon is a Florida Bar certified expert in the area of criminal trial law.)

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"Back in January 2010, we first took note of something sinister happening over in Texas -- media spotlights were revealing that over a dozen Texas Death Row inmates had had their IQ scores suspiciously bumped up to a sufficiently high number that they were eligible for the death penalty and execution," the post by Terry Lenamon and Reba Kennedy on The Death Penalty Blog begins, under the heading, "Texas' Dr. Death, George Denkowski, Sanctioned by Texas Board - 14 Death Row Inmates May Be Saved."

"This month, the story continues as the Texas State Board of Examiners of Psychologists has officially sanctioned, or punished, psychologist George Denkowski. Seems George Denkowski, Ph.D. saw fit to examine 16 individuals and using his special techniques, find each of them competent to stand trial and face the death penalty," the post continues.

"Deal That Was Made: Is It a Hand Slap?

The sanction was a settlement between the Texas Board and Dr. Denkowski (who has often been labeled "Dr. Death" in the media). The Board heard evidence that Dr. Denkowski's testing methods were not scientifically based. Both his peers (psychologists) as well as death-qualified defense lawyers argued that he was simply unscientific.

In the end, Dr. Death made a deal with the Texas Board: he will not conduct intellectual disability evaluations in future criminal cases. He will pay $5,500 as a fine. He did not admit that he did anything wrong. In return, the Board agreed to dismiss all the charges against him.

Fourteen of these men evaluated by Dr. Denkowski sit on Death Row today. Two of these men have been executed.

These are the 14 individuals whose fate remains in the hands of the Texas appellate system after Dr. Death's bad acts have been revealed:

•Anthony Pierce
•Virgilio Maldonado
•Calvin Hunter
•Roosevelt Smith Jr.
•John Matamoros
•Derrick Charles
•Kim Ly Lim
•Coy Wesbrook
•Joel Escobedo
•Jamie McCoskey
•Warren Rivers
•Tomas Gallo
•Steven Butler
•Alfred Brown

Hopefully, the settlement reached here will help the post-conviction efforts of the defense attorneys representing these 14 individuals as they argue that they are indeed protected from the death penalty under federal constitutional mandates that protect against execution of the "mentally retarded," see Atkins v. Virginia and its progeny."

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The post can be found at:

http://www.deathpenaltyblog.com/texas-dr-death-george-denkowski-sanctioned-by-texas-board-14-death-row-inmates-may-be-saved/

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

IAN TOMLINSON INQUEST; PATEL'S CHANGES TO HIS EVIDENCE COME UNDER CLOSE SCRUTINY; JURY CAN RETURN "UNLAWFUL KILLING" VERDICT;

"Turning to the medical evidence, the coroner said the jury would have to decide exactly how Tomlinson died.

"[He] was more vulnerable than a normal person as a result of a number of factors" they include his diseased liver, his alcoholism, his input of alcohol that day and the condition of his left shoulder," Thornton said.

"But at the same time, the police officer [had] a duty to [protect] the more vulnerable, and also the mere fact that Mr Tomlinson was vulnerable cannot excuse the police officer from an unlawful act."

He reminded the jurors that they had heard two very different explanations of Tomlinson's death. Dr Freddy Patel, the Home Office pathologist who initially examined Tomlinson's body, had concluded he died as a result of a spontaneous heart attack, but other medical experts had suggested the cause had been internal bleeding. Patel had later made a number of important changes to his evidence.

"Is there a good reason for these changes which justifies and supports his original cause of death, or is his credibility as an expert witness no longer intact?" asked the coroner."

REPORTERS SAM JONES AND HAROON SIDDIQUE; THE GUARDIAN;

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A thorough account of "The death of Ian Tomlinson" can be found on Wikipedia at:

