the charles smith blog: November 2016

Wednesday, November 30, 2016

Reynaldo Chavez: New Mexico: White Elephant Case? The Alburquerque Police Department (APD0 is investigating allegations that officers were erasing or altering lapel camera videos," The Journal reports..." City Attorney Jessica Hernandez and Police Chief Gorden Eden told city councilors late Monday that they will get in touch with federal prosecutors today and cooperate if necessary. But they’re also starting their own investigation, they said."..."The allegations – outlined in an affidavit by APD’s former records custodian, Reynaldo Chavez – shook City Hall as the Berry administration tries to build public confidence in the police department. A U.S. Department of Justice investigation in 2014 found that APD had a pattern of violating people’s rights through the use of force. “No matter how these allegations pan out,” said Councilor Pat Davis, a former police officer, “I think they have a big impact on public confidence and it also raises questions about APD’s process for evidence control.”

STORY: "APD investigating allegations of doctored videos," by reporter Dan McKay, published by The Journal; on November 21, 2016.

PHOTO CAPTION: "City Councilor Pat Davis, left, speaks with Albuquerque Police Chief Gorden Eden on Monday before the council addressed allegations that officers were erasing or altering lapel camera videos."

GIST: "Albuquerque police are investigating allegations that members of the department improperly erased, altered or corrupted video footage taken by the lapel cameras worn by officers, top executives under Mayor Richard Berry say. City Attorney Jessica Hernandez and Police Chief Gorden Eden told city councilors late Monday that they will get in touch with federal prosecutors today and cooperate if necessary. But they’re also starting their own investigation, they said. The allegations – outlined in an affidavit by APD’s former records custodian, Reynaldo Chavez – shook City Hall as the Berry administration tries to build public confidence in the police department. A U.S. Department of Justice investigation in 2014 found that APD had a pattern of violating people’s rights through the use of force. “No matter how these allegations pan out,” said Councilor Pat Davis, a former police officer, “I think they have a big impact on public confidence and it also raises questions about APD’s process for evidence control.” Hernandez and Eden assured councilors Monday that the original footage taken by officers’ body-worn cameras is retained by their record-keeping system, even if someone tries to redact material.".........Hernandez said the computer system tracks all changes to the video, creating an audit trail that can be checked afterward. “There has not been any evidence so far to substantiate these allegations,” she said, but the matter is still under investigation."

The entire story can be found at:

https://www.abqjournal.com/893929/apd-investigating-allegations-of-doctored-lapel-camera-video.html

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

Shelley Richter: Missourri: Shaken Baby Syndrome; Bulletin: Appeal denied, the daycare provider must serve her 5-year sentence; Link to the Missouri Court of Appeal's full opinion..."Richter ran a daycare service at her home when then-7-month-old Lane Schaeffer suffered a brain injury there in 2010. The Cole County woman claimed she accidentally dropped him on the floor, but several doctors who had worked on Schaeffer said his injuries were caused by shaken baby syndrome."...Reporter Tommy Sladek: KRCG; November 22, 2016.

"Investigators say Shelley Richter shook and seriously injured then seven-month-old Lane Schaeffer at her Taos-home in August of 2010...Shelley Richter, a Cole County daycare provider, was taken into custody to serve her five years imprisonment Tuesday afternoon. Richter appealed her sentence after being found guilty of endangering the welfare of a child in March 2015. The Taos woman was originally convicted of child endangerment in March 2013, but a judge ordered a new trial after it emerged that new evidence from a hotline call was not provided to either side in the first trial. Richter ran a daycare service at her home when then-7-month-old Lane Schaeffer suffered a brain injury there in 2010. The Cole County woman claimed she accidentally dropped him on the floor, but several doctors who had worked on Schaeffer said his injuries were caused by shaken baby syndrome."

As a result of his injuries, Lane is developmentally delayed, blind and will require assistance for the remainder of his life.........To read the Missouri Court of Appeals' full opinion click here."
http://krcgtv.com/news/local/jury-denies-richters-appeal-daycare-provider-sentenced-to-5-years-in-prison

See March 13, 2013 post of this Blog for the defence position on the shaken baby syndrome allegation and testimony for the defence by Dr. John Plunkett, at the link below: "
From earlier coverage: “At the end of the day there’s somewhat complicated medical testimony,” Assistant Prosecutor Cheryl Nield reminded the jury in her final, closing argument. “(But the doctors’) conclusion was consistent that Lane Schaefer was injured by shaking — a non-accidental event.” But that’s not true, said Shane Farrow, Richter’s attorney. “There are inconsistencies amongst these experts who are saying, ‘You can rely on us,’” Farrow reminded the jury. “All said dropping (a child) wouldn’t cause these injuries (but our expert) Dr. Plunkett said these injuries are consistent with being dropped from a short distance.” Farrow agreed Lane Schaefer, now 3, suffered serious, disabling injuries on Aug. 19, 2010, while he was in Richter’s care at her in-home day care in Taos. “This is a tragic case,” he acknowledged, “but that doesn’t mean Shelly Richter knowingly shook Lane Schaefer or knowingly hit his head (on something).” Farrow presented only three witnesses during this morning’s testimony: Richter; Dawn Wilde, a neighbor and former Highway Patrol trooper whom Richter called first, when she realized the boy — then 7 months old — was seriously hurt after she dropped him while falling; and Dr. John Plunkett, a retired Minnesota medical examiner. Plunkett reviewed all of Schaefer’s medical records and the sheriff’s department’s probable cause statement filed with the initial charges, and told the jury this morning that the Missouri doctors were wrong when they concluded Lane’s serious brain injuries were caused by his being shaken. “If you fall and you hit your head, the likelihood of serious injury is pretty high,” Plunkett testified. A Cole County grand jury indicted Richter, now 42, in September 2010 for child abuse, a Class B felony, and endangering the welfare of a child, a Class C felony. Conviction of the abuse charge could result in a prison sentence of five-15 years. Conviction of the “endangering” charge could result in a prison sentence of up to seven years."

http://smithforensic.blogspot.ca/2013/03/bulletin-shelley-richter-missouri_13.html

Nathson Fields; Chicago; When the past comes back to haunt: In ongoing civil trial, police and prosecutors are defending themselves against allegations that they made a secret deal with a former high-ranking gang member and killer for early release in exchange for his testimony against Fields - the plaintiff; (there may be several white elephants in this case - including the nefarious conduct of a judge. As CBS reports: "Fields, also a former high-ranking El Rukn, spent 18 years behind bars, 12 of them on death row, before he was cleared in 2009 for the 1984 murders of Talman Hickman and Jerome “Fuddy” Smith. He was originally convicted alongside Hawkins in 1986. Later, it was revealed that the presiding judge, Thomas Maloney, had taken a $10,000 bribe from Hawkins’ attorney. The judge began to suspect the feds were watching and gave it back.".....

STORY: "Ex-El Rukn killer denies testimony that aided city led to freedom," published by CBS News on November 20, 2016.

GIST: "A former El Rukn general and killer suspected of hatching a secret deal for early release testified Monday that “there wasn’t nothing in it” for him when he helped the city of Chicago defend a lawsuit brought by a man he was once convicted beside. Authorities once vowed that Earl Hawkins wouldn’t get out of prison until his 70s. But months after Hawkins testified against Nathson Fields in April 2014 — telling jurors he had struck no deal with authorities for a break on his prison sentence — Hawkins was a free man. That was enough for U.S. District Judge Matthew Kennelly to order a new trial last year in Fields’ lawsuit against police and prosecutors who put him behind bars. That trial is now underway at the Dirksen Federal Courthouse, where a combative Hawkins took the stand Monday. Fields, also a former high-ranking El Rukn, spent 18 years behind bars, 12 of them on death row, before he was cleared in 2009 for the 1984 murders of Talman Hickman and Jerome “Fuddy” Smith. He was originally convicted alongside Hawkins in 1986. Later, it was revealed that the presiding judge, Thomas Maloney, had taken a $10,000 bribe from Hawkins’ attorney. The judge began to suspect the feds were watching and gave it back. Hawkins left prison late in 2014 after the U.S. Parole Commiss received letters supportive of Hawkins’ parole from Chicago Police detectives David O’Callaghan and Daniel Brannigan, as well as Cook County Assistant State’s Attorney Brian Sexton, records show. But Hawkins told lawyer Jonathan Loevy “that ain’t the reason I got free.”.........He told Loevy he gave the false testimony because “people was badgering me like you are now,” and he wanted to move the proceedings along."

The entire story can be found at:

http://chicago.cbslocal.com/2016/11/29/ex-el-rukn-killer-denies-testimony-that-aided-city-led-to-freedom/

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

John Bunn: Brooklyn, New York: A Louis Scarcella case. He has received a new trial because Scarcella was at the time of the investigation engaged what the judge called "false and misleading practices," the New York Post reports...“The cases of David Ranta, Derrick Hamilton, Robert Hill, Alvena Jennette and Darryl Austin that were investigated by Scarcella […] demonstrate this pattern and practice,” her decision continues, adding Scarcella showed “a disregard for rules, law and truth.”..."Seven of Scarcella’s cases have been thrown out due to allegations of evidence manipulation and witness tampering."

