Mark Lundy: New Zealand: 'Immunohistochemistry.' Novel DNA testing technique rejected as scientifically invalid by the New Zealand Court of Appeal - while dismissing his appeal: At core of Lundy's legal response..."The application notice says it is in the public interest for the Supreme Court to consider "whether evidence such as the IHC evidence, that has not received mainstream scientific acceptance in a forensic setting, meets the standard of scientific validity required for such evidence to be substantially helpful and therefore admissible ...It (The application notice) describes IHC's "novel use" in the trial."

PASSAGE OF THE DAY: "His seven-week retrial, which heard from about 140 witnesses, included evidence from Dutch scientist Dr Laetitia Sijen. Using a technique called RNA, Sijen concluded it was 58 per cent probable that tissue in a stain on a polo shirt found in Lundy's car was human brain or spinal cord. The Court of Appeal found this evidence should never have been allowed at the retrial, because it was scientifically invalid, but still dismissed Lundy's appeal. The Supreme Court application notice says the Court of Appeal ruling failed to take into account the "illegitimate and unfair bolstering effect" of the evidence, and the unfairness of Lundy having to respond to inadmissible evidence. At both of Lundy's trials, the Crown has presented evidence from Texan pathologist Dr Rodney Miller, who, using a technique called immunohistochemistry, identified tissue on Lundy's shirt as brain matter. Christine Lundy's DNA was also found on the shirt. The application notice says it is in the public interest for the Supreme Court to consider "whether evidence such as the IHC evidence, that has not received mainstream scientific acceptance in a forensic setting, meets the standard of scientific validity required for such evidence to be substantially helpful and therefore admissible ..." It  (the application notice) describes IHC's "novel use" in the trial."

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STORY:  Mark Lundy's retrial undermined by 'illegitimate and unfair' Crown evidence, by reporter Jimmy Ellingham, published by Stuff on March 5, 2019.

PHOTO CAPTION: "The Court of Appeal's been told the public's perception of Mark Lundy was something which had never been adequately dealt with at his retrial.

PHOTO CAPTION: "The Court of Appeal ruled Dr Laetitia Sijen's RNA evidence was inadmissible."

GIST:  "Mark Lundy's bid to overturn his convictions for murdering his wife and daughter argues the Court of Appeal was wrong when it ruled no miscarriage of justice took place at his retrial, which included crucial scientific evidence that shouldn't have been allowed.

Lundy's legal team also says the jury at his retrial should have received a warning about placing too much importance on his demeanour, according to a "notice of application" seeking permission for a Supreme Court hearing. 

The six-page document, released to Stuff, outlines the reasons Lundy's lawyers say New Zealand's highest court should hear his case, after his appeal to the Court of Appeal was last year dismissed. 

Lundy, 60, was convicted for a second time in 2015 of killing wife Christine, 38, and daughter Amber, 9, in their Palmerston North home in a frenzied attack in the early hours of an August 2000 morning. Lundy says he was away on business in Wellington at the time.

His seven-week retrial, which heard from about 140 witnesses, included evidence from Dutch scientist Dr Laetitia Sijen. Using a technique called RNA, Sijen concluded it was 58 per cent probable that tissue in a stain on a polo shirt found in Lundy's car was human brain or spinal cord. 

The Court of Appeal found this evidence should never have been allowed at the retrial, because it was scientifically invalid, but still dismissed Lundy's appeal. 

The Supreme Court application notice says the Court of Appeal ruling failed to take into account the "illegitimate and unfair bolstering effect" of the evidence, and the unfairness of Lundy having to respond to inadmissible evidence. 

At both of Lundy's trials, the Crown has presented evidence from Texan pathologist Dr Rodney Miller, who, using a technique called immunohistochemistry, identified tissue on Lundy's shirt as brain matter. Christine Lundy's DNA was also found on the shirt.

The application notice says it is in the public interest for the Supreme Court to consider "whether evidence such as the IHC evidence, that has not received mainstream scientific acceptance in a forensic setting, meets the standard of scientific validity required for such evidence to be substantially helpful and therefore admissible ..." It describes IHC's "novel use" in the trial.

Lundy's lawyers also say the retrial judge should have given the jury a warning to not undertake "demeanour reasoning by reference to an event that takes place outside of the trial", in Lundy's case, "infamous" television coverage of him overcome with emotion at his wife and daughter's funeral

Lundy's lead defence lawyer Jonathan Eaton, QC, said full submissions were filed in February. The Crown had until last week to file its reply.

The Supreme Court will now decide whether it will hear Lundy's appeal.

The case against Lundy was much changed at his 2015 retrial, meaning some evidence presented at his 2002 trial was dropped. Notably, the Crown changed the time of the killings from about 7pm until after midnight.

The earlier time of death was fixed after pathologist James Pang determined Christine and Amber Lundy died soon after eating dinner, but meant Lundy would have had to travel from Wellington to Palmerston North in peak-hour traffic, commit the murders, clean up and return to the capital in about three hours.

Lundy is serving a life sentence in jail, with a 20-year minimum period.

He has been in custody since his arrest in early 2001, although he spent about 18 months on bail after the Privy Council in 2013 overturned his convictions and ordered the retrial."

The entire story can be read at:

https://www.stuff.co.nz/national/crime/111031156/mark-lundys-retrial-undermined-by-illegitimate-and-unfair-crown-evidence

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Read Wikipedia entry at the link  below: "Christine Marie Lundy, 38, and her 7-year-old daughter Amber Grace Lundy were murdered in Palmerston North, New Zealand, on 29 August 2000. Mark Edward Lundy (then aged 43), Christine's husband and Amber's father, was arrested and charged with the murders in February 2001.^[1] In 2002 he was convicted of the murders after a six-week trial and was sentenced to life imprisonment with a minimum non-parole period of 17 years. He appealed the conviction to the Court of Appeal; the appeal was rejected and the court increased his non-parole period to 20 years.^[2] In June 2013 Lundy took his case to the Privy Council in Britain.^[3] In October 2013 the Privy Council quashed the convictions and ordered a re-trial.^[4] In April 2015, at the end of the retrial, Lundy was again found guilty.^[5] Lundy continued to claim he is innocent and in 2017 took his case to the Court of Appeal a second time. On 9 October 2018 the Court of Appeal released its decision to dismiss the appeal. Defence case:  "The defence called three witnesses including Lundy himself, who emphatically denied killing his wife and daughter. A key defence argument was that Lundy could not possibly have made the round trip from Wellington to Palmerston North and back in three hours,^[22] pointing out that Lundy's phone records prove that his phone was in Petone at 5:43 pm and at 8:48 pm. Regarding the brain tissue evidence, the defence noted that there was blood and tissue splattered everywhere including on the walls, the bed and the floor around the bodies but "his car, glasses, wedding ring, shoes and other clothes were all tested for blood or other tissue and absolutely nothing was found";^[18] they said contamination could account for the tissue found on Lundy's shirt." Privy Council:  "In November 2012, Lundy applied to the Judicial Committee of the Privy Council seeking permission to appeal his murder convictions. The appeal was based on three issues: the time of death, the time of shutdown of Christine's computer, and the presence of brain tissue on Lundy's shirt.^[25] The hearing before the Privy Council (including Chief Justice of New Zealand Dame Sian Elias) began on 17 June 2013, with possible decisions being to reject the appeal, thus affirming Lundy's convictions and sentence; to overturn the convictions and order a new trial; or to send the case back to the Court of Appeal in New Zealand for determination.^[25] The Privy Council reserved its decision after the three day hearing.^[3] On 4 October 2013, the Privy Council upheld Lundy's appeal against his double murder convictions and quashed them, ordering a retrial. It concluded that Lundy's convictions were "unsafe" in light of new evidence that had been presented.^[26][27] Mark Lundy was released from prison under probation orders on 5 October 2013 pending a second trial." Second appeal: "In October 2017, Lundy appealed his second conviction at the Court of Appeal in Wellington.^[30] Lundy was represented in the Court of Appeal by Jonathan Eaton QC, Julie-Anne Kincade, Jack Oliver-Hood and Helen Coutts.^[30] The Court of Appeal dismissed the appeal in October 2018. It ruled that the Crown evidence about RNA (the alleged presence of brain tissue on Lundy's shirt and similar to DNA) in the retrial was inadmissible but decided the appeal should be dismissed "on the basis that no substantial miscarriage of justice has actually occurred."^[31]
 
 https://en.wikipedia.org/wiki/Lundy_murders


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.