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

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PUBLISHER'S NOTE: If Dr. Freddy Patel had the last word, a 47-year-old newspaper vendor named Ian Tomlinson's death after he collapsed on the pavement on the fringes of protests at the G20 on April 1, 2009 would have been written off as "natural causes." However amateur video footage emerged showing him being pushed to the ground by a police officer who faces misconduct proceedings after an inquest beginning in March 2011 is completed. As noted on Wikipedia: "Ian Tomlinson (7 February 1962 – 1 April 2009) was an English newspaper vendor who collapsed and died in the City of London on his way home from work during the 2009 G-20 summit protests. A first postmortem examination indicated that he had suffered a heart attack brought on by coronary artery disease, and had died of natural causes. His death became controversial a week later when The Guardian obtained footage of his last moments, filmed by an American investment fund manager who was visiting London. The video showed Tomlinson being struck on the leg from behind by a police officer wielding an extendable baton, then pushed to the ground by the same officer. It appeared to show no provocation on Tomlinson's part—he was not a protester, and at the time he was struck, the footage showed him walking along with his hands in his pockets. He walked away after the incident, but collapsed and died moments later. After The Guardian published the video, the Independent Police Complaints Commission (IPCC) began a criminal inquiry. A second postmortem indicated that Tomlinson had died from internal bleeding caused by a blunt force trauma to the abdomen, in association with cirrhosis of the liver. A third postmortem was arranged by the defence team of the accused officer, PC Simon Harwood; the third pathologist agreed that the cause of death was internal bleeding. The Crown Prosecution Service (CPS) announced in July 2010 that no charges would be brought, because medical disagreement about the cause of the death meant prosecutors could not prove beyond a reasonable doubt that there was a causal link between the death and the alleged assault. The first pathologist, Dr Freddy Patel, was suspended for three months in August 2010 for "deficient professional performance" in several unrelated cases." As the Guardian reported on March 19, 2011, Patel, who had been previously suspended for incompetence in a series of high profile autopsies, was found guilty of professional misconduct after failing to spot that a murder victim had been suffocated. He now faces being struck off the medical register. A disciplinary panel of the General Medical Council ruled that his "fitness to practise was impaired" because of his reluctance to consider asphyxiation in the murder case, the falsification of his professional CV, and his failure to redress previous professional shortcomings. The UK Press Association says that the inquest, "is likely to examine the actions of police, the pathologist, the coroner and independent investigators in the aftermath of Mr Tomlinson's death." The Goudge Inquiry into many of former Dr. Charles Smith's cases also examined relationships between pathologists and police - particularly a case in which Smith agreed to interview a woman, suspected of murdering her baby, at her home while fully aware that the home had been secretly bugged by the authorities. The inquest is expected to last six weeks. This Blog will follow it closely.

HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG;

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"The jury at the inquest into the death of Ian Tomlinson has been told it can return a verdict of unlawful killing, but only if it is satisfied the police officer who beat him with a baton and shoved him to the ground acted deliberately and illegally," the Guardian story by reporters Sam Jones and HaroonSiddique published earlier today begins, under the heading, "Ian Tomlinson inquest: Jury can return unlawful killing verdictCoroner says jury would have to be sure police officer's actions had been intentional and dangerous during G20 protests."

"Judge Peter Thornton QC, sitting as assistant deputy coroner, said the jury of six men and five women would have to be sure beyond reasonable doubt that PC Simon Harwood's actions had been intentional and dangerous during the G20 protests in central London two years ago," the story continues.

"Thornton said the jury could also consider verdicts of misadventure, death from natural causes and an open verdict. He said they would have to decide whether the 47-year-old newspaper vendor died from internal bleeding or a heart attack.

Although Harwood – a member of the Metropolitan police's territorial support group – initially claimed he had hit and shoved Tomlinson because he was "being defiant" and "encroaching" on a police line. But he conceded this was not the case when confronted with footage of the encounter.

"PC Harwood said that [Tomlinson] was not a threat to him or any other officer," said the coroner in his summing-up. "In evidence PC Harwood said his perception at the time was significantly different to what the CCTV camera footage shows …

"s his perception, as he puts it, an honest mistaken perception of events, or is it an untruthful account of events put forward as a deliberate lie to try to excuse his actions? You will have to decide."

Thornton asked the jury to consider whether the force used in either the baton strike or the subsequent push was reasonable or excessive and illegal.

"If you are sure that either a heart attack caused by stress from the baton strike and/or the fall or [an] injury from the push or fall causing internal bleeding were proved, you would find [one of the requirements for unlawful killing] proved," he said.

Turning to the medical evidence, the coroner said the jury would have to decide exactly how Tomlinson died.

"[He] was more vulnerable than a normal person as a result of a number of factors" they include his diseased liver, his alcoholism, his input of alcohol that day and the condition of his left shoulder," Thornton said.

