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"Reformers have for years recommended that all forensic labs be independent from law enforcement and prosecutorial agencies' and this is a key reform promoted by The Justice Project (2008). But fixing these problems is only half the answer' because half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud' evidence tampering' and/or perjury.
From "The Elephant in the Crime Lab," by co-authored by Sheila Berry and Larry Ytuarte; Forensic Examiner; Spring, 2009; http://www.t-mlaw.com/blog/post/the-elephant-in-the-crime-lab/
PUBLISHER'S NOTE: A classic white elephant case. (A very expensive one. It cost Wilmington North Carolina $7 million. The police conduct went way over the line - especially when they pressured terrified young teenagers with threats of the death penalty if they didn't testify against Johnny Small. In my personal view the police went way over the line when they lied to the teenagers about the forensic evidence - saying that the shell casings taken from the crime scene were a perfect match to the casings collected from the gun Small was alleged to have in his possession, and told them that their testimony would only help send a murderer to prison. (That's what's wrong with the notorious Reid interrogation technique). Fifteen years old at the time, Johnny Small spent 28-years in prison before he was exonerated. Among the most crucial years of a young person's life. It's pretty fascinating to realize that the police don't have to actually falsify forensic evidence to convict an innocent person - they just have to lie about the evidence to an impressionable witness.
Harold Levy: Publisher: The Charles Smith Blog.
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PASSAGE (1) OF THE DAY: (From backgrounder below. (North Carolina Center on Actual Innocence): In 2012, the N.C. Center on Actual Innocence (Center) began investigating Johnny’s case after being contacted by an emotional David Bollinger who stated that he testified falsely at Johnny’s trial. After David struggled for 25 years with the fact that he had provided false testimony, in May 2012, he met exonerated Center client Dwayne Dail at a party and that meeting gave him the courage he needed to come forward and the hope that contacting the Center could result in justice. The facts later established that in 1988 law enforcement accused David of committing the murder. He was threatened with the death penalty by Wilmington Police Department Detective James J. Lightner and told that he could only help himself by testifying against Johnny. David was also told that Johnny, only 15 years old, would be released when he turned 21. The Center’s subsequent investigation revealed that numerous other teenage friends of Johnny’s were also threatened and manipulated by law enforcement during the “investigation”. In July 2015, the Center filed post-conviction motion for relief based on David’s recantation and other claims identified through review of trial prosecution’s file. After receiving the Wilmington Police Department’s investigative file, the Center amended its motion with additional claims, including several glaring Brady violations."
PASSAGE TWO OF THE DAY: (From backgrounder below. (North Carolina Center on Actual Innocence); "Exoneration Proceedings: An August 8-11 evidentiary hearing included the testimony of twenty witnesses. During the hearing, the same people who had been teenagers in 1988 testified as adults that they were leaned on heavily by law enforcement, questioned without their parents present, told that Johnny Small was coming to get them, told that the shell casings taken from the crime scene were a perfect match to the casings collected from the gun Small was alleged to have in his possession, and told that their testimony would only help send a murderer to prison. Documents in the Wilmington Police Department file corroborated much of their testimony. In contrast, when questioned during the hearing, the lead detective, James J. Lightner, denied their assertions and testified “I don’t recall” over fifteen times."
STORY: "Wilmington to pay $7 million settlement to Johnny Small," by reporter Cammie Bellamy, published by The Star News on December 17. 2018.
GIST: A Wilmington man released from prison after serving nearly three decades in a 1988 murder will receive $7 million from the city. Wilmington’s City Council announced Monday night that the city will pay Johnny Small $7 million out of its general fund. That settlement was reached amid a pending lawsuit Small filed against the city, former Wilmington Police Department detective J.J. Lightner, and five other officers, in which Small requested a jury trial for alleged wrongful conviction. The settlement will be spread across three payments over three years, according to city spokeswoman Malissa Talbert. In a news conference, Mayor Bill Saffo characterized some actions by police handing Small’s case in 1988 as “mistakes,” including not turning over some evidence that might have helped Small’s case. “Both the city and the Wilmington Police Department are confident that this is an isolated incident and that there are currently many procedures and processes in place to ensure that mistakes like this do not happen again,” he said. “We are disappointed to learn of this situation. This occurred 30 years ago and is not reflective of our current police department. We plan on continuing to move forward, and ask the community to move forward with us.” Small was convicted in 1989 at age 16 for the July 13, 1988, slaying of Pamela Dreher, 32. Dreher was found shot to death in her Wrightsville Avenue tropical fish store. More than three months after the murder, police charged Small with first-degree murder and robbery with a dangerous weapon after Small’s classmate called CrimeStoppers saying she saw Small in the area of the killing. A judge vacated Small’s life sentence in 2016, finding that evidence clearing Small was withheld from the defense and witnesses for the state were coerced into giving false testimony. Small’s former co-defendent, David Bollinger, also recanted testimony claiming that Small had confessed to him. In December 2016, New Hanover County District Attorney Ben David filled a dismissal of charges against Small and declined to prosecute him further, citing the 28 years Small served in prison. Small requested a pardon from former N.C. Gov. Pat McCrory that year, but did not receive it. WPD Chief Ralph Evangelous said Monday that numerous checks and balances have been put in place at the department over the last 30 years to prevent similar issues with evidence. “We’ve looked at our processes, we’ve looked at other cases, we see no other violations,” he said. “Now you would never have a murder case where video evidence and audio evidence would not be available, we just don’t operate like that.”"