For 'background' see the2013 New York Times story at the link below: "The Brooklyn district attorney’s office has ordered a review of some 50 murder cases assigned to an acclaimed homicide detective, an acknowledgment of mounting questions about the officer’s tactics and the legitimacy of the convictions. The office’s Conviction Integrity Unit will reopen every murder case that resulted in a guilty verdict after being investigated by Detective Louis Scarcella, a flashy officer who handled some of Brooklyn’s most notorious crimes during the crack epidemic of the 1980s and 1990s. The development comes after The New York Times examined a dozen cases involving Mr. Scarcella and found disturbing patterns, including the detective’s reliance on the same eyewitness, a crack-addicted prostitute, for multiple murder prosecutions and his delivery of confessions from suspects who later said they had told him nothing. At the same time, defense lawyers, inmates and prisoner advocacy organizations have contacted the district attorney’s office to share their own suspicions about Mr. Scarcella."

http://www.nytimes.com/2013/05/12/nyregion/doubts-about-detective-haunt-50-murder-cases.html?action=click&contentCollection=N.Y.%20%2F%20Region&module=RelatedCoverage&region=EndOfArticle&pgtype=article

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

Tuesday, November 29, 2016

Bobby Moore: Texas; On death row for 1980 killing, earlier today (November 20, 2016) his lawyers asked The U.S. Supreme Court to spare his life on the basis that the test applied by the State of Texas to determine whether people with intellectual disabilities can be executed does not conform with more current medical standards..."The Texas Court of Criminal Appeals later confined the assessment of Moore’s intellectual capacity to the 1992 manual. This assessment included a finding that Moore has scored in the mid-70s on IQ tests. The manual has since been updated, and more current medical standards de-emphasize rigid IQ scores and place greater weight on the individual’s real-world abilities to adapt and function. Justices Ruth Bader Ginsburg and Stephen Breyer both joined Kagan and Sotomayor on Tuesday in sounding sympathetic to Moore’s case. “You’ve made very good arguments for your client,” Breyer told Sloan."..."The argument Tuesday was the second involving a Texas death-row inmate to be heard this term. In October, justices sounded sympathetic to a separate, and relatively narrow, challenge brought by Duane Edward Buck. A jury in 1996 convicted Buck of killing two people and wounding his step-sister, and he was sentenced to death after a psychologist summoned by his own defense attorney concluded that being “‘Black’ was a ‘statistical factor’” that increased the probability that Buck would commit future acts of violence. In keeping with his standard practice, Justice Clarence Thomas did not speak or ask questions during oral argument for either of the Texas cases. He is, however, a reliable vote to uphold death sentences as a general matter. Decisions in both cases are expected by the end of next June."

QUOTE OF THE DAY: “He couldn’t tell the days of the week. He couldn’t tell the months of the year; couldn’t tell time... (Moore) “was eating out of garbage cans repeatedly and getting sick after each time he did it, but not learning from his mistakes.”

Justice Sonia Sotomayor;

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

STORY: "Texas; On death row for 1980 killing, Texas inmate asks Supreme Court to spare him," by reporter Michael Doyle, published by McClatchy on Novemeber 29, 2016.

PHOTO CAPTION: "The U.S. Supreme Court on Tuesday heard arguments over whether Moore was ineligible for execution because he’s intellectually disabled.

GIST: "A Texas death-row inmate who once struggled to spell the word “cat” exposed on Tuesday sharp differences among Supreme Court justices over capital punishment and the judging of intellectual disability. In an hour-long oral argument set against the backdrop of an upcoming confirmation battle, the short-handed court seemed split along conventional conservative and liberal lines. The fate of inmate Bobby James Moore and others like him who are on the borderline of intellectual disability now appears to hang on one swing vote, that of Justice Anthony Kennedy. “This is a vitally important, life or death issue,” Moore’s attorney, Clifford M. Sloan, told the justices. In 2002, the court held that the Eighth Amendment prohibits the execution of people with intellectual disabilities. It’s been up to individual states to determine how this standard is met. In Moore’s case, Texas applied a standard subsequently spelled out in a 1992 manual by the American Association of Mental Retardation. Critics, including Moore’s attorneys, consider this standard outdated, and some justices Tuesday clearly agreed. “Your view ... of state discretion is that a person that every clinician would find is intellectually disabled, the state would not find is intellectually disabled, because a consensus of Texas citizens would not find that person to be intellectually disabled,” a skeptical Justice Elena Kagan told Texas Solicitor General Scott A. Keller. Texas officials, Kagan said, believe they “can execute people that clinicians would say are disabled.” There is no question that Texas is very extreme and stands alone. Defense attorney Clifford M. Sloan The son of an abusive alcoholic father, Moore began skipping school in fourth grade and dropped out altogether after ninth grade. His father, who had allegedly beat Moore when he did poorly in school and when he couldn’t spell easy words, kicked him out of the house when he was 14. “He couldn’t tell the days of the week. He couldn’t tell the months of the year; couldn’t tell time,” Justice Sonia Sotomayor said, adding that Moore “was eating out of garbage cans repeatedly and getting sick after each time he did it, but not learning from his mistakes.” By the time he was 17, Moore was a felon who financed his drug use by stealing cars, burglarizing houses and hustling pool. In April 1980, Moore and two accomplices agreed to commit a robbery. Moore supplied a .32 caliber pistol and a shotgun, and the three men drove around Houston until they came upon Birdsall Super Market. Donning a wig and sunglasses, Moore entered the store with the other two robbers and then, prosecutors say, Moore shot and killed 70-year-old James McCarble. Moore said the firearm discharge was accidental. The Texas Court of Criminal Appeals later confined the assessment of Moore’s intellectual capacity to the 1992 manual. This assessment included a finding that Moore has scored in the mid-70s on IQ tests. The manual has since been updated, and more current medical standards de-emphasize rigid IQ scores and place greater weight on the individual’s real-world abilities to adapt and function. Justices Ruth Bader Ginsburg and Stephen Breyer both joined Kagan and Sotomayor on Tuesday in sounding sympathetic to Moore’s case. “You’ve made very good arguments for your client,” Breyer told Sloan. Texas, in turn, had apparent allies in Chief Justice John Roberts Jr., and, in particular, Justice Samuel Alito, a former federal prosecutor. At one point, Alito pulled out a particular academic journal to support his point. “Texas is not prohibiting the use of current standards,” Keller said. The argument Tuesday was the second involving a Texas death-row inmate to be heard this term. In October, justices sounded sympathetic to a separate, and relatively narrow, challenge brought by Duane Edward Buck.
A jury in 1996 convicted Buck of killing two people and wounding his step-sister, and he was sentenced to death after a psychologist summoned by his own defense attorney concluded that being “‘Black’ was a ‘statistical factor’” that increased the probability that Buck would commit future acts of violence. In keeping with his standard practice, Justice Clarence Thomas did not speak or ask questions during oral argument for either of the Texas cases. He is, however, a reliable vote to uphold death sentences as a general matter. Decisions in both cases are expected by the end of next June."

The entire story can be found at;

Read more here: http://www.mcclatchydc.com/news/crime/article117744653.html#storylink=cpy

http://www.mcclatchydc.com/news/crime/article117744653.html

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

The former doctor Charles Randal Smith: namesake of this Blog: At last a definitive book of the notorious pathologist and his victims: It's 'Death in the Family' ... by CBC reporter John Chipman published by Doubleday/Random House, to be released on January 10, 2017)...."Among those charged to “think dirty” was Dr. Charles Smith, Ontario’s top pediatric forensic pathologist at the time. But with virtually no training in forensics, Dr. Smith was ill prepared for his work. Instead of basing his judgments on forensic evidence found during autopsies, he allowed himself to be swayed by circumstantial evidence. The defendants were often single mothers–some on welfare, some struggling with substance abuse. And they made for easy targets. Dr. Smith made dangerous assumptions, and the results were catastrophic. Numerous individuals were pronounced guilty, and incarcerated, on his shaky evidence. This penetrating investigative work explores the wide ripples of destruction caused when the justice system fails, the burden felt by ethical individuals working within that system and the importance of its victims finally being heard." (Publisher's backgrounder)..." I am particularly pleased to see the publication of this book by Doubleday/Random House, as I have always been deeply concerned that without such a work Smith will do his best to fill the vacuum with his usual mantra explaining actions as innocent 'errors' and 'mistakes' (as he did in his testimony at the Goudge Inquiry into many of his cases); I have been concerned that with the passage of time and indifference he will claim to be a victim of a vendetta by his jealous, lesser 'peers.' I have been concerned that he will drag out his well-worn fatuous claim that any other pathologist, with the knowledge available at the time, would have reached the same conclusions. HL);

PUBLISHER'S NOTE: A definitive book on disgraced former doctor Charles Smith by John Chipman is a major event. John Chipman is a journalist, author and documentarian, and is currently a producer at CBC Radio's As It Happens. His work has taken him across Canada, to Eastern Europe, the Balkans and the Middle East. He has worked, written and edited for the National Post, The Globe and Mail and the Toronto Star. He also co-produced a Gemini-award-winning television documentary for The Fifth Estate, and has done numerous radio documentaries and special features for The Current, Metro Morning and The Sunday Edition. He is the author of The Obsession: Tragedy in the North Atlantic. In my personal view, he is a Journalist with a capital 'J' in the finest sense of the word. I am particularly pleased to see the publication of this book by Doubleday/Random House, as I have always been deeply concerned that without such a work, Smith will be all to willingly try and fill the vacuum with his usual mantra explaining actions as innocent errors and mistakes; I have been concerned that he will, with the passage of time and indifference claim to be a victim of a vendetta be his jealous, lesser 'peers.' I have been concerned that, without a true, popular account of Smith's actions and their impact on his victims, Smith will drag out his well-worn fatuous claim that any other pathologist, with the knowledge available at the time, would have reached the same conclusions. I haven't read 'Death in the Family 'yet - (can't wait to!) - but Julian Sher, also an outstanding journalist whose opinions I also trust, has read the book, and writes in a blurb: “With the clinical precision and the driving passion for the truth that are the hallmarks of every great journalist, John Chipman takes you on a harrowing journey into a parent’s worst nightmare: not only has your child died, but you are wrongly blamed for the death. Shocking, enraging and yet ultimately uplifting, Chipman’s investigation adds yet another haunting chapter to Canada’s long history of wrongful convictions.”Julian is author of “Until You Are Dead”: Steven Truscott’s Long Ride into History." Michael Harris, author of Justice Denied, Unholy Orders and Party of One, writes in an advance blurb: “Chipman explains how an incompetent pathologist helped convict innocent parents of their children’s deaths and allowed a murderer to go free. Brimming with emotional intelligence, the ending of this book is stunning. Bravo!”

