Billie Wayne Coble: Texas: (Horrifying Prospect; HL); ACLU claims Texas is planning to execute him today, "not for who he is or for what he’s been convicted of, but because of the testimonies of so-called “experts” whose testimony can be summed up in two words: unreliable junk."

PASSAGE OF THE DAY: "To meet Texas’s future-danger requirement, which would require checking and countering his years of good behavior, the state’s first move was to present testimony from Dr. Richard Coons, a psychiatrist who, over the years, had claimed Texas prisoners would be dangerous to those around them if not executed. It was no surprise that he did the same in Coble’s case. But, when scrutinized, it’s clear that Coons’ predictions more closely resembled backroom fortune telling than science. As Coons has now admitted, his testimony, in both Coble’s and previous capital trials, was not based on any peer-reviewed literature, field of study, or empirical research. Rather he himself admits, as the Texas Court of Criminal Appeals noted in 2010, to doing “‘it his way’ with his own methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate.” Coons was a fraud, plying his trade to help Texas prosecutors secure death sentences. Texas’s second move to secure Coble’s death sentence was to present A.P. Merillat, a prison investigator, as yet another bona fide “expert.” For Texas prosecutors, Merillat played a similar role to that of Coons: to give juries a reason to believe a prisoner must be executed to prevent future danger to those around him. Merillat did so for years by enthralling juries with horror stories of prison violence. He also swayed juries by pointing out supposed loopholes that he claimed provided prisoners opportunities to commit violence if sentenced to life imprisonment instead of death. But Merillat has also been proven a fraud. In a pair of separate appeals we litigated on behalf of our clients Adrian Estrada in 2010 and Manuel Velez in 2012, Texas’s highest court found Merillat’s claims in each case demonstrably false. Merillat falsely conjured relaxed security restraints our clients would have enjoyed if not sentenced to death, restraints that would make letting them live more dangerous. When Coble’s death sentence was appealed in 2010, Texas’s highest court agreed that Coon’s predictions were unscientific and never should have been presented to the jury. But, in a curious twist, the court cited a technicality to uphold Coble’s death sentence. It found that the erroneously admitted testimony was harmless. I

RELEASE: "Texas Is Planning an Execution Based on Fraudulent Testimony," by Brian Stull, American Civil Liberties Union Capital Punishment Project, published on February 26, 2019.

PHOTO CAPTION: "Billy Wayne Coble was convicted of a Texas triple homicide in 1989. On Thursday, he is scheduled for execution."

GIST: "A former ACLU client, Coble’s story was not a happy one before he found himself on death row. He was a Vietnam veteran who had been raised by a mother who was institutionalized for mental illness and by a father debilitated by alcoholism. But if Coble’s execution goes forward, he will be killed not for who he is or for what he’s been convicted of, but because of the testimonies of so-called “experts” whose testimony can be summed up in two words: unreliable junk. Years after Coble was initially sentenced to death in 1990, an appellate court in 2007 threw out that death sentence because the trial judge had erred in instructing the sentencing jury. At Coble’s 2008 re-sentencing trial, his behavior in prison between 1990 and 2007 posed a challenge to the state’s claim that, as required for a Texas death sentence, Coble would be a danger to other prison staff and prisoners if not executed.
As the court later described him, Coble “did not have a single disciplinary report for the eighteen years he had been on death row.” Rather than posing a threat, Coble had instead become known for helping both staff and fellow prisoners alike. To meet Texas’s future-danger requirement, which would require checking and countering his years of good behavior, the state’s first move was to present testimony from Dr. Richard Coons, a psychiatrist who, over the years, had claimed Texas prisoners would be dangerous to those around them if not executed. It was no surprise that he did the same in Coble’s case. But, when scrutinized, it’s clear that Coons’ predictions more closely resembled backroom fortune telling than science. As Coons has now admitted, his testimony, in both Coble’s and previous capital trials, was not based on any peer-reviewed literature, field of study, or empirical research. Rather he himself admits, as the Texas Court of Criminal Appeals noted in 2010, to doing “‘it his way’ with his own methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate.” Coons was a fraud, plying his trade to help Texas prosecutors secure death sentences. Texas’s second move to secure Coble’s death sentence was to present A.P. Merillat, a prison investigator, as yet another bona fide “expert.” For Texas prosecutors, Merillat played a similar role to that of Coons: to give juries a reason to believe a prisoner must be executed to prevent future danger to those around him. Merillat did so for years by enthralling juries with horror stories of prison violence. He also swayed juries by pointing out supposed loopholes that he claimed provided prisoners opportunities to commit violence if sentenced to life imprisonment instead of death. But Merillat has also been proven a fraud. In a pair of separate appeals we litigated on behalf of our clients Adrian Estrada in 2010 and Manuel Velez in 2012, Texas’s highest court found Merillat’s claims in each case demonstrably false. Merillat falsely conjured relaxed security restraints our clients would have enjoyed if not sentenced to death, restraints that would make letting them live more dangerous. When Coble’s death sentence was appealed in 2010, Texas’s highest court agreed that Coon’s predictions were unscientific and never should have been presented to the jury. But, in a curious twist, the court cited a technicality to uphold Coble’s death sentence. It found that the erroneously admitted testimony was harmless. It was then that we entered the case, assisting Coble and his attorneys by arguing for the U.S. Supreme Court to take his case. Regrettably, we were unsuccessful. Coble has since continued to fight in lower courts to overturn his death sentence, which still stands despite the fact that the state of Texas has long since given up defending the merits of Coons or Merillat. A federal appellate court recently called them, “two problematic witnesses.” It observed, of Coble’s trial, “that Coons’ testimony was unreliable and should have been excluded” and that “the State does not dispute that parts of Merillat’s testimony were fabricated.” Yet the federal court allowed Coble’s death sentence to stand, again based on technicalities. It agreed with the theory that Coons’ testimony was harmless, and it cited technical failures by Coble’s lawyers to raise challenges to Merillat’s testimony using the correct, if byzantine, procedures. Since the court findings repudiating them in 2010 and 2012, neither Coons nor Merillat has appeared as experts for Texas prosecutors. Simultaneously the number of new death sentences in Texas has continued to plummet. Yet Coble’s execution remains stubbornly and glaringly on track over technicalities, despite the admittedly “problematic” testimony used to make the state’s case for death. That Coble will be executed on such discredited testimony is unconscionable. The courts’ recognition that Coons was trafficking in junk science and Merillat in fabrications may have come too late to save Coble’s life. But the example of his case already shows all who are willing to look why the death penalty is never justice, and why it should be abolished once and for all."

The entire release can be read at:

https://www.aclu.org/blog/capital-punishment/texas-planning-execution-based-fraudulent-testimony

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: Ten years after the National Academy of Sciences sounded the alarm about the shortcomings of forensics, Washington Post columnist Radley Balko - a renowned observer of America's criminal justice system - sounds the alarm: "The crisis in expert testimony seems to be resonating just about everywhere except for the one place it’s most crucial: in courtrooms. But the problem is bigger than forensics and junk science. It isn’t that the courts have been duped by phony expertise or quackery; it’s that the criminal justice system has evolved to disregard its own mistakes. Courts rarely correct themselves, even when they get something fundamentally wrong. And because they make their own rules, there’s no one to tell them to get it right."