Mixed DNA: Johnny Lee Gates: (Georgia); Forensic Magazine (Chief Science Writer Seth Augenstein) echoes a warning from DNA guru Dr. Greg Hampikian that failure by drug labs to revisit DNA mixtures across the USA could lead to erroneous matches and to miscarriages of justice.

PASSAGE ONE OF THE DAY: "Though most results simply boosted the match statistics beyond the CPI calculations, there were five cases in which the software excluded the suspect—and changed the experts’ conclusions. “This demonstrated that TrueAllele could reverse erroneous matches, and produce more convincing true matches—facilitating convictions in languishing cases, and avoiding wrongful imprisonment,” the paper argues. One recent case example cited is Johnnie Lee Gates—a black man who was sentenced to die for the murder of a young white woman in Georgia in 1976. Gates has been in prison 41 years, and has attempted several appeals. One of the latest focused on accusations of racial discrimination on the part of prosecutors at the time of the 1977 trial—and the DNA mixtures found on ligatures used to restrain the 19-year-old victim. The racial arguments were tossed, but appeals judges in January granted Gates a whole new trial based on TrueAllele re-analysis of the genetic mixtures. “The adoption of probabilistic genotyping by many laboratories will certainly prevent some of these errors from occurring in the future, but the same laboratories that produced past errors can also now review old cases with their new software—without additional bench work,” write Hampikian. “It is critical that laboratories adopt procedures and policies to do this.”

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PASSAGE TWO OF THE DAY: "One recent case example cited is Johnnie Lee Gates—a black man who was sentenced to die for the murder of a young white woman in Georgia in 1976. Gates has been in prison 41 years, and has attempted several appeals. One of the latest focused on accusations of racial discrimination on the part of prosecutors at the time of the 1977 trial—and the DNA mixtures found on ligatures used to restrain the 19-year-old victim. The racial arguments were tossed, but appeals judges in January granted Gates a whole new trial based on TrueAllele re-analysis of the genetic mixtures."

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POST: "After MIX13, Labs Must Revisit DNA Mixtures Across Country, Critic Argues," by Chief Science Writer Seth Augenstein, published by Forensic Magazine on March 22, 2019.

GIST: The manual way of sorting out increasingly complex DNA mixtures can be overly simplistic—potentially leading to errors. A federal study involving more than 100 crime laboratories came to that conclusion—six years ago. The “MIX13” study was published last year after some public criticism, and an April 2018 report by Forensic Magazine. Now, the chief critic of the delay in publishing MIX13 says crime laboratories across the country should be undertaking wide-scale review of the questionable mixture cases using the latest computer software programs to get more accurate results. Previous conclusions backing guilty verdicts may be confirmed, but there may also be potential innocence cases among the load, according to the paper in the journal Forensic Science International: Genetics. “We must go back, detect and correct our mistakes,” writes Greg Hampikian, of Boise State University, the author. “This can all be done without any new wet lab work.” Hampikian has been the most vocal critic of the persistence of the use of combined probability of inclusion, or CPI—a manual computational method to analyze complex mixtures. MIX13, conducted in 2013, asked 108 laboratories to answer five hypothetical cases of increasing complexity. Case Five was the culmination, involving a ski mask left behind after a bank robbery. The mixture contained the touch DNA of four people, but initially appeared only as a two-person mixture. The labs were given two of the four likely contributors—plus a fifth “innocent” person who was not in the mixture at all. Seventy percent (76 labs) of the laboratories got the wrong answer, by including that fifth person in their analysis. Only seven laboratories got the problem totally right, through different means. (Four labs cited a key missing allele, and two more used a Thermo Fisher PCR amplification data to show the fifth person could not fit). One laboratory used the probabilistic genotyping software called TrueAllele to come to the correct solution. The authors of MIX13, employed by the National Institutes of Standards and Technology at the time of the work, cautioned against assuming that CPI meant many innocent people were behind bars. One cannot draw real-world conclusions from Case Five, John Butler of NIST, one of the authors, told Forensic Magazine last year. “We asked specific questions of labs, and part of it was a teaching moment,” Butler said. “It wasn’t to say, here’s your error rate—because that’s not what the purpose of that was. This was a teaching moment to realize you can falsely include somebody with CPI.” But Hampikian and other critics see a theoretical problem which, they say, could mean miscarriages of justice. TrueAllele and other probabilistic genotyping software could be used to conduct review of years of contested cases involving mixtures, Hampikian argues. The DNA expert cites the example of the Virginia Department of Forensic Science, which reviewed 144 cases using TrueAllele. Though most results simply boosted the match statistics beyond the CPI calculations, there were five cases in which the software excluded the suspect—and changed the experts’ conclusions. “This demonstrated that TrueAllele could reverse erroneous matches, and produce more convincing true matches—facilitating convictions in languishing cases, and avoiding wrongful imprisonment,” the paper argues. One recent case example cited is Johnnie Lee Gates—a black man who was sentenced to die for the murder of a young white woman in Georgia in 1976. Gates has been in prison 41 years, and has attempted several appeals. One of the latest focused on accusations of racial discrimination on the part of prosecutors at the time of the 1977 trial—and the DNA mixtures found on ligatures used to restrain the 19-year-old victim. The racial arguments were tossed, but appeals judges in January granted Gates a whole new trial based on TrueAllele re-analysis of the genetic mixtures. “The adoption of probabilistic genotyping by many laboratories will certainly prevent some of these errors from occurring in the future, but the same laboratories that produced past errors can also now review old cases with their new software—without additional bench work,” write Hampikian. “It is critical that laboratories adopt procedures and policies to do this.” Probabilistic genotyping software is increasingly being used in laboratories nationwide. TrueAllele is used in about 10 crime labs, and the company Cybergenetics has issued reports in 43 states, and been approved in 20 admissibility hearings. The competitor STRmix, supplied by a New Zealand-based company, is reportedly used by 43 federal, state and local agencies as of a January update."

The entire post can be read at:

https://www.forensicmag.com/news/2019/03/after-mix13-labs-must-revisit-dna-mixtures-across-country-critic-argues

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.

Susan Neill-Fraser: Author Andrew Urban's excellent account in The Spectator of her wrongful prosecution and subsequent ordeal, under the heading: "The Tasmanian yacht murder: a groundbreaking new appeal." It is an excellent backgrounder to coming developments relating to the up-coming appeal. HL.

PUBLISHER'S NOTE: Andrew Urban, author of a compelling, authoritative book on The Neill-Fraser prosecution - "Murder by the prosecution" - has set out an excellent,  lucid account of Susan Neill-Fraser's "ground-breaking new appeal."

PASSAGE ONE  OF THE DAY:  "It has taken three years to wind its way through the appeal process, which dampens the celebration somewhat, but Neill-Fraser left the court last Thursday with a smile on her face as she was wheeled out in a wheelchair (due to a leg-related health complaint). She has been incarcerated since her arrest in August 2009, charged with the murder of her partner, Bob Chappell, on board their new yacht, Four Winds, on Australia Day 2009. His body has not been found and she has always maintained her innocence. The key to her cell door – if her appeal succeeds – is the DNA found on the deck that was matched with Meaghan Vass, a then 15-year-old homeless girl. Vass last week provided the court an affidavit to the effect that she was indeed on board – in the company of two men who were planning to steal from the yacht – and she had witnessed the murder."