Harold Levy: Publisher: The Charles Smith Blog.

PUBLISHER'S DESCRIPTION: "In a work of vigorous reporting, careful analysis, deep compassion and unerring integrity, award-winning journalist and documentarian John Chipman investigates the lives left ruined in the wake of Dr. Charles Smith’s ignominious career.

BACKGROUND PROVIDED BY THE PUBLISHER: "In the mid-’90s, the Ontario Coroner’s office decided that death investigation teams needed to “think dirty.” They wanted coroners, pathologists and police to be more suspicious–to “assume that all deaths are homicides until satisfied that they are not.” They were particularly concerned about pediatric deaths, which historically had been exceedingly difficult to investigate. There were usually no witnesses; no evidence to gather at the scene; no outward signs of trauma on the body. If the pathologist did not discover the truth of what had happened, child abuse could go uncovered. Among those charged to “think dirty” was Dr. Charles Smith, Ontario’s top pediatric forensic pathologist at the time. But with virtually no training in forensics, Dr. Smith was ill prepared for his work. Instead of basing his judgments on forensic evidence found during autopsies, he allowed himself to be swayed by circumstantial evidence. The defendants were often single mothers–some on welfare, some struggling with substance abuse. And they made for easy targets. Dr. Smith made dangerous assumptions, and the results were catastrophic. Numerous individuals were pronounced guilty, and incarcerated, on his shaky evidence. This penetrating investigative work explores the wide ripples of destruction caused when the justice system fails, the burden felt by ethical individuals working within that system and the importance of its victims finally being heard."

Random House Web page - with pre-ordering for 'Death in the Family' at a reduced rate , at the link below:

http://www.penguinrandomhouse.com/books/228817/death-in-the-family-by-john-chipman/9780385680844/

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

Pedro Hernandez: New York; False confession case: On-going trial: Wall Street Journal Reporter Thomas MacMillan reports on testimony by an assistant district attorney that the accused killer of 6-year-old Etan Patz went into a frtal position during a police interview - and that he repeatedly asked to go home..."Ms. Nguyen said she watched several hours of the 2012 interview, which took place in a New Jersey prosecutor’s office, via a live video and audio feed. At some point, Mr. Hernandez began rocking back and forth in his chair, then got down on the floor of the interview room in the fetal position, without explanation, Ms. Nguyen said. New York police Detective James Lamendola continued to ask Mr. Hernandez questions and got him a jacket when he said he was cold, Ms. Nguyen said. Mr. Hernandez asked several times to go home, including when he was on the ground, Ms. Nguyen said. Each time, police persuaded him to stay and answer more questions, she said. Eventually, Mr. Hernandez confessed, she said. “He said, ‘I did it. I’m sorry. I choked the boy.’” During cross-examination, defense attorney Alice Fontier asked about Mr. Hernandez’s several requests to end the interview, which detectives repeatedly diverted. “When he said, ‘I want to go home,’ nobody stood up and pointed to the door and got out of his way,” Ms. Fontier said. Ms. Fontier also highlighted how Detective Lamendola probed Mr. Hernandez’s religious beliefs and was “playing psychologist” with Mr. Hernandez by asking him about his allegedly abusive childhood while telling him that abuse victims often become perpetrators later in life. Ms. Nguyen said Detective Lamendola repeatedly urged Mr. Hernandez to just tell the truth."

PUBLISHER'S NOTE:

The murder trial is under way in Manhattan Supreme Court. I have been digging in from time to time when the evidence focusses on defence claims that Hernandez's confession was false - the product of hours of aggressive questioning of a man with mental illness and a low IQ.

Harold Levy;

Publisher; The Charles Smith Blog;

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

STORY: "Accused killer of Etan Patz took fetal position in police interview, witness," by reporter Thomas MacMillan, published by the Wall Street Journal on November 28, 2016.

GIST: Several hours into a police interview of the man accused of killing 6-year-old Etan Patz, the suspect was curled on the floor in the fetal position and asking to go home, an assistant district attorney testified Monday. Virginia Nguyen shared that information from the witness stand in Manhattan Supreme Court, where Pedro Hernandez, 55, faces murder and kidnapping charges related to Etan’s 1979 disappearance. In 2012, Mr. Hernandez told investigators that he lured the first-grader into the basement of a bodega in SoHo, strangled him and then disposed of his body. His defense attorneys argue that the confession was false, the product of hours of aggressive questioning of a man with mental illness and a low IQ. Ms. Nguyen testified Monday that 90% to 95% of the questions detectives asked Mr. Hernandez before his confession were about his family and work history. “It was like a witness interview,” she said. “They were just asking questions and trying to figure out who he was and what information he had.” Ms. Nguyen said she watched several hours of the 2012 interview, which took place in a New Jersey prosecutor’s office, via a live video and audio feed. At some point, Mr. Hernandez began rocking back and forth in his chair, then got down on the floor of the interview room in the fetal position, without explanation, Ms. Nguyen said. New York police Detective James Lamendola continued to ask Mr. Hernandez questions and got him a jacket when he said he was cold, Ms. Nguyen said. Mr. Hernandez asked several times to go home, including when he was on the ground, Ms. Nguyen said. Each time, police persuaded him to stay and answer more questions, she said. Eventually, Mr. Hernandez confessed, she said. “He said, ‘I did it. I’m sorry. I choked the boy.’” During cross-examination, defense attorney Alice Fontier asked about Mr. Hernandez’s several requests to end the interview, which detectives repeatedly diverted. “When he said, ‘I want to go home,’ nobody stood up and pointed to the door and got out of his way,” Ms. Fontier said. Ms. Fontier also highlighted how Detective Lamendola probed Mr. Hernandez’s religious beliefs and was “playing psychologist” with Mr. Hernandez by asking him about his allegedly abusive childhood while telling him that abuse victims often become perpetrators later in life. Ms. Nguyen said Detective Lamendola repeatedly urged Mr. Hernandez to just tell the truth."

The entire story can be found at:

http://www.wsj.com/articles/accused-killer-of-etan-patz-took-fetal-position-in-police-interview-witness-1480374829

Bobby Moore: Texas: (Supreme Court review set for today, November 29, 2016): The Economist aptly calls it 'Texas v science' - as it notes that "the Supreme Court is set to review a death sentence grounded in fiction."..."In the wake of Atkins v Virginia, a Supreme Court ruling from 2002, Mr Moore’s lawyers challenged his death sentence. In Atkins, the justices had determined, by a 6-3 vote, that executing “mentally retarded” individuals amounts to “the needless imposition of pain and suffering” in violation of the 8th Amendment bar on “cruel and unusual punishments”. In 2014, Mr Moore was removed from death row after a judge concluded, based on expert testimony, that his mental impairment qualified him for exemption under Atkins. But a panel of judges at the Texas Court of Criminal Appeals reversed that ruling a year later. In consulting the “definition of intellectual disability presently used by the AAIDD [American Association on Intellectual and Developmental Disabilities]”, Judge Cheryl Johnson wrote, the trial court had mistakenly used a newfangled standard. Since Atkins leaves it up to the states to decide who counts as intellectually disabled, Ms Johnson noted, and since the Texas legislature had not weighed in, the rule in the Lone Star state should be traced back to a 1992 standard the court had relied upon in Ex Parte Briseño, a 2004 ruling. According to this definition, which the court suggested was based upon the character in Mr Steinbeck’s novel, neither a low IQ nor a deficit in “adaptive behaviour” qualifies an individual as intellectually disabled unless the latter is directly traceable to the former. “Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt”, Judge Cathy Cochran wrote. But lawbreakers who are less impaired than the fictional farmhand, she suggested, should not be released from "an otherwise constitutional penalty"..."In a shifting political climate where respect for scientific consensus is no longer a sure bet, Texas maintains that it can choose from a range of standards for intellectual disability, including one drawn from the pages of a novel. Next week, (November 29, 2016) the Supreme Court will probe whether the state is justified in putting people to death based on ideas that are disavowed by mental health professionals—and used nowhere else in America."

STORY: "Texas v science The Supreme Court is set to review a death sentence grounded in fiction," published by The Economist on November 23, 2016.