PASSAGE ONE  OF THE DAY: "Last year, reporter Pamela Coloff published a piece in ProPublica and the New York Times Magazine about Joe Bryan, a Texas man convicted partly because of blood-spatter testimony given by a detective. That officer had all of 40 hours of training in blood-spatter analysis, a field of forensics that, even when done properly, has been questioned by the NAS and other authoritative groups. The detective himself has since admitted that his testimony was mistaken, and the Texas Forensic Science Commission determined that his testimony in Bryan’s trial was “not accurate or scientifically supported.” Yet none of this was enough to overturn Bryan’s guilty verdict."

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PASSAGE TWO OF THE DAY: "For all of the recent talk about the death of truth and alternative facts, the criminal justice system has been creating its own alternate reality for decades — one in which sex offenders are highly recidivist, quack experts are trained researchers, bite mark matching is steeped in science and blood-spatter analysis is as foolproof as a cholesterol check. Once the U.S. Supreme Court or a state supreme court cites a claim as truth, lower courts and their litigants are obligated to treat it as gospel. Subsequent jurisprudence then relies on and sometimes even turns on these “truths.” At that point, the courts are rarely interested in whether they’re actually . . . true."

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COMMENTARY: "The criminal justice system also has an 'alternative facts' problem,: by Radley Balko, published by The Washington Post on January 31, 2019. (Radley Balko blogs and reports on criminal justice, the drug war and civil liberties for The Washington Post. Previously, he was an investigative reporter for the Huffington Post and a writer and editor for Reason magazine. His most recent book is "The Cadaver King and the Country Dentist: A True Story of Injustice in the American South.")

GIST "It has been nearly 10 years since the National Academy of Sciences sounded the alarm about the shortcomings of forensics. Since then, there have been countless follow-up studies, state and national commissions, reports, panels and — to underscore the conclusions those entities reached — a consistent wave of crime lab scandals all over the country. In the past year, Vox, the Nation and NBC News have published lengthy treatises on the basic problem: Many of the forensic disciplines used in courtrooms across the United States are unreliable and entirely subjective, using methods unsupported by scientific research. Forensic malfeasance has even crept into the plots of TV police and legal dramas. The crisis in expert testimony seems to be resonating just about everywhere except for the one place it’s most crucial: in courtrooms. But the problem is bigger than forensics and junk science. It isn’t that the courts have been duped by phony expertise or quackery; it’s that the criminal justice system has evolved to disregard its own mistakes. Courts rarely correct themselves, even when they get something fundamentally wrong. And because they make their own rules, there’s no one to tell them to get it right. Last year, reporter Pamela Coloff published a piece in ProPublica and the New York Times Magazine about Joe Bryan, a Texas man convicted partly because of blood-spatter testimony given by a detective. That officer had all of 40 hours of training in blood-spatter analysis, a field of forensics that, even when done properly, has been questioned by the NAS and other authoritative groups. The detective himself has since admitted that his testimony was mistaken, and the Texas Forensic Science Commission determined that his testimony in Bryan’s trial was “not accurate or scientifically supported.” Yet none of this was enough to overturn Bryan’s guilty verdict. In December, a Texas judge denied his request for a new trial. In 2017, some reform advocates hoped the Supreme Court would fix a long-standing error when it considered a case about barring sex offenders from using social media. In the majority opinion in McKune v. Lile, Justice Anthony M. Kennedy repeated a claim from a pop psychology magazine that the recidivism rate for sex offenders was “frighteningly high,” as high as 80 percent. It’s nowhere near that high. In fact, people convicted of sex crimes reoffend at a lower rate than any other class of criminals. Kennedy’s claim has been repeated by more than 90 courts across the country in opinions upholding various types of post-incarceration punishment for sex offenders, including indefinite detention and living restrictions that force them sleep under bridges. The court has had a number of chances to correct Kennedy’s mistake. It hasn’t. In the 2017 case, the court struck down the social media ban but left Kennedy’s error intact. The majority opinion’s author? Kennedy. I’ve written about similar mistakes of fact the court has made over the years. The Supreme Court has created an alternate universe in which prosecutors are regularly disciplined by bar associations, police officers are regularly disciplined for violating constitutional rights, and police officers are inundated with roadside ambushes and “split-second decisions” about whether to use force. Despite ample evidence and decades of research showing that eyewitness testimony is inherently flawed, often manipulated by law enforcement, the leading cause of wrongful convictions and could be made much more reliable with some easy fixes, as recently as 2012, the Supreme Court continued to uphold that “the safeguards generally applicable in criminal trials” are sufficient to prevent misidentification. In 2015, the court refused to consider a challenge to a Louisiana law that prohibited defense lawyers from even mentioning research on problems with eyewitness testimony. All of this provides some important context for a regrettable ruling late last year in the case of Eddie Lee Howard, a Mississippi man on death row at the state penitentiary in Parchman. Howard was convicted in 1994, primarily because of testimony from Steven Hayne and Michael West. Hayne is a controversial longtime medical examiner who was described a few years ago as “discredited” by the U.S. Court of Appeals for the Fifth Circuit. (Tellingly, that description came after decades in which that court and others had persistently rejected challenges to Hayne’s credibility. Worse, the opinion itself actually denied relief to the convicted man because, according to the opinion, the man had waited too long to file his challenge to the same expert the same court had been protecting for years.) But it was West who did most of the heavy lifting to put Howard on death row. West is a notoriously buffoonish “expert” witness, a self-trained bite mark analyst and forensic jack-of-all-trades. He has been roundly denounced by just about everyone who has crossed paths with him, including other bite mark analysts, the prosecutors who once used him and Mississippi Attorney General Jim Hood. He has been expelled from one forensics organization and was forced to resign from at least two others. West is considered a pariah even within the field of bite mark analysis, which itself has been roundly criticized by every scientific body to examine it. In the early 2000s, one defense attorney even tricked West into matching the teeth of the attorney’s own investigator to the bite marks from an unrelated crime scene. In the Howard case, like many others that Hayne and West worked on together, Hayne claimed to have found bite marks on the body of the victim (who in this case had been exhumed). He then called in West, who “matched” those marks to Howard. From the time of Howard’s conviction in 1994 until about the mid-2000s, Howard and other Mississippi defendants repeatedly challenged West’s credibility in their appeals. Over and over, they lost. Over and over, state courts up to and including the Mississippi Supreme Court ruled that as long as the defendant’s attorney had the opportunity to cross-examine West at trial, there was no harm in allowing him to testify for the state. But in 2007, two men convicted because of testimony from Hayne and West — Kennedy Brewer and Levon Brooks — were exonerated by DNA testing, which pointed to the real killer in both cases. That man, who had been exonerated by West in the Brooks case, later confessed to committing both crimes on his own. He also said that he never bit the victims. Prosecutors dropped the charges against Brooks and Brewer and released them from prison. In 2013, Howard’s lawyers were permitted to perform DNA tests on the crime science evidence. Tests did find male DNA on the blade of the murder weapon, but it wasn’t Howard’s. Finally, in 2015, the Mississippi Supreme Court granted Howard a hearing to assess the validity of the scientific evidence against him. That multipart hearing took place in 2016 and 2017. In a deposition for the hearing, West belched, cracked jokes and swore profusely. He called his critics childish names, reprimanded Howard’s attorneys and concocted hypotheticals that involved him killing those attorneys. Mississippi’s attorney general had long since conceded that West wasn’t a credible witness. Yet Jim Hood’s office has continued to defend convictions for which West was a crucial witness. And here, the state’s star witness in a death penalty case wasn’t just lacking in credibility; he behaved like a petulant adolescent. Yet none of this was enough to win Howard a new trial. In a ruling issued in October, Circuit Court Judge Lee Howard (the judge and defendant have confusingly similar names) argued that Eddie Lee Howard’s attorneys had already challenged West’s credibility during his two trials, in his direct appeals and in more than one of his post-conviction petitions. Every time, he had lost. Every time, a Mississippi court had ruled that West was either a perfectly credible witness or not so tainted that he shouldn’t have been permitted to testify. So, the judge ruled, Eddie Lee Howard was procedurally barred from raising these issues again. Moreover, Judge Howard pointed out that under the controlling case law, the Mississippi Supreme Court had already ruled that (a) bite mark evidence was admissible in the state, and (b) West in particular was permitted to testify as an expert. There are a couple of problems with this argument. First, that the Mississippi Supreme Court has said that bite mark evidence is admissible in the state’s courts does not mean that it is admissible in every case, no matter how shabbily it is presented. Similarly, the fact that the court has allowed West as an expert doesn’t mean his testimony is therefore always credible and never to be challenged. Second, the same state supreme court that Judge Howard cites is the court that ordered Eddie Lee Howard’s evidentiary hearing. There are two possible outcomes from an evidentiary hearing of this type: The court either rules that the evidence is scientifically valid or that it is not. If the Mississippi Supreme Court didn’t think tossing West’s testimony was a legally permissible outcome, it wouldn’t have ordered the evidentiary hearing in the first place. But there’s one more thing about Judge Howard’s ruling that really hammers home just how blind the courts can be to their own mistakes. It was Judge Howard who in 1995 sentenced the innocent Kennedy Brewer to death, adding, “May God have mercy on your soul.” It gets worse: Twelve years later, the same Judge Howard declared Brewer innocent, and released him from prison. And a short time later, the same Judge Howard performed the same ritual for Levon Brooks. Judge Howard, of all people, should know that West is not a reliable expert. Yet despite being given an opportunity to afford some justice to a third man convicted because of West, Judge Howard opted instead to uphold the conviction. In doing so, he noted that he was bound by prior state supreme court decisions. What doesn’t matter — what he didn’t even consider — is that those decisions were provably, definitively wrong. And yet because the legal system can’t seem to correct its mistakes, Judge Howard relied on the three cases that, incredibly, still govern the admissibility of bite mark evidence in Mississippi: a ruling from Eddie Lee Howard’s previous appeals, Kennedy Brewer v. State of Mississippi and Levon Brooks v. State of Mississippi. For all of the recent talk about the death of truth and alternative facts, the criminal justice system has been creating its own alternate reality for decades — one in which sex offenders are highly recidivist, quack experts are trained researchers, bite mark matching is steeped in science and blood-spatter analysis is as foolproof as a cholesterol check. Once the U.S. Supreme Court or a state supreme court cites a claim as truth, lower courts and their litigants are obligated to treat it as gospel. Subsequent jurisprudence then relies on and sometimes even turns on these “truths.” At that point, the courts are rarely interested in whether they’re actually . . . true."