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 PASSAGE TWO OF THE DAY: "The biggest irony in this week’s granting of leave to appeal is that it is based on exactly the subject, the impact of DNA at the crime scene, on which the 2012 High Court leave to appeal failed. In September 2012, then defence counsel, M. J. Croucher SC, argued that the finding of the DNA was a very important and powerful consideration because it pointed to a hypothesis consistent with Neill-Fraser’s innocence. There was discussion about the potential significance of her evidence with DPP Tim Ellis SC  (prosecutor) arguing that there was “nothing else to connect her [Vass] or make her a remotely possible suspect except for the presence of a swab of DNA” (at page 11). Moreover, the DPP argued (page 12):

The core evidence was … she was not on the boat. She had no way of being on the boat. There was nothing credible suggested as to how she could be on the boat.

There was no evidence whatsoever – ‘core’ or otherwise – that she was not on the boat, nor that she had no way of being on the boat. Astonishingly, the DPP played down the DNA as if it were the ‘red herring’ he called it at trial. And he confused the question of what the presence of DNA meant, despite referring to it not being at ‘the real scene of the crime’: it did not necessarily mean that Vass was a suspect in the murder. It meant that Vass was present on the yacht when the murder took place – and was a likely source of eyewitness testimony."

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STORY: "The Tasmanian yacht murder: a groundbreaking new appeal," by Andrew L. Urban, published by The Spectator on March 23, 2019. (Andrew L. Urban is the author of Murder by the Prosecution, published by Wilkinson Press.)

GIST: "In a historic decision to grant Sue Neill-Fraser leave to appeal against her 2010 murder conviction, Justice Brett of Tasmania’s Supreme Court has exercised for the first time the legislation that only Tasmanian and South Australian parliaments have passed: a further right to appeal for those convicted of serious crimes whose first appeals have failed. It has taken three years to wind its way through the appeal process, which dampens the celebration somewhat, but Neill-Fraser left the court last Thursday with a smile on her face as she was wheeled out in a wheelchair (due to a leg-related health complaint). She has been incarcerated since her arrest in August 2009, charged with the murder of her partner, Bob Chappell, on board their new yacht, Four Winds, on Australia Day 2009. His body has not been found and she has always maintained her innocence. The key to her cell door – if her appeal succeeds – is the DNA found on the deck that was matched with Meaghan Vass, a then 15-year-old homeless girl. Vass last week provided the court an affidavit to the effect that she was indeed on board – in the company of two men who were planning to steal from the yacht – and she had witnessed the murder. That followed her tell-all March 10 interview on 60 Minutes where she said the same things. Vass has been terrified ever since – and not just of the killers. Police have maintained their confidence in the investigation and the conviction. The biggest irony in this week’s granting of leave to appeal is that it is based on exactly the subject, the impact of DNA at the crime scene, on which the 2012 High Court leave to appeal failed. In September 2012, then defence counsel, M. J. Croucher SC, argued that the finding of the DNA was a very important and powerful consideration because it pointed to a hypothesis consistent with Neill-Fraser’s innocence. There was discussion about the potential significance of her evidence with DPP Tim Ellis SC arguing that there was “nothing else to connect her [Vass] or make her a remotely possible suspect except for the presence of a swab of DNA” (at page 11). Moreover, the DPP argued (page 12):

The core evidence was … she was not on the boat. She had no way of being on the boat. There was nothing credible suggested as to how she could be on the boat.

There was no evidence whatsoever – ‘core’ or otherwise – that she was not on the boat, nor that she had no way of being on the boat. Astonishingly, the DPP played down the DNA as if it were the ‘red herring’ he called it at trial. And he confused the question of what the presence of DNA meant, despite referring to it not being at ‘the real scene of the crime’: it did not necessarily mean that Vass was a suspect in the murder. It meant that Vass was present on the yacht when the murder took place – and was a likely source of eyewitness testimony. But there are other grounds that can be cited to overturn the conviction once the appeal is taken to court at a date yet to be determined ranging from inadmissible forensic evidence to the prejudicial address to the jury by the prosecution and prejudicial summing up by the judge."

The entire story can be read at:

https://www.spectator.com.au/2019/03/death-on-the-derwent-now-to-the-high-court/

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Read the entire  decision at the link below: (It's the best way to get the full picture - but here are a few passages - just to give you a taste:

The 60 Minutes program:

48. "After reserving my decision in this application, the applicant applied to reopen her case for the purpose of presentation of some further evidence. I was told from the bar table, without objection, that the evidence relates to an interview conducted with Ms Vass by a journalist during the course of a 60 Minutes program that was aired on television recently. I was aware from media advertisements for the program that the interview was to be aired, but this did not occur in Tasmania and I have not seen the interview. There was no objection by the respondent to the reopening of the application or to the presentation of the evidence.
49. The evidence provided to me consists of an affidavit by Ms Vass. The affidavit purports to have been sworn on 25 February 2019. The affidavit contains direct and detailed admissions of Ms Vass's involvement in events aboard the Four Winds on the relevant night. In particular, Ms Vass states that she was present on the yacht then with two identified male companions. She witnessed at least one of the males assault Mr Chappell. She recalls seeing a lot of blood. The affidavit does not directly address what became of Mr Chappell. Ms Vass claims that she cannot recall leaving the yacht or what happened after the assault.

Conclusion:

54. In this case, I am satisfied that the applicant has a reasonable case to present to the Court in support of the ground of appeal, and that it is in the interests of justice for leave to be granted. The fresh and compelling evidence to which this decision refers is the evidence of the out of court representations of Ms Vass. Insofar as it has been submitted that the evidence is not reliable, I am satisfied that it would be reasonably open to the Court of Criminal Appeal to accept such evidence as credible and providing a trustworthy basis for fact finding. I reiterate that I am not making a positive determination to that effect. However, I am satisfied that there is nothing about this evidence that would enable me to form a positive conclusion that the Court of Criminal Appeal would necessarily reject the evidence as unreliable.
55. In forming this conclusion, I have had regard to Ms Vass's representations within the context provided by some of the other evidence presented by the applicant on this application. The principal piece of evidence providing such context, of course, is the location of Ms Vass's DNA on the yacht, and what Mr Jones has now had to say about that DNA. Other evidence to a greater or lesser extent may also have some relevance in this respect. However, because of the view I have taken about Ms Vass's representations, it is neither necessary nor desirable for me to determine whether any of the other evidence relied upon by the applicant might amount to fresh and compelling evidence."

Justice Brett's entire decision can be read at:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASSC//2019/10.html?fbclid=IwAR0d5nkrfdjAyXQrSEtYFxhs7T45yJi7gukAeG121nLetsw2iKuoLmH_Yuk

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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.

Julie Bowers: Ontario: Must view at link provided: Fascinating CTV Network W5 investigation reveals disgraced pathologist Charles Smith in his true light, in its disturbing analysis of this controversial Canadian case...The episode is headed "Who left little Dusty Bowers to die in the snow?

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View the entire episode  (aired on Saturday March 16, 2019) at:

https://www.ctvnews.ca/w5/who-left-little-dusty-bowers-to-die-in-the-snow-1.4334156

Thanks to CTV for making this important presentation available. It is a hugely important public service  -  television journalism at its finest by W5, a top notch investigative program.  HL.