GIST: "Fans of “Of Mice and Men”, the 1937 novella by John Steinbeck, will recall the character of Lennie Small, an oafish, dim-witted man whose physical strength is ill matched to his love of rabbits. On November 29th, in a remarkable example of law imitating art, a hearing at the Supreme Court will put Lennie back in the spotlight. The question is whether the fictional man’s intellectual profile should help determine the fate of Bobby Moore, a real-life Texan awaiting execution......... In the wake of Atkins v Virginia, a Supreme Court ruling from 2002, Mr Moore’s lawyers challenged his death sentence. In Atkins, the justices had determined, by a 6-3 vote, that executing “mentally retarded” individuals amounts to “the needless imposition of pain and suffering” in violation of the 8th Amendment bar on “cruel and unusual punishments”. In 2014, Mr Moore was removed from death row after a judge concluded, based on expert testimony, that his mental impairment qualified him for exemption under Atkins. But a panel of judges at the Texas Court of Criminal Appeals reversed that ruling a year later. In consulting the “definition of intellectual disability presently used by the AAIDD [American Association on Intellectual and Developmental Disabilities]”, Judge Cheryl Johnson wrote, the trial court had mistakenly used a newfangled standard. Since Atkins leaves it up to the states to decide who counts as intellectually disabled, Ms Johnson noted, and since the Texas legislature had not weighed in, the rule in the Lone Star state should be traced back to a 1992 standard the court had relied upon in Ex Parte Briseño, a 2004 ruling. According to this definition, which the court suggested was based upon the character in Mr Steinbeck’s novel, neither a low IQ nor a deficit in “adaptive behaviour” qualifies an individual as intellectually disabled unless the latter is directly traceable to the former. “Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt”, Judge Cathy Cochran wrote. But lawbreakers who are less impaired than the fictional farmhand, she suggested, should not be released from "an otherwise constitutional penalty". In Ms Johnson's estimation, Mr Moore showed plenty of signs of basic intelligence. He “took it upon himself to earn money from the neighbours and then used the money to buy food” for his siblings, she noted. In committing his crime, he showed the ability to “hide facts” and “lie effectively in his own interest”. And he “doggedly pursued his desire to obtain new appellate counsel” after his conviction in 1980. So despite his IQ scores hovering in the low 70s, Ms Johnson concluded, Mr Moore does not meet the Texas standard for intellectual disability. He is “a person capable of functioning adequately in his everyday world with intellectual understanding and moral appreciation of his behaviour”.This assured assessment of Mr Moore’s ability to carry out basic life functions is starkly at odds with the professional judgment of a psychologist who reviewed his file. And the judge’s casual observations about Mr Moore bear little relationship to updated, unanimously agreed upon standards of intellectual disability......... In an amicus brief, the American Psychological Association (APA) identifies several problems with Texas’s regime. First, Ms Johnson “refus[ed] to recognise...diagnostic advances” in clinical standards since 1992, turning a blind eye to more recent diagnostic manuals with updated definitions. Second, the Texas criminal court ignored the Supreme Court’s 2014 decision in Hall v Florida, which eliminated Florida’s IQ score cutoff of 70; Mr Moore’s IQ score “between 69 and 79” is, by itself, “sufficient...to diagnose significant limitations in intellectual functioning”. And Ms Johnson's armchair observations about Mr Moore’s capacities, the APA argued, are “unsupported by any scientific or medical evidence and inconsistent with the...standards used by mental health professionals”. In short, behavioural deficits and compromised intelligence—not complete incompetence—are the hallmarks of people with intellectual disabilities. In a shifting political climate where respect for scientific consensus is no longer a sure bet, Texas maintains that it can choose from a range of standards for intellectual disability, including one drawn from the pages of a novel. Next week, the Supreme Court will probe whether the state is justified in putting people to death based on ideas that are disavowed by mental health professionals—and used nowhere else in America."

The entire story can be found at:

http://www.economist.com/blogs/democracyinamerica/2016/11/texas-v-science

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

Leo Ackley; Michigan; Still maintaining his innocence, he has been sentenced a second time to spend the rest of his life in prison without parole for felony murder and first-degree child abuse in the 2011 death of his former girlfriend's 3-year-old daughter, The Battle Creek Enquirer reports...."Calhoun County prosecutors and the Battle Creek police alleged that Ackley caused the injury while he was caring for the child on July 28, 2011, but Ackley maintained she may have been injured in a fall from bed or several days earlier in a fall while playing."..."Ackley was convicted of open murder and child abuse in 2012 but the case was reversed on appeal because the defense did not present an expert to dispute the cause of death."...""This case came back for retrial," (Judge) Hallacy said. "Now a second jury has convicted you of the same thing. Twenty-four independent people from across this county have come together and come up with the same decision. To me, to get 12 people to agree on anything in this world is difficult. Given the evidence that was presented twice, there have been two juries that convicted you." Outside the courtroom, Ackley's mother, Linda Byrd dismissed that conclusion. "We were in Calhoun County and they were not two separate juries," she said. "They saw it on TV and they were watching the whole time it was going on. I could tell by the look on some of the jurors they were not happy they had to say guilty. I don't know if anyone else noticed but you don't come out upset and crying because you just convicted somebody you thought hurt somebody." Byrd said her family will continue seeking a reversal of the conviction."

STORY: "Leo Ackley again sentenced to life in prison, by reporter Trace Christenson, published by The Battle Creek Enquirer on November 28, 2016.

GIST: Still maintaining his innocence, Leo Ackley was sentenced a second time to spend the rest of his life in prison. Ackley, 30, was sentenced Monday to life without parole for felony murder and first-degree child abuse in the 2011 death of Baylee Stenman, 3. The daughter of his former girlfriend died Aug. 1, 2011, from what pathologists said was blunt-force trauma to her head suffered a few days earlier. Calhoun County prosecutors and the Battle Creek police alleged that Ackley caused the injury while he was caring for the child on July 28, 2011, but Ackley maintained she may have been injured in a fall from bed or several days earlier in a fall while playing.........Ackley was convicted of open murder and child abuse in 2012 but the case was reversed on appeal because the defense did not present an expert to dispute the cause of death. "This case came back for retrial," Hallacy said. "Now a second jury has convicted you of the same thing. Twenty-four independent people from across this county have come together and come up with the same decision. To me, to get 12 people to agree on anything in this world is difficult. Given the evidence that was presented twice, there have been two juries that convicted you." Outside the courtroom, Ackley's mother, Linda Byrd dismissed that conclusion. "We were in Calhoun County and they were not two separate juries," she said. "They saw it on TV and they were watching the whole time it was going on. I could tell by the look on some of the jurors they were not happy they had to say guilty. I don't know if anyone else noticed but you don't come out upset and crying because you just convicted somebody you thought hurt somebody."
Byrd said her family will continue seeking a reversal of the conviction."

The entire story can be found at:

http://www.battlecreekenquirer.com/story/news/local/2016/11/28/leo-ackley-again-sentenced-life-prison/94558444/

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

[the charles smith blog] William Mullins-Johnson; Leanne Thibeault; Northern Ontario; These 'Charles Smith' cases are the focus of a new play - 'Conviction' - by accomplished Canadian Playwrite Emil Sher - now being workshopped in Sudbury, Ontario..." In this intimate performance space, you will witness the reverberations of a story stretching from Toronto across northern Ontario, unravelling the lives of two families in the process. Bill Mullins-Johnson of Sault Ste. Marie spends 12 years in prison for murdering his four-year-old niece. Lianne Thibeault of Sudbury is charged with killing her 11-month-old son. Their worlds are shattered by the unwavering testimony of Dr. Charles Smith, who eventually admitted his training in forensic pathology was “self-taught.” This new work explores the world of the wrongfully convicted, weaving verbatim text — interviews, articles, court transcripts — into a theatrical whole delivered by local actors. "Conviction" raises the questions: Whose testimony counts, whose voices do we listen to, and what are the consequences when we do not?"

STORY: "Wrongful conviction focus of play being workshopped at STC tonight," published by Sudbury.com on November 25, 2016.

SUB-HEADING: "Emil Sher looks into the lives ruined by disgraced former pathologist Dr. Charles Smith."

GIST: "Sudbury Theatre Centre presents a special verbatim workshop reading of Emil Sher’s "Conviction" this Friday evening. It'll be presented starting at 7:30 p.m. in the theatre centre's cabaret space. In this intimate performance space, you will witness the reverberations of a story stretching from Toronto across northern Ontario, unravelling the lives of two families in the process. Bill Mullins-Johnson of Sault Ste. Marie spends 12 years in prison for murdering his four-year-old niece. Lianne Thibeault of Sudbury is charged with killing her 11-month-old son. Their worlds are shattered by the unwavering testimony of Dr. Charles Smith, who eventually admitted his training in forensic pathology was “self-taught.” This new work explores the world of the wrongfully convicted, weaving verbatim text — interviews, articles, court transcripts — into a theatrical whole delivered by local actors. "Conviction" raises the questions: Whose testimony counts, whose voices do we listen to, and what are the consequences when we do not?"

The entire story can be found at:

https://www.sudbury.com/lifestyle/wrongful-conviction-focus-of-play-being-workshopped-at-stc-tonight-473881

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

Monday, November 28, 2016

Mixed DNA; PCAST (3)...(President's Council of Advisors on Science and Technology)...Bloomberg View columnist Faye Flam demonstrates how much vaunted DNA evidence went from Airtight to error-prone on Bloomberg View..."Analyzing mixtures of DNA is “not like a Ouija board -- it’s not junk science in that sense,” said David Kaye, a law professor at Penn State University and author several books on forensic science. Scientists can extract useful information from those mixtures, he said. But he agrees with the report that right now there’s no reliable, consistent protocol for interpreting that information. “Forensic science is not regulated the way clinical medical labs are,” Kaye said. “And people are being put to death.” DNA is reliable when it’s analyzed correctly, there’s a large enough sample, and it comes from just one person." - Bloomberg View

STORY: "How DNA Evidence Went From Airtight to Error," by Faye Flam , published by Bloomberg View on November 22, 2016. ("Faye Flam is a Bloomberg View columnist. She was a staff writer for Science magazine and a columnist for the Philadelphia Inquirer, and she is the author of “The Score: How the Quest for Sex Has Shaped the Modern Man.”)

