Stephon Clark: California: Bulleting: Police shooting: Private autopsy shows that the unarmed black man who was fatally shot by police in his grandmother's backyard, was struck eight times -- including six bullets in the back... Police withhold comment until public autopsy is released...While public furor builds, the White House insists police shootings are a local matter. (The same White House that has railed against federal scrutiny of state run police forces)..."The officers, who have not been identified, waited six minutes for backup to arrive before giving him medical attention. No gun was found at the scene. Police said the object was a cell phone."

QUOTE (1) OF THE DAY: "He was shot in the back six times. The seventh gunshot wound was slightly to the side of his body but to the back of the side of his body," Omalu said during the news conference. "Each one of these bullets independently possessed a fatal capacity."

Dr. Bennet Omalu;

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QUOTE (2) OF THE DAY:  "The narrative that had been put forth was that they had to open fire because he was charging at them," Crump told reporters. "Well, obviously, based on Dr. Omalu's findings in the family's autopsy, it suggests all the bullets were from behind."

Civil rights attorney Benjamin Crump. (The family's lawyer);

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QUOTE (3) OF THE DAY:

“This is a national fight. Stephon has woke up the nation. We all stand with Stephon Clark,” Sharpton said to the crowd. “We are going to make Donald Trump and the whole world deal with the issue of police misconduct."

Rev. Al Sharpton. (Eulogy);

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STORY: "Unarmed man killed by Sacramento police shot 8 times, 6 in the back: Private autopsy," by reporter Josiah Bates, published by ABC News on March 30, 2018.

PHOTO CAPTION:  "Pathologist, Dr. Bennet Omalu, gestures to a diagram showing the gun shot wounds he found on the body of police shooting victim Stephon Clark, during a news conference, March 30, 2018, in Sacramento, Calif."

GIST: "Stephon Clark, the unarmed black man who was fatally shot by police in his grandmother's backyard, was struck eight times -- including six bullets in the back, according to a private autopsy commissioned by the family. Civil Rights Attorney Benjamin Crump, who is representing Clark's family, released the independent autopsy report at a news conference Friday. Dr. Bennet Omalu, who was the first doctor to discover chronic traumatic encephalopathy (CTE), conducted the autopsy. Omalu, who brought awareness to the issue of concussions and brain trauma to the NFL, was depicted film "Concussion," in which Will Smith played him in the leading role. "He was shot in the back six times. The seventh gunshot wound was slightly to the side of his body but to the back of the side of his body," Omalu said during the news conference. "Each one of these bullets independently possessed a fatal capacity."  Crump, meanwhile, said the family autopsy proved Clark wasn't running toward police. "The narrative that had been put forth was that they had to open fire because he was charging at them," Crump told reporters. "Well, obviously, based on Dr. Omalu's findings in the family's autopsy, it suggests all the bullets were from behind." On March 18, officers were responding to a 911 call reporting someone breaking car windows in the 7500 block of 29th street. Police found Clark in the backyard and believed he was armed with a gun and, "fearing for their safety," fired at him. Omalu said Clark -- whom police shot at 20 times -- did not die right away. The 22-year-old man was likely alive for 3 to 10 minutes after the shooting. The officers, who have not been identified, waited six minutes for backup to arrive before giving him medical attention. No gun was found at the scene. Police said the object was a cell phone. The Sacramento Police Department released the body camera footage and helicopter footage three days after the shooting. California’s attorney general and the police department are conducting an investigation into what happened that night, including their own autopsy report. "The Sacramento County Coroner’s Office conducts an independent death investigation that is separate from the joint investigation being conducted by our agency and the California Department of Justice," The Sacramento Police Department said in a statement.

They added, "Further comment by the Sacramento Police Department prior to the release of the Coroner’s report along with the official review by the Sacramento County District Attorney and the California Department of Justice would be inappropriate at this time."   The shooting sparked widespread protests in California and New York and responses from Black Lives Matter, the NAACP and the Sacramento Kings basketball team. White House press secretary Sarah Huckabee Sanders was asked about the fatal police shooting of Stephon Clark at a White House briefing on Wednesday. She described the shooting as a “terrible incident” but also said that the problem is “something we feel should be left up to local authorities.” Sanders went on to add: “The president is very supportive of law enforcement. But at the same time, in these specific cases and these specific instances, those will be left up to local authorities to make that determination and not something for the federal government to weigh into."  Clark was buried on Thursday after a public service, which was held at BOSS church in south Sacramento. The Rev. Al Sharpton delivered the eulogy. “This is a national fight. Stephon has woke up the nation. We all stand with Stephon Clark,” Sharpton said to the crowd. “We are going to make Donald Trump and the whole world deal with the issue of police misconduct."

The entire story can be found at:
http://abcnews.go.com/US/stephon-clark-shot-times-times-back-independent-autopsy/story?id=54122396

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.

Ledura Watkins: Michigan: Flawed hair analysis case: Centrepiece of former Ohio Attorney General Jim Petro's commentary: "Good news, bad news for innocent people in prison."..."Other than his record-breaking incarceration, Watkins’s case was sadly familiar to students of wrongful conviction, a terrible miscarriage of justice that never should have happened. Watkins was convicted with just a hair of physical evidence, literally. One hair found on the victim reportedly had 15 similarity points with Watkins’s hair; such forensic analysis later was shown to be unreliable. A witness who said he committed the murder with Watkins later admitted that he lied. Police reports that would have discredited the witnesses against Watkins, reports that identified another suspect who failed a lie detector test, never were disclosed to Watkins’s defense, as required of police and prosecutors. Watkins is one of 139 innocent defendants who were exonerated in the United States in 2017, according to a new report by the National Registry of Exonerations."..."The bad news first: Eighty-four of the innocent defendants exonerated in 2017, including Ledura Watkins, were victims of misconduct by police, prosecutors, or both. That’s a record for a single year — a deeply distressing record considering that misconduct, by its very nature, is usually hidden. And it most often remains hidden, especially among the many wrongful convictions that we never discover. The good news is that an increasing number of elected prosecutors around the country have created “conviction integrity units” in their offices, 33 as of the end of last year. These prosecutorial units are dedicated to identifying wrongful convictions and remedying them (to the extent possible), and preventing these terrible errors. They were involved in 42 exonerations in 2017. Better yet, 16 exonerations in 2017 included cooperation between conviction integrity units and organizations that represent innocent defendants who have been convicted of crimes — such as the Ohio Innocence Project that approached me about Clarence Elkins in 2005, and dozens of similar groups around the country. That, too, is a record. But if nothing else happens, these records won’t amount to much."