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PUBLISHER'S NOTE (1): W5's probe of the July Bowers case 'Who left little Dusty Bowers to die in the snow?' provides a very apt portrayal of  disgraced  pathologist  Charles Smith. Anyone who views the excellent  investigative piece will understand why Smith, the namesake of this Blog, was once correctly described as an earthquake under Canada's  criminal justice system. The viewer will also appreciate the toxic mix of incompetence and an all-too-willingness to accommodate the investigating authorities (whatever the evidence may be), often with horrific consequences  to innocent people, and to the criminal justice system. Yet Smith was viewed  by many many actors in the criminal justice system, including police,  who rely heavily on the words of pathologists, prosecutors, judges  as a 'God of pathology' - which, undoubtedly was how he wanted to be perceived, and  what he tried so hard to accomplish.  And, with his elegant bearing and soft believable voice, jurors tended to swallow up every word. Bravo to Avery Haines, former prosecutor Brian Farmer, W5 and CTV for this excellent investigative piece  which viewers will  note led to one very positive result.

Harold Levy; Publisher; The Charles Smith Blog.

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PUBLISHER'S NOTE: (2):  Incredibly, as in the CTV 'W5' documentary "Who left little Dusty Bowers to die in the snow, we are still hearing about disgraced pathologist Charles Smith -  the namesake of this Blog -  often many years after his work on the case, if not decades, was concluded. This documentary beautifully illustrates Smith's willingness to provide the police investigators  with what they wanted to hear - to hell with objective forensic evidence.  (Or as the W5 documentary puts it, Smith's  propensity to tailor his evidence to match Crown theories.) As W5 Journalist Avery Haines tells viewers with respect to the autopsy report: "The man who wrote this went to be the most disgraced pathologist in Canadian history. The pathologist's name is Charles Smith...At the time he was considered a medical God - a pediatric pathologist at Toronto's renowned Hospital for Sick Children...In a case with no motive, no physical evidence, and only a dream, Charles Smith's testimony was vital." As Prosecutor Brian Farmer then put it: The important part of the case was the timing where Julie Bowers where Julie Bowers reported her child missing and where she went. So the forensic portion dealing with the time of death and actual condition of Dustin when he was examined were of critical importance - absolute critical importance. Avery Haine: "On the stand Smith told the jury that parts of Dusty were frozen because in his medical  opinion Dusty had been left in the bitter cold for up to 27 hours. That's a timeline that stretched back to one hour before Julie Bowers reported her missing. Brian Farmer:  Dr. Smith very quickly confirmed what the police believed and everybody  else believed at the time. Dr. Smith's evidence fitted so perfectly with the conclusions people had come to. That was the problem. It fit so perfectly. Avery Haines: So why was it a problem? Well, because that perfect fit was brand new. Before trial Charles Smith offered two different time lines - eventually coming up with one that fit the Crown's theory. (Defence Lawyer) Jack) Pinkosfky  hammered Smith on his changing opinion and destroyed the doctor's credibility on the stand. Avery Haines to Brian Farmer: What's going on in your mind when you're watching Charles Smith on the stand? Brian Farmer:   I'm watching the jury and I could see that this had a profound effect on them. I had a sick feeling at that point because I thought, you know, how do we explain this? Is there any way to recover?  Avery Haines:   Did you have a sick feeling because you were watching a case crumble? Or did you have a feeling that maybe police got it wrong? Brian Farmer: It's  just that the mind starts to question how this possibly happened with a witness as important, as well recognized as Charles Smith. Avery Haines:  Because nobody knew who Charles Smith would go on to become? Brian Farmer: Exactly. This guy was at the top of the pyramid. The chief pathologist at Toronto Sick Children Hospital. (HL. Smith was not chief pathologist at Sick Kids as most people erroneously thought. But he did not go out of the way to correct the misleading impressions.) Farmer (continuing): You can't get any bigger than that. Avery Haines:  It would be years before the public learned that Charles Smith had a long history of tailoring his testimony to match crown theories. In 2005, 45 of his child autopsies were reviewed in an unprecedented inquiry.  Narrator: The verdict from Justice Steven Goudge was scathing and blunt. Avery Haines: The findings? Smith made questionable conclusions in 20 cases. So far 5 convictions have been overturned. But if Brian Farmer thought that the Charles Smith timeline issues hurt his case, what happened next was about to make it worse. Voice of  Dr. Janice Ophoven. "I basically told the jury that there was no way that Julie Bowers could have been responsible for the death of her son.  Avery Haines:  Dr. Janice Ophoven is a pediatric pathologist in Minnesota who was flown in by the defence to testify. At the time she was considered one of the world's leading expertd in child hypothermia. Janice Ophoven: Given the time that he was supposed to be outside, where's the damage? Avery Haines: Remember  when Charles Smith...claimed that Dusty's body was frozen? Dr. Ophoven says that's just not true. If Dusty had been left by Julie at the time police say she left him Dusty should have been frozen solid.  Dr Ophoven: Yeah, absolutely. Avery Haines: He wasn't frozen solid?  No. He had a cold  injury on his cheeks. He had effects of cold on his vocal chords, but there was no damage to any of his tissues, any of his organs. There was nothing. The evidence absolutely did not confirm the state's theory that this child had been put outside before she called the alarm. It just didn't. Avery Haines: 100%. Dr. Ophoven. 100%: 100% not. Avery Haines. Crown Attorney Brian Farmer watched as his case was dealt a major blow by an expert with a lot of credibility. Brian farmer:  I was stunned because when we found out about her existencee of course we did some research on her, and found out that she wasn't just a defence hack expert. Avery Haines. She's the real deal. Brian Farmer: She's the real deal; Most of the work she had done was for district attorneys. I've never known of a trial where the defence has called such significant evidence that just didn't raise some doubt but absolutely devastated the Crown's case. Avery Haines: But the biggest and most heart-breaking twist was yet to come, Avery Haines to Dr. Ophoven: You dropped a bombshell in your testimony at Julie Bower's trial. Janice Ophoven. Right. It's my belief that the most likely time that Dusty died was when he was in the bag being transported to Toronto for autopsy. Avery Haines: You believe that Dusty died in the body bag?  Dr. Ofhaven: "Yes, I do. Absolutely. Avery  Haines: It was unbelievable and devastating testimony,  that Dusty Bowers may have been alive when he was discovered and then left for hours on that wooden lane way. Avery Haines (to Brian Farmer): What was that  moment like in court?  Brian Farmer: Well,  Two or three jurors stood up and bent over. I thought they were going to be sick....other jurors, you could see them physically whincing. I thought that, oh man, we are in serious trouble.The episode moves on to a quote from Toronto lawyer (great lawyer) Joanne McLean - who played a huge role in the exoneration of so many of Charles Smith's victims HL - "They (the police) didn't do an investigation of the case." The W  host/correspondent Kevin Newman identifies two bombshells revealed by W5: Bombshell 1: American pathologist Ophoven's  testimony that it was scientifically impossible  for Julie Bowers to have left her baby in the snow before he was reported missing. Bombshell 2: This sickening  revelation that Dusty could have been alive when he was discovered. Avery Haines: What  should the coroner have done when Dusty's body was found? Dr. Ophoven:  They should have started a resuscitation immediately. In a hypothermia case they are not pronounced dead until they are warm and dead.. I mean that's the rule. Avery Haines: Not only was no attempt made to resuscitate Dusty, he was left on the side of the road for more than  three hours and then spent another three hours in a body bag being transferred to a Toronto morgue. "Avery Haines to Joanne McLean:  What was it like to find out that Dusty may have been alive when he was found? At this point  McLean points out several serious flaws in the police investigation including the failure  to measure the direction and depth  of five prints located near Dusty's body  - and to seek forensic evidence which may have helped track down Dusty's killer.  Prosecutor Brian Farmer minced no words as he  referred to  the "complete collapse of the forensic evidence."