GIST: Blind faith in any technology can be dangerous -- especially when it comes to areas of forensic science such as DNA fingerprinting. For example, if police have “DNA evidence” against a suspect, most juries will assume that’s proof of guilt. But while the technology for analyzing DNA has become vastly more sensitive since it was first introduced in courts in the 1990s, crime labs are working with ever more minute traces -- sometimes just a few molecules -- and drawing inconsistent or erroneous conclusions from them. In fact, there’s good reason to believe DNA evidence has sent people to prison for crimes they didn’t commit. That’s the conclusion of a recent report commissioned by the President’s Council of Advisors on Science and Technology (PCAST), which called into question the increasingly common practice of analyzing mixtures of DNA from several individuals. Police can now collect DNA not only from blood stains and other bodily fluids, but from traces of cells left behind when people touch door handles, guns or other objects associated with crime scenes. These so-called “touch DNA” samples often include a mixture of genetic material from multiple people who handled those items. The report didn’t just focus on DNA analysis -- it surveyed a variety of forensic techniques, such as bite-mark and footprint analysis, and it found many scientifically lacking. Labs were inconsistent in their results and grossly underestimated how likely they were to be wrong. But the problems with DNA analysis are particularly worrisome, since jurors have such strong faith in its accuracy. Analyzing mixtures of DNA is “not like a Ouija board -- it’s not junk science in that sense,” said David Kaye, a law professor at Penn State University and author several books on forensic science. Scientists can extract useful information from those mixtures, he said. But he agrees with the report that right now there’s no reliable, consistent protocol for interpreting that information. “Forensic science is not regulated the way clinical medical labs are,” Kaye said. “And people are being put to death.” DNA is reliable when it’s analyzed correctly, there’s a large enough sample, and it comes from just one person. The traditional system uses 13 different sites on the chromosomes where the genetic code tends to hiccup -- five, 10 or maybe 20 times. The number of hiccups in each area varies from person to person. If two samples match the number of hiccups at all 13 sites, the odds of them coming different people are one in billions. That changes when DNA in a sample is a mixture. Drawing inferences from these is much shakier. The report cites several shocking cases, including one in which a prosecutor told a jury the chance of a mistaken DNA match was one in 1.1 billion. A later analysis of the evidence put it at “closer to one in two.” Molecular geneticist Greg Hampikian believes poor mixture analysis led to a wrongful conviction of a Georgia man named Kerry Robinson. A woman who had been raped by several men identified one suspect, who was offered a deal if he could identify his accomplices. That man made several guesses, said Hampikian, and eventually named Robinson. While the victim couldn’t identify him, Robinson was convicted and sent to prison based on DNA evidence. Hampikian, who volunteers as head the Idaho Innocence Project, examined the DNA, and concluded that it not only failed to implicate Robinson, it excluded him. He decided to use the case to prove a wider point, taking the same DNA samples to another lab and asking 17 different experts to analyze it. Only one concluded that the DNA might have come from Robinson. All the others said it was inconclusive or excluded him. Hampikian’s study was cited in the PCAST report. Robinson remains in prison. Another problem Hampikian finds with DNA is that the use of minuscule samples, often just a few cells, makes contamination hard to avoid. Such a trace analysis led to the famous conviction of American exchange student Amanda Knox, who was accused of murdering a woman she had roomed with in Italy. Knox and her Italian boyfriend were both sent to prison based on a fragment of DNA allegedly belonging to the victim found on a knife pulled from the boyfriend’s kitchen drawer. Independent Italian scientists reviewed the case on appeal and concluded that the DNA was most likely transferred through contamination. Knox’s conviction was overturned -- but not until she had already served four years in prison. Illustrating the problem, Hampikian had his students at Boise State University pick up soda cans left in an office after the lunch hour and put them in evidence bags. Later, they performed DNA analysis on newly purchased knives. The DNA from a faculty member appeared on the knives, even though nobody but the students had been near them. All science is inherently uncertain, but good scientists know how to measure and express that uncertainty. In contrast, Hampikian said he often hears expert witnesses use phrases such as “high degree of scientific certainty,” or “match.” His view is echoed in the report, which says that it’s “not scientifically defensible” to claim any conclusion “100 percent certain” or to say an error rate is “zero,” “essentially zero” or “negligible.” While some journalists have labeled the techniques in the report “junk science,” the report never used that phrase. Nor did it recommend scrapping any practices. Instead, the panel recommended independent testing to determine how well the techniques work. Unfortunately, scientists seem to be more enthusiastic about those conclusions than law enforcement. The FBI objected that the report makes “broad, unsupported assertions,” and Attorney General Loretta Lynch countered “the current legal standards regarding the admissibility of forensic evidence are based on sound science.” But the report is a valuable gift from eminent scientists to the FBI. Both, after all, are professional seekers of truth. Scientists know that some degree of error in inevitable, and that overconfidence can lead them astray. That’s why they have methods designed to overcome bias, acknowledge uncertainty, and correct their mistakes. In this sense, the scientific method offers a lesson for law enforcement: Admitting you could be wrong is often the first step toward getting things right."

The entire story can be found at:

https://www.bloomberg.com/view/articles/2016-11-22/how-dna-evidence-went-from-airtight-to-error-prone

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

PCAST (2): President's Advisory Council on Science and Technology; Editorial; 'Forensic's weak convictions: 'The Blade' supports a call by the Ohio public defender for a review of cases where forensic “science” that’s been called into question may have helped send people to prison..."It’s reasonable for defense-side institutions, such as the state public defender's office and the Innocence Project, to take primary responsibility for reviewing cases. They're more likely to read ambiguous records in ways that favor defendants. But since the defense side can’t even look at many cases unless BCI identifies them, BCI must at the very least tell the public defender what cases it has used each kind of forensic science in. Beyond that, it should cooperate fully with the review, providing whatever notes and other records it can. BCI’s obligation is to pursue truth and justice, even when that means reversing convictions."

EDITORIAL: 'Forensics’ weak convictions," published by 'The Blade', on November 19, 2016.

GIST: "The Ohio public defender wants there to be a review of cases where forensic “science” that’s been called into question may have helped send people to prison. While defense-side institutions should take the lead in such a review, the attorney general and the Bureau of Criminal Investigation must fully cooperate. In many cases where DNA has cleared a defendant, forensic scientists had “incorrectly” told juries that similarities between hair or other samples from a crime scene and a suspect “implicated defendants … with a high degree of certainty,” the President’s Council of Advisors on Science and Technology said in a September report. Timothy Young, the state public defender, told The Blade editorial board that when it comes to hair, you can never say “match.” He’s prioritizing hair, but he wants to move on to other pattern-recognition cases. At least some of the sciences that have been questioned do have value, he said, but they may have been treated as if they were more reliable than the evidence shows they are. Attorney General Mike DeWine told The Blade editorial board that BCI has stopped doing hair comparisons. “It’s not like a fingerprint,” he said. It’s even legitimate to ask whether some of the “forensic sciences” that have been practiced are sciences at all. “A so-called expert may not be able to do any more evaluation, really, than a layperson could do.” The public defender needs BCI’s help to identify what sort of testing it did in what cases because public defense is decentralized in Ohio and many cases lack electronic transcripts. So it’s basically impossible for the defense bar to identify cases where these questionable forensic sciences were used.........New science doesn't mean that prosecutors or witnesses acted in bad faith when they relied on old standards. Nevertheless, we should try to avoid keeping innocent people in prison because of mistakes we can correct. So it is worth looking for cases where too much weight was placed on scientific evidence that isn't strong enough to bear it. It’s reasonable for defense-side institutions, such as the state public defender's office and the Innocence Project, to take primary responsibility for reviewing cases. They're more likely to read ambiguous records in ways that favor defendants. But since the defense side can’t even look at many cases unless BCI identifies them, BCI must at the very least tell the public defender what cases it has used each kind of forensic science in. Beyond that, it should cooperate fully with the review, providing whatever notes and other records it can. BCI’s obligation is to pursue truth and justice, even when that means reversing convictions."

The entire editorial can be found at:

http://www.toledoblade.com/Editorials/2016/11/19/Forensics-weak-convictions.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog. -- Posted By Harold Levy to the charles smith blog at 11/28/2016 01:09:00 PM

PCAST: (1); (The President’s Council of Advisors on Science and Technology): Bulletin: Mark your calender; Webinar to help public defenders make use of the PCAST report to be held on December 2, 2016. Aimed at helping defence lawyers challenge prosecution expert witnesses as to the scientific validity of their discipline; (The post presents a helpful summary of the report. HL)..."This report will be useful for attorneys considering a challenge to testimony by forensic experts, as it explains in an accessible way what must be shown to demonstrate reliable principles and methods and reliable application of those principles and methods in a particular case. It is a worthwhile read for every criminal advocate as it suggests a framework for making a rigorous challenge to the admissibility of expert testimony."...Forensic Science of North Carolina Blog;

POST: The PCAST report gives an in-depth look at the current state of certain forensic science disciplines. It makes recommendations as to the use of forensic science evidence in court, improvements to be made in research and improvements to be made in forensic science in general. ........This report will be very useful in the courtroom, as it uses a framework to assess scientific validity that mirrors the NC Rule of Evidence 702, which governs the admissibility of expert testimony. The report evaluates whether eight areas of forensic evidence are foundationally valid and validly applied, which are equivalent to prongs two and three of Rule 702 (whether the testimony is the product of reliable principles and methods (prong 2) and whether the witness has applied the principles and methods reliably to the facts of the case (prong 3))....The summary for each discipline examined is as follows.........This report will be useful for attorneys considering a challenge to testimony by forensic experts, as it explains in an accessible way what must be shown to demonstrate reliable principles and methods and reliable application of those principles and methods in a particular case. It is a worthwhile read for every criminal advocate as it suggests a framework for making a rigorous challenge to the admissibility of expert testimony. The National Association for Public Defense is offering a webinar entitled, Denuding the Emperor: Understanding and Using the PCAST Forensic Science Report at 1:00 pm on Dec. 2, 2016. Andrew Northrup, Assistant Public Defender in the Maryland Office of the Public Defender will discuss how the PCAST report can be used in the courtroom. The program is free of charge for NAPD members and $20 for non-members.
https://ncforensics.wordpress.com/2016/11/21/using-the-pcast-report-in-the-courtroom/

Sunday, November 27, 2016

Mark Maxson: Illinois; Torture panel asks if the Chicago Police Department should be recording murder witnesses: White Elephant Case...". According to the commission, police brought Maxson to a South Side police station where he was originally interviewed as a witness — not as a suspect — in Lindsey’s murder. Maxson was held for three days before he was charged with the 6-year-old boy’s killing. Maxson “went voluntarily as a witness to Area 2 and stayed there voluntarily for 48 hours, before giving a statement that clearly indicated he had committed the murder or sexual assault,” the commission said. The only evidence of Maxson’s confession was a written statement. The Chicago Police Department didn’t begin videotaping interrogations of murder suspects until 2005. Now, the entire interrogation must be recorded. State law says confessions involving murders and certain other serious crimes are deemed inadmissible in court unless there’s an electronic recording of the suspect’s interrogation. But under today’s practices, Chicago Police detectives still would not have recorded their interviews of Maxson during most of the first 48 hours that he spent in custody as a “witness.” Police typically record only the final statement of a witness who gives permission, and not the interviews that come beforehand — unlike a suspect. Videos of Maxson’s statements during the entire time he was in custody — as a witness and a suspect — would have “definitely resolved any questions regarding whether he was physically coerced, whether he had details of the crime fed to him by way of interrogation and whether he remained voluntarily in Area 2 for three nights,” the torture commission said."