PASSAGE OF THE DAY: "The good news is that an increasing number of elected prosecutors around the country have created “conviction integrity units” in their offices, 33 as of the end of last year. These prosecutorial units are dedicated to identifying wrongful convictions and remedying them (to the extent possible), and preventing these terrible errors. They were involved in 42 exonerations in 2017. Better yet, 16 exonerations in 2017 included cooperation between conviction integrity units and organizations that represent innocent defendants who have been convicted of crimes — such as the Ohio Innocence Project that approached me about Clarence Elkins in 2005, and dozens of similar groups around the country. That, too, is a record. But if nothing else happens, these records won’t amount to much. Thirty-three conviction integrity units is a drop in the bucket in a country with thousands of prosecutorial offices. Forty-two exonerations pale in comparison to the thousands of innocent defendants whose wrongful convictions have not come to light. Let’s hope this is only a start. There’s a long way to go, but I’m optimistic."

COMMENTARY: "Good news, bad news for innocent people in prison," by Jim Petro, published by The Hill  on March 18, 2018. (Jim Petro, former Ohio Attorney General and co-author of “False Justice – Eight Myths that Convict the Innocent,” is on the advisory board of the National Registry of Exonerations.)

GIST: "In 2017, Ledura Watkins, 61, was freed after serving more than 41 years in a Michigan prison for a murder he did not commit. This was the longest incarceration before exoneration in United States history. Other than his record-breaking incarceration, Watkins’s case was sadly familiar to students of wrongful conviction, a terrible miscarriage of justice that never should have happened. Watkins was convicted with just a hair of physical evidence, literally. One hair found on the victim reportedly had 15 similarity points with Watkins’s hair; such forensic analysis later was shown to be unreliable. A witness who said he committed the murder with Watkins later admitted that he lied. Police reports that would have discredited the witnesses against Watkins, reports that identified another suspect who failed a lie detector test, never were disclosed to Watkins’s defense, as required of police and prosecutors. Watkins is one of 139 innocent defendants who were exonerated in the United States in 2017, according to a new report by the National Registry of Exonerations. That brings the total to 2,161 exonerations since 1989 — and that’s only the visible tip of a much larger mass of wrongfully convicted defendants who are never cleared. I started learning about wrongful convictions 13 years ago, when I was attorney general of Ohio. I received a phone call from Mark Godsey, a former prosecutor and director of the Ohio Innocence Project. He told me that his client, Clarence Elkins — who was in his sixth year of a life sentence for the murder of his mother-in-law and rape of his niece — did not commit those crimes. I listened but found Godsey’s claim implausible. Every prosecutor is obliged to consider new evidence of innocence and seek to correct injustices, not just win and defend convictions. But, as a 30-year lawyer who had prosecuted felonies, a legislator who helped craft Ohio’s death penalty law, and an official who supported tough-on-crime policies, I didn’t believe our criminal justice system made mistakes of this magnitude. I was wrong. After our office examined this case, I became convinced Elkins was innocent. DNA testing of evidence eventually identified the real perpetrator, Earl Mann, a seasoned felon living near the crime scene. Elkins was released and exonerated; Mann pleaded guilty and was sentenced to life without parole. The Elkins case shook my foundational beliefs about criminal justice. The fact that an innocent man with no criminal record was wrongly convicted of murder astounded me. I thought — I hoped — that Elkins was one in a million. Since then, I’m sorry to report, I’ve learned of many similar cases. As a former prosecutor, I am most concerned about the behavior of law enforcement. On that score, the exonerations in 2017 include good news and bad news. The bad news first: Eighty-four of the innocent defendants exonerated in 2017, including Ledura Watkins, were victims of misconduct by police, prosecutors, or both. That’s a record for a single year — a deeply distressing record considering that misconduct, by its very nature, is usually hidden. And it most often remains hidden, especially among the many wrongful convictions that we never discover. The good news is that an increasing number of elected prosecutors around the country have created “conviction integrity units” in their offices, 33 as of the end of last year. These prosecutorial units are dedicated to identifying wrongful convictions and remedying them (to the extent possible), and preventing these terrible errors. They were involved in 42 exonerations in 2017. Better yet, 16 exonerations in 2017 included cooperation between conviction integrity units and organizations that represent innocent defendants who have been convicted of crimes — such as the Ohio Innocence Project that approached me about Clarence Elkins in 2005, and dozens of similar groups around the country. That, too, is a record. But if nothing else happens, these records won’t amount to much. Thirty-three conviction integrity units is a drop in the bucket in a country with thousands of prosecutorial offices. Forty-two exonerations pale in comparison to the thousands of innocent defendants whose wrongful convictions have not come to light. Let’s hope this is only a start. There’s a long way to go, but I’m optimistic. The pace of change is accelerating. In 10 or 20 years, these reforms might become the rule for prosecutors across the country. If that happens, we will identify — and free — many more innocent defendants who are in prison. Better yet, we will prevent even more from ever suffering that fate."

The entire commentary can be read at:

http://thehill.com/opinion/criminal-justice/378463-good-news-bad-news-for-innocent-people-in-prison

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.

Adnan Syed: Maryland: Bulletin: New trial ordered (once again) for subject of the 'Serial' podcast..."To corroborate his account, prosecutors presented cell phone records and expert witness testimony to place Syed at the site where Lee was buried. He was convicted in 2000 and sentenced to life in prison on murder and kidnapping charges. In 2016, a Baltimore Circuit Court judge vacated Syed's conviction and ordered a new trial, based on claims that Syed's trial lawyer failed to cross-examine the expert witness about the reliability of cell tower location evidence. The state appealed the 2016 order, leading to Thursday's decision by the court of special appeals."

"PASSAGE OF THE DAY:  "Brown is optimistic they will get a new trial. He said he hopes the state will forgo an appeal and seek to retry the case. "If we go to trial, we will win that trial," Brown told CNN. As for whether Syed will be released on bail before a new trial, Brown told CNN: "It's something we'd consider revisiting."

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

STORY:  "A court once again orders a new trial for Adnan Syed, the subject of a 'Serial' podcasts," by Jason Hanna and Alex Marquardt, published by CNN on March 29, 2018.