The entire commentary can be read at:

https://www.washingtonpost.com/opinions/2019/01/31/criminal-justice-system-also-has-an-alternative-facts-problem/?utm_term=.e13ca42a1b6a 

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.

Faulty bite-mark evidence: Significant Development: Innocence Project launches sues for access to a federal archive that may hold the key to exonerating untold numbers of people who were wrongfully convicted on the basis of faulty “bite mark” evidence...“This archive could be the only way to identify unknown cases in which bite mark evidence was used and, potentially, produced wrongful convictions,” said Chris Fabricant, the Innocence Project’s Director of Strategic Litigation. “By denying us access to this federal archive, the government is preventing us from investigating the devastating toll that unreliable bite mark evidence has imposed on our criminal justice system."

PASSAGE OF THE DAY: "In June 2017, the Innocence Project submitted a request to conduct research in the archive, which contains the records of the American Board of Forensic Odontologists (ABFO), the body that accredits bite mark experts. The Museum has standard procedures for allowing individuals to conduct research and had previously provided information from the ABFO archive to others. After consulting with the ABFO, however, the Museum refused to allow Innocence Project researchers access to the archive’s key collections. The Museum denied access because it (or the ABFO) disagreed with the Innocence Project’s research objectives, which included identifying wrongful convictions and further understanding the flaws in bite mark methods. “The ABFO has been overtly hostile to the Innocence Project’s work to establish that bite mark methods are unreliable and to identify people wrongfully convicted as a result,” said Fabricant. “This federal museum appears to have sided with the ABFO to block our access to the archive and stifle our research.” The lawsuit, filed today in federal district court in Manhattan, asserts that the Museum violated the First Amendment because it denied access on account of the Innocence Project’s professed viewpoint and research objectives. The Innocence Project has worked for years to establish that bite mark methods are scientifically invalid and to exonerate people wrongfully convicted based on bite mark evidence. The ABFO has often vigorously opposed these efforts."

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RELEASE: "Innocence Project sues for access to bite-mark archive that could expose wrongful convictions,"  published by The Innocence Project on February 20, 2019.

GIST: "The Innocence Project has sued for access to a federal archive that may hold the key to exonerating untold numbers of people who were wrongfully convicted on the basis of faulty “bite mark” evidence. The archive, which is housed at the Department of Defense’s National Museum of Health and Medicine, holds the only centralized catalogue of cases in which forensic bite mark evidence was used. It also includes documents that could reveal how this discredited forensic method evolved. The Innocence Project has already helped to exonerate dozens of people who were convicted on the basis of bite mark evidence. “This archive could be the only way to identify unknown cases in which bite mark evidence was used and, potentially, produced wrongful convictions,” said Chris Fabricant, the Innocence Project’s Director of Strategic Litigation. “By denying us access to this federal archive, the government is preventing us from investigating the devastating toll that unreliable bite mark evidence has imposed on our criminal justice system. In June 2017, the Innocence Project submitted a request to conduct research in the archive, which contains the records of the American Board of Forensic Odontologists (ABFO), the body that accredits bite mark experts. The Museum has standard procedures for allowing individuals to conduct research and had previously provided information from the ABFO archive to others. After consulting with the ABFO, however, the Museum refused to allow Innocence Project researchers access to the archive’s key collections. The Museum denied access because it (or the ABFO) disagreed with the Innocence Project’s research objectives, which included identifying wrongful convictions and further understanding the flaws in bite mark methods. “The ABFO has been overtly hostile to the Innocence Project’s work to establish that bite mark methods are unreliable and to identify people wrongfully convicted as a result,” said Fabricant. “This federal museum appears to have sided with the ABFO to block our access to the archive and stifle our research.” The lawsuit, filed today in federal district court in Manhattan, asserts that the Museum violated the First Amendment because it denied access on account of the Innocence Project’s professed viewpoint and research objectives. The Innocence Project has worked for years to establish that bite mark methods are scientifically invalid and to exonerate people wrongfully convicted based on bite mark evidence. The ABFO has often vigorously opposed these efforts. The lawsuit also asserts claims under the Freedom of Information Act. After being denied ordinary research access to the archive, the Innocence Project filed a FOIA request for the records. A year later, the Innocence Project has yet to receive a meaningful response. “This case is about a taxpayer-funded, federal museum deciding to improperly favor one viewpoint over another,” said John Zakour, a student attorney with the University at Buffalo School of Law’s Civil Liberties & Transparency Clinic, which is litigating the case on behalf of the Innocence Project. “The First Amendment does not allow the government to deny access to public archives just because it does not like what a person might say or do with the information they learn.” Fabricant and Dana Delger of the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University, are counsel in the lawsuit, along with student attorneys Samantha Winter, John Zakour, and John Kuebler, and supervising attorney Jonathan Manes of the University at Buffalo School of Law."