STORY: "Torture panel asks if the Chicago Police Department should be recording murder witness ( as interrogations of suspects must be recorded" by reporter Frank Main, published by The Chicago Sun-Times on November 21, 2016.

GIST: "The Chicago Police Department should review the events that led to the wrongful murder conviction of Mark Maxson to see whether any policies need to be revised, including those regarding the recording of witness interrogations, according to the Illinois torture commission. Maxson spent 22 years in prison for a killing that authorities say he didn’t commit. In September, another man, Osborne Wade, was charged with murder in the 1992 slaying of first-grader Lindsey Murdock. Maxson, who was freed, claims detectives physically coerced him into a confession. He’s suing the city for $54 million. Last week, the Illinois Torture Inquiry and Relief Commission released a 29-page report that found “more than sufficient evidence of torture that would merit referral to a judge under normal circumstances.” That won’t be done, though, because Maxson’s conviction has already been overturned. The commission has also sent letters to Chicago Police Supt. Eddie Johnson, Cook County State’s Attorney-elect Kim Foxx and Independent Police Review Authority administrator Sharon Fairley asking them to consider reforms in how witnesses and suspects are treated in light of the Maxson case. The letter to Johnson emphasized the importance of videos of interrogations of people who are later charged with murder. According to the commission, police brought Maxson to a South Side police station where he was originally interviewed as a witness — not as a suspect — in Lindsey’s murder. Maxson was held for three days before he was charged with the 6-year-old boy’s killing. Maxson “went voluntarily as a witness to Area 2 and stayed there voluntarily for 48 hours, before giving a statement that clearly indicated he had committed the murder or sexual assault,” the commission said. The only evidence of Maxson’s confession was a written statement. The Chicago Police Department didn’t begin videotaping interrogations of murder suspects until 2005. Now, the entire interrogation must be recorded. State law says confessions involving murders and certain other serious crimes are deemed inadmissible in court unless there’s an electronic recording of the suspect’s interrogation. But under today’s practices, Chicago Police detectives still would not have recorded their interviews of Maxson during most of the first 48 hours that he spent in custody as a “witness.” Police typically record only the final statement of a witness who gives permission, and not the interviews that come beforehand — unlike a suspect. Videos of Maxson’s statements during the entire time he was in custody — as a witness and a suspect — would have “definitely resolved any questions regarding whether he was physically coerced, whether he had details of the crime fed to him by way of interrogation and whether he remained voluntarily in Area 2 for three nights,” the torture commission said. On Nov. 16, the torture commission sent Johnson a letter asking him to review the department’s policies involving the videotaping of witnesses. But the letter acknowledged that there are some valid reasons why police might not want to videotape witnesses. “Witnesses may not wish to be videotaped for fear of later retaliation from suspects,” the commission said, adding that a new requirement for additional recordings might hamper investigators. Anthony Guglielmi, chief spokesman for the police department, said Johnson will consider the torture commission’s letter but “we certainly would not want to implement any practice that would further hamper witnesses from coming forward.”

The entire story can be found at:

http://chicago.suntimes.com/politics/mark-maxson-illinois-torture-commission-cpd-record-murder-witnesses/

STORY: "Torture panel asks if the Chicago Police Department should be recording murder witnesses by reporter Frank Main, published by The Chicago Sun-Times on November 21, 2016.

GIST: "The Chicago Police Department should review the events that led to the wrongful murder conviction of Mark Maxson to see whether any policies need to be revised, including those regarding the recording of witness interrogations, according to the Illinois torture commission. Maxson spent 22 years in prison for a killing that authorities say he didn’t commit. In September, another man, Osborne Wade, was charged with murder in the 1992 slaying of first-grader Lindsey Murdock. Maxson, who was freed, claims detectives physically coerced him into a confession. He’s suing the city for $54 million. Last week, the Illinois Torture Inquiry and Relief Commission released a 29-page report that found “more than sufficient evidence of torture that would merit referral to a judge under normal circumstances.” That won’t be done, though, because Maxson’s conviction has already been overturned. The commission has also sent letters to Chicago Police Supt. Eddie Johnson, Cook County State’s Attorney-elect Kim Foxx and Independent Police Review Authority administrator Sharon Fairley asking them to consider reforms in how witnesses and suspects are treated in light of the Maxson case. The letter to Johnson emphasized the importance of videos of interrogations of people who are later charged with murder. According to the commission, police brought Maxson to a South Side police station where he was originally interviewed as a witness — not as a suspect — in Lindsey’s murder. Maxson was held for three days before he was charged with the 6-year-old boy’s killing. Maxson “went voluntarily as a witness to Area 2 and stayed there voluntarily for 48 hours, before giving a statement that clearly indicated he had committed the murder or sexual assault,” the commission said. The only evidence of Maxson’s confession was a written statement. The Chicago Police Department didn’t begin videotaping interrogations of murder suspects until 2005. Now, the entire interrogation must be recorded. State law says confessions involving murders and certain other serious crimes are deemed inadmissible in court unless there’s an electronic recording of the suspect’s interrogation. But under today’s practices, Chicago Police detectives still would not have recorded their interviews of Maxson during most of the first 48 hours that he spent in custody as a “witness.” Police typically record only the final statement of a witness who gives permission, and not the interviews that come beforehand — unlike a suspect. Videos of Maxson’s statements during the entire time he was in custody — as a witness and a suspect — would have “definitely resolved any questions regarding whether he was physically coerced, whether he had details of the crime fed to him by way of interrogation and whether he remained voluntarily in Area 2 for three nights,” the torture commission said. On Nov. 16, the torture commission sent Johnson a letter asking him to review the department’s policies involving the videotaping of witnesses. But the letter acknowledged that there are some valid reasons why police might not want to videotape witnesses. “Witnesses may not wish to be videotaped for fear of later retaliation from suspects,” the commission said, adding that a new requirement for additional recordings might hamper investigators. Anthony Guglielmi, chief spokesman for the police department, said Johnson will consider the torture commission’s letter but “we certainly would not want to implement any practice that would further hamper witnesses from coming forward.”

The entire story can be found at:

http://chicago.suntimes.com/politics/mark-maxson-illinois-torture-commission-cpd-record-murder-witnesses/

See also the entire report by The Torture Inquiry into Mark Maxson's case which concluded that: "Accordingly The Commission dismisses this claim for lack of jurisdiction. The Commission notes however, that if jurisdiction still existed, it would find evidence of torture exists to merit judicial review," at the link below.

https://www.illinois.gov/tirc/Documents/2016.11.16%20MAXSON%20dispositio-SIGNED-STAMPED.pdf

See Sun-Times editorial November 22, 2016) - 'Recording victim statements could aid justice' - at the link below: "Suppose you are serving on a jury that must decide the guilt or innocence of a man charged with murder and aggravated criminal sexual assault. Casting doubt on the man’s guilt is the fact that neither blood nor hairs found on the victim match those of the suspect. There is, in fact, no evidence at all except for an unsigned confession the suspect gave after being held and questioned by detectives for 60 straight hours. And one of those detectives had been accused in other cases of abusing suspects. Wouldn’t you want to see a videotape of that interrogation? We sure would.
But under today’s rules, there would be no recording if the person was considered a witness, not a suspect. The Illinois Torture Inquiry and Relief Commission, which just handled a case where a video could have prevented the wrong man from going to prison for 22 years, wants the Chicago Police Department, the Cook County state’s attorney’s office and the Independent Police Review Authority to make sure nothing like that happens again. TIRC wants those agencies to consider video recording witness statements and other measures, such as ensuring no one intentionally inserts errors into statements so that when suspects correct them, it makes the statements appear voluntary. TIRC is correct. Videotaping is so easily and conveniently done nowadays. And when an innocent person has spent more than two decades in prison, it’s time for a thorough vetting of the rules. The TIRC proposals followed the recent closing of its case involving Mark Maxson, whose conviction was overturned after he spent 22 years behind bars. In 2005, police began videotaping interrogations of murder suspects, but Maxson was interrogated as a witness during an investigation into the 1992 murder of a 6-year-old boy, so even today his interrogation would not have been recorded prior to the point where he officially became a suspect. With 20/20 hindsight, it’s hard to see how Maxson was convicted, even though he had a previous gang-rape conviction. The forensic evidence didn’t match him. And he was at the police station for 60 hours. Does that sound like a witness voluntarily telling what he knows? Eventually, DNA linked the blood and hairs on the victim to another man and TIRC found “more than sufficient evidence of torture” in Maxson’s case. We understand TIRC’s proposal needs careful thinking out. Witnesses may hesitate to be videotaped if they fear later retaliation. Investigators in a hurry won’t always have time to get out recording equipment. But when we find we’ve sent an innocent man to prison for 22 years, it’s time, as TIRC suggests, to review key policies to ensure it doesn’t happen again."
http://chicago.suntimes.com/opinion/editorial-recording-victim-statements-could-aid-justice/

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

Dirty prosecutors: Ken Anderson; California's new Bill1909: Former public defence investigator Thomas Jackson wonders whether California's new Bill 1909 will actually be effective against prosecutors who withhold exculpatory evidence - in the absence of a "real enforcement mechanism."..."AB 1909 might be of particular interest as it criminalizes a common behavior among the state’s prosecutors: Withholding exculpatory evidence in criminal prosecutions. Of course, prosecutors would dispute that it is common behavior and many defense attorneys would dispute any denial of this assertion by prosecutors. The fact is it does happen and when it does, it’s a horrible injustice. It sounds like a great law: Stick it to the creep who uses his or her office and power by playing dirty, hiding information and evidence to put an innocent person in a tiny concrete box. See how they like being labeled a felon and sitting in a cage." (Read on to discover why in Johnson's view, this dog's bark may be bigger than its bite. HL); Johnson's commentary is headed: 'California Throws Down on Dirty Prosecutors. Or Not."