GIST: Adnan Syed, whose murder conviction was the focus of the first season on the extremely popular "Serial" podcast, has moved closer to a new trial. But it's not necessarily a done deal. On Thursday, the Maryland Court of Special Appeals, by a 2-1 ruling, ordered a new trial for Syed on all charges. It upheld a lower court that ruled similarly in 2016. Prosecutors have 30 days to appeal this decision to the state's highest court or proceed with a new trial.........Syed, 36, had been serving a life sentence in the slaying of his ex-girlfriend, Hae Min Lee. Her strangled body was found in a shallow grave in a park one month after she went missing in January 1999. Prosecutors relied on testimony from a friend, Jay Wilds, who said he helped Syed dig a hole for Lee's body. To corroborate his account, prosecutors presented cell phone records and expert witness testimony to place Syed at the site where Lee was buried. He was convicted in 2000 and sentenced to life in prison on murder and kidnapping charges. In 2016, a Baltimore Circuit Court judge vacated Syed's conviction and ordered a new trial, based on claims that Syed's trial lawyer failed to cross-examine the expert witness about the reliability of cell tower location evidence. The state appealed the 2016 order, leading to Thursday's decision by the court of special appeals. Brown is optimistic they will get a new trial. He said he hopes the state will forgo an appeal and seek to retry the case. "If we go to trial, we will win that trial," Brown told CNN. As for whether Syed will be released on bail before a new trial, Brown told CNN: "It's something we'd consider revisiting." The first season of the "Serial" podcast, consisting of 12 episodes about the case, was downloaded more than 40 million times in 2014. The podcast dug into a lead that would give Syed an alibi. Before his trial, Syed gave his lawyers two letters from Asia McClain, a fellow student who said she saw Syed at a library around the time of the murder. Her account did not make it into the defense case, leading Syed to claim ineffective counsel for failing to contact her. The judge at the post-conviction hearing sided with Syed, and prosecutors appealed. In Thursday's decision, two judges from the Court of Special Appeals agreed with the merits of the ineffective counsel claim, while the dissenting judge said there are times when lawyers have good reasons not to contact a potential alibi witness. Syed's trial lawyer, M. Cristina Gutierrez, died before his post-conviction appeal."

The entire story can be found at:

.

https://www.cnn.com/2018/03/29/us/adnan-syed-serial-new-trial/index.htmlPUBLISHER'S NOTE:

"READ THE  ENTIRE WIKIPEDIA ENTRY AT THE LINK BELOW: (TRIALS AND APPEALS): "Syed's family hired defense attorney Cristina Gutierrez to represent him. During Syed's first trial, jurors accidentally overheard a sidebar dispute between Gutierrez and the presiding judge in which he referred to her as a "liar".^[12] After learning that the jury had heard his characterization, the judge declared a mistrial. A second trial lasted six weeks and Syed was found guilty of first degree murder, kidnapping, false imprisonment, and robbery on February 25, 2000.^[13] Syed was sentenced to life in prison plus 30 years.^[14] Adnan first appealed his case in 2012 based on inadequate assistance of counsel because Gutierrez did not call Asia McClain as an alibi witness; this appeal was denied in 2013.^{[citation needed]} On February 6, 2015, the Maryland Court of Special Appeals approved Syed's application for leave to appeal ("leave" meaning "permission").^[15] On May 19, 2015, the Maryland Court of Special Appeals remanded the case to Circuit Court for potential hearing on the admissibility of alibi testimony of Asia McClain, who said she was talking with Syed in the library at the exact time the prosecutor said Syed attacked Lee in a Best Buy parking lot several miles away.^[16] On November 9, 2015, the Superior Court decided it would hear the case.^[17] According to Sarah Koenig's investigation as told in Serial, McClain's account of her encounter with Syed on the day of the disappearance would have been helpful for Syed during his trial.^[15] Syed's appeals lawyer Justin Brown said that new evidence about the reliability of incoming call data from AT&T is suspect and should be reviewed by an appeals court, stating, "the cell tower evidence was misleading and should have never been admitted at trial."^[18] On November 6, 2015, Baltimore City Circuit Court Judge Martin Welch ordered that Syed's post-conviction relief proceedings, which determines if he deserves a new trial, would be re-opened "in the interests of justice for all parties."^[19] The post-conviction relief hearing, originally scheduled to last two days, lasted five days from February 3 – 9, 2016.^[20] The hearing was attended by people from across the U.S., including Koenig, and McClain testified that she talked to Syed at the library on January 13, 1999.^[21] On June 30, 2016, Judge Welch granted Syed's request for a new trial, ruling that Gutierrez "rendered ineffective assistance when she failed to cross-examine the state's expert regarding the reliability of cell tower location evidence," vacating Syed's conviction.^[22][23] In October 2016, Syed's attorneys requested bail be granted to Syed until the retrial started.^[24] On December 29, 2016, Judge Welch denied bail for Syed.^[25] On March 29, 2018, the decision to grant Adnan Syed a new trial was upheld by the Maryland Court of Special Appeals.^"

https://en.wikipedia.org/wiki/Murder_of_Hae_Min_Lee

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.

Who is Adnan Syed?

'Serial' podcast subject Adnan Syed gets new trial

Legal analyst on podcast subject's retrial

False identifications: Refreshing commentary by two veteran law enforcement officials - on how police can prevent false identification by eyewitnesses..."We represent two very different communities and states: a small town in Massachusetts and a larger urban community in North Carolina. However, we know that flaws in human memory are the same regardless of where you are in the country. In both of our states, innocent people have been wrongly convicted because of a misidentification. And in both of our states, for each of those innocent men and women, a guilty person has gone free. These are terrible truths, but we must never forget them. Of the 354 DNA-based exonerations in this country, nearly three out of four involved a mistaken identification. Senate Bill 38 would mandate a scientifically proven method that would greatly reduce the chance for any future case in Louisiana, and that is why we are such strong supporters of this measure."

PASSAGE OF THE DAY: "We do our job every day knowing victims and families are in pain, communities are scared, and the public wants fast answers where there are often only questions. We also know that if we fail to apprehend the person responsible, they could -- and often do -- strike again. It is an uphill battle, to say the least. This is why we believe in the use of best practices in criminal investigations, including those recommended by scientific research for eyewitness identification procedures: blinded administration, neutral instructions like informing the witness the suspect may or may not be in the line-up, creating the line-up so the suspect does not standout, and recording the witness's confidence if the witness makes an identification. These procedures implemented together by law enforcement would decrease the likelihood of a witness mistakenly identifying the wrong and innocent person. "

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COMMENTARY: "Police can help prevent false identification by eyewitnesses," by Chief William Brooks 111 and Major Michael Smathers, published  on March 21, 2018, by nola.com. (William Brooks III is chief of the Norwood, Mass., Police Department. Major Michael Smathers serves in the Charlotte-Mecklenburg Police Department.)