"But at the same time, the police officer [had] a duty to [protect] the more vulnerable, and also the mere fact that Mr Tomlinson was vulnerable cannot excuse the police officer from an unlawful act."

He reminded the jurors that they had heard two very different explanations of Tomlinson's death. Dr Freddy Patel, the Home Office pathologist who initially examined Tomlinson's body, had concluded he died as a result of a spontaneous heart attack, but other medical experts had suggested the cause had been internal bleeding. Patel had later made a number of important changes to his evidence.

"Is there a good reason for these changes which justifies and supports his original cause of death, or is his credibility as an expert witness no longer intact?" asked the coroner.

Although the jury had been told that Patel had been removed from the Home Office register of experts and is suspended for failings in cases unrelated to Tomlinson's death, Thornton urged them to "not put this aspect of the case out of all proportion".

He reminded the jury that no one was on trial. "There is no indictment, no criminal charge – it is simply a way of establishing facts," he said.

"Come to your decision coolly and calmly and on the evidence. Your duty is to find the facts and conclude from the evidence, and from nothing else."

The inquest is expected to retire next Tuesday to consider its verdict."

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The story can be found at:

http://www.guardian.co.uk/uk/2011/apr/28/ian-tomlinson-inquest-jury-verdict?INTCMP=SRCH

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

GEORGE DENKOWSKI (11): CALL FOR LEGISLATIVE ACTION TO FORCE COURTS TO COUNTER JUNK SCIENCE BY TESTING DNA EVIDENCE IN "COLD CASES."

"Current law allows for re-reviewing cases when DNA evidence might change the outcome. Kathryn Kase, a death-penalty lawyer who directs the Trial Project at the Texas Defender Service, supports legislation that would apply to additional types of evidence.

"We need to extend the law, so that changes in science, or the practice of shoddy science, allows a person to go back and seek re-testing and re-review."

A bill pending in the state House goes half-way, says Kase, who wants it amended to not only incorporate current science, but also the problem of "junk science.""

PETER MALOF: PUBLIC NEWS SERVICE; Motto: News in the public interest. "The Public News Service (PNS) provides reporting on a wide range of social, community, and environmental issues for mainstream and alternative media that amplifies progressive voices, is easy to use and has a proven track record of success. Supported by over 400 nonprofit organizations and other contributors, PNS provides high-quality news on public issues and current affairs."

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"HOUSTON - After a forensic psychologist was banned this month from making retardation evaluations in Texas courts, defense attorneys hoped to reopen past convictions that used his now-discredited testimony," the public news service story by reporter Peter Malof published on April 25, 2011 begins, under the heading, "Courts Resist Revisiting “Junk Science” Convictions."

"But with courts extremely wary of revisiting any closed case, it may take legislative action to force them to bend to scientific consensus," the story continues.

"Current law allows for re-reviewing cases when DNA evidence might change the outcome. Kathryn Kase, a death-penalty lawyer who directs the Trial Project at the Texas Defender Service, supports legislation that would apply to additional types of evidence.

"We need to extend the law, so that changes in science, or the practice of shoddy science, allows a person to go back and seek re-testing and re-review."

A bill pending in the state House goes half-way, says Kase, who wants it amended to not only incorporate current science, but also the problem of "junk science."

The banned psychologist, George Denkowski, provided testimony that helped convict at least 14 prisoners on death row, who he claimed had normal intelligence. Kase is convinced that at least some of them are, in fact, mentally retarded. Executing the mentally retarded has been forbidden since a U.S. Supreme Court ruling in 2002.

Kase says, in matters of life and death, there's no room for casual, sloppy, or fraudulent science.

"If I went to a doctor and got tested to find out if I had cancer, and then I later found out that that doctor wasn't doing the cancer tests at all, would I go back to another doctor and get retested? You bet I would!"

Peer reviews said Denkowski, in effect, made up his own criteria, including inflating some IQ scores because traditional testing supposedly didn't account for culture, lifestyle, and race. Denkowski agreed to abandon his courtroom practice in a settlement that stated his violations could not be used as the basis for re-litigating other criminal cases for which he'd served as an expert.
Peter Malof, Public News Service - TX"

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The story can be found at:

http://www.publicnewsservice.org/index.php?/content/article/19692-1

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com

UNIQUE FUNDRAISER BY THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED (AIDWYC): "AWARENESS THROUGH ART;" JUNE 11, 2011;

The Association In Defence of the Wrongly Convicted is embarking on a unique program to raise funds for its crucial activities - "Awareness Through Art."

