PASSAGE OF THE DAY: "Of
all the fields that could benefit from admitting its mistakes, law
enforcement seems to be the most resistant to doing so. Why is this?
People in law enforcement are no different than the rest of us. My
hunch is that it is a byproduct of our adversarial justice system, that
emphasizes winning rather than unbiased inquiry. For whatever reason, a
consequence is that while medical care continually improves its safety
record, there is no evidence of any improvement in the rate of false
convictions in our legal system. In fact, a
recent study
of exonerations in one of the world's leading science journals
estimated that about 1 in 25 death sentences imposed in the United
States is a false conviction. We wouldn't accept this sort of error rate
in our mail delivery system but apparently we do in judging our most
serious crimes. A little error reduction might be in order. One particularly egregious example of a refusal to admit error is the
case of Anthony Ray Hinton, who was convicted and sentenced to death in
1985 for two murders in Birmingham, Alabama that he didn't commit. He
was exonerated and released from prison nearly 30 years later on Good
Friday 2015, having become one of the longest-serving, falsely
imprisoned individuals in American history. The
case against him was flimsy from the beginning."
COMMENTARY: "Learning from mistakes in law enforcement," by reporter Steven Austad, published by AL.Com on January 7, 2018. (Steven Austad is Chair of the Biology Department at UAB. Before
becoming a research scientist, he had various lives as an English major,
a newspaper reporter, a New York City taxi driver, and a Hollywood wild
animal trainer. Living now in Birmingham with his veterinarian wife, 6
dogs, 2 parrots, and a cat, he enjoys nothing more than communicating
how science works to the general public.)
GIST: "Just before Christmas 1994 Betsy Lehman, a 39 year-old prize-winning health reporter for the
Boston Globe
suddenly and unexpectedly died as she was about to be discharged from
the Dana-Farber Cancer Institute where she was being treated for breast
cancer. More than 2 months later, during a routine record check, it came
to light that she had died from an accidental overdose of the
chemotherapy drug she had been receiving. This was particularly shocking
as the Dana-Farber is widely regarded one of the world's premier cancer
research institutions. Roughly 25 medical staff involved in Ms.
Lehman's care could have caught the error, but didn't. Medicine is practiced by humans and humans make errors. What matters
in medicine as in life is how we respond to our errors once they are
discovered.vThe Dana-Farber responded by publically admitted its mistake,
launching a massive investigation of what caused it, and ultimately
installing a host of new, more rigorous patient safety procedures. Those
procedures have become a model for maximizing patient safety at
numerous other hospitals across the country. As I've noted before,
admitting mistakes
is not something we are wired to do easily. If possible we nearly
always prefer to cover up an error or shift the blame. Yet progress and
improvement depends upon learning from our mistakes and to do that you
have to admit them. That's how we get better at anything not just
hospital care. Of
all the fields that could benefit from admitting its mistakes, law
enforcement seems to be the most resistant to doing so. Why is this?
People in law enforcement are no different than the rest of us. My
hunch is that it is a byproduct of our adversarial justice system, that
emphasizes winning rather than unbiased inquiry. For whatever reason, a
consequence is that while medical care continually improves its safety
record, there is no evidence of any improvement in the rate of false
convictions in our legal system. In fact, a
recent study
of exonerations in one of the world's leading science journals
estimated that about 1 in 25 death sentences imposed in the United
States is a false conviction. We wouldn't accept this sort of error rate
in our mail delivery system but apparently we do in judging our most
serious crimes. A little error reduction might be in order. One particularly egregious example of a refusal to admit error is the
case of Anthony Ray Hinton, who was convicted and sentenced to death in
1985 for two murders in Birmingham, Alabama that he didn't commit. He
was exonerated and released from prison nearly 30 years later on Good
Friday 2015, having become one of the longest-serving, falsely
imprisoned individuals in American history. The
case against him was flimsy from the beginning. He had no history of
violent crime. There were no witnesses to either murder. No evidence of
any kind linking him to the killings was found at either crime scene or
in his car or at his home. However, investigators did find a gun,
belonging to his mother with whom he shared a house, which was the same
caliber as that used in the murders. The entire case depended on a forensic match between bullets fired
from that gun and those recovered at the crime scene. The state's
ballistic examiners indeed declared a match and this was enough to
convict Hinton and get him sentenced to death. Hinton never wavered in proclaiming his innocence. In 2002, his new
legal team from the Equal Justice Initiative, engaged three of the
nation's top firearms examiners, including the former Chief of the FBI's
firearms and tool mark unit, to re-examine the ballistics evidence. All
three agreed that none of the six bullets were marked with sufficient
clarity to match them to the gun in question or with one another for
that matter. When asked to explain to these examiners how he had
determined the original match to the weapon, the State's expert refused
to cooperate. This
could have been the end of the story. The prosecution could have
decided to re-examine the evidence themselves or even have dropped all
charges because the best experts in the country could not validate their
only evidence linking Mr. Hinton to the crimes. But they chose not to.