The entire story can be read at:
https://www.starnewsonline.com/news/20181217/wilmington-to-pay-7-million-settlement-to-johnny-small
For background, read the entry at the link below under the heading, "Johnny Small, convicted at age 16, exonerated but still awaiting Pardon," at the link below. Case Background: On July 13, 1988, Pamela Dreher was shot and killed in the fish store she owned in Wilmington, North Carolina. At 5:38 p.m., Ms. Dreher was seen alive by her last known customer. The “no sale” button, used to open the cash register without having made a sale, was pushed at 5:46 p.m. and 5:49 p.m., which is likely when the cash register was opened by Ms. Dreher for the perpetrator or opened by the perpetrator, as it was found open and empty. Ms. Dreher’s purse and jewelry were left untouched. The owner of the store next door saw her body on the floor and called 911 at 6:21 p.m. The murder weapon was never found and there were no witnesses to the murder. In August 1988, a $5,000 Crime Stoppers reward was offered. An additional $5,000 reward was offered by the Governor. On October 29, 1988, after the Wilmington Police Department received a Crime Stoppers tip, they obtained a “confession” from Johnny Small’s best friend which implicated Johnny as the shooter and the friend as an accessory after the fact. At 15 years old, Johnny was arrested and charged with first degree murder and robbery with a dangerous weapon. During the 1989 trial, the State had a three-pronged case against Johnny: the testimony of his co-defendant, David Bollinger; the testimony of Crime Stoppers tipster Nina Raiford; and the circumstantial evidence that Johnny was in possession of his friend Ray Brigman’s .25 caliber gun. The State’s case was also based on the statements of several 15-16 year-old teenagers. Johnny was convicted and sentenced to life in prison plus fourteen years. North Carolina Center on Actual Innocence Involvement: In 2012, the N.C. Center on Actual Innocence (Center) began investigating Johnny’s case after being contacted by an emotional David Bollinger who stated that he testified falsely at Johnny’s trial. After David struggled for 25 years with the fact that he had provided false testimony, in May 2012, he met exonerated Center client Dwayne Dail at a party and that meeting gave him the courage he needed to come forward and the hope that contacting the Center could result in justice. The facts later established that in 1988 law enforcement accused David of committing the murder. He was threatened with the death penalty by Wilmington Police Department Detective James J. Lightner and told that he could only help himself by testifying against Johnny. David was also told that Johnny, only 15 years old, would be released when he turned 21. The Center’s subsequent investigation revealed that numerous other teenage friends of Johnny’s were also threatened and manipulated by law enforcement during the “investigation”. In July 2015, the Center filed post-conviction motion for relief based on David’s recantation and other claims identified through review of trial prosecution’s file. After receiving the Wilmington Police Department’s investigative file, the Center amended its motion with additional claims, including several glaring Brady violations: Exoneration Proceedings: An August 8-11 evidentiary hearing included the testimony of twenty witnesses. During the hearing, the same people who had been teenagers in 1988 testified as adults that they were leaned on heavily by law enforcement, questioned without their parents present, told that Johnny Small was coming to get them, told that the shell casings taken from the crime scene were a perfect match to the casings collected from the gun Small was alleged to have in his possession, and told that their testimony would only help send a murderer to prison. Documents in the Wilmington Police Department file corroborated much of their testimony. In contrast, when questioned during the hearing, the lead detective, James J. Lightner, denied their assertions and testified “I don’t recall” over fifteen times. Johnny testified at the evidentiary hearing and maintained his innocence. On August 11, 2016, Judge W. Douglas Parsons vacated Johnny’s 1989 murder conviction, finding the David’s original trial testimony was false; the Crime Stoppers eyewitness could not have been at the crime scene as she had testified; and the gun Johnny allegedly used to commit the murder was collected by law enforcement in Charlotte, NC prior to Johnny’s trial. The Court further found that the Wilmington Police Department had failed to fulfill its constitutional obligation to disclose numerous exculpatory and impeaching documents to the District Attorney’s office, so they were not made available to the defense prior to trial, as required by law. On September 8, 2016, the District Attorney dismissed all charges against Johnny. Life After Exoneration: Since his release, Johnny has relocated and started a new life. In December 2016, Johnny requested a pardon from then-governor Pat McCrory so that he could be eligible for state compensation for his wrongful imprisonment. In April 2017, Johnny filed a federal wrongful conviction lawsuit."
https://www.nccai.org/johnny-small/
The National Registry of Exonerations entry:
On July 13, 1988, 32-year-old Pamela Dreher was found shot to death
in her pet fish store, Tropical Paradise, in the Delgado Square
shopping center in Wilmington, North Carolina. The cash register was
empty and about $175 was missing. A .25-caliber cartridge was found on
the floor near her body.