The entire release can be read at:
https://www.innocenceproject.org/innocence-project-sues-for-access-to-bite-mark-archive-that-could-expose-wrongful-convictions/

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.

Claude Garrett: Flawed arson 'science'. Tennessee: Another compelling criminal justice feature by reporter Liliana Segura in the Intercept: "Fire Scientists Say the Arson Case Against Claude Garrett Was Fatally Flawed. Will Anyone Listen?..."His most vocal advocate is a veteran fire investigator, Stuart Bayne, the defense expert at his 2003 retrial. A tall man with a formal air, Bayne was one of four supporters who spoke at the hearing. He wore a dark suit and carried prepared remarks. “As a representative of the fire investigation community, I owe allegiance to only one thing, and that is the truth,” Bayne began. Garrett’s conviction was “fundamentally unjust,” he said — and there was scientific evidence to prove it."

PASSAGE OF THE DAY: "Like all fire investigators of his generation, Bayne explained, he had lived through a sea change that began in the 1980s. Until then, “I believed in arson pattern indicators that have since then been proven untrue,” he said. In 1992, the same year as the fire in Garrett’s case, the National Fire Protection Association published “NFPA 921,” a groundbreaking guide that would transform the field. Rather than rely on instinct, experience, and visual interpretations of fire scenes, it held that fire investigators should follow the scientific method: using all evidence from a scene to test a hypothesis before making a determination about a fire’s origin and cause. The investigators in Garrett’s case had done no such thing. Instead, they discarded the furniture and other contents of the house and zeroed in on false indicators. At trial, the state’s key witness, James Cooper, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, swore by “pour patterns” on the floor, which supposedly proved an accelerant had been spread throughout the home. He continued to insist upon the evidence at the 2003 retrial, despite the fact that “pour patterns” were widely understood to be unreliable junk science by then."

STORY: Fire scientists say the   arson case against Claude Garrett was fatally flawed. Will anyone listen?" by Liliana Segura, published by The Intercept on February 24, 2019.  

GIST: "February 24 2019, 8:00 a.m. In a tense,  crowded room inside Nashville’s Riverbend Maximum Security Institution, Claude Garrett sat before a large TV monitor and stared at the screen. Behind him, a crowd of people gathered before a long conference table. Garrett wore prison-issued blue jeans, glasses, and a serious expression. Looking back at him on the screen was Richard Montgomery, chair of the Tennessee Board of Parole. Soon he would say whether Garrett should be released or remain in prison. It was a Monday in October 2018. The hearing had started at 10:30 a.m. “Mr. Garrett, what is your inmate number, sir?” Montgomery asked. Garrett recited it: #225779. “You were born on November 17, 1956, and you’re 61 years old?” Yes, Garrett said. Montgomery thanked everyone in attendance. “The more testimony we hear, the more facts we hear from each and every one of you, the better decision we can make,” he said. Montgomery summarized Garrett’s record dating back to the 1970s: a handful of misdemeanors, followed by felonies, the most serious of which were some burglaries in Indiana. He then reviewed Garrett’s disciplinary write-ups in prison. There were only five, total. Four dated back to the mid-’90s. Finally, Montgomery asked the question Garrett had been pondering for more than 25 years. “Tell me, on February 24, 1992, what happened?”