In fact, they fought re-opening the case all the way to the U.S. Supreme
Court, which voted unanimously that Mr. Hinton was due a new trial. At
that point prosecutors gave up, decided not to re-try him, and he was
released. Let's consider the damage that could have been avoided here. There
was the damage to Mr. Hinton, who served 13 more years in hell than he
needed to. And there was the lost opportunity to begin an investigation
and re-evaluation of the training, competence, and
procedures at the state forensic laboratories to help prevent future miscarriages of justice. Tellingly, another Alabamian exonerated in the same year as Mr.
Hinton, Beniah Alton Dandridge, had been also been falsely convicted due
to flawed forensic analysis, in this case a mistaken fingerprint
identification by the Alabama state forensic lab. Mr. Dandridge had been
imprisoned 20 years by then. Learning how to reduce future errors is one large benefit of
admitting one's mistakes. Another benefit is that it allows us to at
least partially right-the-wrong by compensating people who are damaged
by our mistakes. This is basic fairness, something I think we all agree
on. The Dana-Farber Cancer Institute reached what the
Boston Globe reported to be a multimillion dollar settlement with the family of Betsy Lehman. But
as law enforcement hates to admit error, they also hate to see
compensation paid for false convictions, because it is unavoidably a
public admission that they had made a mistake. As the trickle of criminal exonerations in the 1990's turned into a
stream in the early 2000's and a flood more recently, 32 states
including Alabama passed laws defining the monetary amount due those who
were wrongly incarcerated. In Alabama the
minimum amount for
each year
of incarceration was set at $50,000. For Anthony Ray Hinton, that means
he is owed a minimum of about $1.5 million. Of course, it is not that
simple. The state Committee on Compensation for Wrongful Incarceration
and the State Division of Risk Management must both agree that such
compensation is really warranted and the State legislature must then
appropriate the funds. In Mr. Hinton's case, both of the appropriate entities have approved
payment and State Senator, Paul Bussman (R, Cullman) sponsored a bill in
the last legislative session to appropriate the funds. That bill never
made it out of committee, however. Unsurprisingly, state prosecutors, whose approval is thankfully not
required, have resisted. Assistant Attorney General James Houts has
been vehemently opposed to any compensation for Mr. Hinton, saying that a
lack of the ability to match the bullets to the gun "is not evidence of
innocence," the presumption of innocence, a core value of our justice
system, apparently having slipped his mind. The
legislature is about to reconvene. Senator Bussman, reiterating his
view that "if they still think he is guilty, they should re-try him; if
not, they need to compensate him," has assured me that reintroducing his
compensation appropriation bill will be one of the first things on his
agenda for the new session. At a time when Alabama is trying to shed
its reputation for racial injustice, after Mr. Hinton has been
exonerated for nearly three years, isn't it time for our legislature to
do the right thing?"
The entire commentary can be found at:
http://www.al.com/living/index.ssf/2018/01/learning_from_mistakes_in_law.html
Read the National Registry of Exonerations entry by Maurice Possley at the link below: "On February 23, 1985, 49-year-old John Davidson, the assistant
manager of Mrs. Winner’s fried chicken restaurant in Birmingham,
Alabama, was fatally shot in an after-hours robbery. About $2,100 was
missing from the safe. Davidson was still alive when an exterminator came to the
restaurant and found him in the restaurant cooler with two gun shot
wounds in the head. Davidson died on February 25 following surgery. The
two bullets were removed and turned over to police. On July 2, 1985, 39-year-old Thomas Wayne Vason, the night
manager at Captain D’s restaurant in Bessemer, Alabama, was found dead
in the restaurant’s cooler. He had been shot twice in the head and $650
was missing from the safe. Two bullets were removed from Vason’s body. Police investigators said that based on their examination, the
bullets in both crimes were fired from the same gun. There were no
fingerprints or other items of physical evidence. Police believed that
both men were confronted in the parking lots of the restaurants after
closing up for the night and that both were ordered back inside and
forced to open the safes. Because both men were found shot in the
restaurant coolers, the media branded the perpetrator the “Cooler
Killer.” On July 25, 1985, 55-year-old Sidney Smotherman, the night
manager of Quincy’s Family Steak House in Bessemer, closed the
restaurant and on his way home stopped at a grocery store shortly after
midnight. Another restaurant employee, who coincidentally stopped at the
same store, later said that a black man appeared to be watching
Smotherman while shielding his face. Smotherman left the store after making a purchase and while
driving home, his car was bumped from behind by another car. When he got
out, the driver of the other car emerged with a gun. The gunman forced
Smotherman to drive the gunman’s car to Quincy’s and go inside and empty
the safe. The gunman ordered him to go to the restaurant’s freezer.
Smotherman, who was aware of news accounts of the two other restaurant
robbery/murders, said he told the gunman he wanted to be in the cooler
because it was not as cold. Smotherman knew that he could lock the
cooler from the inside. The gunman agreed and when Smotherman walked
into the cooler and turned to pull the door shut, the gunman fired two
shots. One struck Smotherman in the head, but did not pierce his skull.