GIST: "As veteran law enforcement officers, we have pledged our lives to the mission of policing. That mission, we believe, is a duty to protect every American's right to a life that is safe and free.
The duty to protect. It's a simple phrase but a daunting task. Like a doctor, entrusted to save lives, is constantly searching for the right diagnoses and the best treatment, our profession demands a headlong search for truth and the best tools to find it. We do our job every day knowing victims and families are in pain, communities are scared, and the public wants fast answers where there are often only questions. We also know that if we fail to apprehend the person responsible, they could -- and often do -- strike again. It is an uphill battle, to say the least. This is why we believe in the use of best practices in criminal investigations, including those recommended by scientific research for eyewitness identification procedures: blinded administration, neutral instructions like informing the witness the suspect may or may not be in the line-up, creating the line-up so the suspect does not standout, and recording the witness's confidence if the witness makes an identification. These procedures implemented together by law enforcement would decrease the likelihood of a witness mistakenly identifying the wrong and innocent person.  This session Senate Bill 38, a proposal for statewide adoption of these best practices is before the Louisiana Legislature, and we urge lawmakers as well as our fellow officers to support this bill. These reforms are backed not just by a study or two, but by four decades of research that culminated in the National Academy of Science's report in 2015. They are used not just by a jurisdiction here and there, but by the FBI and 19 states around the country, including Florida, Texas, Georgia and North Carolina. Those states know that being tough on crime means you have to be accurate on crime, too. These measures cost little to implement, and any department whether small or large, rural or urban, can use them. We represent two very different communities and states: a small town in Massachusetts and a larger urban community in North Carolina. However, we know that flaws in human memory are the same regardless of where you are in the country. In both of our states, innocent people have been wrongly convicted because of a misidentification. And in both of our states, for each of those innocent men and women, a guilty person has gone free. These are terrible truths, but we must never forget them. Of the 354 DNA-based exonerations in this country, nearly three out of four involved a mistaken identification. Senate Bill 38 would mandate a scientifically proven method that would greatly reduce the chance for any future case in Louisiana, and that is why we are such strong supporters of this measure. In half of these cases the exoneration led to the guilty party, but only after they had gone on to commit 150 additional crimes, 80 of which were rapes and 35 of which were murders. These numbers may sound cold and clinical, but as officers, we have all seen the faces of victims and their families and know all too well what grief, trauma and loss look like. Change is hard. Accepting mandates from legislatures rather than our own leaders is even harder (and we have struggled with this on many issues, too). As senior police executives who have implemented these proposals ourselves, we have gone all over the United States advocating for these changes. We know it is feasible to successfully implement them here in Louisiana. The costs of inaction are just too high. The science on eyewitness identification is settled, and the best practices have as much support from the law enforcement community as they do from the scientific community, because they produce better evidence and help us do our jobs. A statewide commitment through law is what we need to ensure all officers who have taken the pledge to protect have clear guidelines. Justice for a victim in rural northern Louisiana should not look any different than justice for a victim in Baton Rouge. Some commanders fear that this type of statewide legislation will lead to further and endless meddling of law enforcement polices and practices by legislators. We have not seen this happen in our two states. We have not slipped down any slippery slopes. We may not ever be able to eliminate misidentifications, but using the best practices greatly increases the odds that eyewitness evidence will be accurate and reliable. In other words, as we dive into that search for truth, we have another light to help us find our way. The duty to protect is not an easy oath to take or to maintain, but it is proudly ours. Therefore as law enforcement officers when we are being presented with better tools for better evidence, we must embrace them. We are certain Senate Bill 38 will make policing better in Louisiana and will help you all in your search for the truth on behalf of the citizens you serve."

The entire commentary can be read at:

http://www.nola.com/opinions/index.ssf/2018/03/eyewitness_identification.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.

Faked lineup identification: "A New York police detective was arrested on Tuesday on federal perjury charges after prosecutors concluded that he had fabricated evidence in a carjacking case," the New York Times reports..."In the case on Tuesday, Detective Foder is accused of doctoring a photo lineup to persuade a judge that a victim had been able to identify two suspects in a carjacking. The charges are considered particularly troubling because they involve accusations that a detective tampered with witness identifications. Erroneous identifications by witnesses have been a leading cause of wrongful convictions."

PASSAGE OF THE DAY: "In a 2016 court hearing in Federal District Court in Brooklyn, Detective Foder testified about what happened next. He prepared two photo lineups — one for each suspect. Each one consisted of the suspect’s mug shot printed on a sheet of paper, alongside mug shots of five “fillers” — people of vaguely similar appearance with no connection to the crime. The hope was that Mr. Polat might recognize the suspect’s photo and pick him out. That is exactly what happened, Detective Foder testified, explaining that Mr. Polat had gone to the station house on two different days to view the two photo lineups. Detective Foder had documented these meetings, including the date each photo lineup was administered. On each photo lineup, a signature appears beneath the suspect’s mug shot marking it as the photo the victim selected. The suspects were charged in the carjacking. The photo lineups were the main evidence against them.  But those lineups turned out to be fabrications, investigators said. This discovery was made when Mr. Haggans, the prosecutor, realized that many of the mug shots used in the lineups were not available to Detective Foder at the time he claimed to have put the lineups together. The reason? They had yet to be taken. The paperwork included the date of each mug shot, and most of the “filler” photos were taken after the dates the victim had supposedly viewed the photo array. The photo array that Detective Foder claimed to have shown to the victim in November had photographs with December dates. Most of the photos from the February lineup had March dates. An indictment unsealed on Tuesday charges Detective Foder with perjury and obstruction of an official proceeding."

STORY: "New York Detective Charged with Faking Lineup Results," by reporter Joseph Goldstein, published  on February  27, 2018, by The New York Times.

PHOTO CAPTION: "A prosecutor discovered that the many of the photos Detective Foder said he had shown the victim were taken a month after they met."