As the organization points out in a recent release:

"On June 11, 2011, AIDWYC (Association In Defence of The Wrongly Convicted ) is hosting the "Awareness Through Art” Art Show/Auction in order to raise funds to enable us to continue our important work on behalf of the wrongly convicted.

The Art show will be held at the Bezpala Brown Gallery, 17 Church Ave, Toronto, Ontario from 7 pm. to 10 pm. Wine and Cheese will be served.

Wrongful convictions are tragic. The “Awareness Through Art” show is one way of raising awareness for correction and prevention.

A number of our wrongly convicted clients will attend and will contribute pieces of art they have personally created to depict their journeys.

Tickets are $ 15.00 per person
Wine & Cheese will be served.

FOR TICKET SALES OR TO MAKE A DONATION, PLEASE CONTACT :

Win Wahrer , Client Services Director at AIDWYC (416) 504-7500 x 227
Maria Shepherd at (647) 688-7363

SPECIAL THANKS TO :

* Bezpala Brown Gallery
* Various Contributing Artists
* Victoria Mongrain of Tori Mongrain Art
* Raul Crespo (Photography)
* Alfred Crespo (Photography)
* Cregg Photography
* Performances by Jordan Carter & Melanie Garcia
* Margaret Fiorino at Publish-This.com
* DJ Carl Allen and DJ LaZe of 88.1 CKLN

and more to come.

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

JOHN THOMPSON: (18) PROF. ERWIN CHEMERINSKY; NATIONAL LAW JOURNAL; DISTURBING MESSAGE SENT OUT BY SUPREME COURT;

"For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens. Unfortunately, the Supreme Court has not gotten the message........."

ERWIN CHEMERINSKY; NATIONAL LAW JOURNAL; (Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.)

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BACKGROUND: The case concerning a prisoner's exoneration is Connick v. Thompson, 09-571, which arose from a $14 million jury award in favor of a former inmate who was freed after prosecutorial misconduct came to light. The former inmate, John Thompson, sued officials in the district attorney's office in New Orleans, saying they had not trained prosecutors to turn over exculpatory evidence. A prosecutor there failed to give Mr. Thompson's lawyers a report showing that blood at a crime scene was not his. Mr. Thompson spent 18 years in prison, 14 in solitary confinement. He once came within weeks of being executed.

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"The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct," the commentary by Erwin Cherminsky published in the National Law Review on April 25, 2011, begins, under the heading, "Head in the sand over prosecutorial misconduct: The Supreme Court has sent a disturbing message that it just doesn't realize there is a serious problem infecting our criminal justice system."

"Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels," the commentary continues.

"For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.

Two years ago, in Van de Kamp v. Goldstein, 555 U.S. 335 (2009), the Court dismissed a suit against prosecutors by a man who spent 24 years in prison for a murder that he did not commit. Tommy Lee Goldstein was convicted of murder even though there was no physical evidence linking him to the crime, no eyewitness and no confession. The key evidence against Goldstein was the testimony of two witnesses who said that they heard him admit to the killing. One later recanted.

The other, the key witness, was a jailhouse informant, Edward Fink, who had a long history of making deals with prosecutors to get a reduction in charges and punishments in exchange for giving testimony against other inmates. Fink claimed that Goldstein made incriminating statements when they shared a jail cell together. The prosecutors never disclosed Fink's history to Goldstein's lawyers nor the discussions about the benefits Fink would receive for testifying against Goldstein.

After Goldstein prevailed in his habeas corpus petition and was exonerated, he sued the then-district attorney for failing to institute a policy of disclosing such information to criminal defendants, as is required by the U.S. Constitution. The Supreme Court unanimously held that Goldstein's civil suit had to be dismissed because of absolute prosecutorial immunity.
ABSOLUTE VS. QUALIFIED IMMUNITY

The Supreme Court has held that prosecutors have absolute immunity for their prosecutorial acts, but only qualified immunity for their administrative and investigative acts. See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976). Goldstein argued that his suit was based on the administrative failure of the district attorney, including the failure to adequately train and supervise district attorneys on the need to disclose impeachment material. The Supreme Court rejected this argument and declared: "[W]e conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here."