Garrett told the story as he had countless times. How he and his girlfriend, Lorie Lee Lance, had been out drinking at a local bar the night before; how they came home late and dozed off in the living room, then moved to their bedroom. “Sometime later I was woken up,” Garrett said. “I don’t know what woke me up. I recall looking into the living room and seeing a light flickering on the wall.” It was a fire. “I yelled at Lorie. She got up behind me and I had ahold of her wrist. We went toward the front door, which was to the right of our bedroom.” But then Lance “pulled back,” Garrett said. “She didn’t follow me through the door.” Lance was later found in a utility room toward the back of the house. She died from smoke inhalation. The next year, Garrett went on trial for her murder. Jurors did not believe his story. They believed what prosecutors said: that Garrett had locked Lance in the back room and poured kerosene throughout the house. The state’s case was shaky — in fact, Garrett won a new trial after he discovered that prosecutors had concealed a police report showing the door in question had actually been found unlocked. Nevertheless, in 2003, a jury convicted him again. For more than 25 years, Garrett has maintained his innocence. He has also gained the support of numerous people on the outside, who wrote letters to the board on his behalf. His most vocal advocate is a veteran fire investigator, Stuart Bayne, the defense expert at his 2003 retrial. A tall man with a formal air, Bayne was one of four supporters who spoke at the hearing. He wore a dark suit and carried prepared remarks. “As a representative of the fire investigation community, I owe allegiance to only one thing, and that is the truth,” Bayne began. Garrett’s conviction was “fundamentally unjust,” he said — and there was scientific evidence to prove it.  Like all fire investigators of his generation, Bayne explained, he had lived through a sea change that began in the 1980s. Until then, “I believed in arson pattern indicators that have since then been proven untrue,” he said. In 1992, the same year as the fire in Garrett’s case, the National Fire Protection Association published “NFPA 921,” a groundbreaking guide that would transform the field. Rather than rely on instinct, experience, and visual interpretations of fire scenes, it held that fire investigators should follow the scientific method: using all evidence from a scene to test a hypothesis before making a determination about a fire’s origin and cause. The investigators in Garrett’s case had done no such thing. Instead, they discarded the furniture and other contents of the house and zeroed in on false indicators. At trial, the state’s key witness, James Cooper, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, swore by “pour patterns” on the floor, which supposedly proved an accelerant had been spread throughout the home. He continued to insist upon the evidence at the 2003 retrial, despite the fact that “pour patterns” were widely understood to be unreliable junk science by then. To Bayne’s distress, Garrett’s retrial attorney took him off the stand before he could explain the vast changes in fire investigation over the previous decade. In the weeks before the October parole hearing, Bayne had mailed each parole board member a set of reports. “The information I sent you are the result of systemic analysis of the fire,” he told Montgomery. One report came from renowned fire scientist John Lentini, who first reviewed Garrett’s case in 2010 and concluded it was based on junk science. Another came from a group of international fire experts called the Tetrahedron Committee, who also found that the arson determination in Garrett’s case was fatally flawed. “Today’s fire investigation standards reject the non-scientific methods used at the Lance-Garrett fire in 1992,” Bayne explained. It was not the kind of evidence parole boards usually hear. But Bayne urged Montgomery to consider it. Opposing Garrett’s release were members of Lance’s family. In emotional statements, they described Garrett as an abuser who had killed Lance because she planned to leave him. The family shared stories of his volatile behavior that they also told me when I first investigated the case, for an article published in 2015. “He’s conned every one of these people in this room,” Lance’s younger sister, Hayley, said. They were not swayed by the explanation of outdated fire investigations. “All this about the junk science, that may be true in some cases,” Lance’s aunt said. But not in this one. Just before noon, it came time for Montgomery to announce his decision. “The board does not try cases,” he said. “We do not determine whether a person is innocent or guilty.” What mattered now was that Garrett had served the sentence required by the state of Tennessee. “I look at your record and I see a person that is trying to improve his life,” Montgomery told Garrett. His vote would be for Garrett to be released in March 2019. Garrett was stunned. But the outcome was still far from certain — he needed three more votes in his favor for release. Montgomery said the board members would make their decision within seven to 10 days. About a week later, Garrett got the news. The board had denied his parole application. He won’t have another chance until 2022. "I am disappointed but not discouraged,” Garrett told me a few weeks later. It is rare for anyone to get paroled their first time before the board, he said. In fact, compared to many people in his position, Garrett was lucky to face the parole board at all. Not long after he was convicted, legislators doubled the amount of time lifers with parole eligibility in Tennessee had to serve before their first hearing, from 25 to 51 years. For Bayne, however, the denial was an intolerable blow. In a six-page letter last November, he urged the board to reconsider its decision. He reminded members of the seven flash drives he had sent them earlier that fall, which included affidavits and reports from leading fire experts. “There are reputable fire investigators/scientists who are trying to tell you that this whole matter is fundamentally unjust,” Bayne wrote. He did not hear back. February 24 marks the 27th year since the fire that took Lance’s life and sent Garrett to prison. As he continues to fight his conviction, Garrett is trapped in a kind of paradox. Even as decades of scientific advancements have debunked old forensic techniques and provided more tools to identify wrongful convictions, the legal architecture that surrounds him has made it harder to win relief. The same tough-on-crime era that gave rise to the Antiterrorism and Effective Death Penalty Act — which has shut defendants out of court even when they have compelling innocence claims — brought a wave of state-level reforms shortly after Garrett was first convicted. In 1995, Tennessee Gov. Don Sundquist signed sweeping legislation “designed to make convicting criminals easier and keep them in prison longer,” as The Tennessean reported at the time. The tough-on-crime overhaul included major revisions to the state’s Post-Conviction Procedures Act, imposing a one-year deadline for people to challenge their convictions in state court. While in theory it also included a safeguard to address wrongful convictions — allowing for the reopening of a state post-conviction petition based on new scientific evidence — the limitations were rigid. In 2017, Garrett filed such a motion in state court, based on the reports of Lentini and the Tetrahedron Committee. Prosecutors protested on several grounds: The motion had been filed too late; it revealed no new evidence; and it did not prove Garrett’s “actual innocence” as required by the law. The court swiftly ruled for the state. Today, Garrett is nearly out of legal options. Yet there is a key avenue that could provide a way out. In 2016, Davidson County Attorney General Glenn Funk announced the launch of a conviction review unit. Modeled partly on the Brooklyn District Attorney’s groundbreaking CRU, it was supposed to provide a chance for people like Garrett to have their cases re-examined and possibly get exonerated — at least in theory. But while the Brooklyn unit has led to 24 exonerations in the past five years, similar units across the country have proven ineffective. In Arizona, the Pima County Conviction Integrity Unit has done nothing to intervene in the case of Barry Jones, even after his conviction was overturned last summer. In Ohio, where prosecutors used junk science to convict Angela Garcia for a fire that killed her two daughters, the Cuyahoga County Conviction Integrity Unit rejected Garcia’s application on its face. Garcia later pleaded guilty to arson in exchange for a reduction in her sentence. Until very recently, the Davidson County CRU had shown similarly meager results. In January, Nashville Public Radio released the results of a two-year investigation into the office. It revealed that while 38 cases had been submitted to the unit for review, not a single one had been ordered to be reinvestigated. Part of the problem was the structure of the unit. Cases were screened by a seven-member panel of prosecutors, which bred inevitable intransigence. As Nashville defense attorney Daniel Horwitz pointed out, it also created conflicts of interest; in the case of his client Joseph Webster, whose application was rejected in July 2018, the panel included the same prosecutor who sent Webster to prison in the first place. The attorney general’s office announced an overhaul of the unit’s protocol. On February 8, news broke that the CRU would take on the Webster case after all, the first to move forward since Funk launched the unit. All of this is potentially good news for Garrett. But there is one major obstacle keeping him from applying. The unit’s rules dictate that it “will not consider requests for review while any appeal, petition, or writ is pending in court.” For Garrett, whose federal appeal has been winding its way through the courts since 2013, it is a wait he can ill afford. Although Davidson County is not unique in this requirement, it’s not even clear why it exists. “As a general rule, we stay out of it while it’s in the courts,” Assistant Attorney General Robert Jones, who leads the unit, explained over the phone earlier this month. But he insisted that such language would not foreclose on a deserving application. He pointed to the next line in the unit’s protocol: “The CRU retains the discretion to review the case if it is in the interest of justice.” If there is compelling evidence of innocence, he said, “we’re not gonna sit here for years and wait for the case to go through the courts.” Even so, the language of the unit’s official protocol suggests the bar for relief will be high. In order for the CRU to recommend that a conviction be vacated, an applicant must show “clear and convincing evidence” of “actual innocence,” as defined by the Tennessee Supreme Court. In a case like Garrett’s, where the physical evidence was discarded almost immediately, there is no new testing that can establish such clear proof of his innocence, let alone something like DNA. If there is one thing that might help Garrett between now and whenever he submits his case for review, it would be a willingness on the part of the state’s main expert to admit he was wrong, at least in his methodology, which would never pass muster today. But until now, this has proven impossible. When I went to see Cooper last year, he defended his work and refused to consider the reports by Lentini or the Tetrahedron Committee. Although he backed away from certain evidence he once emphasized on the stand, he reiterated his belief in Garrett’s guilt and reminded me of a crucial piece of evidence: the lock on the utility room door. “That was key,” he said. In fact, there have always been reasons to doubt that the door was locked. There was the police report that was withheld from Garrett’s defense at the first trial, in which Fire Captain Otis Jenkins said that the door was unlocked. But even without this, Jenkins — the only firefighter who directly testified to this critical piece of evidence — never had the most convincing recollections. At Garrett’s first trial in 1993, he testified that he had to “turn and move a knob to get the door open,” even though the door had no knob. Was it possible the door was “just jammed”? Garrett’s attorney asked. “I wouldn’t rule that out,” Jenkins said, but he insisted he was almost certain the door was locked. At the 2003 retrial, Jenkins testified that he “shuffled something or did something to make the door open,” but he could not recall what. In court rulings upholding Garrett’s conviction, reviewing judges have relied on Cooper’s recounting of what Jenkins supposedly told him: that he “had to use two hands to slide the bolt on the latch to the other side to open the door.” But at the retrial, Jenkins said he did not even remember Cooper. In its 2016 report on the fire, the Tetrahedron Committee found that his testimony should be “viewed very skeptically.” For one, there was the “near-zero visibility, high heat, and confusion” of a fire scenario. Then there was the fact that firefighting gloves are designed for protection and not conducive to operating a latch as small as the one on the door. “The difficulties of opening a latch in firefighting gloves was never addressed and demonstrated at trial,” the report noted. Finally, it flagged the exculpatory statement attributed to Jenkins and withheld by the state at the first trial: that the door was unlocked. “Given what we know from memory research, the original recollection is the most credible source [of] information,” the experts said. “That is not to say that Capt. Jenkins was knowingly lying about the latch position. However, we must be cognizant of the effect of potential suggestion by investigators and prosecutors on a witness’s recollection.”
Jenkins, who is long since retired, has not responded to numerous messages or a note left at his home. Nor has he acknowledged the expert reports from Lentini and the Tetrahedron Committee, which I mailed to him last fall. While there is no reason his memory would be sharper decades after the fire, there is very good reason to revisit the question of the door. Should the CRU eventually take up the case, it would do well to consider a key finding in Lentini’s report, one that only recently reminded me of something Garrett told me years ago: the reason he bought the cheap latch in the first place was because the door had a tendency to swing open. A photo included in Lentini’s report shows heavy smoke deposits on the edge of the door — the part that would presumably have been shielded by the door frame had it been closed during the fire. Garrett’s conviction rests on the claim that he locked Lance inside that room and left her to die. But the smoke deposits debunked this, according to Lentini. Not only was the door unlocked, he wrote, “it was not even closed.""