GIST: "A New York police detective was arrested on Tuesday on federal perjury charges after prosecutors concluded that he had fabricated evidence in a carjacking case. The charges against Michael Foder, 41, who had been assigned to the detective squad in the 70th precinct in central Brooklyn, are the latest sign that perjury remains an ongoing problem within the New York Police Department. Last month another detective, Kevin Desormeau, was convicted in Queens of falsely testifying about having observed a drug deal after a jury found that the detective had made up the story to cover up a dubious arrest. In the case on Tuesday, Detective Foder is accused of doctoring a photo lineup to persuade a judge that a victim had been able to identify two suspects in a carjacking. The charges are considered particularly troubling because they involve accusations that a detective tampered with witness identifications. Erroneous identifications by witnesses have been a leading cause of wrongful convictions. In the past decade, the New York Police Department has taken steps to try to prevent such misconduct. Among other requirements, detectives are supposed to follow a detailed set of instructions when conducting lineups. They cannot chat with witnesses while showing them photos or lineups, but instead should hew to a script intended to prevent the detectives from improperly influencing the result. Still, the charges against Detective Foder suggest that the safeguards may not always be enough. The suspected fabrications were not caught by Detective Foder’s supervisor, or the defense lawyers who scrutinized the evidence. Instead, they were spotted by a prosecutor, J. Matthew Haggans, who was taking another look at the case file as he prepared to write a brief describing the strength of the evidence.  The case involved a 2015 carjacking in Brooklyn, in which a gunman and two accomplices forced a livery cabdriver out of an S.U.V. and stole the vehicle. The driver, Orhan Polat, was initially able to identify a person he thought was the gunman when he was brought to a station house to look at photographs of teenagers and men who fit the description of Mr. Polat’s assailants. But Mr. Polat did not recognize anyone who looked like the other two men involved in the carjacking. In the weeks that followed, the police focused on two additional suspects based on an anonymous tip and fingerprint analysis. In a 2016 court hearing in Federal District Court in Brooklyn, Detective Foder testified about what happened next. He prepared two photo lineups — one for each suspect. Each one consisted of the suspect’s mug shot printed on a sheet of paper, alongside mug shots of five “fillers” — people of vaguely similar appearance with no connection to the crime. The hope was that Mr. Polat might recognize the suspect’s photo and pick him out. That is exactly what happened, Detective Foder testified, explaining that Mr. Polat had gone to the station house on two different days to view the two photo lineups. Detective Foder had documented these meetings, including the date each photo lineup was administered. On each photo lineup, a signature appears beneath the suspect’s mug shot marking it as the photo the victim selected. The case involved a 2015 carjacking in Brooklyn, in which a gunman and two accomplices forced a livery cabdriver out of an S.U.V. and stole the vehicle. The driver, Orhan Polat, was initially able to identify a person he thought was the gunman when he was brought to a station house to look at photographs of teenagers and men who fit the description of Mr. Polat’s assailants. But Mr. Polat did not recognize anyone who looked like the other two men involved in the carjacking. In the weeks that followed, the police focused on two additional suspects based on an anonymous tip and fingerprint analysis. In a 2016 court hearing in Federal District Court in Brooklyn, Detective Foder testified about what happened next. He prepared two photo lineups — one for each suspect. Each one consisted of the suspect’s mug shot printed on a sheet of paper, alongside mug shots of five “fillers” — people of vaguely similar appearance with no connection to the crime. The hope was that Mr. Polat might recognize the suspect’s photo and pick him out. That is exactly what happened, Detective Foder testified, explaining that Mr. Polat had gone to the station house on two different days to view the two photo lineups. Detective Foder had documented these meetings, including the date each photo lineup was administered. On each photo lineup, a signature appears beneath the suspect’s mug shot marking it as the photo the victim selected. The suspects were charged in the carjacking. The photo lineups were the main evidence against them.  But those lineups turned out to be fabrications, investigators said. This discovery was made when Mr. Haggans, the prosecutor, realized that many of the mug shots used in the lineups were not available to Detective Foder at the time he claimed to have put the lineups together. The reason? They had yet to be taken. The paperwork included the date of each mug shot, and most of the “filler” photos were taken after the dates the victim had supposedly viewed the photo array. The photo array that Detective Foder claimed to have shown to the victim in November had photographs with December dates. Most of the photos from the February lineup had March dates. An indictment unsealed on Tuesday charges Detective Foder with perjury and obstruction of an official proceeding. “Our justice system relies upon the absolute integrity of our law enforcement officers and, while the vast majority of officers uphold that standard, we will not hesitate to act when one does not,” Richard P. Donoghue, the United States attorney in Brooklyn, said in a statement. The indictment accuses Detective Foder of having “falsified documentation relating to the purported identifications made by the victim” in the carjacking case. At an arraignment on Tuesday in Federal District Court in Brooklyn, a lawyer for Detective Foder entered a not-guilty plea on the detective’s behalf. Detective Foder was released on bail. Without addressing whether the photo lineups were fabricated, Detective Foder’s lawyer, James Moschella, said the officer investigated the carjacking “in good faith.” “I don’t think there is any indication he wasn’t acting in good faith investigating the case,” Mr. Moschella told reporters after the court hearing. Mr. Moshella said he expects Detective Foder to be suspended from the Police Department for 30 days, and return to work in some capacity while the case is pending. The carjacking charges involving Mr. Polat’s vehicle were dropped against the two men who had been arrested on the basis of the photo lineups — Mardoche Petitphare and Rayvaughn Williams — when they pleaded guilty to an unrelated crime: the attempted robbery of a fast-food restaurant. The police commissioner, James P. O’Neill, said the people of New York “expect the highest levels of integrity and truthfulness from our police officers, who swore an oath to uphold the fundamental principles of our city, state, and nation.” He added, “The detective charged today broke that oath by willfully giving false testimony, an act that makes the job of every other police officer more difficult.”"

The entire story can be read at the link below:

 https://www.nytimes.com/2018/02/27/nyregion/detective-perjury-nypd-nyc.html?rref=collection%2Fbyline%2Fjoseph-goldstein&action=click&contentCollection=undefined&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=collection

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.

David Gavitt: Michigan; Outdated arson 'science.'...Cleared of murder because prosecutors agreed that evidence behind his arson conviction was no longer credible, he now seeks compensation (in spite of the prosecutors insistence (to their shame. HL) that he hasn't proved that he was innocent. (Something is very wrong in this picture. HL)..."Judge Michael Talbot, who is overseeing Gavitt's claim for payment, so far is siding with the state. In a Jan. 8 decision, he said Gavitt still "must present clear and convincing evidence" that he didn't kill his family. Gavitt's attorney, J. Paul Janes, said the judge's ruling is a "complete 180-degree shift of the burden of proof." Imran Syed, a law professor who helped win Gavitt's release, believes Talbot is misinterpreting the compensation law."

PASSAGE OF THE DAY: "The big irony is that Gavitt's case was often raised when the Michigan Legislature voted to pay people who were wrongly convicted. The law started in 2017. "The general public would never believe a man out for six years still hasn't gotten a penny from anybody," Syed said. "He's working hard just to make ends meet. After all he's been through, a lot of people wouldn't have their sanity.""

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QUOTE OF THE DAY: "Imran Syed, a law professor who helped win Gavitt's release, believes Talbot is misinterpreting the compensation law. "Everything they used against David to say this fire was intentionally set was determined to be junk science. When junk science disappears, that's it," Syed said."

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STORY: "Michigan man cleared of murder now fights for compensation, by Associated Press reporter Ed White, published by USA Today on March 4, 2018.