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PUBLISHER'S NOTE (3):  From the transcript of the Goudge Inquiry into many of Smith's cases ( Evidence heard: 2007, 2008);
"DR. CHARLES SMITH: The third one -- the third one I believe may have been a factor even in one (1) or more of these cases. In the very beginning when I went to court in the -- on the few occasions in the 1980s, I -- I honestly believed it was my role to support the Crown attorney. I was there to make a case look good. That's being very blunt but that was the way I felt and I know when I talked with some of my other colleagues especially those who were junior, we -- we shared the same -- the same kind of an attitude. And -- and I think it -- it took me a long time, years, to acknowledge that my role was really not to make the Crown's case, or to make the case of whoever wanted me in court, but really to be much more impartial. And though into the 1990s I would have told you that that was what my role was, I -- I think I was pretty lousy at executing it. I'm sorry for that -- for that language. I think I was poor at executing it. Though I knew what to do, I didn't do it and so my -- my understanding or my book knowledge was not -- was not borne out by my execution in court.
MS. LINDA ROTHSTEIN: And did your desire to make a case for the Crown lead as well to its converse? A feeling that you were there to refute the defence case?
DR. CHARLES SMITH: I -- I certainly felt that pressure at times when I walked into court; that pressure from a Crown attorney, yeah.

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PASSAGE OF THE DAY: "Julie Bowers was charged with first degree murder. Throughout, she has always maintained her innocence. And when her murder trial was held—two years later in Toronto—the jury believed her. She was found not guilty. Most of the people who still hold onto the belief that Julie Bowers “got away with murder” didn’t sit through the 49-day trial and hear the evidence. They don’t know that the pathologist called by the Crown Attorney was Charles Smith, who would become the focus of an unprecedented inquiry years later that resulted in five murder convictions being overturned because of his flawed autopsy reports. They don’t know about the straight-out-of-the-movies defence theory that Julie’s twin brother and sister-in-law were involved in the disappearance. They don’t know that a world-renowned expert testified that it was “scientifically impossible” for Julie Bowers to have committed the crime. And they don’t know that the Crown prosecutor, the man who was in charge of trying to convince a jury of Julie Bowers’ guilt, is still traumatized now, all these years later, by the realization that he could have put an innocent woman behind bars."

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EPISODE: "Who left little Dusty Bowers to die in the snow?" an  investigation by W5 Investigative correspondent Avery Haynes,  aired by CTV on March 9, 2019.

SUB-HEADING:  "Baby in the Snow, part one:   W5's Avery Haines tells the story of the frantic search for and tragic discovery of a missing baby in Kincardine, Ont. back in 1988. W5: Baby in the Snow, part two:   Julie Bowers was charged with the murder of her infant son Dusty, sparking one of the most sensational trials of the time. W5: Baby in the Snow, part three:  Julie Bowers sits down with W5's Avery Haines to talk about the police search for Dusty and the dream she had of her son lying in the snow.

SUB-HEADING:  "An abduction. A bizarre dream. A baby found dead in the snow."

GIST: "Avery Haines: It’s a crime that stretches back three decades and, until a year ago, I had only vague memories of it. I started researching the tragedy after asking a friend to tell me the one case that she hasn’t been able to shake in her long career as a journalist. Without hesitation she said, “Julie Bowers. She got away with murder.” I’ve heard that same line again and again this past year: “She got away with murder” -- from the court clerk when I called to get trial transcripts, to the police officer who discovered the toddler’s body, to the people of Kincardine, who are still haunted by a crime that in many ways stole their innocence. In 1988, Julie Bowers was a 24-year-old mother of two little boys: two-year old Ben and 11-month-old Dusty. They lived in the small Ontario town of Kincardine, on the shores of Lake Huron. It was a place where people didn’t think twice about leaving their sleeping kids in the car while doing errands. And that’s exactly what Julie said she did that bitterly cold January day. Dusty was asleep, she says, so she left him in his car-seat and popped into the bank with her older son, Ben. Julie says when she came out, minutes later, Dusty was gone. He was just a few days shy of his first birthday. The shocking news of a kidnapping quickly spread throughout the small town of six thousand. The Ontario Provincial Police was called in to help the overwhelmed local police force. Roadblocks were set up. The hours passed and the dread grew. Julie made a tearful plea on TV for her son to be returned. The next morning there was still no sign of Dusty. Julie went to the police station for an update on the search and, at her sister-in-law’s prodding, told them about a dream she had the night before -- a dream of her son Dusty laying in the snowy woods. The first investigator on the case had some suspicions about Julie Bowers’ kidnapping claims from almost the beginning. And when he heard of the dream, he had a feeling that she would lead them to the missing baby. Sure enough, 26 hours after he was reported missing, Dusty’s body was found in a wooded area just outside of town. He had a light covering of snow on his face. His little blue toque had fallen down over his eyes. Tears had frozen on his cheeks. Julie Bowers was charged with first degree murder. Throughout, she has always maintained her innocence. And when her murder trial was held—two years later in Toronto—the jury believed her. She was found not guilty. Most of the people who still hold onto the belief that Julie Bowers “got away with murder” didn’t sit through the 49-day trial and hear the evidence. They don’t know that the pathologist called by the Crown Attorney was Charles Smith, who would become the focus of an unprecedented inquiry years later that resulted in five murder convictions being overturned because of his flawed autopsy reports. They don’t know about the straight-out-of-the-movies defence theory that Julie’s twin brother and sister-in-law were involved in the disappearance. They don’t know that a world-renowned expert testified that it was “scientifically impossible” for Julie Bowers to have committed the crime. And they don’t know that the Crown prosecutor, the man who was in charge of trying to convince a jury of Julie Bowers’ guilt, is still traumatized now, all these years later, by the realization that he could have put an innocent woman behind bars. Producer Derek Miller and I have spent months combing old news footage, digging up articles, ordering court transcripts and sifting through police evidence. We have interviewed almost every key player in this tragedy, including Julie Bowers, who hadn’t spoken publicly since a courthouse scrum after the verdict decades ago. Julie agreed to be interviewed only if we altered her appearance, because the “baby killer” stigma still plagues her, despite the acquittal and the decades that have passed. We started out with an investigation into why so many people believed Julie Bowers got away with murdering her toddler. Instead we found a much different story and what emerges is more complicated than innocence or guilt. It raises serious questions about what happened after Julie Bowers was acquitted and what was—and more specifically—what wasn’t done to follow up on compelling leads. We have uncovered a confidential OPP document that reveals surprising new details about the investigation that police promised to undertake after the Attorney General decided not to appeal Bowers’ acquittal. And finally, our investigation has led to a new development that offers a glimmer of hope that one day there might be justice for Dusty."

The entire story can be found at:

https://www.ctvnews.ca/w5/who-left-little-dusty-bowers-to-die-in-the-snow-1.4334156

See also my Blog on the Julie Bowers case, which ran on February 1, 2008  in its entirety at the link below,  under the heading 'The Julie Bowers case: The very first alarm bells. A  precursor of things to come." At the outset of the post, I ran three  the following three excerpts: excerpts

“WHEN OPHOVEN WAS FIRST CALLED TO REVIEW SMITH'S POST-MORTEM REPORT AND OTHER FORENSIC EVIDENCE, SHE COULD NOT GET IMPORTANT SAMPLES FROM SMITH.

"HE WITHHELD, IN MY OPINION, ALL THE MATERIALS THAT I NEEDED," SHE SAID.

WHEN CRITICAL TISSUE SLIDES WERE FINALLY PRODUCED, OPHOVEN WAS SHOCKED.

"THEY WERE FROM SOMEBODY ELSE," SHE SAID.

SMITH EVENTUALLY PRODUCED THE CORRECT SAMPLES AND ALTHOUGH THE SLIDES WEREN'T CRITICAL TO HER FINAL CONCLUSIONS, OPHOVEN WAS TROUBLED BY THE BEHAVIOUR OF SMITH, WHO HAD APPARENTLY KEPT THE SLIDES AT HIS HOME.

