Elmer Daniels: Delaware: A case I have been following because it involves the infamous FBI analyst Michael Malone who had provided flawed testimony or reports on hair analysis in 96 percent of his cases, is back in the news. This time it's because Delaware lawmakers are pushing a bill that would pay reparations to the wrongfully incarcerated - and, after serving nearly 40 years in prison before he was exonerated in 2018, he is certainly a case in point....."Five months after Daniels turned 18, he was on trial for rape. The prosecution’s case rested largely on the testimony of the 15-year-old victim, who picked out Daniels from 350 photographs that police showed her in the days after the attack, and her friend, who was with her moments before she was raped. An FBI analyst, Michael Malone, also took the stand to testify that hair police had collected from Daniels and the victim resulted in a significant match pointing definitively to Daniels as the attacker. Daniels said police arrested the wrong man and he had an alibi to prove it. His defense team presented witnesses who testified that he was playing basketball and running errands at the time of the rape. Their story, however, was not enough to sway the all-white jury and he was sentenced to life in prison."

FIRST QUOTE OF THE DAY: "Daniels said any money he receives is only part of what he needs to regain his life in the free world.  “It’s hard for me,” he said. “I’m not trying to put everything together at one time. I basically have to take it step by step to make sure Elmer’s OK right now. He added, “You can’t give me back 40 years, but you can do something to make the process of me moving on in my life a little bit better.” 

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SECOND QUOTE OF THE DAY: "Daniels said any money he receives is only part of what he needs to regain his life in the free world.  “It’s hard for me,” he said. “I’m not trying to put everything together at one time. I basically have to take it step by step to make sure Elmer’s OK right now. He added, “You can’t give me back 40 years, but you can do something to make the process of me moving on in my life a little bit better.” 

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PASSAGE OF THE DAY: "In 2015, he was released on parole. As part of the conditions of his release, he had to register as a sex offender. He got a job at a restaurant but was quickly fired after a police officer threatened to tell people a sex offender worked there. And in a sex offender therapy program he had to take, he refused to admit he was guilty of rape, a requirement for graduating. Without a job and certificate from the program, Daniels violated the conditions of his parole, and soon he was back in prison. That same year, federal investigators revealed that Malone, the FBI analyst, had provided flawed testimony or reports on hair analysis in 96 percent of his cases. In 2018, the groups investigating Malone told then-Delaware Attorney General Matthew Denn that Malone’s testimony “exceeded the limits of science.” That information alone was not enough to free Daniels, however, and it would take months of investigation for Denn to dismiss his conviction, though he did not declare Daniels innocent. “The state cannot conclusively state Mr. Daniels was not the victim’s assailant, but when coupling this information with the double-match testimony of agent Malone, the prosecutors continuing duty to seek justice requires re-examination,” wrote Denn in the filing."

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STORY: "Delaware Lawmakers Push Bill That Could Pay Reparations To The Wrongfully Incarcerated," by reporter Lauren Gill, published by  The Appeal on February 06, 2020.  Reporter Lauren Gill writes about criminal justice issues for The Appeal.

SUB-HEADING: "Elmer Daniels served nearly 40 years in prison before he was exonerated in 2018. He's one of at least three people who could receive $50,000 for every year spent behind bars.

GIST: "For all but two years of his adult life, Elmer Daniels has been incarcerated. In 1980, at the age of 18, he was convicted of raping a teenage girl and sentenced to life in a Delaware prison. By the time he was exonerated in 2018, the world he had known had grown unfamiliar. 

Since being freed, Daniels’s life has been difficult. He has received no compensation from Delaware nor an apology for the 39 years he spent in prison, and has struggled to support himself on the limited skill set he obtained while incarcerated. “I think it’s important to understand that when you released me, you basically released me to nothing,” Daniels told The Appeal. “The reality of this is I’ve done nothing wrong but I’m still paying for something that never happened. Soon, Daniels could receive some relief. This legislative session, which began on Jan. 14, Delaware lawmakers will push a bill that would compensate people who have been wrongfully convicted. Legislators are proposing to pay $50,000 for every year spent behind bars. If passed, Daniels would receive $1.95 million. 

In most of the country, there’s a system that guarantees some type of payment to exonerees;  15 states provide nothing. “Right now in Delaware, there’s absolutely no process,” Daniels’s attorney, Emeka Igwe, said in an interview. “So what the state is telling the citizens of Delaware is essentially we can convict someone wrongfully, have them spend many years in jail, and come out and absolutely have no remedy whatsoever in the courts. It’s fundamentally un-American.”  Five months after Daniels turned 18, he was on trial for rape. The prosecution’s case rested largely on the testimony of the 15-year-old victim, who picked out Daniels from 350 photographs that police showed her in the days after the attack, and her friend, who was with her moments before she was raped. An FBI analyst, Michael Malone, also took the stand to testify that hair police had collected from Daniels and the victim resulted in a significant match pointing definitively to Daniels as the attacker.  Daniels said police arrested the wrong man and he had an alibi to prove it. His defense team presented witnesses who testified that he was playing basketball and running errands at the time of the rape. Their story, however, was not enough to sway the all-white jury and he was sentenced to life in prison. While incarcerated at the James T. Vaughn Correctional Center in Smyrna, Daniels said he earned his high school diploma and learned how to cook while employed in the prison’s kitchen. There were few other programs for him to participate in, he said.  In 2015, he was released on parole. As part of the conditions of his release, he had to register as a sex offender. He got a job at a restaurant but was quickly fired after a police officer threatened to tell people a sex offender worked there. And in a sex offender therapy program he had to take, he refused to admit he was guilty of rape, a requirement for graduating. Without a job and certificate from the program, Daniels violated the conditions of his parole, and soon he was back in prison.  That same year, federal investigators revealed that Malone, the FBI analyst, had provided flawed testimony or reports on hair analysis in 96 percent of his cases. In 2018, the groups investigating Malone told then-Delaware Attorney General Matthew Denn that Malone’s testimony “exceeded the limits of science.”  That information alone was not enough to free Daniels, however, and it would take months of investigation for Denn to dismiss his conviction, though he did not declare Daniels innocent. “The state cannot conclusively state Mr. Daniels was not the victim’s assailant, but when coupling this information with the double-match testimony of agent Malone, the prosecutors continuing duty to seek justice requires re-examination,” wrote Denn in the filing. 