On March 29, in Connick v. Thompson, 2011 WL 1119022 (U.S.), the Court ruled against a man who was convicted and spent 18 years in prison, and 14 years on death row, because of prosecutorial misconduct. One month before he was to be executed, John Thompson's defense lawyers found blood evidence that prosecutors possessed, but did not disclose, that exonerated him for an armed robbery for which he had been convicted and that greatly affected his murder trial.

Two days before Thompson's trial, the assistant district attorney received the crime lab's report, which stated that the perpetrator had blood type B. The defense was not told of this, not at the trial and not until the report was discovered shortly before Thompson's scheduled execution. Thompson has type O blood.

The district attorney conceded that it violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), in not turning over the blood evidence. Thomp­son sued for prosecutorial misconduct, and a jury awarded him $14 million. But the Supreme Court reversed, in a 5-4 decision, and held that the city could not be held liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the Court, said that a single instance of prosecutorial misconduct was not enough to show sufficient deliberate indifference to allow the city to be sued.

But as Justice Ruth Bader Ginsburg pointed out in her dissenting opinion, this was not a single instance of misconduct. She wrote: "Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight.…What happened here, the Court's opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish."

These two cases share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors' failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency. In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material.

Most importantly, in both cases, the Court ruled against the innocent victims of prosecutorial misconduct. In doing so, the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system."

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The commentary can be found at:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202491215314&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20110427nlj&kw=Head%20in%20the%20sand%20over%20prosecutorial%20misconduct&slreturn=1&hbxlogin=1

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

GEORGE DENKOWSKI(10) LINK TO RENEE FELTZ' VIDEO REPORT; KEY INTERVIEW; TEXAS DEFENDER SERVICE LAWYER KATHRYN KASE AND PSYCHOLOGIST DR. JEROME BROWN;

"Democracy Now! first covered Dr. Denkowksi in January 2010 in a video report by Renée Feltz that accompanied her story for The Texas Observer magazine. For an update, we’re joined by Texas Defender Service attorney, Kathryn Kase, and by Dr. Jerome Brown, the psychologist filed the complaint that ultimately resulted in Denkowksi’s agreement to stop evaluating people in criminal cases."

TEXAS STANDDOWN PROJECT;

LINK TO THE VIDEO:

http://www.democracynow.org/2011/4/21/dr_death_agrees_to_stop_evaluating

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The Texas Standdown project is directing readers to a video prepared for Texas Observer Magazine on "The Denkowski Sanction" presented by "Democracy Now."
'
""'Dr. Death' Agrees to Stop Evaluating Mentally Disabled Texas Death Row Prisoners," is the Democracy Now segment, today. You can watch the video at the link," the April 13, 2011 Texas Standdown Project post begins.

"Last Friday, Texas reprimanded a psychologist who used what critics say were unscientific methods to examine at least 25 Texas death row prisoners for intellectual disabilities, two of whom were later executed," the post continues.

"Dr. George Denkowski was the go-to psychologist for prosecutors who wanted to prove defendants were not mentally handicapped—and therefore eligible for the death penalty. Democracy Now! first covered Dr. Denkowksi in January 2010 in a video report by Renée Feltz that accompanied her story for The Texas Observer magazine. For an update, we’re joined by Texas Defender Service attorney, Kathryn Kase, and by Dr. Jerome Brown, the psychologist filed the complaint that ultimately resulted in Denkowksi’s agreement to stop evaluating people in criminal cases.

The participants include:

Kathryn Kase, attorney with the Texas Defender Service. Dr. George Denkowski said her client, Daniel Plata, was eligible for execution but a judge later said the evaluation was full of "fatal errors" and commuted Plata’s death sentence to life.

Dr. Jerome Brown, a clinical psychologist who worked as an expert for the defense on five death penalty cases in which Denkowski worked for the prosecution. He filed the complaint that ultimately led Denkowksi to stop evaluating people in criminal cases.

Renee Feltz, new Democracy Now! producer. Her exposé of Dr. Denkowski for The Texas Observer magazine, supported by The Investigative Fund at the Nation Institute, was a finalist for a 2010 Investigative Reporters and Editors Award."