GIST: "David Gavitt spent 26 years in prison for the deaths of his wife and two daughters before a prosecutor agreed that the evidence behind his arson conviction was no longer credible. The case helped inspire a Michigan law aimed at compensating the wrongfully convicted. Yet the state now is vigorously resisting Gavitt's request for money, going so far as to question whether he's really innocent. He would qualify for more than $1 million. "My reaction? I don't know how to put this — anger," said Gavitt, 59, who works the midnight shift at a tub manufacturer. "It's like a slap in the face. ... I thought we lived in America where the accused doesn't have to prove innocence. They're judging me all over again." Gavitt's claim under Michigan's Wrongful Imprisonment Compensation Act — $50,000 for each year in prison — would seem like a slam dunk. The evidence used to convict him was thoroughly discredited through major advances in fire science, and Ionia County prosecutor Ron Schafer in 2012 declined a second trial. But Schafer's successor and the Michigan attorney general's office aren't convinced he should be paid. "Although Mr. Gavitt is no longer guilty beyond a reasonable doubt of the crime initially charged, there certainly is circumstantial evidence that supports he is not innocent of wrongdoing," prosecutor Kyle Butler said in a letter to Attorney General Bill Schuette. Michigan is among 32 states and the District of Columbia that provide money to people who are rebuilding their lives after being wrongly convicted. Perjury, bad evidence, sloppy police work — all have led to reversals, sometimes after decades in prison. Gavitt was convicted of arson and murder in 1986 in a tragedy that stunned the small town of Ionia, 130 miles northwest of Detroit. His wife, Angie, and their daughters, ages 3 and 11, died. Wearing only jeans, Gavitt was rushed to a hospital where he spent weeks recovering from severe burns. He insisted the fire in the living room was an accident. Gavitt and his wife were smokers, and an ashtray was in the room. Angie also collected lamps that burned oil. But experts testified that burn patterns in the living room  were typical of an intentional fire and that traces of gasoline were detected. Gavitt's appeals failed until the Innocence Clinic at University of Michigan law school took his case in 2010. By then, the science of fire investigations had dramatically changed. Different experts examined the evidence from the 1985 blaze and refuted the arson theory presented at trial. In agreeing to drop the convictions and life sentence, Schafer said an intentional fire caused by gasoline could no longer be verified. But at the same time he also noted there still were a "great deal of questions" about what Gavitt did during that chaotic night. Butler, who has been Ionia's prosecutor since 2016, also apparently has doubts. He didn't respond to an interview request but expressed concerns in his letter to the attorney general. Judge Michael Talbot, who is overseeing Gavitt's claim for payment, so far is siding with the state. In a Jan. 8 decision, he said Gavitt still "must present clear and convincing evidence" that he didn't kill his family. Gavitt's attorney, J. Paul Janes, said the judge's ruling is a "complete 180-degree shift of the burden of proof." Imran Syed, a law professor who helped win Gavitt's release, believes Talbot is misinterpreting the compensation law. "Everything they used against David to say this fire was intentionally set was determined to be junk science. When junk science disappears, that's it," Syed said. The big irony is that Gavitt's case was often raised when the Michigan Legislature voted to pay people who were wrongly convicted. The law started in 2017. "The general public would never believe a man out for six years still hasn't gotten a penny from anybody," Syed said. "He's working hard just to make ends meet. After all he's been through, a lot of people wouldn't have their sanity.""

The entire story can be found at:

https://www.freep.com/story/news/local/michigan/2018/03/04/michigan-man-cleared-murder-now-fights-compensation/393427002/

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.

Shaken Baby Syndrome: "On SBS" introduces us to a new book - by Arizona trial attorney Randy Papetti. (The title is self-explanatory!): "The Forensic Unreliability of the Shaken Baby Syndrome."..."His shaken baby work has all been pro bono. Papetti was only doing a favor for a friend, he told me in a telephone interview, when he agreed to help with his first shaking case, an appeal of a murder conviction. The convicted father had reported a fall from a high chair, but the child abuse experts had insisted that shaking must have been involved. Papetti started researching the medical and legal arguments and found himself face to face with the difference between medical opinion and proven scientific fact. Papetti won that appeal, and other attorneys started approaching him with their own shaking cases. He was a key player in the 2012 freeing of Drayton Witt, whose son died after a short lifetime of serious health problems, including a seizure disorder. It was the Witt case that brought pioneering pediatric neurosurgeon Dr. Norman Guthkelch back into the arena, four decades after he lay the groundwork for the diagnosis by proposing that shaking an infant could cause subdural bleeding. Like Papetti, Dr. Guthkelch rejected the medical thinking that had convicted Drayton Witt. Guthkelch then spent the final years of his life fighting what he considered a “tragic misinterpretation” of his work."

PASSAGE OF THE DAY: "Papetti said he was “stunned” to see how child abuse professionals have lashed out personally at defense experts and attorneys: ridicule at conferences, perjury charges, letters to employers. “That’s not the way the game is played,” he said. Attorneys in civil practice fight hard in the courtroom, he claimed, but can still respect their opponents professionally and maintain personal friendships. In his book, Papetti traces the evolution of shaking theory in both the medical literature and the courts. He illustrates how the two have co-evolved, distorting each other, and he examines the cooperative relationship among child abuse experts, the police, and social services. He writes: These institutional realities, not science or clinical validation, best explain how SBS has persisted and why the medical profession is unlikely to correct it any time soon. “Things tend to get worse before they get better,” he told me, “And I’m afraid that’s where we are now, still getting worse.”

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POST: "The Forensic Unreliability of the Shaken Baby Syndrome," by Sue Luttner, published on her most informative Blog "On SBS"  on March  25, 2018.

GIST: Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome, now shipping from Academic Forensic Pathology International (coupon for $50 off). Papetti is not a criminal attorney but a recognized leader in his primary field, commercial litigation. In 2013, he was selected by Best Lawyers and his local peers as the Lawyer of the Year for “Bet-the-Company Litigation.” In 2011, he was inducted into the invitation-only American College of Trial Lawyers. His shaken baby work has all been pro bono. Papetti was only doing a favor for a friend, he told me in a telephone interview, when he agreed to help with his first shaking case, an appeal of a murder conviction. The convicted father had reported a fall from a high chair, but the child abuse experts had insisted that shaking must have been involved. Papetti started researching the medical and legal arguments and found himself face to face with the difference between medical opinion and proven scientific fact. Papetti won that appeal, and other attorneys started approaching him with their own shaking cases. He was a key player in the 2012 freeing of Drayton Witt, whose son died after a short lifetime of serious health problems, including a seizure disorder. It was the Witt case that brought pioneering pediatric neurosurgeon Dr. Norman Guthkelch back into the arena, four decades after he lay the groundwork for the diagnosis by proposing that shaking an infant could cause subdural bleeding. Like Papetti, Dr. Guthkelch rejected the medical thinking that had convicted Drayton Witt. Guthkelch then spent the final years of his life fighting what he considered a “tragic misinterpretation” of his work. “Witt was a powerful case,” Papetti said. “It showed how easily a mistaken diagnosis based on the ‘triad‘ can convict.” By then law professor Deborah Tuerkheimer had published her first journal argument against shaking theory, and her New York Times op ed. Papetti thought the tide was turning. “The information was out there, people could see that shaking theory was unreliable.” Instead of reconsidering their model, however, proponents of shaking theory “took a course I never imagined they would be able to take, claiming there never was a triad,” Papetti marveled in our interview. In his book, he noted that changing the name of the diagnosis from “shaken baby syndrome” to “abusive head trauma” did not address the fundamental problem that the entire theory was speculation. “It merely changed the diagnosis’ name for legal purposes.” Papetti said he was “stunned” to see how child abuse professionals have lashed out personally at defense experts and attorneys: ridicule at conferences, perjury charges, letters to employers. “That’s not the way the game is played,” he said. Attorneys in civil practice fight hard in the courtroom, he claimed, but can still respect their opponents professionally and maintain personal friendships. In his book, Papetti traces the evolution of shaking theory in both the medical literature and the courts. He illustrates how the two have co-evolved, distorting each other, and he examines the cooperative relationship among child abuse experts, the police, and social services. He writes: These institutional realities, not science or clinical validation, best explain how SBS has persisted and why the medical profession is unlikely to correct it any time soon. “Things tend to get worse before they get better,” he told me, “And I’m afraid that’s where we are now, still getting worse.” At this point, proponents of shaking theory staff the medical schools and the childrens’ hospitals, dominate the professional organizations, and conduct the bulk of the research. Critics tend to be independent thinkers who have researched the literature and reached their own conclusions.  “The imbalance of power has distorted everything completely,” Papetti said. “At the end of the day, are you really asking a judge to not allow the testimony of these luminaries because a few brave souls disagree?” So he keeps chipping away at a calcified theory with the facts, hoping to explain it all clearly enough that judges will see how decades of unproven medical testimony have led to a criminal justice crisis of staggering proportions."