Daniels was released from prison on Dec. 13, 2018. Since then, he has moved to Maryland to live with his fiancée. He’s had difficulty finding work and is finding it hard to navigate the job market without computer skills. To teach himself, he checks out books from the library. Daniels, who does not have his driver’s license, obtained his learner’s permit but cannot afford to pay for classes for the road test. To get around, he said he either has to wait for someone to drive him or walk alongside a busy highway near his home. “We’re struggling from paycheck to paycheck. Struggle to keep a light on, pay the rent, struggle to keep the heat on,” he said. To receive money under Delaware’s legislation, people who have been wrongfully convicted must file a complaint with the state’s courts demonstrating that their conviction was either reversed or vacated and that new evidence shows they weren’t involved in the crime. It’s a popular model used by 10 other states that have wrongful conviction compensation schemes in place.  In addition to or in place of monetary compensation, other states offer benefits such as help paying school tuition, securing housing, and finding a job. Montana offers tuition at a state university, but it does not provide a payout. States like Wisconsin and New Hampshire have caps on how much money someone can receive. In Missouri, people are only eligible for compensation if they are exonerated by DNA testing. Some states deduct settlements paid to wrongfully convicted people in lawsuits from their total compensation. Jon Eldan, the director of After Innocence, an organization that works with people who have been wrongfully convicted, told The Appeal that states should begin to pivot toward systems in which courts evaluate each person’s loss to determine the compensation they receive instead of relying on a set amount. This system is in place in New York. “I think we should be asking what we’re doing when we compensate people. The answer is we’re not really valuing their loss,” he said. “To generously compensate the wrongfully convicted in America would break no one’s bank. This will never reflect a massive cost with respect to how much we spend generally.” Last year, Daniels spoke at Legislative Hall in support of Delaware’s compensation bill, which was introduced by Representative Sean Lynn. The bill made it out of the House Judiciary Committee but was never put on the floor by Speaker Pete Schwartzkopf for a vote.  Schwartzkopf did not respond to a request for comment from The Appeal.  Senator Brian Pettyjohn, who is sponsoring the bill in the Senate, told The Appeal, “I’m hopeful we’re going to pass some version of it, whether it’s this session or next, because we need to hold ourselves accountable and need to help these individuals.”  If passed, at least three people freed in the last five years—Daniels, Jermaine Dollard and Isaiah McCoy—would qualify for compensation. 

Daniels said any money he receives is only part of what he needs to regain his life in the free world. 

“It’s hard for me,” he said. “I’m not trying to put everything together at one time. I basically have to take it step by step to make sure Elmer’s OK right now. He added, “You can’t give me back 40 years, but you can do something to make the process of me moving on in my life a little bit better.” 

The entire story can be read at:

https://theappeal.org/delaware-lawmakers-push-bill-that-could-pay-reparations-to-the-wrongfully-incarcerated/
 

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

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Executive Director: New England Innocence Project;

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Under-funding of forensic services/miscarriages of justice... (UK)..."Under-funding' forensic services in the UK could lead to serious miscarriages of justice, Commentator Angela Gallop says in the Guardian, in a story headed, "If the UK cares about justice, it must fund forensic services properly."...". Forensics is an essential component of justice – and the state of the science and its industry in the UK is only getting worse. Budget cuts in England and Wales are already resulting in more cases reaching the courts without the prosecution’s forensic evidence having been checked by a competent, experienced scientist working for the defence. This will inevitably lead to serious miscarriages of justice, with innocent people being wrongly convicted and guilty suspects going free."

PASSAGE OF THE DAY: "What has happened during the past eight years is that the police have relied increasingly on their own in-house forensic laboratories. As a result, 80% of all forensic investigations for the 43 police forces in England and Wales are now carried out in laboratories within police stations, staffed by people employed directly by the police. And that’s a very worrying development for many reasons, not least because of the questions it raises about cognitive bias and whether the organisation responsible for identifying and prosecuting criminal suspects should also be providing the impartial, independent scientific evidence that might help to convict them. In fact, a report published in 2009 of a study commissioned by the US government explicitly recommended that forensic science (in the US) should be removed from the administrative control of the police and prosecution. Another area of concern involves the way forensic science providers are accredited. Forensic accreditation – which determines quality and competence – is only mandatory for private providers, not police laboratories. This is despite recommendations from the government-appointed forensic science regulator, Dr Gillian Tully, to extend this requirement to the police’s own services. And with accreditation costing even modest-sized laboratories tens of thousands of pounds a year, and reduced demand for their services resulting from cutbacks in police spending, private companies are finding it increasingly difficult to remain viable. As those companies are lost, so too are valuable skills and services. Another effect of the pressure on police to reduce costs is that they are selecting fewer evidential items for forensic examination. Without the in-depth knowledge and experience necessary to make informed choices, there is now the potential for vital evidence to be missed or lost, and for incomplete interpretation of results. And with many people – even lawyers – unaware that defendants need forensic scientists too, this lack of understanding means that potentially skewed forensic evidence will often go unchallenged. During my 45-year career, there has been an extraordinary evolution in forensic science, which has given us the ability to solve almost any crime. What concerns me now is that, as a result of the mishandling and misinterpretation of forensic evidence by insufficiently experienced scientists working in an inappropriate environment, the provision of forensic services is on a path that will lead to more miscarriages of justice."

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COMMENTARY: "If the UK cares about justice, it must fund forensic services properly," by   Professor Angela Gallop,  published by The Guardian on February 13, 2020. Professor Angela Gallop CBE is a forensic scientist and author of When the Dogs Don’t Bark: a Forensic Scientist’s Search for the Truth. (Thanks to Dr. Michael Bower's Blog CSIDDS: Forensics and the law in focus with the note "Budget cuts in England and Wales have reduced independent oversight – and could lead to serious miscarriages of justice, says forensic scientist professor Angela Gallop.)

SUB-HEADING: "Budget cuts in England and Wales have reduced independent oversight – and could lead to serious miscarriages of justice.

PHOTO CAPTION:  "When police budgets were subsequently cut, so too was their spending on forensic services."

GIST: "In a case involving a knife attack in 2015 by a group of young people, one of the three victims who were stabbed was carrying a bag containing some of his clothes, which was discovered at the scene. When examined, the bag was found to have some blood on it that contained DNA matching one of the alleged attackers. To the prosecution – and potentially to a jury when the case went to court – the DNA evidence put the defendant squarely in the frame. Fortunately though, the prosecution’s forensic evidence was checked by a scientist employed by the defendant’s lawyer and paid for by legal aid (which is increasingly rare due to budget cuts).

Police cuts could see rise in miscarriages of justice, says forensic expert:

The defendant’s scientist discovered that no record had been made of the position or nature – spots, splashes, smears – of the blood on the bag; no other information had been recorded that would have allowed any possible alternative explanations to be assessed; and the bag had been found at the base of a block of flats where the defendant lived, which meant that there could have been some entirely innocent explanation for the contact he’d had with it. The prosecution’s scientific evidence ended up being rejected. Forensics is an essential component of justice – and the state of the science and its industry in the UK is only getting worse. Budget cuts in England and Wales are already resulting in more cases reaching the courts without the prosecution’s forensic evidence having been checked by a competent, experienced scientist working for the defence. This will inevitably lead to serious miscarriages of justice, with innocent people being wrongly convicted and guilty suspects going free.
Police in the UK have always had their own laboratories, dealing with fingerprinting and scenes-of-crime work. Other forensic services were provided almost exclusively by the government-owned Forensic Science Service (FSS) and paid for by the Home Office. In 1991, when budgets for forensic services were devolved to the police, in an attempt to encourage them to be more selective of the items they sent for examination, a market began to open up. And by the time the FSS closed the last of its laboratories in 2012, private companies were providing a substantial proportion of forensic services for both the prosecution and defence. But when police budgets were subsequently cut, so too was their spending on forensic services in the private sector – by 50% compared to 2008, according to a report by the House of Lords science and technology select committee published in 2019.
What has happened during the past eight years is that the police have relied increasingly on their own in-house forensic laboratories. As a result, 80% of all forensic investigations for the 43 police forces in England and Wales are now carried out in laboratories within police stations, staffed by people employed directly by the police. And that’s a very worrying development for many reasons, not least because of the questions it raises about cognitive bias and whether the organisation responsible for identifying and prosecuting criminal suspects should also be providing the impartial, independent scientific evidence that might help to convict them. In fact, a report published in 2009 of a study commissioned by the US government explicitly recommended that forensic science (in the US) should be removed from the administrative control of the police and prosecution. Another area of concern involves the way forensic science providers are accredited. Forensic accreditation – which determines quality and competence – is only mandatory for private providers, not police laboratories. This is despite recommendations from the government-appointed forensic science regulator, Dr Gillian Tully, to extend this requirement to the police’s own services. And with accreditation costing even modest-sized laboratories tens of thousands of pounds a year, and reduced demand for their services resulting from cutbacks in police spending, private companies are finding it increasingly difficult to remain viable. As those companies are lost, so too are valuable skills and services.
Another effect of the pressure on police to reduce costs is that they are selecting fewer evidential items for forensic examination. Without the in-depth knowledge and experience necessary to make informed choices, there is now the potential for vital evidence to be missed or lost, and for incomplete interpretation of results. And with many people – even lawyers – unaware that defendants need forensic scientists too, this lack of understanding means that potentially skewed forensic evidence will often go unchallenged. During my 45-year career, there has been an extraordinary evolution in forensic science, which has given us the ability to solve almost any crime. What concerns me now is that, as a result of the mishandling and misinterpretation of forensic evidence by insufficiently experienced scientists working in an inappropriate environment, the provision of forensic services is on a path that will lead to more miscarriages of justice. Among the recommendations for improving the quality of forensic services that I raised in evidence to the all party parliamentary group on miscarriages of justice this month is the need to ensure that every organisation providing such services – including the police – is accredited to international standards, and that when forensic evidence is critical to a case, it is always checked by an experienced, independent forensic scientist on behalf of the defence."

The entire story can be read at:
https://www.theguardian.com/commentisfree/2020/feb/13/uk-justice-fund-forensic-services-budget-cuts

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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Dr. Evan Matshes: Alberta: Turmoil swirls around allegations that prosecutors suppressed from counsel expert opinions that questioned his medical findings supporting murder charges - amid suggestions that the buried expert evidence would have exonerated their clients..."At issue are some autopsies conducted in 2010 and 2011 by Dr. Evan Matshes, a forensic pathologist whose findings were instrumental in second-degree murder charges laid against three people in Western Canada. The Fifth Estate reported last month that the Alberta Justice Ministry obtained expert opinions seven years ago that questioned some of the medical findings that supported those murder charges. Two defence lawyers and their clients said they were not given what could have been crucial evidence, despite a requirement that prosecutors share it with them."

QUOTE OF THE DAY:  "I just want to tell everybody, like, I'm innocent," Chiniquay said. "Nobody's gonna understand me, what I've been through. This is painful." What Chiniquay didn't know at the time was that while he was serving his prison term of five years, Alberta Justice obtained a review of Wesley's autopsy. That review stated: "The conclusion of homicide is not adequately supported" and raised an earlier car accident as a potential cause of her fatal injuries. "Why am I seeing this for the first time?" Iovinelli said when The Fifth Estate showed him the document. "You're not going to get [Chiniquay's] period of incarceration back."

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PASSAGE ONE OF THE DAY: "After completing more than 250 autopsies in Alberta, Matshes left the province in 2012 to work in the United States. He now lives in San Diego and provides expert testimony in criminal and civil cases across the country.

At the centre of the dispute between Lepp and Iovinelli is why his former client, Butch Chiniquay, sat in jail for several years without being aware of new information that might have exonerated him.

The Criminal Trial Lawyers' Association has joined calls for a public inquiry into the autopsy scandal. "It's obvious that they need to conduct a review of all these prosecutions," Engel said. "It will be a very large task." Engel said it's important that the official running such an investigation be allowed to subpoena and cross-examine witnesses under oath. As a result of The Fifth Estate investigation, British Columbia and Alberta have hired external counsel to review the conduct of their prosecution services, but those probes will be held behind closed doors.

Matshes continues to stand by his work and says he is the victim of a political vendetta. He disputes the findings of the expert review panel. Lepp's letters to The Fifth Estate — sent through his lawyer — state that it is "absolutely false" that his prosecution service buried the findings of an independent external review report that found Matshes made unreasonable findings in 13 of 14 cases, including the five that resulted in criminal charges."

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PASSAGE TWO  OF THE DAY: The Fifth Estate identified another second-degree murder case where a defence lawyer and former client say the Crown prosecutor in the case did not provide them the key peer review form that disputed some of Matshes's opinions. Tammy Bouvette took a plea deal in 2013 for criminal negligence causing death in the drowning of a toddler she was babysitting in Cranbrook, B.C. She said she took the deal to avoid the risk of a longer sentence and insists what happened was a tragic accident. Today, she is homeless outside Vancouver and says she still lives with the stigma of being accused of deliberately killing a child after what Matshes told prosecutors. Alberta Justice says it did, in fact, provide the B.C. Crown's office with the peer review form that disputed comments made by Matshes after his autopsy. Bouvette's lawyer, Jesse Gelber, said he specifically asked for additional disclosure from the B.C. Crown but says he was never given that information, nor was he told about the existence of the peer review form affecting his case."

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STORY: "Alberta judge denies evidence was buried in autopsy scandal," by reporters Harvey Cashore, Rachel Shore and Carolyn Dunn published by  CBC  News on February 26, 2020.

SUB-HEADING: "Former head prosecutor says lawyer aware pathologist's opinions in past criminal cases were 'useless.'

PHOTO CAPTION: "Tammy Bouvette, 36, says she never received a crucial piece of evidence that could have helped her defence in her criminal case."

PHOTO CAPTION: "Adriano Iovinelli defended Butch Chiniquay in court in 2012. He said he was not aware of an expert review panel's findings that called into question key facts in the case."

GIST:  A sitting Alberta provincial court judge is rejecting allegations that the province's Justice Ministry buried key evidence in criminal cases that involved possible wrongful convictions. In an unusual step for an active judge, Gregory Lepp is weighing in on a growing public controversy over disputed autopsies in Alberta, stating that a lawyer was well aware that a medical examiner's opinions had been rendered "useless" in a past review of criminal cases. Lepp, formerly the head of Alberta's prosecution service, wrote a series of letters to The Fifth Estate in January and February disagreeing with a high-profile defence attorney who had accused the provincial Justice Ministry of burying evidence that might have exonerated his former client. Lepp denies that he or his former staff did not fulfil their "disclosure obligations" to those charged with crimes and their lawyers.

