Back in action: Catch-up: Dr. Henry Lee: Part Two; Connecticut: Law Prof David Cameron calls for a mechanism in which prosecutor's who fail to correct the testimony of expert witnesses such as Dr. Henry Lee - and rely on the false testimony of other witnesses such as jailhouse informants - cannot be held accountable for their misconduct...""The fact that the prosecutor in this case failed to correct Lee’s testimony and relied on the false testimony of other witnesses points to the need for some mechanism through which prosecutors can be held accountable when their actions, or inactions, deprive a defendant of his or her right to a fair trial. Last year, New York became the first state in the country to establish a Commission on Prosecutorial Conduct. It has the authority to review a complaint of prosecutorial misconduct and, as part of that review, can compel the production of documents and require the testimony of prosecutors and others. Connecticut should consider creating such a commission."
PUBLISHER'S NOTE: Shortly before taking a brief break for a writing
assignment the American celebrity forensic scientist Dr. Henry Lee burst
into the headlines with accusation that he had botched evidence in
several murder trials. My last post on Henry Lee before temporarily
closing shop (Friday July 12, 2109) bore the following note: "Dr. Henry
Lee:
Connecticut: The famed forensic scientist is defending his work in the
1985 murder case that helped send Wendal(l) Hasan to prison, NBC
Connecticut reports..."Now, a third convicted murderer, Wendal(l) Hasan,
is asking the court to review his case based on a key piece of evidence
that Dr. Lee testified about. Hasan has been in prison since 1986 for
the murder of George Tyler in his Darien home. At the time, Dr. Lee
said he tested a pair of Puma sneakers and found the victim’s blood.
When the sneakers were retested in July of 2014, the state police
forensic lab found the stains were not blood. On Thursday, Dr. Lee said
he stands by his testing and testimony." Because my experience with the
Charles Smith cases had taught me that incompetent experts seldom mess
up just one or two cases - and Lee had probably given given his expert
opinion in thousands of them - I vowed upon my return to return to Dr.
Lee on my return and follow developments closely. So here we go.
PUBLISHER'S NOTE: Professor Cameron's commentary on the Henry Lee case focuses on an issue that is often ignored: The relationship between a prosecutor and the expert witness he or she is calling. What must a prosecutor do when his expert witness, such as Lee, is misstating the evidence, or otherwise misleading the judge or the jury. Journalists such as myself who covered the Charles Smith cases often wondered how the prosecutor, an officer of the court, could remain quiet - and leave the evidence uncorrected - knowing how utter influential Smith was with jurors. This was inviting a wrongful conviction. The reality, I suppose, with Smith and with Lee, was that by the time they were testifying, both had testified in countless cases. This was the proverbial deck of cards. If one case went belly up the whole deck could tumble, leaving a criminal justice system in tatters, calls for independent inquiries, and dozens, is not hundreds of appeals (which is precisely what happened in the Smith situation and could happen with respect to Lee.
PASSAGE OF THE DAY: "Last
month, the Supreme Court reversed the habeas judge and ordered new
trials for the men. It concluded the men’s due process right to a fair
trial was violated by the state’s failure to correct the trial testimony
of Henry C. Lee, at the time the director of the State Police Forensic
Science Laboratory. Lee, shown a photograph of two towels hanging near
the sink of an upstairs bathroom, said he did some field tests on a red
smear on one of the towels that were positive and consistent with blood
and that “subsequently that smear was identified to be blood.” The lab
had not in fact tested the smear and when it did, years later, it found
it wasn’t blood. Carr
was hit on the head seven times, stabbed 27 times and his throat was
cut. Despite the bloody crime scene, there was no trace evidence of
blood in the Buick sedan the young men had driven that evening or on
them or their clothes. The state used the supposedly-bloodstained towel
to support its theory that the reason investigators found no trace
evidence of the crime in the men’s car or on the men or their clothes
was because they had cleaned up after the crime. The habeas judge
concluded Lee’s testimony, even if incorrect, was immaterial because the
state’s case didn’t rest on forensic evidence. But
the judge ignored the fact that, even if Lee’s incorrect testimony was
disregarded there was ample evidence the men were wrongfully convicted.
There was no forensic evidence of any kind — fingerprints, hairs,
fibers, blood, DNA — linking them to the crime. The
only “evidence” was statements by several individuals implicating them
in the crime."
PHOTO CAPTION: Sean
Henning and Ralph Birch were convicted of murder in 1989. The state
Supreme Court overturned their convictions and they are making their
first appearance back in Superior Court, where prosecutors must decide
whether to retry the men.