The entire post can be found at:

https://onsbs.com/2018/03/25/the-forensic-unreliability-of-the-shaken-baby-syndrome-the-book/

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.

Flawed forensics: Shaken Baby Syndrome, junk bite-mark science, Dr. Steven Hayne - and so much more! More from Radley Balko and Tucker Carrington. The co-authors of the widely aclaimed recently published book "The cadaver king and the country dentist - a true story of injustice in the American South," show how bad science can put innocent people in jail — and how it keeps them there - and how discredited experts and fields of forensics keep sneaking into courtrooms."..."For 20 years, defendants have tried to challenge Steven Hayne’s credibility and credentials. They’ve lost almost every time, even as media reports and defense attorneys have raised doubts about Hayne’s work habits, professionalism and objectivity. (Hayne has denied accusations that he performs too many autopsies, or that he’s a rubber stamp for prosecutors. In 2008, he was barred from doing autopsies for state prosecutors. He now testifies for the defense, and in civil cases.) James Koon was convicted in Louisiana in 1996 for killing an infant whose autopsy Hayne performed. Koon filed for a new trial in 2012, arguing that the revelations about Hayne’s credibility constituted newly discovered evidence. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit unanimously held in 2014 that “the witness for Louisiana, Dr. Steven Hayne, a now-discredited Mississippi coroner, lied about his qualifications as an expert and thus gave unreliable testimony about the cause of death.” Yet Koon was still denied a new trial, because the court ruled that he had missed the one-year window for his claim."

PASSAGE OF THE DAY: "The history of bite mark jurisprudence shows how poorly the courts scrutinize expert testimony. The 1975 California case People v. Marx was the first time an appellate court allowed bite mark testimony. Three dentists claimed that they could match bite marks on the victim’s nose to the teeth of the defendant. California followed a federal guideline that allowed the defendant to challenge the scientific validity of scientific testimony, but the appeals court ruled that bite mark matching wasn’t really science but more a matter of common sense.  Three years later, another California appeals court cited Marx in upholding bite mark testimony once again, noting the “superior trustworthiness of the scientific bite mark approach.” But the Marx judges had explicitly noted that the analysis wasn’t scientific. Nonetheless, other courts began citing the case. By 1987, 21 state appellate courts across the United States had accepted bite mark analysis, without a single dissenting opinion. By 2004, courts in 37 U.S. jurisdictions had accepted it"

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COMMENTARY:  "Bad science puts innocent people in jail — and keeps them there," by  Radley Balko and Tucker Carrington," published by The Washington Post on March 21, 2018. (Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces." Tucker Carrington is director of the Mississippi Innocence Project. Balko and Carrington are co-authors of the widely acclaimed recently published book,  "The cadaver king and the country dentist - a true story of injustice in the American South.
https://www.amazon.com/Cadaver-King-Country-Dentist-Injustice/dp/161039691X


SUB-HEADING: "How discredited experts and fields of forensics keep sneaking into courtrooms."