Dispute concerns autopsies from 2010, 2011:

At issue are some autopsies conducted in 2010 and 2011 by Dr. Evan Matshes, a forensic pathologist whose findings were instrumental in second-degree murder charges laid against three people in Western Canada. The Fifth Estate reported last month that the Alberta Justice Ministry obtained expert opinions seven years ago that questioned some of the medical findings that supported those murder charges. Two defence lawyers and their clients said they were not given what could have been crucial evidence, despite a requirement that prosecutors share it with them. In a letter to The Fifth Estate from his legal counsel, Lepp said defence lawyer Adriano Iovinelli — who represented one of those charged — was clearly aware from media releases and news coverage that Matshes was "unreliable" in criminal cases reviewed by an external committee. Lepp wrote that Iovinelli was aware that Alberta Justice ordered an expert panel review that "showed that Dr. Matshes was unreliable in any criminal case" under review and that his opinions back then were "useless to the prosecution." Edmonton trial lawyer Tom Engel said that if Matshes's work was rendered "useless" in the five criminal cases studied by the panel, that finding alone raises concerns about all of Matshes's work.

Engel is a member of the Criminal Trial Lawyers' Association and one of its committee chairs, but he does not speak for the group.

Lawyers' Association calls for public inquiry:

After completing more than 250 autopsies in Alberta, Matshes left the province in 2012 to work in the United States. He now lives in San Diego and provides expert testimony in criminal and civil cases across the country. At the centre of the dispute between Lepp and Iovinelli is why his former client, Butch Chiniquay, sat in jail for several years without being aware of new information that might have exonerated him. The Criminal Trial Lawyers' Association has joined calls for a public inquiry into the autopsy scandal. "It's obvious that they need to conduct a review of all these prosecutions," Engel said. "It will be a very large task." Engel said it's important that the official running such an investigation be allowed to subpoena and cross-examine witnesses under oath. As a result of The Fifth Estate investigation, British Columbia and Alberta have hired external counsel to review the conduct of their prosecution services, but those probes will be held behind closed doors.

Matshes continues to stand by his work and says he is the victim of a political vendetta. He disputes the findings of the expert review panel. Lepp's letters to The Fifth Estate — sent through his lawyer — state that it is "absolutely false" that his prosecution service buried the findings of an independent external review report that found Matshes made unreasonable findings in 13 of 14 cases, including the five that resulted in criminal charges.

Lawyer, judge disagree on key point:

Lepp was responding to comments made by the Calgary defence lawyer, Iovinelli, who told The Fifth Estate he never saw a key document — later obtained by journalists — that might have helped free his client from prison. The case goes back to 2011, when Chiniquay was charged with second-degree murder in the death of his girlfriend, Charmaine Wesley, a woman from Stoney Nakoda First Nation.
Chiniquay told The Fifth Estate that to avoid risking a possible life sentence, he took a plea deal in 2012 for manslaughter. He insists he did not kill his girlfriend.

"I just want to tell everybody, like, I'm innocent," Chiniquay said. "Nobody's gonna understand me, what I've been through. This is painful." What Chiniquay didn't know at the time was that while he was serving his prison term of five years, Alberta Justice obtained a review of Wesley's autopsy. That review stated: "The conclusion of homicide is not adequately supported" and raised an earlier car accident as a potential cause of her fatal injuries. "Why am I seeing this for the first time?" Iovinelli said when The Fifth Estate showed him the document. "You're not going to get [Chiniquay's] period of incarceration back."

Defence was aware of review, says former head of prosecution service:

In January, Lepp sent The Fifth Estate a letter that pointed the finger back at Iovinelli. He referred to the Alberta Justice public media release and related newspaper coverage about the expert review. That media release said that Dr. Matshes made unreasonable findings in 13 of 14 cases reviewed but did not provide names or specific results. Lepp wrote that Iovinelli had been quoted in a newspaper article at the time, agreeing that the negative review of some of Matshes's autopsies would benefit an accused and not the prosecution. Lepp cited that newspaper clipping as a factor in stating the Alberta Crown Prosecution Service met its disclosure obligations in the Chiniquay case.

Lepp said it was obvious from Iovinelli's comments that "he was clearly aware, back in 2012, of the existence of the report and that the report essentially rendered whatever opinion Dr. Matshes provided in any criminal case [that was reviewed], including Mr. Chiniquay's, useless to the prosecution."

'It was made available':

Lepp later added, "with respect to your inquiry regarding Butch Chiniquay, it is clear from publicly available records that Mr. lovinelli was aware that the external review committee report showed that Dr. Matshes was unreliable in any criminal case [reviewed]." Lepp also said that in 2012, he assigned a senior prosecutor to "ensure that appropriate disclosure" was made to all defence counsel. That prosecutor, Lepp said, told Iovinelli directly further disclosure was available. "It was made available, and receipt of it was declined," Lepp said. The Alberta Crown Prosecution Service (ACPS) "could only assume that Mr. lovinelli's declining of further disclosure regarding Dr. Matshes was based on informed instructions from his client, Mr. Chiniquay. The ACPS fully met its disclosure obligations in this case." Lepp said Alberta Justice confirmed in a letter to lovinelli that he "did not require further disclosure relating to Dr. Matshes."

'How can they not act upon it'?:

Iovinelli bristled at any suggestion that he was at fault for not looking at the document. He said that while he may have been aware of the review of Matshes's work, no one told him about a crucial document called a peer review form that, had he known about it, might have set his former client free.
"They had it," he said, referring to the Crown. "How can they not act upon it?" Iovinelli said at no time did Lepp's Crown prosecution service ever tell him of the potentially significant content of that document. "Well, no one told me what that disclosure was, to start off with," Iovinelli said. He said he does not remember turning down an offer to see a document. Lepp responded that there was no obligation on the part of the prosecution service to say precisely what was in that document.

"The Crown is never required to summarize or highlight portions of relevant disclosure," he wrote.

'They can't just let that ride':

Engel said Alberta Justice had an obligation to act on that information whether or not Chiniquay's former lawyer passed up an opportunity to see it. "If they [Alberta Justice] think that there could be a miscarriage of justice, and they have a lawyer who they claim is just not doing anything, they can't just let that ride," he said. "They have to do something .... They could initiate an appeal to the Court of Appeal.... But sitting back and relying on defence counsel doing nothing, that's not acceptable." Iovinelli also noted that he was not Chiniquay's lawyer at the time that Alberta Justice obtained the peer review form that stated there was not adequate evidence of homicide. Legal experts consulted by CBC said if Chiniquay did not have a lawyer acting for him, then prosecutors had an obligation to reach out to Chiniquay directly.

Lepp did not respond to questions from The Fifth Estate on this point, stating he would not be providing further comment given the recent announcement of a planned review by outside counsel. Legal experts consulted by The Fifth Estate also said that while it was "unusual" for a provincial court judge to engage in this kind of discussion about criminal cases, it is not improper and can be seen as helping the public understand what happened. They pointed out that Lepp was describing events that occurred when he was a prosecutor and not a member of the judiciary. At the same time, those experts say judges have to consider the weight of their words in the context of the office they now hold — and ensure that they not appear to take sides on issues they might also be adjudicating in their courtrooms.