In the years since I started publishing this Blog I have become increasingly disturbed by the 'white elephant' in the room: Sheer, unadulterated, willful misconduct in the criminal justice system - much of it involving forensic evidence - committed by lab technicians, pathologists, police officers, prosecutors and others. Think Annie Dookhan; Think Sonia Farak; Think David Kofoed; Think Charles Smith; Think Ken Anderson; Think Gene Morrison. Think Michael West; I have therefore decided to run this image of a white elephant at the top of every applicable post henceforth, to draw our reader's attention to what I see as a major problem in all too many criminal justice system's - my own included. Harold Levy; Publisher: The Charles Smith Blog;
"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.
From "The Elephant in the Crime Lab," by co-authored by Sheila Berry and Larry Ytuarte; Forensic Examiner; Spring, 2009;

QUOTE OF THE DAY: "The unchecked power of just this one class of people is not just a monumental stain on our justice system, but flat-out disqualifies the use of the phrase, “justice at all.”

Thomas Johnson: Talking about America's prosecutors;

COMMENTARY: "California Throws Down on Dirty Prosecutors. Or Not," by Thomas Johnson, published on Mimesis Law on Noveber 23, 2016. (Thomas Johnson is a former Public defense Investigator with The Defender Association a Seattle based law firm contracted by the county to handle indigent defense.)

GIST:"November every four years brings us an election for top job in the country and representatives locally. It also brings us new laws. In California, the legalization of recreational marijuana had a supermoon effect on the rest of the laws passed, but one law stands out from others. ........The problem is that prosecutors generally enjoy control of most of the information and evidence in a criminal case. When you have an indigent defendant relying on inexperienced or overwhelmed public defenders that have no resources to track down witnesses, pore over thousands of documents or even think to request certain forms of evidence, it could be years before anyone figures out that a prosecutor withheld evidence.By then it is often too late. So far, very few prosecutors have suffered any real consequences for misconduct. Take the case of former Texas prosecutor and Judge Ken Anderson as an example. In 2013, he finally served 10 days in jail for sitting on evidence that sent an innocent man to jail for 25 years. Michael Morton sat in a cage all those years while Ken Anderson thrived. In the end, Anderson gave up his law license, got ten days in jail and 500 hours of community service in what Mark Godsey, law professor and director of the Ohio Innocence Project, in a 2013 Huffington Post article described as: What’s newsworthy and novel about today’s plea is that a prosecutor was actually punished in a meaningful way for his transgressions. Apparently definitions of “meaningful” vary. Does ten days in jail sound meaningful to you? Morton so far has received around $2 million in compensation. And he’s not the only one. In Texas and every other state prosecutorial misconduct cost lives, destroys families and blows a lot of taxpayer money. Yet thus far the people responsible have for the most part been free of any consequences. In California a study conducted in 2012 found it has cost a total of $282 million in settlements and legal fees over 24 years. If you add in all the other states, the destruction of lives and the cost to the public are staggering. The unchecked power of just this one class of people is not just a monumental stain on our justice system, but flat-out disqualifies the use of the phrase, “justice at all.”
As with many laws, legislators leave the details to someone else, and AB 1909 is no exception. Who will prosecute the prosecutors? This job will fall to the next Attorney General or whoever is in charge 10 to 25 years after every case where prosecutorial and police misconduct is discovered by a bunch of students or interns working for an innocence project. Or maybe a pair of determined appeals attorneys or some random Canadians. Threatening punishment to a previously untouchable element of government makes for an interesting twist in the ongoing saga of deterrence theory . The punishment is set so low that it will likely be very few, if any who are caught that serve any time at all because they’ll be offered very sympathetic plea bargains as the Attorney General is a political position and so is a District Attorney. With no real enforcement mechanism, the People of California will have a long wait for this law to cut back on unlawful convictions. It’s something to keep an eye on."

The entire post can be found at:

http://mimesislaw.com/fault-lines/california-throws-down-on-dirty-prosecutors-or-not/14430

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

Saturday, November 26, 2016

Hannah Overton; Texas; Mark your calender: 'Investigation Discovery' documentary to have its exclusive television premier of, ‘Until Proven Innocent,’ the story of Hannah Overton, 'Who Was Wrongfully Convicted in the Death of Her Foster Son from Salt Poisoning' on Thursday, December 1 from 9-11pm ET..."Hannah Overton is a mother, a woman of God, a former nurse and, in Texas's prison system, known as Overton 1478117. In October 2006, a four-year-old from Corpus Christi named Andrew Burd died mysteriously of salt poisoning. Overton, his foster mother, was charged with capital murder, vilified from all quarters, and sent to prison for life. Was this churchgoing young woman really a vicious child killer, or had the tragedy claimed its second victim? The two-hour documentary 'Until Proven Innocent' chronicles the gross miscarriage of justice that sent Hannah Overton to jail with a life sentence and the fight to win her freedom."

QUOTE OF THE DAY: 'The unbelievable tragedy of a child's death was compounded by the prosecution of an innocent person for murder... 'The truth set Hannah free in the end, and ID (Investigation Discovery) is proud to tell the story of those who worked tirelessly to overturn her conviction.'

Kevin Bennett, general manager of Investigation Discovery.

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

RELEASE: "Investigation Discovery" presents ‘Until Proven Innocent,’ the Story of Hannah Overton, Who Was Wrongfully Convicted in the Death of Her Foster Son from Salt Poisoning, publushed by Discovery Communications on November 27, 2016.

GIST: "Hannah Overton is a mother, a woman of God, a former nurse and, in Texas's prison system, known as Overton 1478117. In October 2006, a four-year-old from Corpus Christi named Andrew Burd died mysteriously of salt poisoning. Overton, his foster mother, was charged with capital murder, vilified from all quarters, and sent to prison for life. Was this churchgoing young woman really a vicious child killer, or had the tragedy claimed its second victim? The two-hour documentary 'Until Proven Innocent' chronicles the gross miscarriage of justice that sent Hannah Overton to jail with a life sentence and the fight to win her freedom. Making its exclusive television premiere on Thursday, December 1 from 9-11pm ET as part of Investigation Discovery's ...documentary strand, 'Until Proven Innocent' 'Until Proven Innocent'is told entirely through first-person interviews with Overton, her family and closest confidants, and experts and key figures involved in the high-profile appeal, including Texas attorneys Cynthia Orr, Gerry Goldstein and John Raley. 'The unbelievable tragedy of a child's death was compounded by the prosecution of an innocent person for murder,' said Kevin Bennett, general manager of Investigation Discovery. 'The truth set Hannah free in the end, and ID is proud to tell the story of those who worked tirelessly to overturn her conviction.' About the case: Andrew Burd's short life began turbulently. His mother was only 16 when she gave birth, and Andrew spent his first two years surrounded by substance abuse and child neglect. By the time he turned three, his mother and father had lost parental rights and Andrew was placed in the foster care system in Corpus Christi, Texas. Hannah and Larry Overton met Andrew at church, where they fell in love with him and felt compelled to adopt him into their family that already included five biological children. Andrew spent his first night with the Overtons on Mother's Day in 2005, and seemed to quickly grow attached to his new family. Four months later, on October 2, 2006, Andrew fell suddenly and acutely ill while he was alone with Hannah. The Overtons rushed him to a nearby urgent care clinic after he became unresponsive and his breathing labored, but by the time they arrived, he had fallen unconscious. The following evening, Andrew was dead. The cause of death was determined to be salt poisoning, an extremely rare occurrence that, in children, results from either a child inadvertently ingesting too much salt or a caretaker deliberately forcing the child to do so. People who knew the Overtons were certain that Andrew's bewildering death was accidental. But law enforcement and emergency medical personnel who treated Andrew thought otherwise. The following week, Hannah-who had no history with Child Protective Services and no previous arrests, and had never had so much as a parking ticket-was charged with capital murder. In a special premiere event, 'Until Proven Innocent' premieres on Thursday, December 1 at 9/8 as part of the ID FILMS strand, the television home for projects that shine a light on important, overlooked aspects of our justice system and showcase compelling stories of mystery, intrigue, and determination. 'Until Proven Innocent' is produced by P+R Productions with Kelli Weinzierl and Pamela Colloff as executive producers and Jenna Jackson and Anthony Jackson as directors."