Instead, the bullet traveled under his skin and exited down his neck and
wound up in his shirt pocket. The other bullet took off the end of a
finger of his hand that he had raised to try to protect himself and
ricocheted into the cooler. As he fell down, Smotherman kicked the door
shut and it locked automatically. Smotherman waited about 10 minutes and then emerged and called
police. Police compared the two bullets from this shooting and said
their examination showed that all six bullets in the three crimes were
fired by the same gun. An artist for the Bessemer newspaper worked with police and
Smotherman to create a composite sketch. Reginald White, an employee of
Quincy’s, told police he recognized the sketch as 29-year-old Anthony
Hinton, a man he knew from a second job he had in nearby Hoover,
Alabama. White said that about two weeks prior, Hinton approached him
and asked him if he was still working at Quincy’s. When he said he was,
Hinton asked if “Mr. Don” was the manager. White said that he told
Hinton that there was a new manager who had just bought a new Fiero
automobile. White said Hinton also asked what time the restaurant
closed. The police prepared a photographic lineup for Smotherman, who selected Hinton as the man who robbed and shot him. On July 31, 1985, police went to Hinton’s home where he lived
with his mother. They found an old, very-worn .38-caliber revolver under
his mother’s mattress, but failed to find any evidence linking him to
the crimes. He was arrested that day and charged with the robbery of
Smotherman. The gun was turned over to the Alabama Department of Forensic
Sciences. Examiners test-fired the gun and said that all six bullets
from the three crimes were fired by the gun. The police then charged
Hinton with capital murder in the deaths of Davison and Vason. Hinton went to trial in Jefferson County Circuit Court in
September 1986 on the capital murder charges. He never went to trial on
the robbery and shooting of Smotherman. Smotherman identified Hinton as the gunman who robbed and shot
him. Smotherman’s co-worker identified Hinton as the man he saw
following Smotherman in the grocery store. White testified about his
conversation with Hinton prior to the robbery and shooting of
Smotherman. The state firearms experts testified that the bullets from all
three crimes had been fired from the gun found under Hinton’s mother’s
mattress. The trial court authorized Hinton’s attorney to spend $1,000 to
retain a ballistics expert. The attorney could not get a qualified
expert for only $1,000, so instead of requesting more money, the lawyer
hired a retired civil engineer whose experience was confined to working
with heavy artillery in World War II. The expert had no training or
experience in firearms identification, he did not know how to use a
microscope to examine bullets, he did not test-fire the gun and he
admitted during cross-examination that he was visually impaired—he only
had one eye. He testified that the results of his examination were
inconclusive. Hinton testified in his own defense and said he was working at a
warehouse where employees were locked inside from midnight until 6 a.m.
on the night of the robbery and shooting of Smotherman at Quincy’s. He
denied involvement in all three crimes. He said he was driving a small
red Nissan at the time of the Quincy’s robbery and owned a small yellow
Volkswagen—neither of which fit the description of the larger automobile
that Smotherman said his attacker was driving. On September 17, 1986, the jury deliberated for an hour before
convicting Hinton of both murders. In December 1986, the jury voted 10-2
to sentence Hinton to death. Hinton had taken a polygraph examination
and although the examiner said Hinton showed no deception when he denied
involvement in the crimes, the trial judge declined to allow the jury
to hear the polygraph results. His convictions and death sentence were upheld on appeal to the
Alabama Court of Appeals and the Alabama Supreme Court. In 1998, Equal
Justice Initiative, a non-profit organization in Alabama that provides
legal assistance to indigent defendants and prisoners, began
representing Hinton. In 2002, EJI commissioned a re-examination of the bullets and
gun by three different experts. One was a forensic consultant named John
Dillon, who had worked on ballistics identification at the Federal
Bureau of Investigation’s forensics laboratory and, from 1988 until he
retired in 1994, had been a chief in the identification unit at FBI
headquarters in Quantico. The other two experts had worked for many
years as firearms examiners at the Dallas County Crime Laboratory and
had each testified as experts in several hundred cases. All three
experts examined the physical evidence and testified that they could not
conclude that any of the six bullets had been fired from the revolver. The prosecution’s response was to ignore the findings and argue
that the EJI experts essentially said the same thing that Hinton’s
ballistic examiner said at trial—that the results were inconclusive. In February 2014, the U.S. Supreme Court vacated Hinton’s
conviction and death sentence and ordered a new trial. The Court ruled
that Hinton’s trial lawyer had provided a constitutionally inadequate
legal defense by failing to seek more money to obtain a qualified
ballistics expert. The Court also held that the trial judge had been mistaken when
he said the defense was entitled to only $1,000 for an expert. The
statute relating to such expenses, which at one time had a $1,000 cap,
had been amended prior to Hinton’s trial to allow for “any expenses
reasonably incurred” as long as the expenses were approved in advance by
the trial judge. Subsequently, in preparation for a retrial, the prosecution had
new experts re-examine the bullets and gun. The prosecution experts
also concluded that they could not link the bullets from the victims to
the gun found in Hinton’s home. On April 2, 2015, a judge granted the motion by the Jefferson
County District Attorney to dismiss the charges and Hinton was released.
Efforts to pass legislation in 2017 approving compensation for Hinton
failed."
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4669
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.