The owner of the store next door, who said he never heard a gunshot, discovered her body and called 911 at 6:21 p.m. The last transaction recorded by the cash register was at 5:49 p.m. when the no-sale button was pushed, an action that opened the cash drawer.
The crime was still unsolved in September 1988 when 18-year-old Nina Raiford called Crime Stoppers, which had offered a $5,000 reward that was later matched by North Carolina Gov. Jim Martin. Raiford reported that she had seen 15-year-old Johnny Small, whom she knew from junior high school, leave Tropical Paradise sometime between 5:40 p.m. and 6 p.m. when she was walking home from work at a McDonald’s restaurant about 2 miles from the crime scene.
Wilmington police questioned 19-year-old David Bollinger, who was a close friend of Small’s. At the time, Bollinger was living with Woody Ward, who owned a used car dealership. According to detectives, Bollinger admitted that he and Small stopped in the parking lot of the shopping center where Tropical Paradise was located because Small said he wanted to make a call. Bollinger said that when Small returned to the car, he was wearing a different shirt. Bollinger said that when he took Small home, Small gave him a $10 bill. When Bollinger asked him where he got the money, Small told him that he robbed the pet store and that he “had to shoot her.”
On October 29, 1988, based on Bollinger’s statement, police charged Small with first-degree murder and robbery with a dangerous weapon.
Bollinger was charged with being an accessory after the crime.
Small, who insisted he was innocent, went to trial in New Hanover County Superior Court in April 1989.
Raiford testified that she clocked out of the McDonald’s at 4:30 p.m. and headed home on foot. She said she was at the shopping center between 5:40 p.m. and 6 p.m. when she saw Small come out of Tropical Paradise and get into a car driven by Bollinger.
Raiford’s testimony was seriously undercut by her time card from McDonald’s which showed she clocked out at 5:53 p.m.—not 4:30 p.m.—which meant that she would have arrived at the shopping center after Dreher’s body had been discovered and police and emergency personnel were on the scene. Raiford’s manager testified that the time card was accurate.
Raiford also claimed that she had called Crime Stoppers in August after talking to a teacher and was not seeking the reward. However, a Crime Stoppers representative testified that Raiford called in September and noted the person who took the call checked off the reward box as the reason the information was provided.
The defense noted that Raiford did not mention Bollinger’s name or mention a second person at all in the call to Crime Stoppers.
Bollinger testified that on the day of the murder, he spent the afternoon smoking marijuana, taking Valium and driving around with Small. He reiterated his account that implicated Small.
Bollinger told the jury that after he took Small home, Small stuck the barrel of a .25-caliber revolver to his neck and threatened to shoot him if Bollinger ever told anyone what Small had done.
Bollinger said he then went to Ward’s home where he ate dinner, changed clothes and left with Ward for a car sale in South Carolina—about 90 minutes away—and returned about 1 a.m.
In response to a question from the prosecutor, Bollinger said he had not been promised any leniency in return for his testimony.
Jennifer Long, whose cousin was dating Bollinger, testified that Small told her that there were easier ways to get money than having a job. She also testified that he described being at the scene of the crime after police arrived and seeing the victim’s body lying in a pool of blood.
Raymond Brigman, Jr., a friend of Small and Bollinger, testified that in May 1988—two months prior to the murder—he had a .25-caliber handgun. He said that he took the gun with him on a trip to Charlotte, North Carolina, accompanied by Small and Bollinger. Brigman said that Small borrowed the car while they were in Charlotte and that the gun, which had been in the glove compartment, was missing when Small brought the car back.
Woody Ward, the owner of the used car business, testified for the defense that he and Bollinger went to a car sale in Conway, South Carolina, on the day of the murder. He said they had to be at the sale by 7 p.m. or he would not be allowed to bid. They therefore had to have left no later than 5:30 p.m.—when the police knew the victim was still alive because she had talked to her brother on the phone about that time.
Ward also testified that he saw no indication that Bollinger had been smoking marijuana and taking sedatives that day. Ward said he would not have taken Bollinger if he suspected Bollinger was impaired because he expected Bollinger to drive back any car he bought at the sale.