The Texas Standdown Project post can be found at:

http://standdown.typepad.com/weblog/2011/04/democracy-now-on-the-denkowski-sanction.html

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

LARRY SWEARINGEN: ANOTHER SETBACK MOVES HIM CLOSER TO DEATH; FIFTH CIRCUIT TURNS DOWN HIS LATEST APPEAL IN JUST FOUR PARAGRAPHS;

"Swearingen contends that he learned for the first time in 2008 of tissue samples that exonerate him of the murder of Melissa Trotter. He further contends that he could not have discovered the existence of the samples prior to 2008 and that his attorneys provided constitutionally ineffective assistance by failing to uncover and employ this evidence. As the district court explained, however, these arguments are unavailing. The evidence existed at the time of trial, 2009 WL 4433221 at *16-17, and even if it were not discoverable through due diligence, it does not constitute "clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [Swearingen] guilty of the underlying offense."

U.S. COURT OF APPEALS: FIFTH CIRCUIT;

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PUBLISHER'S NOTE: the U.S. Court of Appeals Fifth Circuit decision published on April 7, 2011, Appeals Court dismisses Larry Swearingen's latest application in just four paragraphs. Strip away the citations and the legal verbiage - - which I have included for this purpose - and it becomes apparent that the Court has devoted even less space in it's frighteningly technical approach to the very crucial and compelling issues raised by Mr. Swearingen. It is this type of cold, heartless approach that can only draw Texas' judiciary into further disrepute. To this scribe, it's just another form of hurrying the defendant on to execution because the courthouse office closes at 5. 00 PM - as happened in yet another notorious Texas case;

HAROLD LEVY; PUBLISHER. THE CHARLES SMITH BLOG;

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BACKGROUND: Larry Swearingen was sentenced to death in 2000 for the murder of Melissa Trotter in 1998. Melissa Trotter went missing on 8 December 1998. Larry Swearingen was arrested three days later, and has been incarcerated ever since. The body of Melissa Trotter was found in a forest on 2 January 1999. Larry Swearingen was tried for her murder, and sentenced to death. He maintains his innocence of the murder. Several forensic experts have provided statements and testimony that support his claim. One of these experts, Dr Joyce Carter, is the former Chief Medical Examiner of Harris County in Texas who performed the autopsy of Melissa Trotter and testified at Larry Swearingen’s trial that in her opinion, Melissa Trotter had died 25 days before her body was found. In an affidavit signed in 2007, Dr Carter stated that she had looked again at the case and changed her opinion. She concluded that Melissa Trotter’s body had been left in the forest within two weeks of it being found. If accurate, this would mean that the body was dumped at a time when Larry Swearingen was already in custody.

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PARAGRAPH ONE: "Appellant Larry Ray Swearingen was scheduled for execution on January 27, 2009. He sought permission to file a successive petition for writ of habeas corpus, which this court granted in part the day before his execution. In re Swearingen, 556 F.3d 344 (5th Cir. 2009). On remand, however, the district court concluded that Swearingen failed to satisfy the requirements of 28 U.S.C. §§ 2244(b)(2)(B)(i) and (ii). Swearingen v. Thaler, No. H-09-300, 2009 WL 4433221 (S.D. Tex. Nov. 18, 2009). He appeals that decision.

PARAGRAPH TWO; A successive habeas petition is appropriate where:
(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

PARAGRAPH THREE; 28 U.S.C. § 2244(b)(2)(B). Swearingen contends that he learned for the first time in 2008 of tissue samples that exonerate him of the murder of Melissa Trotter. He further contends that he could not have discovered the existence of the samples prior to 2008 and that his attorneys provided constitutionally ineffective assistance by failing to uncover and employ this evidence. As the district court explained, however, these arguments are unavailing. The evidence existed at the time of trial, 2009 WL 4433221 at *16-17, and even if it were not discoverable through due diligence, it does not constitute "clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [Swearingen] guilty of the underlying offense." See Johnson v. Dretke, 442 F.3d 901, 911 (5th Cir. 2006) (explaining the high threshold for § 2244(b)(2)(B)(ii) innocence showing). Likewise, we affirm the district court's conclusion that Swearingen has not demonstrated ineffective assistance of counsel. Swearingen's trial counsel developed a reasonable strategy, including expert testimony regarding the time of Trotter's death. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

PARAGRAPH FOUR; We AFFIRM the dismissal of Swearingen's successive habeas corpus petition.
AFFIRMED.