The entire story can be read at: 

https://theintercept.com/2019/02/24/claude-garrett-arson-case-parole-denied/

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: Robert Wilkes; Maria Mendez; Zavion Johnson; Christopher Dodrill: An important post from the makers of 'The Syndrome.'..."The past year, four innocent people who were in prison over shaken baby syndrome were freed. Robert Wilkes (Montana Innocence Project), Maria Mendez (Project for the Innocent - Loyola Law School, Los Angeles), Zavion Johnson (Northern California Innocence Project) and Christopher Dodrill (West Virginia Innocence Project)"

PUBLISHER'S NOTE:

The  Facebook page for the outstanding documentary 'The Syndrome" provides much valuable information this  baseless, disproven  theory that has  wrongly sent many people to jail - and destroyed families in the process. The site can be reached at:

https://www.facebook.com/thesyndromefilm/

A good example is  the  post on the site which appeared  on January 31, 2018: (I have provided background on each of the four cases at the links below.)

"The past year, four innocent people who were in prison over shaken baby syndrome were freed. Robert Wilkes (Montana Innocence Project), Maria Mendez (Project for the Innocent - Loyola Law School, Los Angeles), Zavion Johnson (Northern California Innocence Project) and Christopher Dodrill (West Virginia Innocence Project)."

Harold Levy: Publisher: The Charles Smith Blog;

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Robert Wilkes: (Montana):  "Overwhelming evidence helps overturn Missoula father's homicide conviction."  by reporter Dillon Kato, published by The Missoulian on July 2, 2018..." A District Court judge has overturned the 2009 homicide conviction of Robert Wilkes, marking yet another court victory for the Montana Innocence Project. Wilkes’ 3-month-old son Gabriel died in October 2008. More than a year later, Wilkes was convicted in the baby's death, and sentenced to 40 years in prison. The Montana Innocence Project began to look into his case in 2012, finding that Gabriel had no signs of abuse and that the prosecution relied on the theory of Shaken Baby Syndrome in Wilkes' case. The Innocence Project gathered a series of medical experts from around the country to review the case. They determined a number of other likely causes of his death. Also, the medical examiner who performed the autopsy had listed the cause of death as “undetermined,” something Wilkes’ defense attorney did not present at trial. The Montana Innocence Project’s motion for a new trial for Wilkes was eventually appealed to the Montana Supreme Court, which sent it back down for further proceedings. In an order issued Thursday, District Court Judge James Haynes of Ravalli County, who was brought in to oversee the Wilkes case, overturned the conviction. As part of his order the judge concluded that Wilkes’ attorney at trial had been ineffective in his representation of his client. “The Court concludes (Scott Spencer) failed to subject the prosecution’s case to meaningful adversarial testing. … Wilkes has shown his Sixth Amendment right to effective counsel was violated to such a degree as to jeopardize the fundamental fairness and integrity of his trial,” the judge wrote. “I have been waiting, hoping, and praying for this moment for many years,” Wilkes said in a statement. “The Innocence Project works tirelessly on behalf of people like me, who are wrongfully convicted. The project gives us hope. I am very grateful for their amazing and dedicated work.”
 https://missoulian.com/news/state-and-regional/crime-and-courts/overwhelming-medical-evidence-helps-overturn-missoula-father-s-homicide-conviction/article_3fc74661-8829-5da0-a6a7-4c79f741ce30.html

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Maria Mendez: California): "Great grandmother freed from prison after 11 years for crime she did not commit," by reporter Gordon Tokumatsul, published by NBC Bay area on July 11, 2018..." A great grandmother who served 11 years in state prison for a crime she did not commit was released from custody last week after a verdict was overturned. Maria Mendez was a mix of emotions.

"I can feel the air outside, I can see the birds, I can see the sun when it rises, I feel so happy to be outside," she said in Spanish via Skype from her native Mexico where she was reunited with her family. "Right now I don't want to think about those sad days, because I feel bad." Attorney Brian Hennigan, of Hueston Henningan LLP,  and Loyola's Project for the Innocent dug deep into the evidence that resulted in Mendez's conviction. "She was going to wind up, at the age of 64, likely dying in prison," said Brian Hennigan, an attorney with Loyola Law School's Project for the Innocent. They found hours of testimony that convinced the jury her baby grandson, Emmanuel, had died from massive brain swelling. A doctor and a coroner testified that it was consistent with shaken baby syndrome, a controversial, catchall term used to explain injuries that are hard to pinpoint.

Paula Mitchell, the legal director of LPI said it's more of a legal backstop. "There just seemed to be very little, in the way of medical evidence, from the very beginning," Mitchell said. Jurors did not see the results of two CT scan taken right after Emmanuel was hospitalized. The LPI team says they showed conclusively that he did not have massive brain swelling. The court also did not see autopsy photos, which showed he may have died from injuries suffered in a fall, two days earlier. "The fact that anybody is convicted under those circumstances, frankly overall, is a bit of a red flag," said Adam Grant, the program director at LPI."

 https://www.nbcbayarea.com/news/california/Great-Grandmother-Freed-From-Prison-Innocent-Project-487936841.html

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Zavion Johnson: California:  (Registry of Exonerations)  Entry written by Maurice Possley.'

On November 24, 2001, 18-year-old Zavion Johnson called 911 in Sacramento, California when his four-month-old daughter, Nadia, stopped breathing. Emergency personnel managed to get the girl breathing again and rushed her to the hospital.

When Nadia arrived, doctors discovered she was suffering from serious head trauma. They suspected she had been physically abused and notified police. Although she showed no other outward signs of injury, there was a thumb-shaped red mark on her forehead.

When interviewed, Johnson told police that his one-year-old brother had struck Nadia on the mouth with a toy earlier in the day, but she otherwise had been fine. However, when he returned home at 3 a.m., he admitted to his wife, Racquel, that Nadia slipped from his grasp and hit her head on the bathtub when he had been bathing her in the shower.

By the next day, Johnson had told the rest of his family. He was crying and extremely distraught. His family believed him because they knew how well he cared for his own siblings as well as for Nadia. When Johnson said he wanted to tell the doctors, his family advised him to speak to a lawyer first.

However, before that occurred, a nurse told police that Racquel’s aunt reported that Johnson had admitted that he dropped Nadia in the shower. By then, the baby had been declared brain dead. Johnson was holding her in his arms when life support was disconnected and she died. Johnson fainted on the spot.

On December 4, 2001, the day of Nadia’s funeral, police arrested Johnson and charged him with murder and assault.

In November 2002, Johnson went to trial in Sacramento County Superior Court. The prosecution’s case consisted primarily of the testimony of three medical experts who concluded that Nadia had been violently shaken—that she was a victim of Shaken Baby Syndrome.