GIST: "If
a survey asked prosecutors and defense attorneys what they thought
about the state’s habeas process, chances are both groups would express
considerable dissatisfaction with it. Prosecutors would probably
complain that many cases drag on for years, with multiple petitions for a
new trial and often multiple habeas trials. And defense attorneys would
probably complain that habeas judges often disregard evidence that, by
any reasonable standard, casts doubt on a conviction. Both
sides would find support for their views in the cases of Ralph “Ricky”
Birch and Shawn Henning. They were convicted of murdering Everett Carr,
65, in New Milford in Dec. 1985. Birch, 18 at the time of the crime, and
Henning, 17, were convicted of felony murder in 1989 and sentenced,
respectively, to 55 years and 50 years. After the convictions were
affirmed by the Supreme Court, the men filed several habeas petitions
that were rejected, the latest in 2016. Last
month, the Supreme Court reversed the habeas judge and ordered new
trials for the men. It concluded the men’s due process right to a fair
trial was violated by the state’s failure to correct the trial testimony
of Henry C. Lee, at the time the director of the State Police Forensic
Science Laboratory. Lee, shown a photograph of two towels hanging near
the sink of an upstairs bathroom, said he did some field tests on a red
smear on one of the towels that were positive and consistent with blood
and that “subsequently that smear was identified to be blood.” The lab
had not in fact tested the smear and when it did, years later, it found
it wasn’t blood. Carr
was hit on the head seven times, stabbed 27 times and his throat was
cut. Despite the bloody crime scene, there was no trace evidence of
blood in the Buick sedan the young men had driven that evening or on
them or their clothes. The state used the supposedly-bloodstained towel
to support its theory that the reason investigators found no trace
evidence of the crime in the men’s car or on the men or their clothes
was because they had cleaned up after the crime. The habeas judge
concluded Lee’s testimony, even if incorrect, was immaterial because the
state’s case didn’t rest on forensic evidence. But
the judge ignored the fact that, even if Lee’s incorrect testimony was
disregarded there was ample evidence the men were wrongfully convicted.
There was no forensic evidence of any kind — fingerprints, hairs,
fibers, blood, DNA — linking them to the crime. The
only “evidence” was statements by several individuals implicating them
in the crime. But some testimony was recanted, and one jailhouse
informant allegedly told acquaintances he’d lied to police. The
Supreme Court remanded the cases to the habeas court with direction to
grant Birch and Henning’s petitions for a new trial. But it’s doubtful,
given the absence of any evidence linking them to the murder, the state
will proceed with new trials. Instead, it should consider how to improve
the flawed habeas process so that it doesn’t take multiple petitions
and trials over three decades to address a shortcoming in a trial and so
that it is more likely, when confronted with evidence of a wrongful
conviction, to deliver justice rather than perpetuate injustice. The
fact that the prosecutor in this case failed to correct Lee’s testimony
and relied on the false testimony of other witnesses points to the need
for some mechanism through which prosecutors can be held accountable
when their actions, or inactions, deprive a defendant of his or her
right to a fair trial. Last year, New York became the first state in the
country to establish a Commission on Prosecutorial Conduct. It has the
authority to review a complaint of prosecutorial misconduct and, as part
of that review, can compel the production of documents and require the
testimony of prosecutors and others. Connecticut should consider
creating such a commission. The
case also demonstrates the need for some mechanism to evaluate the
reliability of the testimony of jailhouse informants, since such
informants have an obvious incentive to tell investigators what they
think the investigators want to hear. The New York-based Innocence
Project has found that one of the leading contributing factors in the
wrongful conviction of individuals who have been subsequently exonerated
on the basis of DNA is the false testimony of a jailhouse informant;
such testimony figured in nearly one-fifth of the 364 wrongful
convictions that have been thrown out because of DNA evidence pointing
to someone else as the perpetrator. Last year, Illinois became the first
state to require pre-trial reliability hearings for jailhouse
informants. Connecticut should do the same. Finally,
the case points to the need for the judicial branch to address
shortcomings in the state’s habeas process. It’s unacceptable that it is
only now, 30 years after their conviction, that Henning and Birch have
finally received a new trial in a case in which there is no credible
evidence supporting their conviction and evidence of third-party
culpability — and have received a new trial only because the Supreme
Court reversed the habeas judge. Clearly,
the habeas process needs improvement, not only to ensure a more
efficient and timely resolution of petitions and trials but, most
importantly, to ensure that, when presented with substantial evidence of
a wrongful conviction, it delivers justice in the form of a new trial
rather than perpetuates injustice."
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;
Two Blogs Now: The Charles Smith Blog; The Selfless Warriors Blog: I created the Charles Smith Blog in 2007 after I retired from The Toronto Star to permit me to keep digging into the story of the flawed pathologist and the harm he had done to so many innocent parents and caregivers, and to Ontario’s criminal justice system. Since then it has taken new directions, including examinations of other flawed pathologists, flawed pathology, and flawed science and technology which has marred the quality of justice in courtrooms around the world. The heart of the Blog is my approach to following cases which raise issues in all of these areas - especially those involving the death penalty. I have dedicated 'The Selfless Warrior Blog’ (soon to appear) to those exceptional individuals who have been ripped out of their ordinary lives by their inability to stand by in the face of a glaring miscarriage of justice. They are my ’Selfless Warriors.’ Enjoy!