During closing argument to the jury, the prosecutor emphasized that Bollinger was not getting special treatment. “His charge is still pending and he has received no promise of anything to help him in the outcome of his case,” the prosecutor declared. “And he wasn’t questioned at all in the defense about that. Not one question, any questions relating to any possibility that there might have been any arrangement with the state and David Bollinger.”
On April 7, 1989, the jury convicted Small of murder and robbery. At his sentencing, Small, who was sobbing, told the judge, “I’m saying it ain’t fair, man. That’s what I’m saying. I never was in that pet shop at all.” Small was then sentenced to life plus 20 years in prison.
Over the next two decades, Small’s convictions were upheld on appeal and he filed several petitions on his own, without a lawyer, attempting to set aside the convictions—all without success.
In May 2012, Bollinger contacted the North Carolina Center on Actual Innocence and said that his testimony at Small’s trial had been false—that he knew nothing about the crime. Bollinger said he came forward because his life had been plagued by health issues he attributed to stress caused by lying at Small’s trial and because he had met Dwayne Allen Dail, who had been exonerated of a rape conviction in 2007.
In December 2013, Bollinger signed a sworn statement saying that he had falsely implicated Small after the lead detective in the case had threatened him with the death penalty unless he cooperated. Moreover, Bollinger said his grandfather, a former police officer in Durham, North Carolina, had encouraged him to testify falsely, as coached by law enforcement, in return for dismissal of the charge of accessory after the fact. Bollinger said he was influenced by pressure from his grandfather to take the deal, as well as fear of his own prosecution.
Bollinger also said he had lied when he testified that he wasn’t promised any leniency on his case. In fact, the prosecution promised to dismiss the charges against him and did so after Small’s convictions were upheld on appeal.
In his statement, Bollinger said that he was with Ward on the way to South Carolina for the car sale at the time he testified he was with Small. Bollinger took a polygraph examination administered by a former FBI agent who said that no deception was indicated when Bollinger said he was not involved in the murder and that Small never told him he had shot and robbed the victim. The North Carolina Center on Actual Innocence got the prosecution file in the case and discovered that the prosecution had failed to reveal that police reports were filed on the night of the murder accusing Small of stealing a vehicle from Ward sometime between 5 p.m. and 1 a.m.—corroborating Ward’s testimony that he was gone during that time to attend the car sale. One of the reports said a neighbor of Ward saw Small take the car around 6 p.m.—the approximate time when Dreher was murdered.
The prosecution file also contained handwritten notes of a police interview with Mittie Parker, the teacher that Raiford said she had confided in shortly after the crime. The notes indicated that Raiford gave a vastly different account—that she went to the pet store to purchase fish for her sister’s upcoming birthday and saw the body on the floor. Those notes had been concealed from Small’s defense attorney.
The prosecution also failed to disclose reports showing that ballistic tests had been performed on shell casings found in Brigman’s back yard. The prosecution argued at the trial that Small had stolen Brigman’s gun and used it to kill Dreher. However, the prosecution offered no testimony regarding the comparisons between the backyard casings and the cartridge recovered at the scene of the crime—suggesting that the ballistics in fact excluded Brigman’s gun.
The file also contained a note reporting that Brigman’s gun had been recovered in Charlotte, so it could not have been used in Dreher’s murder.
Jennifer Long later testified that the lead detective told her what to say at the trial. Long said that the detective claimed he got the information from Long’s cousin, who was dating Bollinger, but that the prosecution did not want to put the cousin on the witness stand because members of her family were facing unrelated criminal charges. Long said she was paid $850 for her testimony—which never was disclosed to the defense—and that she felt she had been pressured to testify.
In July 2015, Christine Mumma, executive director of the Center on Actual Innocence, along with staff attorney Cheryl Sullivan, and former North Carolina Supreme Court Justice Robert Orr, of the law firm of Campbell Shatley, filed a motion seeking to vacate Small’s convictions.
In August 2016, after a four-day evidentiary hearing, New Hanover County Superior Court Judge Douglas Parsons vacated Small’s convictions and ordered a new trial. Judge Parsons ruled that Bollinger and Long had been coerced by police, that the prosecution claim that Small had access to Brigman’s gun was “false and without evidentiary value,” that Raiford’s testimony about seeing Small leave the pet store was not credible, that Bollinger’s testimony had been false and that the prosecution had failed to disclose to the defense evidence that was favorable to Small.
On August 11, 2016, Small was released on a signature bond pending a new trial. On September 7, 2016, the prosecution dismissed the charges. In April 2017, Small filed a federal civil rights lawsuit seeking damages. On December 17, 2018, Small settled his lawsuit against the City of Wilmington for $7 million."
The entire entry (by Maurice Possley) can be read at:
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/