The entire release can be found at:

http://www.publicnow.com/view/F9085D73F9E5C2ADC7F37EFE95833AD9DE02E592?2016-11-17-23:37:31+00:00-xxx8781

See National Registry of Exonerations entry by Maurice Possley at the link below: "On October 2, 2006, 29-year-old Hannah Overton and her husband, Larry brought Andrew Burd, their four-year-old foster son whom they were in the process of adopting, to a hospital in Corpus Christi, Texas after the boy stopped breathing. The boy was diagnosed with a toxic salt overdose and died the following day. Ten days later, the Overtons were arrested on charges of capital murder. Prosecutors said Hannah forced the boy to drink water laced with Cajun spices as punishment for misbehaving. The prosecution claimed the boy vomited and was in and out of consciousness, but the couple waited nearly three hours before seeking medical help. Police said that one of Overton’s five biological children told investigators that Hannah watched Andrew on a security camera in a bedroom and used food and pepper as a form of punishment. A neighbor told police that Hannah called her about 3 p.m. that day and asked her to watch one of her children because Andrew was intentionally vomiting and defecating and “smearing it everywhere.” The neighbor said Hannah claimed Andrew was vomiting and defecating not because he was sick, but “to get to me.” The Overtons were granted separate trials. Hannah went to trial in Nueces County Criminal District Court in August 2007. The neighbor, Kathryn Haller, testified that “Hannah said, ‘He's not sick. He’s doing it to try to get to me.’” Haller also said that Overton told her that Andrew had thrown his feces at her earlier, that he threatened to smear it as he had the night before, and that he had vomited. Haller said Overton was afraid her younger child, Sebastian, would get into the mess Andrew had created, so she asked Haller to watch Sebastian. The county medical examiner testified that the boy died of salt poisoning and appeared to have blunt head trauma. Dr. Alexandre Rotta, who treated the boy when he was brought to the hospital, testified that Hannah told him Andrew had eaten a bowl of chili, and that when he asked for more and threw a fit she gave him a glass of water with chili powder in it. Rotta testified that tests of Andrew’s blood showed a sodium level higher than he had ever seen before. Rotta also testified that he believed the child would have survived if he had been treated before suffering cardiac arrest, although Rotta did not see the boy until many hours after he was first brought to the hospital. Overton, a former private-duty nurse, testified in her own defense and said that Andrew was “obsessed with eating” and ate more than her other children at every meal. She told the jury that his obsession was getting worse—that he was eating off of the floor, getting into the garbage, and even eating the cat’s food. Overton testified that Andrew would become upset whenever she prevented him from eating what he wanted, and that she had reported his excessive and inappropriate eating activity to the adoption supervisor, who suggested that he might have an eating disorder. She said that on the day of the incident, after feeding the children their breakfast, she fell asleep while they were watching cartoons. When she awoke, Andrew was in the pantry eating something, but she couldn’t recall what it was. She said she put him in a timeout for three minutes and Andrew threw a tantrum, defecated in his pants, and threw his feces at her—behavior that had occurred in the past. Overton said she cleaned him up and changed his clothes, but he defecated again and smeared it on the floor. Overton said she relented and reheated some leftover soup and chili mixture. She said her husband came home and they left for an appointment with her chiropractor for a treatment for a back injury. When they returned home, her husband went back to work and Andrew complained he was hungry. Overton said that after the boy began crying, she gave him more chili with Cajun seasoning added to it. When she refused his demand for a second serving, he threatened to defecate on her. Overton testified that she decided to give him a cup of water with “a couple of sprinkles” of the Cajun seasoning so that he would get the flavor she thought he wanted and would settle down. Overton said she filled a cup full of water and then poured some out because she thought it was too much. She said she put the mixture in a cup and Andrew drank it, but then demanded more chili and began to throw a fit. She told the jury that after about a 20-minute tantrum, Andrew stumbled to the floor, said he was cold, and vomited. Overton testified she thought “that he had gotten himself so worked up that he threw up.” She telephoned her husband and told him to come home, but before he arrived, Andrew began to shake, so she wrapped him in a blanket and put him into his bed with a heating pad. After consulting her intermediate EMT course book, Overton said she thought might have been “in some sort of shock,” but she was not overly concerned because this overwrought behavior had happened on prior occasions. She and her husband put Andrew into a warm bath and she used a nebulizer on him because his breathing sounded congested. They took him out of the bath and dressed him. Although his vital signs were normal, he was moaning. When his breathing became abnormal and Andrew became less responsive, the couple drove Andrew to an urgent care center. On the way, he stopped breathing and Overton began CPR. The boy vomited into her mouth and began breathing again. When they were getting out of the car in the parking lot of the urgent care center, he stopped breathing again, she said. Several family friends testified and confirmed that Andrew seem to have an insatiable appetite. A member of the Overton’s church told the jury they had to hide trashcans from the boy. On September 7, 2007, the jury convicted Overton of capital murder. The jury was polled and the jurors said their conviction as based on the failure of the couple to seek prompt medical attention—not because she had force-fed the boy the water and spice mixture. Overton was sentenced to life in prison without parole. In 2008, her husband pled no contest to a reduced charge of criminally negligent homicide and was sentenced to deferred adjudication for five years, which allowed him to care for their children. His conviction was vacated and dismissed in 2013, after he successfully completed the probationary period. Overton’s conviction and sentence were upheld on appeal. In 2011, Overton’s appellate attorney, Cynthia Orr, filed a state petition for a writ of habeas corpus seeking a new trial. The petition claimed that the prosecution had failed to disclose to Overton’s trial lawyers evidence that the salt level of Andrew’s stomach contents when he arrived at the urgent care center was 48 milliequivalents per liter. This was inconsistent with the state’s accusation that she had just force fed him sodium raising his blood sodium level to 245 milliequivalents per liter. The higher level recorded later, the defense contended, was the result of fluids and sodium medicines that were given to Andrew as part of the efforts to save his life. The defense said that when the boy was first taken to Driscoll Urgent Care Center, he was given a saline IV. Andrew was then transported to Spohn Hospital. There, Andrew went into cardiac arrest. He also was given another saline IV as well as sodium bicarbonate. Andrew was then transferred to Driscoll Children’s hospital where he was again given a saline IV and sodium bicarbonate and where Rotta saw the boy for the first time. Andrew went into cardiac arrest again and was placed on a ventilator. By the time Rotta saw Andrew, the boy had been subjected to considerable life-saving measures that included the continuous use of saline IVs, epinephrine and sodium bicarbonate. The high level of sodium detected at Spohn Hospital was not immediately reported to doctors at Driscoll Children’s Hospital, so that the Andrew was given more sodium. Moreover, the petition claimed that Overton’s trial lawyers had provided a constitutionally inadequate legal defense by failing to call an expert witness, Dr. Michael Moritz, who could have testified that the boy was not poisoned by Overton and likely had died because of accidental self-initiated consumption earlier. The witness had been interviewed under oath by the defense and prosecution during the trial, but was not called to testify and the recording of his deposition was not presented to the jury. The petition also included a letter from Anna Jimenez, who had been one of the two prosecutors at Overton’s trial. She said that she believed the lead prosecutor on the case, Sandra Eastwood, had withheld evidence favorable to Overton’s defense. In 2010, before the petition was filed, Jimenez as appointed District Attorney and had fired Eastwood for unrelated reasons. She ran for election in November 2010 and left the office after she was defeated by Mark Skurka. “I am writing this letter because I do believe that an injustice has been done. I do not believe there was sufficient evidence to indicate that Hannah Overton intentionally killed Andrew Burd,” Jimenez wrote. “It is because I witnessed Sandra Eastwood's behavior before, during and after trial that I fear she may have purposely withheld evidence that may have been favorable to Hannah Overton's defense.” The petition said evidence suggested that Andrew's death was linked to a genetic disorder called Prader-Willi syndrome, which can cause children to eat bizarre objects. District Judge Jose Longoria, who presided over Overton’s trial, dismissed the petition the same day it was filed. Orr appealed and the Texas Court of Criminal Appeals ordered Longoria to hold an evidentiary hearing. During several days of testimony, Overton’s lawyers conceded they had failed to provide an adequate legal defense by failing to call Moritz, an expert on hypernatremia—a medical condition related to an elevated salt level. Moritz testified that Andrew exhibited symptoms of emotional deprivation syndrome, which is often associated with extreme eating habits. Moritz also said that the amount of Cajun spices needed to generate a sodium level of more than 250 would be enormously higher than the amount Rotta testified to. Moritz said that Rotta’s failure to evaluate the cause Andrew’s hypernatremia was a significant oversight. And Moritz also testified that Overton would have had extreme difficulty in forcing an amount of salt or Cajun spices into Andrew that would have resulted in such a high sodium level, but that if Andrew had a psychological problem, such as emotional deprivation syndrome, he could have consumed that amount voluntarily. Despite the testimony, the judge denied the writ again. In September 2014, the Texas Court of Criminal Appeals reversed the trial judge’s finding, granted the writ and ordered a new trial. The appeals court found that Overton’s lawyers had failed to provide an adequate legal defense. The appeals court did not address the claim that the prosecution had concealed evidence of the boy’s comparatively low sodium level when he first arrived at the clinic. On December 16, 2014, Overton was released on bond pending a retrial. On April 8, 2015, Nueces County District Attorney Mark Skurka dismissed the charge. He said the decision was “a result of a myriad of factors which came about after a careful review of the previous trial, re-interviewing some of the key witnesses, consulting with some of the medical experts involved in the case, (and) reviewing evidence adduced at recent hearings.”

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4674

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

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Wednesday, November 30, 2016

Tuesday, November 29, 2016

Monday, November 28, 2016

Sunday, November 27, 2016

The entire post can be found at:

Saturday, November 26, 2016

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