Shaken Baby Syndrome (SBS) is a term coined to describe a condition first articulated in 1971. SBS is said to arise when an infant is shaken so hard that the brain rotates inside the skull, causing severe and potentially deadly brain injury, but often without any external signs of harm. SBS is said to involve a telltale “triad” of symptoms—brain swelling, brain hemorrhaging, and retinal hemorrhaging. When present in an infant who has no outward signs of abuse, this triad of symptoms indicates that the child has been violently shaken. According to prevailing medical wisdom at the time of the incident, no other injuries or pathologies could cause these three symptoms to occur at the same time. Moreover, it was thought that a victim of SBS became unresponsive immediately, and therefore the last person to have physical care of the baby must have caused the injuries.

Dr. Gregory Reiber, a forensic pathologist who performed Nadia’s autopsy, testified that he found bleeding behind her eyes, which was associated with a “rotational head injury, what some people call Shaken Baby Syndrome.” He was unequivocal in saying that the injuries could not have been the result of a fall.

Dr. Claudia Greco, a neuropathologist, testified that she found a brain injury near Nadia’s spine that was the “most convincing” evidence that the baby died from SBS and not from a fall of four feet.

Dr. Kevin Coulter was the pediatrician at University of California Davis Medical Center who treated Nadia in the hospital. He testified that physicians only see the constellation of injuries observed in Nadia in SBS cases, falls from “great heights” of 10 feet or higher, motor vehicle accidents, or similar events where there is a “really significant high velocity impact.”

There were no grip marks or broken bones associated with grabbing and shaking an infant, but the prosecution experts pointed to Nadia's bruising as evidence of abuse. They did not mention, however, that the bruising only appeared after medical intervention, in locations consistent with that intervention.

The defense called one expert, Dr. Richard Robertson, a biomechanical consultant who spent five hours preparing for his testimony. He told the jury that the injuries were consistent with a short fall onto a hard surface—such as Johnson had described. Robertson based much of his opinion on an article that Greco testified had been “torn apart basically because of the poor quality.”

Thirteen witnesses—mostly family members—testified that Johnson was a loving, caring, calm, gentle, and patient father who, as the oldest of seven children, had significant experience caring for young children.

Johnson testified and denied shaking Nadia. He maintained that she had slipped out of his hands while he was bathing her and fell, striking her head on the tub. He said that she did not have any mark on her. Because her breathing seemed raspy, Johnson asked his mother, Gatoi, to examine the child. She assured him Nadia was fine.

Nadia took a nap and when she awoke, she seemed tired. By the early afternoon, Johnson and his mother decided to take Nadia to a clinic near the home of Racquel’s stepmother. However, that clinic was closed. They tried another clinic, but it was closed too. By the time they arrived at the stepmother’s home, Nadia was nonresponsive and Johnson called 911. He attempted CPR, but broke down crying. The paramedics arrived at 3:20 p.m. and grasped Nadia by the head to intubate her.

On December 12, 2002, the jury convicted Johnson of second-degree murder and assault on a child resulting in death. The judge said the case was “one of those situations where an otherwise decent individual has one moment in their lives when they act out of character.” The judge also said that the medical evidence “was overwhelming that this was not an accident.” The judge then sentenced Johnson to 25 years to life in prison.

The California Court of Appeal upheld the convictions in 1994. Over the next several years, Johnson, acting without a lawyer, filed several state law petitions for a writ of habeas corpus challenging his conviction on various grounds, primarily related to his trial defense lawyer failing to properly investigate the case. All were denied without a hearing.

In April 2017, lawyers from the law firm of Keker, Van Nest & Peters and the Northern California Innocence Project filed a state law petition for a writ of habeas corpus. The petition asserted that medical research had subsequently shown that the same triad of symptoms said to be SBS could be caused by a fall.

“It is now…indisputable that scientific research and medical advances since the time of trial have undermined the prosecution's two claims that were the basis for Mr. Johnson's conviction…that Nadia’s injuries could not have been the result of an accidental short fall and that only SBS could have caused Nadia’s injuries,” the petition said.

In addition, two of the prosecution experts at Johnson’s trial provided sworn affidavits recanting their trial testimony. Dr. Greco, the neuropathologist who examined the brain and spinal cord after the autopsy, repudiated her testimony that only shaking could have caused the microscopic injury she observed in Nadia's spinal cord.

In a report submitted in support of the petition, Dr. Reiber, who conducted the autopsy, said, “While the consensus view at the time of the autopsy, which I shared, led to a conclusion that the manner of death was homicide, the current reassessment has led me to conclude that accidental injury cannot be excluded and therefore the manner (of death) should be considered as undetermined.”

In addition, Dr. Judy Melinek, a forensic pathologist who reviewed the case under the most recent medical and forensic standards, also concluded that Nadia's injuries were consistent with the fall Johnson described. She said there was “insufficient medical evidence based on the most current forensic science to support a determination of an intentionally inflicted traumatic injury.”

A fourth expert, Dr. Roger Haut, director of Orthopaedic and Biomechanics Laboratories at Michigan State University, reviewed the evidence in light of his studies on skull fractures. He concluded that Nadia's skull fracture was consistent with a three-foot fall onto a hard curved surface.

On December 8, 2017, Sacramento Superior Court Judge James Arguelles granted the petition and vacated Johnson’s convictions. Johnson was released later that day.

On January 19, 2018, the prosecution dismissed the charges.

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5264

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Christopher Dodrill: (West Virginia):  "Innocence Project client Dodrill released from prison, by James Jolly, published on August 16, 2018 : "The West Virginia Innocence Project Law Clinic at WVU Law has helped free a client from prison after proving he was convicted of a crime he did not commit. The Circuit Court for Tyler County, West Virginia, recently vacated the conviction of Christopher Dodrill. In 2016, Dodrill was found guilty of child abuse with serious bodily injury and unlawful assault after a child under his care became injured. He was sentenced to 3-15 years in prison. Dodrill consistently testified that the child fell and hit her head, and that he took her to the hospital. The child fully recovered, but because she had brain swelling and a subdural hematoma, the hospital diagnosed her with Shaken Baby Syndrome without eliminating other possible causes of her injuries. At his trial, Dodrill had no doctors or expert witnesses to consult or testify on his behalf, making it his word against the hospital’s diagnosis.  On Dodrill’s behalf, the WVIP submitted to the court reports from a biomechanical expert and a pediatric neurologist, as well as depositions of the state’s primary expert and defense counsel. They proved that the child under Dodrill’s care had underlying health issues made worse by the fall and that Dodrill did not cause her injuries. Judge David W. Hummell, Jr. of the Tyler County Circuit Court found that Dodrill’s trial counsel was ineffective for failing to consult with or hire a defense expert when his client was on trial and subsequently reversed the conviction. “This is the second case in which a West Virginia Innocence Project client has been freed because defense attorneys did not investigate the controversial diagnosis of Shaken Baby Syndrome, and experts have found and supported an alternative cause of injury,” said Valena Beety, professor of law and director of the West Virginia Innocence Project. “Chris should never have served time for a crime he did not commit, but at least his case shines a light on controversial and faulty Shaken Baby Syndrome prosecutions in our state.” Dodrill’s freedom is a result of work done by WVIP student-attorneys Cody Swearingen ‘17, Taylor Coplin ‘17, Zack Gray ‘18 and Britlyn Seitz ‘18, and supervising attorney Melissa Giggenbach. The students consulted extensively with experts and conducted depositions with the state’s medical expert, trial counsel and trial counsel’s supervisor. "Overturning this conviction took more than two years and the work of two teams of dedicated clinical law students,” said Giggenbach. “Hopefully, with this success, we can stop wrongful convictions based on faulty and misleading science." “The work I did with WVIP was some of the most rewarding I’ve done in my life. I’m thankful that the West Virginia justice system was able to see the controversy behind Shaken Baby Syndrome, and more specifically, the constitutional issues that plagued Mr. Dodrill’s trial,” said Swearingen, who is now lawyer in the U.S. Navy Judge Advocate General’s Corps. The West Virginia Innocence Project Law Clinic is funded, in part, by Wilson, Frame and  Metheney, PLLC."