"I'VE NEVER HAD AN EXPERIENCE LIKE THIS," SHE SAID. "I DREW A CONCLUSION THAT [POLICE AND PROSECUTORS] HAD A SERIOUS PROBLEM ON THEIR HANDS." “

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WHEN LAW ENFORCEMENT AUTHORITIES ARE HUNTING THE KILLER OF A CHILD, THEY'RE PERCEIVED TO BE "WORKING FOR GOD," SAID OPHOVEN.

"YOU ARE UNTOUCHABLE UNLESS THERE'S A FORENSIC PATHOLOGIST TO REEL YOU IN AND BRING SOME SCIENCE TO THE TABLE," OPHOVEN SAID. "BUT IF YOU'RE WORKING FOR LAW ENFORCEMENT AND YOU HAVE NO FORENSIC TRAINING, THEN THE CAUSE OF DEATH IS GOING TO BE WHATEVER YOU SAY IT IS, WHETHER IT'S TRUE OR NOT."

DR. JANICE OPHOVEN: FORENSIC PATHOLOGIST WHO ASSISTED THE DEFENCE IN THE JULIE BOWER'S CASE”.

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"IS THIS THE WAY YOU PASS OFF YOUR EVIDENCE - AS A SERIES OF GUESSES?" DEFENSE LAWYER JACK PINKOFSKY ASKED DR. CHARLES SMITH YESTERDAY, DURING A LENGTHY CROSS EXAMINATION.

"THE ESTIMATION OF THE TIME OF DEATH IS REALLY AN EDUCATED GUESSING GAME," SMITH RESPONDED...

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 http://smithforensic.blogspot.com/2008/02/bowers.html
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See also Kingston Whig-Standard story by  reporter Robb Trip published on April 30, 2007 -more than three decades after Dusty Bower's died)  under the heading "Most awful case; Errors known long ago, pathologist says. Edited version provided on the NetK web site by Dr. Robert N. Moles.

On 30 April 2007 Rob Tripp of the Whigg-Standard reported “'Most awful case'; Errors known long ago, pathologist says”. He said that top officials in Ontario's criminal justice system should have realized 15 years ago that they needed to review thoroughly the work of a senior pathologist, says a respected American forensic expert. Dr Janice Ophoven, a pediatric forensic pathologist in Minnesota and a medical examiner, was an expert witness for the defence at the 1990 trial of Julie Bowers of Kincardine. "In all my years, this is the most awful case that I've had," said Ophoven, who has worked as a pathologist for 30 years and is a certified forensic expert. Bowers was acquitted of murdering her 11-month-old son, Dustin, after a sensational 49-day trial. Ophoven's findings cast doubt on the work of Dr Charles Smith, who testified for the prosecution after conducting the autopsy on Dustin. The case appears to be one of the earliest in which Smith's work was publicly discredited.
Earlier this month, an international panel of experts that reviewed 45 of Smith's cases over a decade concluded he erred in at least 20, and a dozen people may have been wrongly convicted because of his mistakes. One of the cases reviewed was that of Kingston's Louise Reynolds, accused of killing her seven-year-old daughter, Sharon, in 1997. Smith's conclusions were later discredited and charges against Reynolds were withdrawn after she spent almost two years in custody. The Bowers case was not part of the review of Smith's work, but it will be examined in the second phase of the probe.
"I found the process and [Smith's] opinions to be extremely troublesome," Ophoven told the Whig-Standard in an interview from her office in Woodbury, Minn. She said his behaviour was erratic and he was unco-operative. "If you have a sentinel case that says something is really, really wrong, there's an obligation to verify if this was a single bad day or it was ... the tip of an iceberg," Ophoven said.  "I would have marked this as a sentinel case." Jack Pinkofsky, the Toronto lawyer who hired Ophoven to review Smith's work, said he doesn't believe any review of Smith's work was conducted after the Bowers case. "Unfortunately, nobody in the government did anything about it," Pinkofsky said. "He went on to bigger and better things." Pinkofsky said he made it clear, informally, to the Crown lawyers that he thought Smith should be investigated. "The idea that he was incompetent just passed everyone, either through oversight or worse, or they weren't geared in those days to think people in power could do wrong," he said. Pinkofsky said the Crown considered, but did not file, an appeal of the acquittal, meaning senior officials in the Crown law office must have known about Smith's work was questionable. "Everybody who knows about the case ... was always amazed that nothing was done about Smith as a result of the Bowers case," he said. "Had something been done about him at that time, look at what it would have saved in terms of anguish, costs, grief to the justice system." Brian Farmer, the Crown attorney who prosecuted Bowers, could not be reached for comment. Ophoven wondered how many years have gone by since judges and others pointed out that his findings didn't make sense.  "Why didn't the justice system ... follow up on that issue?" she said. "The answer is obvious, because there's not only no incentive to do so, but they're in a horrible conflict of interest." Smith was subsequently given more responsibility for investigating suspicious child deaths. A year after the Bowers trial, he was named director when the province established a pediatric forensic pathology unit at the Hospital for Sick Children in Toronto. He went on to perform hundreds of autopsies on children who died under suspicious circumstances, including the Reynolds case in Kingston. Smith's courtroom testimony was critical to many prosecutions of parents who were accused of abusing or killing their children through the 1990s. The Bowers case was so riddled with problems, Ophoven said, that it still gives her nightmares. She concluded that Dustin likely was still alive when his body was found and examined by a local coroner, who wrongly pronounced him dead at the scene. His body was left in the snow for crime scene analysis for roughly three hours before it was placed in a body bag and transported for autopsy. "He may have even died in the bag," Ophoven said, repeating the testimony she offered at the trial. When Ophoven was first called to review Smith's post-mortem report and other forensic evidence, she could not get important samples from Smith. "He withheld, in my opinion, all the materials that I needed," she said. When critical tissue slides were finally produced, Ophoven was shocked. "They were from somebody else," she said. Smith eventually produced the correct samples and although the slides weren't critical to her final conclusions, Ophoven was troubled by the behaviour of Smith, who had apparently kept the slides at his home. "I've never had an experience like this," she said. "I drew a conclusion that [police and prosecutors] had a serious problem on their hands." When Ophoven reviewed Smith's post-mortem report, which concluded Dustin died of hypothermia, she could not find evidence that would substantiate key findings. There were no signs of serious tissue damage in areas of Dustin's body where it would be expected, given Smith's assertion that the child was severely frozen. Smith explained, at one time during courtroom proceedings, that he couldn't measure the child's body temperature because he didn't have a thermometer that would go that low. Smith offered at least three different time frames to explain how long Dustin had been in the snow. His first opinion was for a short time span, Ophoven said, excluding the mother as the killer. He changed his opinion twice after that, finally testifying at trial that Dustin was left alone in the snow for 21 to 32 hours, or perhaps longer. This timing meant the mother could be the killer. "He altered his opinion to fit the prosecution of the case," Ophoven believes. She said the lack of freezing in the body meant Dustin could not have been alone in the snow for as long as Smith concluded. Ophoven said Smith has operated for so long in Ontario, committing more mistakes, perhaps because his work usually gave police and prosecutors what they needed: Strong findings of criminal responsibility against parents, babysitters and others. "So who the hell is going to look into Dr. Smith's scientific acumen if what he gets them is what they're looking for?" she wondered. "It's terrifying." Bowers claimed her son was abducted from her car after she left him alone briefly to go into a bank. She led police to his body the next day, claiming that she saw the location in a dream. Bowers was acquitted 17 years ago. Police have not charged anyone else in the case since then."
 http://netk.net.au/Smith/Smith27.asp

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.