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THE DECISION CAN BE FOUND AT:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020110407122.xml&docbase=CSLWAR3-2007-CURR

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

"GEORGE DENKOWSKI (9); COUNTY CONTINUED TO PAY HIM - EVEN AFTER A JUDGE DENOUNCED HIS METHODS AND COMMUTED A DEATH SENTENCE TO LIFE; TEXAS TRIBUNE;

"The Harris County invoices, which the Texas Defender Service obtained through a public information request, include more than $20,000 the county paid to Denkowksi after a judge issued a scathing denouncement of the psychologist's methods and commuted the death sentence of inmate Daniel Plata to life in prison. From 2005 to 2007, Harris County paid Denkowski more than $20,000 to evaluate whether Plata was so mentally disabled he would be ineligible for the death penalty. Denkowski said Plata was not mentally disabled, and he was sentenced to death. But in September 2007, Harris County state district judge Mark Ellis concluded that, "Dr. Denkowski invalidated the norms of the test by committing errors in administration and scoring.""

REPORTER BRANDI GRISSOM; THE TEXAS TRIBUNE;
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"Harris County paid Dr. George Denkowski, a forensic psychologist who was reprimanded earlier this month and agreed never again to perform death row evaluations in Texas, more than $300,000 to test defendants for intellectual disabilities from 2002 until 2008," the Texas Tribune story by reporter Brandi Grissom published earlier today under the heading, "County Used Doctor After Methods Challenged," begins.

"And the county continued to pay Denkowksi even after a judge harshly rebuked his work, according to documents obtained by the Texas Defender Service," the story continues.

"Denkowski, a Fort Worth psychologist, evaluated 14 current Texas death row inmates and two who have been executed. His methods, though, came under intense scrutiny from defense lawyers and from other psychologists, who said Denkowski used flawed techniques that artificially inflated disability scores, making defendants eligible for the death penalty. The evaluations started after the U.S. Supreme Court in 2002 ruled that states could not execute mentally disabled people.

As part of a settlement, the Texas State Board of Examiners of Psychologists this month issued a reprimand against Denkowski. He did not admit wrongdoing, but he agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him. An attorney for Denkowski has said he vigorously defends his practice.

The Harris County invoices, which the Texas Defender Service obtained through a public information request, include more than $20,000 the county paid to Denkowksi after a judge issued a scathing denouncement of the psychologist's methods and commuted the death sentence of inmate Daniel Plata to life in prison. From 2005 to 2007, Harris County paid Denkowski more than $20,000 to evaluate whether Plata was so mentally disabled he would be ineligible for the death penalty. Denkowski said Plata was not mentally disabled, and he was sentenced to death. But in September 2007, Harris County state district judge Mark Ellis concluded that, "Dr. Denkowski invalidated the norms of the test by committing errors in administration and scoring."

Despite the judge's ruling, Harris County used Denkowksi at least three more times, paying him more than $20,000 collectively in those cases, including one in which he concluded the defendant would be eligible for the death penalty. "For years, the Harris County district attorney's office turned a deaf ear to leading authorities who asserted that Denkowski's methodologies were not grounded in accepted science,” said Kathryn Kase, an attorney for Plata.

Denkowski was an expert witness for the prosecution in at least 25 capital and noncapital cases in Texas and around the country, according to the Defender Service. In some cases, he testified for the defense.

A spokeswoman for the Harris County district attorney's office did not immediately respond."

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The story can be found at:

http://www.texastribune.org/texas-dept-criminal-justice/death-penalty/county-used-doctor-after-methods-challenged-/


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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

GEORGE DENKOWSKI; (8) HIS TESTIMONY IS DESCRIBED AS REMINISCENT OF FORENSIC PSYCHIATRIST JAMES GRIGSON - ANOTHER "DR. DEATH" - IN CHRONICLE STORY;

"Denkowski's testimony was reminiscent of that of forensic psychiatrist James Grigson, another prosecutor favorite in the 1980s.

Grigson was nicknamed "Dr. Death" because he repeatedly testified in competency hearings for the state and frequently opined in capital trials that defendants represented a future danger (a requirement of the Texas capital murder statute at the time), even in cases where he conducted no evaluation of or had any contact with the defendant."