Convictions may 'need to be expunged,' lawyer says:

Asad Kiyani, a law professor at the University of Calgary, said defence counsel should ask prosecutors for any additional disclosure as it arises but said the Crown is required on its own to also provide any information to the defence that is relevant to the case. "The obligation is not just to disclose, but to ensure that people who are wrongfully convicted are not in jail," Kiyani said. "And if they have spent time in jail, then we need to think about whether those convictions need to be expunged."

The Fifth Estate identified another second-degree murder case where a defence lawyer and former client say the Crown prosecutor in the case did not provide them the key peer review form that disputed some of Matshes's opinions. Tammy Bouvette took a plea deal in 2013 for criminal negligence causing death in the drowning of a toddler she was babysitting in Cranbrook, B.C. She said she took the deal to avoid the risk of a longer sentence and insists what happened was a tragic accident. Today, she is homeless outside Vancouver and says she still lives with the stigma of being accused of deliberately killing a child after what Matshes told prosecutors. Alberta Justice says it did, in fact, provide the B.C. Crown's office with the peer review form that disputed comments made by Matshes after his autopsy. Bouvette's lawyer, Jesse Gelber, said he specifically asked for additional disclosure from the B.C. Crown but says he was never given that information, nor was he told about the existence of the peer review form affecting his case.

Disputes over disclosure also occurred in other cases:

The Fifth Estate also identified two additional criminal cases in Alberta that were reviewed by the expert panel, and where some of those involved say they did not receive those findings.

Lepp wrote that in the case of Shelby Herchak, charged with second-degree murder in the 2010 death of her son, the Crown provided full disclosure to her defence lawyer.
When contacted recently, Herchak told The Fifth Estate she never saw a document that disputed parts of Matshes's autopsy findings and might have changed the outcome of her case. She told The Fifth Estate she accidentally dropped her baby but took a plea deal of manslaughter to avoid a possible life sentence. Herchak's lawyer, Kim Ross, did not respond to repeated emails attempting to verify Lepp's comments. Matshes took Alberta Justice to court in 2013 over how the government conducted the expert review panel that produced the key documents disputing some of his forensic pathology findings. The ministry agreed to "quash" the expert review panel results, as Matshes had successfully argued he had not been given enough time to respond. At that time, Alberta Justice stated that "the administration of justice" demanded a second panel be convened to again review the 14 Matshes cases. Neither Lepp nor Eric Tolppanen, the current head of the Alberta Crown Prosecution Service, responded to queries about why the second review never happened. Tolppanen said the quashing rendered the panel's findings "inconsequential."

Matshes also sued the Alberta government for defamation in 2014 after the review of his autopsies was announced. His $30-million lawsuit has not been settled.

Judge welcomes external review:

Lepp said he welcomes the newly announced external probe into the prosecution service and is "anxious to provide full co-operation." "It is important that the truth be revealed publicly," he said. In recent years, Chiniquay served out his sentence and moved back to his family home. "I've been honest since Day 1. I was looking for this right from the beginning and didn't know where to start," Chiniquay said about the new findings. "Maybe one of these days, things change, possibly longer. Miracles happen." Iovinelli said he wants the dispute with Lepp and Alberta Justice to be over and to see his former client get justice.   I've been practising 25 years, I hope to practise many more years, and I'm not going to get in a war of words with the judge," Iovinelli said. The entire dispute comes down to one question, he said: "Why didn't the Crown's office act on this?" "And all we're waiting for is an answer," he said.

The entire story can  be read at:
.https://www.cbc.ca/news/canada/calgary/judge-alberta-autopsy-scandal-1.5469933
 

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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Bulletin: Steven Avery: Wisconsin: The State has requested more time to respond to his latest appeal, FOX 11 News reports..."There was no immediate indication by the court if the request will be granted, but such requests – and the granting thereof - are not unusual. No hearings have been scheduled."

BACKGROUND:  Photographer Teresa Halbach disappeared on October 31, 2005; her last alleged appointment was a meeting with Avery, at his home on the grounds of Avery's Auto Salvage, to photograph his sister's minivan that he was offering for sale on Autotrader.com.[22] Halbach's vehicle was found partially concealed in the salvage yard, and bloodstains recovered from its interior matched Avery's DNA. Investigators later identified charred bone fragments found in a burn pit near Avery's home as Halbach's.[23] Avery was arrested and charged with Halbach's murder, kidnapping, sexual assault, and mutilation of a corpse on November 11, 2005. He had already been charged with a weapons violation as a convicted felon. Avery maintained that the murder charge was a frameup, promulgated to discredit his pending wrongful-conviction civil case. Manitowoc County claimed to cede control of the murder investigation to the neighboring Calumet County Sheriff's Department because of Avery's suit against Manitowoc County, however Manitowoc sheriff's deputies participated in repeated searches of Avery's trailer, garage, and property, supervised by Calumet County officers. A Manitowoc deputy found the key to Halbach's vehicle in Avery's bedroom. Avery's attorneys said there was a conflict of interest in their participation and suggested evidence tampering.[24] Avery's attorneys also discovered that an evidence box containing a vial of Avery's blood, collected in 1996 during his appeals efforts in the Beerntsen case, had been unsealed, and a puncture hole was visible in the stopper.[25] They speculated that the blood found in Halbach's car could have been drawn from the stored vial and planted in the vehicle to incriminate Avery; but FBI technicians tested the blood recovered from Halbach's car for ethylenediaminetetraacetic acid, a preservative used in blood vials but not present in the human body, and found none.[26] Avery's defense team presented expert witness testimony stating that it was not possible to tell if the negative result meant that EDTA was not present, or if the test itself was inconclusive...In March 2006, Avery's nephew, Brendan Dassey, was charged as an accessory in the Halbach case after he confessed under interrogation to helping his uncle kill Halbach and dispose of the body.[27] He later recanted his confession, claiming it had been coerced, and refused to testify to his involvement at Avery's trial. Dassey was convicted of murder, rape, and mutilation of the corpse in a separate trial. Wikipedia.

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STORY: "State requests more time  to respond to Avery's latest appeal," by FOX11 News, published on February 4, 2020.

GIST:  "Once again, the state is asking for more time to file its response to Steven Avery’s latest appeal. Avery continues to appeal his conviction for the 2005 murder of Teresa Halbach. In the latest appeal, filed in October, his attorney appeals a series of decisions by Sheboygan County Judge Angela Sutkiewicz. In all, ten different issues were raised. The state’s reply brief was originally due Nov. 13. Assistant Attorney General Lisa Kumfer asked for and was granted an extension to file by Feb. 11. But in a motion filed Monday, she again asked for an extension, court records show. There was no immediate indication by the court if the request will be granted, but such requests – and the granting thereof - are not unusual. No hearings have been scheduled. Avery’s nephew, Brendan Dassey, was also convicted. His appeals have all be denied. Gov. Tony Evers recently rejected his request for a pardon."