Jose Omar Ortiz: Massachusetts: False confession case... He is seeking a new trial in a 1999 Springfield killing as another convicted killer offers a confession..."Ortiz himself signed a confession saying he had killed Reynoso, but his lawyers now claim that was “the product of coercion by police after seven hours of interrogation,” according to the Republican newspaper. The confession was in English, but Ortiz allegedly only spoke Spanish, the paper reported. These would be serious charges for any police department to withstand: Two people testifying that police coerced false statements from them, and a third man emerging to claim that the confessions were untrue because he was the one who committed the murder."

PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects   are to widely used interrogation methods  such as  the notorious ‘Reid Technique.'"

Harold Levy: Publisher; The Charles Smith Blog:

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PASSAGE OF THE DAY: "The Springfield Police Department is already weathering a host of other scandals that could shake faith in law enforcement for the state’s third largest city. As uncovered by the Republican, a detective admitted to lying to internal investigators about the police beating of a suspect in 2016. Surveillance footage has thrown into doubt another officer’s claims that a man who had a complaint about a parking ticket assaulted him in the police headquarters in 2017.  A school resource officer now says that his false claim that a student shoved him before he threw the student up against the wall was a mistake, not a deliberate lie. Acting Police Chief Commissioner Cheryl Clapprood proactively admitted to the Republican that she filed a false police report in 1989, but she said the lie was a relatively minor one relating to her use of a departmental vehicle off-duty. Dan Glaun, a reporter for the paper, dug a little deeper and learned that she had been indicted on charges of assault and battery with a dangerous weapon, filing a false report, and a civil rights violation after allegedly following someone while off-duty in an undercover vehicle three decades ago. She was found guilty of filing a false report but not the more serious charges, and her record was finally cleared when she filed a motion for a new trial in 2013 that was unopposed by Mark Mastroianni, who was then the district attorney and is now a federal judge. The records of that incident are now sealed. In Ortiz’s case, one of the officers who interrogated Rodriguez is still with the department, according to the Republican, and the other has left. Both are expected to testify in the motion hearing on March 26."

STORY: "Springfield police cases not adding up Long-ago convictions haunting the department today," by reporter Andy Metzger, published by CommonWealth Magazine on March 22, 2019.

GIST: If you believe the witnesses who have testified in Jose Omar Ortiz’s bid for a new trial, then two decades ago Springfield police bullied their way to a confession for a murder and they got the wrong man. For starters, another person testified last week that he – not Ortiz – killed Eddy Reynoso in 1999 and Ortiz had nothing to do with it. That other man, Ramon Santana, is already serving two life sentences for a Holyoke murder in 2000, so he doesn’t have that much to lose by confessing to the Reynoso killing. Santana has refused to say who his accomplices were in the killing, prompting the prosecutor to try to throw out his testimony. Then there is Carlos Rodriguez, who was a friend of Ortiz at the time of the murder. Rodriguez signed a statement for police years ago that said he was there when Ortiz killed Reynoso. But Rodriguez now says that he didn’t know what he was signing for police at the time because he couldn’t read English. He says police scooped him up and beat him and screamed at him and told him that signing the statement was “your way out.” The police, according to Rodriguez, told him that Ortiz was trying to pin blame for the murder on him. Another witness, Wilbert Diaz, worked with Ortiz and Reynoso at a store before Reynoso was killed, and he said Ortiz could not have been the killer. Ortiz’s old defense lawyer had planned to call Diaz to the stand during the murder trial, but he couldn’t track him down. More recently, Ortiz’s lawyers discovered that the prosecutor had an updated address for Diaz during that trial. Ortiz himself signed a confession saying he had killed Reynoso, but his lawyers now claim that was “the product of coercion by police after seven hours of interrogation,” according to the Republican newspaper. The confession was in English, but Ortiz allegedly only spoke Spanish, the paper reported. These would be serious charges for any police department to withstand: Two people testifying that police coerced false statements from them, and a third man emerging to claim that the confessions were untrue because he was the one who committed the murder. The Springfield Police Department is already weathering a host of other scandals that could shake faith in law enforcement for the state’s third largest city. As uncovered by the Republican, a detective admitted to lying to internal investigators about the police beating of a suspect in 2016. Surveillance footage has thrown into doubt another officer’s claims that a man who had a complaint about a parking ticket assaulted him in the police headquarters in 2017.  A school resource officer now says that his false claim that a student shoved him before he threw the student up against the wall was a mistake, not a deliberate lie. Acting Police Chief Commissioner Cheryl Clapprood proactively admitted to the Republican that she filed a false police report in 1989, but she said the lie was a relatively minor one relating to her use of a departmental vehicle off-duty. Dan Glaun, a reporter for the paper, dug a little deeper and learned that she had been indicted on charges of assault and battery with a dangerous weapon, filing a false report, and a civil rights violation after allegedly following someone while off-duty in an undercover vehicle three decades ago. She was found guilty of filing a false report but not the more serious charges, and her record was finally cleared when she filed a motion for a new trial in 2013 that was unopposed by Mark Mastroianni, who was then the district attorney and is now a federal judge. The records of that incident are now sealed. In Ortiz’s case, one of the officers who interrogated Rodriguez is still with the department, according to the Republican, and the other has left. Both are expected to testify in the motion hearing on March 26."

The entire story can be read at:
https://commonwealthmagazine.org/criminal-justice/springfield-police-cases-not-adding-up-2/

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.

Reid technique: False confessions: False guilty pleas: The Charles Smith connection: Brendan Dassey (Making a murderer)...Innocence Canada session on false confessions reported subject of excellent report by The Lawyer's Daily (reporter Amanda Jerome). It's headed "Interrogation tactics, errors in justice system lead to false confessions, lawyers say."..." The most common kind of false confession, he added, is a “coerced compliant” false confession. Drizin said this kind of confession is a result of two things: confrontational police interrogation tactics and a suspect’s own individual vulnerabilities. “In some cases, it’s more about the police interrogation tactics. In other cases, if you’re a youth or intellectually disabled or you have certain kinds of mental illnesses that make you more suggestable and more compliant, you don’t need as much police coercion,” he said, adding that at a certain point anybody could falsely confess. “We all have a breaking point. For some people it’s sooner than for others, but it’s the tactics [used] to bring you to a place of hopelessness and then the police officers offer you a life raft. They offer you two choices: one in which you’re a monster and the system is going to crush you and sentence you to an extremely long period of time; and the other is where you just made a mistake. You lost control for an instant or had an impulse; it wasn’t a deliberate crime,” he explained, noting that over time, a “desperate suspect” wanting the interrogation process to end will falsely confess."

PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects   are to widely used interrogation methods  such as  the notorious ‘Reid Technique.’"
Harold Levy: Publisher; The Charles Smith Blog:
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PASSAGE OF THE DAY: "Drizin said, noting that in Dassey’s case the “big lie” was that the police already had evidence against him. “That was a lie designed to break Brendan down to a place of hopelessness where it became easier for them to manipulate him into confessing,” he added. Kennedy said that those psychological factors of despair and desperation were evident in the false guilty pleas that stemmed from the Charles Smith cases. Smith, a former pathologist, was subject to a public inquiry due to flawed testimonies he gave on forensic results. “I’ve read affidavits where lawyers would say, ‘no one can do anything with Charles Smith. He’s so good. He’s a demigod. No one is going to disbelieve Dr. Smith,’ ” said Kennedy, noting that false guilty pleas are born out of that feeling of hopelessness."

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STORY: "Interrogation tactics, errors in justice system lead to false confessions, lawyers say," by reporter Amanda Jerome, published by The Lawyers Daily on March 19, 2019.