GIST: "In 2009, a Mississippi jury convicted Christopher Brandon of killing his girlfriend’s 15-month-old son. Brandon claimed that the boy fell off a bed and struck his head on a toy, but the state’s expert witness, a controversial medical examiner named Steven Hayne, testified that the child had the symptoms of shaken baby syndrome (SBS). At the time of Brandon’s trial, SBS was already highly contentious. It emerged as a popular diagnosis in the late ’90s and early 2000s, particularly after the high-profile conviction of British au pair Louise Woodward in 1997. Forensic pathologists and child advocates claimed that if a trio of specific symptoms were present in a deceased child — bleeding at the back of the eye, bleeding in the protective area of the brain, brain swelling — the child could have died only from violent shaking. But scientists had begun expressing doubts, and studies were showing that the same symptoms can be caused by infections, genetic conditions and short falls. Brandon’s attorney asked the court for funds to hire his own expert. The court refused, so the jury heard only from Hayne, the state’s expert, who testified that the child had died from shaking. He pointed to a textbook that, he said, debunked the criticism of SBS. The textbook actually said the opposite. Hayne then cited a study that doesn’t appear to exist. Brandon was sentenced to life in prison. When his attorneys filed an appeal questioning the SBS diagnosis and the syndrome itself and pointing out the discrepancies in the state’s case, the Mississippi attorney general said Hayne must have been referring to one of two conferences on SBS — both of which took place after Brandon’s trial . (Disclosure: Tucker Carrington’s office represents Brandon.) A 2013 study by the Medill Innocence Project at Northwestern University estimated SBS played a role in around 3,000 convictions. Since the onset in the 1990s of DNA testing — which, unlike most fields of forensics, was born in the scientific community — we’ve learned that many forensic specialities aren’t nearly as accurate as their practitioners have claimed. Studies from the National Academy of Sciences and the President’s Council of Advisors on Science and Technology have concluded that there’s insufficient research to support the claims of the broad field of “pattern matching” forensics, which includes analyses of such things as hair fiber, bite marks, “tool marks” and tire tread.  These forensic specialties were never subjected to the rigors of scientific inquiry — double-blind testing, peer review — before they were accepted in courtrooms. Most are entirely subjective: An analyst will look at two marks or patterns and determine whether they’re a “match.” Most of these disciplines can’t even calculate a margin of error. The scientific process is slow and deliberate: A study is published. Other studies verify, contradict or refine its results. There’s no set point at which science declares a theory proven or disproven. It’s about the process itself and the gradual accumulation of knowledge. Courts work under a different set of rules. Statutes of limitations toll, procedural rules impose deadlines, and there’s an emphasis on finality. With science, revision and correction are part of the process — it’s okay to be wrong. The criminal justice system tends to operate as if its very legitimacy requires the certainty of a closed tomb.  At the trial level, juries hear far too much dubious science, whether it’s an unproven field like bite mark matching or blood splatter analysis, exaggerated claims in a field like hair fiber analysis, or analysts testifying outside their area of expertise. It’s difficult to say how many convictions involve faulty or suspect forensics, but the FBI estimated in 2015 that its hair fiber analysts had testified in at least 3,000 cases — and that’s merely one subspecialty of forensics, and only at the federal level. Extrapolating from the database of DNA exonerations, the Innocence Project estimates bad forensics contributes to about 45 percent of wrongful convictions. But bad evidence presented at trial is only part of the problem. Even once a field of forensics or a particular expert has been discredited, the courts have made it extremely difficult for those convicted by bad science to get a new trial. The Supreme Court makes judges responsible for determining what is good science. They already decide what evidence is allowed at trial, so asking them to do the same for expert testimony may seem intuitive. But judges are trained to do legal analyses, not scientific ones. They generally deal with challenges to expert testimony by looking at what other judges have said. If a previous court has allowed a field of forensic evidence, subsequent courts will, too. The history of bite mark jurisprudence shows how poorly the courts scrutinize expert testimony. The 1975 California case People v. Marx was the first time an appellate court allowed bite mark testimony. Three dentists claimed that they could match bite marks on the victim’s nose to the teeth of the defendant. California followed a federal guideline that allowed the defendant to challenge the scientific validity of scientific testimony, but the appeals court ruled that bite mark matching wasn’t really science but more a matter of common sense.  Three years later, another California appeals court cited Marx in upholding bite mark testimony once again, noting the “superior trustworthiness of the scientific bite mark approach.” But the Marx judges had explicitly noted that the analysis wasn’t scientific. Nonetheless, other courts began citing the case. By 1987, 21 state appellate courts across the United States had accepted bite mark analysis, without a single dissenting opinion. By 2004, courts in 37 U.S. jurisdictions had accepted it.  In the 1990s, DNA testing began to show that bite mark analysis wasn’t as reliable as its practitioners claimed. We now know that such analysis has led to more than two dozen wrongful arrests and convictions. And a growing number of studies have found no scientific evidence to support its two core assumptions — that teeth are as unique as fingerprints and that human skin can record this uniqueness with enough detail to identify someone.  Yet, to date, every time a defendant has challenged the scientific validity of bite mark analysis, the court has upheld it, including a Pennsylvania court last year. Judges point out that lots of other courts across the country have ruled that bite mark evidence is legitimate. In fact, in at least three states, the controlling case law on such evidence is a case in which the defendant was later exonerated. In Wisconsin, the controlling precedent is a 1986 ruling in which the judges went on for paragraphs about the impeccable scientific credentials of the bite mark witnesses. The court declared that the analysts had been so utterly convincing as “to exclude to a moral certainty every reasonable hypothesis of innocence.” That conviction was overturned based on DNA evidence in 2009, after the defendant spent 23 years in prison.  Courts have been more amenable to SBS defendants. The National Registry of Exonerations lists 16 SBS convictions that have been overturned. But so far, there has been no systematic effort to review old convictions. (In August 2014, the Mississippi Supreme Court granted Brandon an evidentiary hearing, which has yet to take place.)  Once they’ve been convicted because of expert testimony of dubious scientific validity, defendants are usually on their own to find an attorney to challenge that evidence after the fact. And they face daunting procedural barriers. Where science questions the wisdom of the past, the legal system tends to rely on it. So once expert testimony is allowed and a verdict is rendered, the courts put a premium on finality — on precedent and consistency. At that point, even good science often can’t fix the error.  To get a new trial, a defendant must show that he has discovered new evidence, demonstrate that the new evidence was not discoverable at the time of trial and file his claim within a year of when the new evidence could have reasonably been discovered. The last requirement is especially onerous. For a prisoner convicted with bite mark testimony, when does the clock start ticking on the window to file his petition? File your case too soon — say, after the first few studies have been published — and the court may rule that the expertise used to convict you hasn’t yet been discredited. You could now be procedurally barred from raising the issue again. But wait for a stronger scientific consensus before filing, and the court could rule that you’ve missed the one-year deadline. It gets even trickier when the issue is not a field of forensics but an expert in a legitimate field who gives scientifically objectionable testimony. For 20 years, defendants have tried to challenge Steven Hayne’s credibility and credentials. They’ve lost almost every time, even as media reports and defense attorneys have raised doubts about Hayne’s work habits, professionalism and objectivity. (Hayne has denied accusations that he performs too many autopsies, or that he’s a rubber stamp for prosecutors. In 2008, he was barred from doing autopsies for state prosecutors. He now testifies for the defense, and in civil cases.) James Koon was convicted in Louisiana in 1996 for killing an infant whose autopsy Hayne performed. Koon filed for a new trial in 2012, arguing that the revelations about Hayne’s credibility constituted newly discovered evidence. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit unanimously held in 2014 that “the witness for Louisiana, Dr. Steven Hayne, a now-discredited Mississippi coroner, lied about his qualifications as an expert and thus gave unreliable testimony about the cause of death.”  Yet Koon was still denied a new trial, because the court ruled that he had missed the one-year window for his claim. He’d filed within a year of learning about Hayne but not within a year of media exposés, complaints to professional organization s and even a concurring opinion by a state supreme court justice in 2007. Even as those criticisms were being published, courts continued to affirm Hayne’s status  as an expert witness. In fact, the very same federal court of appeals had upheld Hayne’s credibility earlier in 2014. There’s just no way Koon could have won. Even among discredited medical examiners, Hayne is something of an outlier. By his own admission, he performed 1,200 to 1,800 autopsies a year in Mississippi for almost 20 years. Most professional organizations recommend no more than 300 a year. But if the courts can’t provide a just outcome to people convicted by an outlier expert, there’s even less reason to think they’ll get it right on the closer calls.Our courts strive for finality because, the thinking goes, if verdicts can be overturned on a whim, the public will lose faith in the integrity of the system. And if the courts were to truly reckon with the mess wrought by bad forensics, we’d see a lot of overturned verdicts, certainly enough to sow doubt about the system.But refusing to rectify unjust verdicts doesn’t preserve the integrity of our system, only the appearance of it. Meanwhile, innocent people remain behind bars."

The entire commentary can be found at:

https://www.washingtonpost.com/outlook/bad-science-puts-innocent-people-in-jail--and-keeps-them-there/2018/03/20/f1fffd08-263e-11e8-b79d-f3d931db7f68_story.html?utm_term=.2ff95d7233aa

 

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."