REPORTER MIKE TOLSON: HOUSTON CHRONICLE;

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PUBLISHER'S NOTE: Although I veer away from making sweeping comparisons this much occurs to me: Both Denkowski and Grigson were Texas forensic scientists who were hired by the state to make the critical decision as to whether the defendant should die or not - after prosecutors vouched for their scientific prowess and judges ruled that they should be permitted to testify. They were both given enormous power to influence a key state decision far greater than the so-called science they pretended to exercise so confidently, deserved. They drew their disciplines into disrepute by enthusiastically allowing themselves to be used an an instrument of the state's drive to kill. But they didn't do this alone.

HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG;

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"A controversial Texas psychologist whose criminal justice work had made him a modern-day version of the notorious "Dr. Death" — who testified for the state in hundreds of capital punishment trials a generation ago — has reached a settlement with a state licensing board in which he agrees to conduct no more evaluations of intellectually challenged defendants in criminal proceedings," the Houston Chronicle story by reporter Mike Tolson published on April 16, 2011 begins, under the heading, "Psychologist agrees not to testify again: Deal with state lets controversial witness in capital cases keep license."

"While admitting no wrongdoing, psychologist George Denkowski agreed to stop evaluating criminal defendants for possible mental retardation after the Texas State Board of Examiners of Psychologists determined that his techniques lacked scientific credibility. The board had become concerned that Denkowski's methods were being used to make life-and-death decisions but had not been validated," the story continues.

"The board also issued a formal reprimand and a fine of $5,500 in exchange for dropping complaints against Denkowski. The settlement came after increasing opposition to Denkowski's opinions, which had been used to keep 16 Harris County killers on Texas' death row after the Fort Worth psychologist concluded that they were intellectually capable enough to be subject to execution. Two of those inmates were executed.

But the tide turned against him as lawyers for inmates marshaled the collective opinion of clinical psychology. In in 2008, a state judge in Harris County tossed out a Denkowski evaluation in a capital case because the judge said it lacked evidence of accepted methodology. The defendant's sentence was commuted to life. Two years later, the American Association on Intellectual and Developmental Disabilities cautioned against using Denkowski's methods until they had been scientifically proved.

Denkowski could not be reached for comment.

Essentially, his approach often sought to appraise an individual's lack of knowledge about certain ordinary things in light of his impoverished or cultural background, arguing that those could be responsible things he did not understand instead of a lack of basic intelligence.
Favorite of prosecutors

Denkowski also deviated from the norm when using standard questionnaires about adaptive behavior and life skills, an assessment that is supposed to show how well the person functioned in society. Typically these are given to those who know the examinee well, including relatives and close friends. Denkowski favored questioning the subject instead, saying that others overstate the degree of impairment. Many other psychologists dispute this.

In 2002, the U.S. Supreme Court ruled that the mentally retarded may not be executed, but it left it to the states to develop ways of determining retardation. Denkowski's reliance on his own approach to determining mental ability made him a favorite expert for prosecutors, albeit one who often was dismissed by other experts. He offered opinions in at least 17 capital cases, finding in all but one that the defendant's intellect was sufficient to make him eligible for prosecution.
Parallels to 'Dr. Death'

Denkowski's testimony was reminiscent of that of forensic psychiatrist James Grigson, another prosecutor favorite in the 1980s.

Grigson was nicknamed "Dr. Death" because he repeatedly testified in competency hearings for the state and frequently opined in capital trials that defendants represented a future danger (a requirement of the Texas capital murder statute at the time), even in cases where he conducted no evaluation of or had any contact with the defendant.

He once testified that defendant Kelsey Patterson, an oft-delusional schizophrenic, was sane when he inexplicably killed two people in Palestine in 1992, even though in previous non-lethal assaults by Patterson, Grigson had consistently found that Patterson, because of schizophrenia, was not sane when he attacked people.

In time, Grigson also ran afoul of professional organizations and became largely discredited. Though he thumbed his nose at the professional disapproval, claiming it was politically motivated, his testimony became a double-edged sword too dangerous for prosecutors to use. Grigson died in 2004.

Unlike Grigson, who critics claimed would find a way to tailor his testimony to the facts of a case, Denkowski has not uniformly produced results favorable to prosecutors.

In the case of convicted murderer Robert Smith, sentenced to die for a 1992 killing, he was brought in by the Harris County District Attorney's Office to confirm Smith's intelligence. Denkowski agreed with the expert hired by Smith's attorney, and Smith's sentence later was commuted."

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The story can be found at:

http://www.chron.com/disp/story.mpl/metropolitan/7524138.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;