The entire story can be read at:
https://fox11online.com/news/local/state-requests-more-time-to-file-response-to-averys-latest-appeal
 

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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Flawed forensic analysis: (Brought to you by the FBI): Yet another FBI analysis method comes under attack - and could result in an innocent person being accused or sentenced and a guilty person walking free, ProPublica (Justice Reporter Ryan Gabrielson) reports..."A study published this week casts doubt on the reliability of a technique the FBI Laboratory has used for decades to identify criminals by purporting to match their bluejeans with those photographed in surveillance images, potentially undermining evidence used to win numerous convictions. The FBI’s method, used principally in bank robbery cases, matches denim pants by the light and dark patches along their seams, called wear marks."

QUOTE  ONE OF THE DAY: "Brandon Garrett, a Duke University law professor who studies the reliability of forensic science, agreed the study’s results cast serious doubt on the accuracy of jeans identifications, similar to the problems earlier research found in hair fiber and tool mark evidence. “This is one of many studies uncovering non-trivial error rates for forensic techniques,” Garrett said. “Any lawyer or any judge in a case involving this discipline should, at minimum, hear about the error rates. Many people assume that these techniques are perfect.”

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QUOTE TWO OF THE DAY: "Studies have begun to raise doubts about the unit’s methods. FBI examiners often analyze low-quality images from security cameras and “it is reasonable to expect that the reliability of this technique may degrade under real-world imaging conditions,” the authors wrote. They argue that all image pattern analysis should undergo validation tests, performed by researchers independent of the FBI and other forensic laboratories. “Mistakes in these identifications are costly, resulting in an innocent person being accused or sentenced and a guilty person walking free.”


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PASSAGE OF THE DAY: "The FBI’s issues with image analysis echo earlier controversies over other forensic techniques. The bureau’s lab technicians and scientists had long testified in court that they could determine what fingertip left a print and which scalp grew a hair “to the exclusion of all others.” Research and exonerations by DNA analysis have repeatedly disproved those claims, and the U.S. Department of Justice no longer permits its forensic scientists to make such unequivocal statements. ProPublica found that examiners on the Forensic Audio, Video and Image Analysis Unit, based at the FBI Lab in Quantico, Virginia, continue to use similarly flawed methods and to testify to the precision of these methods, according to a review of court records and examiners’ written reports and published articles.

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STORY: "A Key FBI Photo Analysis Method Has Serious Flaws, Study Says," by  Justice Reporter Ryan Gabrielson, published by ProPublica on February 25, 2020.

SUB-HEADING: "After ProPublica’s reporting last year, scientists at UC Berkeley tested one of the FBI Lab’s photo analysis techniques, identifying bluejeans by the pattern on their seams, and found flaws that challenge the method’s reliability."

GIST: "A study published this week casts doubt on the reliability of a technique the FBI Laboratory has used for decades to identify criminals by purporting to match their bluejeans with those photographed in surveillance images, potentially undermining evidence used to win numerous convictions. The FBI’s method, used principally in bank robbery cases, matches denim pants by the light and dark patches along their seams, called wear marks. An FBI examiner’s scientific journal article on bluejeans identification in 1999 argued that wear marks create, effectively, a barcode that is unique on every pair. That article provided a legal foundation for the FBI to use an array of similar techniques to assert matches for clothes, vehicles, human faces and skin features. After a ProPublica investigation raised questions about the technique, Hany Farid, a University of California, Berkeley, computer science professor and leading forensic image analyst, and Sophie Nightingale, a postdoctoral researcher in image science, tested the bureau’s method and found several serious flaws. Their study, published this week in the journal Proceedings of the National Academy of Sciences, is the first known independent research on the technique’s reliability, even though the courts have allowed bluejeans identifications as trial evidence for years. The new study determined that seams on different pairs of bluejeans are often highly similar. Separately, multiple pictures of the same pant seam, taken under varying conditions, can appear starkly different from one another. Taken together, the authors write, these deficiencies show “identification based on denim jeans should be used with extreme caution, if at all.” The FBI declined to comment on the study. In its articles last year, ProPublica revealed that FBI examiners have tied defendants to crimes in thousands of cases over the past half-century by using crime-scene pictures in unproven ways and, at times, have given jurors baseless statistics to say the risk of errors in their analyses was extremely low. In several cases, the FBI’s most prominent image examiner contradicted the original conclusions and results in his lab reports when presenting evidence to criminal courts, FBI records and legal filings show.  The FBI’s issues with image analysis echo earlier controversies over other forensic techniques. The bureau’s lab technicians and scientists had long testified in court that they could determine what fingertip left a print and which scalp grew a hair “to the exclusion of all others.” Research and exonerations by DNA analysis have repeatedly disproved those claims, and the U.S. Department of Justice no longer permits its forensic scientists to make such unequivocal statements. ProPublica found that examiners on the Forensic Audio, Video and Image Analysis Unit, based at the FBI Lab in Quantico, Virginia, continue to use similarly flawed methods and to testify to the precision of these methods, according to a review of court records and examiners’ written reports and published articles. At ProPublica’s request, several statisticians and forensic science experts reviewed the unit’s methods. The experts identified numerous instances of examiners overstating their techniques’ precision and said some of their assertions defied logic. In response to ProPublica’s reporting, Nightingale and Farid said they decided to test the FBI’s photo comparison techniques, starting with bluejeans identification.

The researchers purchased 100 pairs of jeans from local second-hand stores and collected images of more than 100 additional pairs of jeans through Mechanical Turk, the Amazon service that provides workers to complete tasks. The researchers used four high-resolution pictures of the seams on each pant leg. They documented wear marks in the same manner FBI examiners do. But the researchers used what is known as signal analysis to digitally convert the patterns into numeric values and calculate how similar the jeans in different images were to each other. The authors were consistently able to mark the same features, suggesting the first step in the bureau’s process works as intended.

But then the analysis measured wear mark patterns and found the FBI Lab’s method struggled to match images of the same pant seam, which were frequently no more similar to one another than to seams from different pairs. Nightingale and Farid hypothesize that denim jeans are too flexible, as the material easily stretches and shrinks, changing how wear marks appear, even moment to moment. The technique failed to correctly match images of the same bluejeans in most cases unless they allowed for a high rate of false positives. When inaccurate matches were limited to one in 10,000, it identified less than 30% of the true matches. Ultimately, comparing bluejeans seams is relatively useless, Farid said. “If you’re willing to tolerate that only one in four times this will be useful, OK, fine, use the analysis.” Brandon Garrett, a Duke University law professor who studies the reliability of forensic science, agreed the study’s results cast serious doubt on the accuracy of jeans identifications, similar to the problems earlier research found in hair fiber and tool mark evidence.\ “This is one of many studies uncovering non-trivial error rates for forensic techniques,” Garrett said. “Any lawyer or any judge in a case involving this discipline should, at minimum, hear about the error rates. Many people assume that these techniques are perfect.” The error rates found in the study are probably the best-case scenario, the researchers said. Every image used in the study was taken in a controlled setting, under good lighting and with the pant seams flattened against a hard surface. The bureau’s image unit has linked defendants to crime photographs for decades using unproven techniques and baseless statistics. Studies have begun to raise doubts about the unit’s methods. FBI examiners often analyze low-quality images from security cameras and “it is reasonable to expect that the reliability of this technique may degrade under real-world imaging conditions,” the authors wrote. They argue that all image pattern analysis should undergo validation tests, performed by researchers independent of the FBI and other forensic laboratories. “Mistakes in these identifications are costly, resulting in an innocent person being accused or sentenced and a guilty person walking free.” While further research is critical, Garrett argued that alone isn’t sufficient. He said this study and scores of others make clear the federal government should regulate the work of forensic scientists in the same manner they do clinical laboratories, setting rules and constantly testing their accuracy. “We’ve known about the need for national regulation for over a decade now,” Garrett said, “and we haven’t seen it.""