GIST: “I said I did it, but I didn’t do it,” was what an 11-year-old boy convicted of murdering his neighbour told American lawyer Steven Drizin, during his appeal. This case sent Drizin on an “odyssey” to understand how people confess to crimes they didn’t commit. For Canadian lawyer Jerome Kennedy, his work with wrongful convictions started with the case of a young man convicted of killing his mother. Both men were drawn into advocating on behalf of the wrongfully convicted and learning about why innocent people plead guilty. They shared their perspectives with a packed room during a panel discussion moderated by Avery Haines, an investigative correspondent with CTV’s W5, and hosted by Innocence Canada on March 7. Drizin, a clinical professor at the Northwestern University Pritzker School of Law in Chicago and co-founder of the Center on Wrongful Convictions of Youth, asked that initial young client why he’d confessed to a crime he didn’t commit. The boy said the police told him, “God would forgive me. They told me that my mother could come in and see me and they told me I could go home to my brother’s 9th birthday party.” The police had also lied to the 11-year-old and told him they had his fingerprints on the murder weapon, Drizin explained. This case caused Drizin to start collecting and documenting cases with false confessions from America and around the world. He now has a database of over 350 proven false confessions that are used by other researchers in their work. Kennedy, a lawyer with Roebothan McKay Marshall in St. John’s, said after he’d worked on cases involving Gregory Parsons, who was 19 years old when he was convicted of murdering his mother, and Ronald Dalton, who had been convicted of murdering his wife, he became interested in wrongful convictions. “For me, the exploration into wrongful convictions was simply a further manifestation of the inequity I saw resulting in the criminal justice system. Inevitably, I’d look behind me in the dock and I’d see a person who had problems with alcohol and drugs, a person who had mental illness, a person who is uneducated, who didn’t have a chance, so I saw my role as simply trying to even the scales a little bit,” he said, adding wrongful convictions posed a greater challenge because “no one would believe it had happened.” Kennedy, who is chair of the case review committee at Innocence Canada, noted that despite the Marshall Inquiry, and the wrongful convictions of Steven Truscott and David Milgaard, Canada seems to have a “superiority complex that these things happen in the United States, and they happen in the United Kingdom,” but they don’t happen in Canada. “Truscott and Milgaard went to the Supreme Court of Canada and some of the brightest legal minds in our country missed the cases,” he added. Drizin stressed that there are different kinds of false confessions that can lead to wrongful convictions. He noted that the rarest of these is called the “coerced persuaded” false confession, which is usually the result of extremely lengthy interrogations in which the suspect may doubt their own memory. “Perhaps they’ve had blackouts when they were using drugs or alcohol,” explained Drizin, “and the police officers undermine the suspect’s confidence in their own memory and get them to search their subconscious mind for images of the crime. Over time, with leading questions and feeding facts, the suspect actually comes to believe that they committed a crime that they didn’t commit.” The most common kind of false confession, he added, is a “coerced compliant” false confession. Drizin said this kind of confession is a result of two things: confrontational police interrogation tactics and a suspect’s own individual vulnerabilities. “In some cases, it’s more about the police interrogation tactics. In other cases, if you’re a youth or intellectually disabled or you have certain kinds of mental illnesses that make you more suggestable and more compliant, you don’t need as much police coercion,” he said, adding that at a certain point anybody could falsely confess. “We all have a breaking point. For some people it’s sooner than for others, but it’s the tactics [used] to bring you to a place of hopelessness and then the police officers offer you a life raft. They offer you two choices: one in which you’re a monster and the system is going to crush you and sentence you to an extremely long period of time; and the other is where you just made a mistake. You lost control for an instant or had an impulse; it wasn’t a deliberate crime,” he explained, noting that over time, a “desperate suspect” wanting the interrogation process to end will falsely confess. Haines pointed to Kennedy’s work with Innocence Canada in submitting an application for ministerial review for Brian Anderson, an Indigenous man who has maintained his innocence for 45 years in the face of a murder conviction. Kennedy noted that Anderson never gave a statement or confessed to the police, but he signed a document that the police had drafted. “We have a system where there are elements of systemic racism,” he added, agreeing with Drizin’s statement on a suspect’s personal vulnerabilities.

“One of the things I think we’ve got to put a push on at Innocence Canada, and we’re really trying, is to look further into Indigenous cases,” Kennedy said, noting that Indigenous people may plead guilty just to get the interrogation process over and done with. Drizin’s experience representing vulnerable suspects was broadcast through the Netflix documentary series, Making a Murderer, as he represented Brendan Dassey, a 16-year-old convicted of murder, on appeal. Dassey’s interrogation was featured in the documentary and symbolizes the “standard psychological interrogation tactics” that can produce false and unreliable confessions, Drizin noted. “If you look at Brendan’s [Dassey] case, there’s no yelling, no screaming, no fist pounding, there’s no profanity, there’s no direct threats of harm. There is a threat of harm at the beginning when they [the police] say in the first interrogation that the DA is ‘looking at this case closely and they’re looking at you as having something to do with it, but I said I was going to talk to you. You seem like a good kid and that we could work something out.’ So there’s the threat in the background, but it’s not like cases I’ve seen in the States where police officers threaten directly ‘you’re going to get the death penalty.’ They roll up their sleeves and they point to a vein and they tell a suspect ‘this is where the needle is going to go if you don’t co-operate with us.’ The Dassey case is coercive, but it’s a more subtle kind of coercion that we see over and over again,” he explained. The interrogation practice Drizin described is called the Reid technique, Haines noted, adding that the RCMP have started using the PEACE model instead. PEACE stands for: Preparation and Planning; Engage and Explain; Account, Clarify and Challenge; Closure and Evaluation. Kennedy explained that Canadian courts have said to stop using the Reid technique and that the PEACE model comes out of the U.K “I think what the RCMP have moved to is a modified form of the PEACE technique,” he added. Both Drizin and Kennedy acknowledged that police can lie to suspects during interrogations. However, while Kennedy said the practice is “frowned upon” in Canada, Drizin noted American courts have “blessed” the technique. “Police officers in the States lie frequently and they lie with impunity. They lie about big things and they lie about small things and our courts have blessed this practice because they’ve been convinced that in order to get true confessions police officers have to lie. They have to get down on the same low moral plane as the suspects. If suspects lie to police officers, why can’t police officers lie to suspects? And the thing is, you don’t have to lie to get reliable confessions and that’s been proven since the 1980s in the United Kingdom when they banned lying to suspects,” Drizin said, noting that in Dassey’s case the “big lie” was that the police already had evidence against him. “That was a lie designed to break Brendan down to a place of hopelessness where it became easier for them to manipulate him into confessing,” he added. Kennedy said that those psychological factors of despair and desperation were evident in the false guilty pleas that stemmed from the Charles Smith cases. Smith, a former pathologist, was subject to a public inquiry due to flawed testimonies he gave on forensic results. “I’ve read affidavits where lawyers would say, ‘no one can do anything with Charles Smith. He’s so good. He’s a demigod. No one is going to disbelieve Dr. Smith,’ ” said Kennedy, noting that false guilty pleas are born out of that feeling of hopelessness. “We’ve had a willingness in Canada to accept that these wrongful convictions occur and to try and identify what caused these wrongful convictions. The one thing we all have to accept is that as long as there are human beings involved in the criminal justice system, mistakes are going to be made,” he added, stressing that the justice system must “continuously” be assessed. Drizin noted that the Making a Murderer series sold him on the idea of having cameras in the courtroom. “There’s no better educational tool as a clinical teacher than having a video record of a trial or a courtroom procedure,” he added. The popular Netflix show was watched by 20 million people in the United States during its first month on the streaming service, Drizin said, stressing that the series “has opened a window into the interrogation process that many people throughout the United States, let alone the world, hadn’t really seen before.""

The entire story can be read at:

https://www.thelawyersdaily.ca/articles/10958/interrogation-tactics-errors-in-justice-system-lead-to-false-confessions-lawyers-say

 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.