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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.

Black English, flawed linguistics and miscarriages of justice: Fascinating article by Columbia Prof. John McWhorter asserts that "Court stenographers often misunderstand Black English, and their mistakes could affect people’s lives at crucial junctures" - and queries whether a stenogrophers ignorance of "Black English" could mean a prison sentence..." It’s impossible to know how often mistakes of this sort occur, but chances are they’re common. An upcoming study in the linguistics journal Language found that 27 Philadelphia stenographers, presented with recordings of Black English grammatical patterns, made transcription errors on average in two out of every five sentences, and could accurately paraphrase only one in three sentences. The Black English gap, as one might call it, matters: It can affect people’s lives at crucial junctures."

PASSAGE OF THE DAY:  "Black people, including kids, use Black English alongside standard English rather than exclusively. The transcription issue is different. Most stenographers have not grown up with the bidialectal experience of poor black people and are thus encountering something genuinely unfamiliar, which they may not know how to get down on paper properly."

PASSAGE TWO OF THE DAY: "Black people are overrepresented within the criminal-justice system, and race relations in America will never truly budge until “equality under the law” is more than a quaint phrase. But equality is, of course, impossible if the black people grappling with courts and imprisonment are routinely misunderstood. Transcription mistakes can happen quite innocently. As far back as the 1930s, white men and women tasked with transcribing recordings of ex-slaves produced error-ridden manuscripts."

COMMENTARY: "Could Black English Mean a Prison Sentence?" by John McWhorter, published by The Atlantic, on January 31, 2019. (John McWhorter is Contributing editor at The Atlantic and a  professor at Columbia University.

SUB-HEADING: Court stenographers often misunderstand Black English, and their mistakes could affect people’s lives at crucial junctures.

Jan 31, 2019 
 

GIST: "A black man on the phone from a jail in San Francisco said, in 2015, “He come tell ’bout I’m gonna take the TV,” which meant that this man was not going to do so. The transcriber listening in couldn’t understand the first part, apparently, and recorded the whole statement as “I’m gonna take the TV.” It’s impossible to know how often mistakes of this sort occur, but chances are they’re common. An upcoming study in the linguistics journal Language found that 27 Philadelphia stenographers, presented with recordings of Black English grammatical patterns, made transcription errors on average in two out of every five sentences, and could accurately paraphrase only one in three sentences. The Black English gap, as one might call it, matters: It can affect people’s lives at crucial junctures. In 2007, a Sixth Circuit Court of Appeals dissent claimed that when a black woman said, in terror, “He finna shoot me,” she may have been referring to something in the past, when in fact “finna” refers to the immediate future. “Why don’t you just give me a lawyer, dog?” Warren Demesme asked the police when accused of sexual assault in 2017. The statements one makes to law enforcement after requesting a lawyer are inadmissible—but Demesme’s rights were ignored because, it was argued, he’d requested a “lawyer dog,” not an actual attorney. Black people are overrepresented within the criminal-justice system, and race relations in America will never truly budge until “equality under the law” is more than a quaint phrase. But equality is, of course, impossible if the black people grappling with courts and imprisonment are routinely misunderstood. Transcription mistakes can happen quite innocently. As far back as the 1930s, white men and women tasked with transcribing recordings of ex-slaves produced error-ridden manuscripts. One man was supposed to have said that after Emancipation Day, “the colored people sure went for!,” which sounds odd grammatically and substantively; why wouldn’t ex-slaves have been “for” their freedom? It turned out that the man was saying that ex-slaves “sure been poor,” a straightforward statement.

I thought of this recently when I was staying at a hotel and asked a black woman working at the front desk where I could get a cup of coffee. When she pointed toward the restaurant, I said it was closed. Then she pointed more directly to a table with coffee urns near the restaurant—I was sleepy and hadn’t seen it—and she said, with warm irony, “Dat table, dey close?” Her utterance could easily have thrown a foreigner, given that in Black English you can leave out the are of Are they closed? and the final -d of closed. Even some native English speakers may have misheard her without a certain amount of familiarity with the dialect. When someone in a position of authority draws attention to the differences between standard and Black English, the response is often perplexity and derision. That was true in 2010 when the Drug Enforcement Administration put out a call for Black English translators so the agency could better understand conversations on wiretaps. Some in the media, poking fun at the whole project, suggested that Black English is simply a collection of slang words or even just a sloppy way of enunciating. The pervasive assumption was that black speech differs from mainstream speech only in some spicy lingo plus various instances of “broken” grammar In fact, Black English is not deficient but alternate. There is no scientific basis for judging Black English grammatical structures as faulty or unclear, and a Martian assigned to learn English who happened to land on the South Side of Chicago rather than in Scarsdale, New York, would have the same challenge in mastering the rules and nuances of the local speech. For example, the come in “He come tell ’bout I’m gonna take the TV” is used to convey indignation, and has inspired a linguistics article itself. Miss this and the man’s whole meaning is lost—and to his possible detriment. Even those who accept that Black English is more than slang may feel that a translation approach is unwarranted, condescending, or both. Sometimes it may be. In 1996, the Oakland, California, school district proposed to use Black English in the classroom as a sort of training wheel. The idea was that kids raised with Black English as a home language had trouble learning to read because standard English was so unfamiliar. But many (including me) thought that was a misdiagnosis: Black people, including kids, use Black English alongside standard English rather than exclusively. The transcription issue is different. Most stenographers have not grown up with the bidialectal experience of poor black people and are thus encountering something genuinely unfamiliar, which they may not know how to get down on paper properly. The solution here is not difficult. People who will spend their careers transcribing phrases such as “He come tell ’bout I’m gonna take the TV”—or even “Dat table, dey close?”—ought to learn the basics of how Black English works. They would need mastery of only about 25 grammatical traits, which are universal in Black English nationwide, despite local differences. For example, be, when used in a sentence such as She be there on Sunday, refers to something regular and habitual, as in “every Sunday,” and is not simply a randomly unconjugated be. Another example: We had went to the store then I got a text conveys that the person was still in the store when the text came, not that it came after he left. “Dat table, dey close?” is a passing anecdote, but “I’m gonna take the TV” could be the prelude to a man going to prison. A linguistically sophisticated America would understand that these speech patterns are not a pathology; they are the vessel of as much clarity and nuance as those of a privileged college kid. A sophisticated America would make sure those charged with distributing these words to the public sphere, or to a judge and jury, were aware of that fact."

 

 The entire commentary can be read at:

 https://www.theatlantic.com/ideas/archive/2019/01/stenographers-need-understand-black-english/581671/?utm_source=newsletter&utm_medium=email&utm_campaign=atlantic-daily-newsletter&utm_content=20190131&silverid-ref=MzEwMTkxNDkwMDQ1S0

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.