The entire story can be read at:

https://www.propublica.org/article/a-key-fbi-photo-analysis-method-has-serious-flaws-study-says
 

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;

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

FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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Shaken Baby Syndrome: (Extremely important article HL); 3News (WKYC) investigates the science behind the syndrome in a story sub-headed, "Many cases are unraveling, while others accused remain imprisoned."... "When Dan and Lee-Ann Dunkle look at their daughter, they see a soaring athletic teen, an honor roll scholar. They certainly don’t see a victim of shaken baby syndrome. But once upon a time, that's all doctors saw. Turns out, those doctors were dead wrong. Despite the passing years, the sting of that failed diagnosis isn't soothed. Instead, tearful memories flood a mother's thoughts. "I couldn't take my kid home. They said I would be arrested if I did. And that's when we were like, wait a minute, what's going on here." She soon learned. The Dunkles were at Akron Children's Hospital, where renowned pediatric doctor Daryl Steiner was uncovering case after case of shaken baby syndrome. Reached by phone, Dr. Steiner told 3News Investigates: “I’m retired and I’ve forgotten everything prior to 2016.” Today, shaken baby syndrome and abusive head trauma is a hotly debated diagnosis, both in the medical and the legal communities. More than 200 criminal cases are unraveling across the nation since 2001, according to an extensive study by the Washington Post and journalism students at Northwestern University. Over 1,600 cases, however, were left intact, leaving others to make pleas of innocence from behind bars."

QUOTES OF THE DAY: "There are definitely people serving long sentences, life sentences, for what I believe is bad science and bad medicine,” said Akron attorney Andrea Whitaker, who has defended about 10 shaken baby cases, including the Dunkles. "There's no question in my mind that there are innocent people in prison from the misdiagnosis.” Shaken Baby grew prominent in the 1990s, accentuated by the trial of British au pair, Louise Woodward. Afterward, the diagnosis of cases exploded, most notably around Akron, ranking the area third in the entire nation. Much of the credit went to Dr. Steiner, who gained national fame as an expert of shaken baby. One doctor testified in a hearing that Steiner became “cavalier” in his shaken baby work. "The pediatrician would become the doctor, the prosecutor, the police officer and the jury,” said Donald Caster, an attorney with the Ohio Innocence Project. “The pediatrician would say this is abuse and that put a parent or caregiver’s life into a living hell.""

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 ANOTHER QUOTE OF THE DAY:  "Attorneys say there are others across the country who are wrongly convicted. "There are dozens of people in ohio who have been wrongly convicted of abuse based on the shaken baby hypothesis,” Caster said. "These are men and women who have been separated from their families for decades because of false claims by science.”

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PASSAGE  OF THE DAY: "There are definitely people serving long sentences, life sentences, for what I believe is bad science and bad medicine,” said Akron attorney Andrea Whitaker, who has defended about 10 shaken baby cases, including the Dunkles. "There's no question in my mind that there are innocent people in prison from the misdiagnosis.”

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STORY: "3News investigates  science behind shaken baby  syndrome" by reporters Phil Trexler and Rachel Polansky, published by WKYC on February 24, 2020. (Phil Trexler is an Investigative Producer at wkyc studios in Cleveland, Ohio - Rachel Polansky  is a 3News investigative reporter). Thanks to Dr. Michael Bowers of CSIDDS - Forensics and law in focus - for bringing this important article to our attention. (Dr. Bowers reports that "a cavalier and long time shaken baby expert  will not admit his decades of misdiagnosis"  - and notes, "Dr.Steiner's "saving the kids" mantra was later adopted by the bitemarkers.")
 https://csidds.com/2020/02/25/forensics-a-cavalierand-long-time-shaken-baby-expert-will-not-admit-his-decades-of-misdiagnoses/


SUB-HEADING: "Many cases are unraveling, while others accused remain imprisoned."

GIST: "When Dan and Lee-Ann Dunkle look at their daughter, they see a soaring athletic teen, an honor roll scholar. They certainly don’t see a victim of shaken baby syndrome. But once upon a time, that's all doctors saw. Turns out, those doctors were dead wrong. Despite the passing years, the sting of that failed diagnosis isn't soothed. Instead, tearful memories flood a mother's thoughts. "I couldn't take my kid home. They said I would be arrested if I did. And that's when we were like, wait a minute, what's going on here." She soon learned. The Dunkles were at Akron Children's Hospital, where renowned pediatric doctor Daryl Steiner was uncovering case after case of shaken baby syndrome. Reached by phone, Dr. Steiner told 3News Investigates: “I’m retired and I’ve forgotten everything prior to 2016.” Today, shaken baby syndrome and abusive head trauma is a hotly debated diagnosis, both in the medical and the legal communities. More than 200 criminal cases are unraveling across the nation since 2001, according to an extensive study by the Washington Post and journalism students at Northwestern University. Over 1,600 cases, however, were left intact, leaving others to make pleas of innocence from behind bars. "There are definitely people serving long sentences, life sentences, for what I believe is bad science and bad medicine,” said Akron attorney Andrea Whitaker, who has defended about 10 shaken baby cases, including the Dunkles. "There's no question in my mind that there are innocent people in prison from the misdiagnosis.” Shaken Baby grew prominent in the 1990s, accentuated by the trial of British au pair, Louise Woodward. Afterward, the diagnosis of cases exploded, most notably around Akron, ranking the area third in the entire nation. Much of the credit went to Dr. Steiner, who gained national fame as an expert of shaken baby. One doctor testified in a hearing that Steiner became “cavalier” in his shaken baby work. "The pediatrician would become the doctor, the prosecutor, the police officer and the jury,” said Donald Caster, an attorney with the Ohio Innocence Project. “The pediatrician would say this is abuse and that put a parent or caregiver’s life into a living hell."

 

Steiner espoused a triad theory when looking for signs of abuse: Bleeding in the brain and behind the eyes, and swelling of the brain. Critics contend that when Steiner spotted the three symptoms, he immediately concluded the baby was shaken. To answer the critics, abusive head trauma was added to the diagnosis. In recent years, however, the science is shifting. Some doctors have recanted their original findings. Others are recognizing other causes, such as simple falls or damage done to a child’s skull during birth. Studies show about 25 percent of births result in head trauma. Today, the Ohio Innocence Project is working with two women serving life sentences: Tiffani Calise and Marsha Mills. In each case, Dr. Steiner worked the cases. Calise, 29, was convicted in the 2010 death of a 2-year-old toddler she was babysitting at a Green condo. Calise contends the girl slipped and fell in the bathtub Mills, 69, was convicted in the 2006 death of a 2-year-old boy, who she said fell down several stairs at her home in New Philadelphia. Attorneys say there are others across the country who are wrongly convicted. "There are dozens of people in ohio who have been wrongly convicted of abuse based on the shaken baby hypothesis,” Caster said. "These are men and women who have been separated from their families for decades because of false claims by science.” The Dunkles came close to being one such family. In 2006, they lost custody of their newborn. The separation lasted four months. It began when the infant girl fell three feet from a table. To be safe, the Wadsworth couple took her to children's hospital. "It was a very bad decision for us on our part,” Lee-Ann Dunkle said. At the hospital. baby Rachel was examined by Dr. Steiner, who quickly rendered a startling diagnosis: Rachel was another victim of shaken baby syndrome. The Dunkles were told Rachel's future brain development was forever altered by this physical abuse. "I thought they got it, it was mix up, it was a mistake, there's no way she was shaken," Lee-Ann Dunkle said. Nonetheless, the diagnosis set in motion a series of events. Step one: baby Rachel was taken away by children services. It happened when the Dunkles met with police, leaving their daughter at the hospital with her grandmother. "I was on the phone with mom when it happened. and I told her, I said you have to let her go,” Lee-Ann Dunkle recalled. What followed was months of costly and contentious court hearings and competing medical opinions. Finally.."I get goose bumps thinking about it,” said Whitaker, who got the call from the Medina judge’s staff. She then called the Dunkles with the news. But there was nothing else... not even an apology. "It's like it happened for no reason,” she said. Their ordeal is why the Dunkles want to tell their story about shaken baby syndrome. To help others wrongly accused."

The entire story can be read at:
https://www.wkyc.com/article/news/investigations/3news-investigates-science-behind-shaken-baby-cases-under-attack/95-049076b8-261c-41d7-87b2-a631864b2e6f
 

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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Myon Burrell: Minnesota: His prosecutor defends the conviction, saying, "the evidence is quite strong," AP News reports..."A Minnesota prosecutor said Monday his office has spent weeks reviewing a murder conviction raised by Amy Klobuchar on the presidential debate stage, saying he believes the evidence that sent a black teenager to prison for life was “quite strong.” Hennepin County Attorney Mike Freeman said he would meet soon with attorneys for Myon Burrell, who was 16 when he was arrested in the 2002 shooting that killed an 11-year-old girl, and with representatives of the Innocence Project. His statement came just before Burrell was scheduled to appear on ABC-TV to discuss a yearlong Associated Press investigationthat found serious flaws in his case, which relied heavily on a single eyewitness, who offered contradictory accounts about the shooter. The AP also uncovered questionable police tactics, including a detective who was seen on videotape offering a man in custody cash for “hearsay,” and then only paying for Burrell’s name. Reporters also interviewed Burrell’s two co-defendants, both of whom say Burrell was not even at the scene when Tyesha Edwards was shot and killed. One of them — Ike Tyson — has long been saying he was in fact the triggerman."

BACKGROUND: "(Myon) Burrell was 16 when he was apprehended in the 2002 death of an 11-year-old African American girl, killed by a stray bullet while doing her homework. No gun, fingerprints or DNA were ever recovered, and the case against Burrell relied on the testimony of a teen rival who offered conflicting stories when identifying the trigger man, who was standing 120 feet away, mostly behind a wall, the AP reported. The AP also uncovered questionable police tactics in the case, including an investigator who offered cash for information, and interviewed a prison inmate who said that he was the triggerman and that Burrell was not on the scene when Tyesha Edwards was shot and killed.

The Associated Press;

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QUOTE OF THE DAY:  “The evidence is quite strong which is why he was convicted twice,” Freeman said in his statement. Freeman took aim at several of the points raised in the AP’s investigation. He said at trial, Burrell offered two different alibis in the case — alibis the state did not find credible. He also said that Burrell confessed to a cousin about his involvement in Edwards’ death —though there is no recording of that call, which allegedly took place while Burrell was locked in a cell in segregation 23 hours a day. And Freeman also said Burrell told a jailhouse informant — a paranoid schizophrenic who testified he “sometimes hears voices” — that he shot the little girl. Freeman said shifting statements by Burrell’s “accomplices” were found “not credible” by a judge at Burrell’s second trial.Though he acknowledged there was no gun, fingerprints, DNA or hard evidence, the prosecutor noted many convictions “do not have those elements.”

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STORY: "Minnesota prosecutor defends Burrell conviction,  reporter by AP News on February 25, 2020.

STORY: "A Minnesota prosecutor said Monday his office has spent weeks reviewing a murder conviction raised by Amy Klobuchar on the presidential debate stage, saying he believes the evidence that sent a black teenager to prison for life was “quite strong.” Hennepin County Attorney Mike Freeman said he would meet soon with attorneys for Myon Burrell, who was 16 when he was arrested in the 2002 shooting that killed an 11-year-old girl, and with representatives of the Innocence Project. His statement came just before Burrell was scheduled to appear on ABC-TV to discuss a yearlong Associated Press investigationthat found serious flaws in his case, which relied heavily on a single eyewitness, who offered contradictory accounts about the shooter. The AP also uncovered questionable police tactics, including a detective who was seen on videotape offering a man in custody cash for “hearsay,” and then only paying for Burrell’s name. Reporters also interviewed Burrell’s two co-defendants, both of whom say Burrell was not even at the scene when Tyesha Edwards was shot and killed. One of them — Ike Tyson — has long been saying he was in fact the triggerman. Klobuchar was county attorney when the case was first prosecuted, and has cited it during her political career as an example of finding justice for victims of violence. Since the AP published its findings, she has said any new information in the case should be reviewed by Freeman’s office. “The evidence is quite strong which is why he was convicted twice,”Freeman said in his statement. Freeman took aim at several of the points raised in the AP’s investigation. He said at trial, Burrell offered two different alibis in the case — alibis the state did not find credible. He also said that Burrell confessed to a cousin about his involvement in Edwards’ death —though there is no recording of that call, which allegedly took place while Burrell was locked in a cell in segregation 23 hours a day. And Freeman also said Burrell told a jailhouse informant — a paranoid schizophrenic who testified he “sometimes hears voices” — that he shot the little girl. Freeman said shifting statements by Burrell’s “accomplices” were found “not credible” by a judge at Burrell’s second trial. Though he acknowledged there was no gun, fingerprints, DNA or hard evidence, the prosecutor noted many convictions “do not have those elements.” Though Klobuchar raised the case during the Houston Democratic debate this fall, Freeman noted that the conviction that landed Burrell in prison for life happened under his watch. He said the case“should not be treated like a political football.” Burrell, however, told ABC News that he feels the senator “is the source of everything that happened.""

The entire story can be read at:

https://apnews.com/148c4e50af369168e95ed113468ff471
 

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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