Saturday, July 18, 2020

426 years: (Part Two) Kings County Convictions Review Unit (CRU) landmark report "426 Years: An examination of 25 wrongful Convictions in Brooklyn."... The section of the landmark report dealing with new expert and scientific evidence brought to bear by the CRU to determine if there had been a wrongful conviction..."Among the CRU’s exonerations, seven cases (Bloom; Davidson; Hicks; Harrison; Mitchell; Martinez/Velasco/Vargas; Yeats/Watson) were based, at least in part, on new scientific evidence or expert consultation, including DNA analysis and consulting with experts in medicine, forensic psychology, and fire science."

RELEASE: "Innocence Project calls for policy reforms  in wake of landmark report on 25 wrongful convictions in Brooklyn," by Nina Morrison, released by The Innocence Project on July 9, 2020.

SUB-HEADING: "The report addresses the grievous errors and misconduct by both police and prosecutors that tainted  those cases."


The entire report that is subject of this release  - a tough, gritty, honest document (HL) -  can be read (and should be read) at the link below:


2. New Expert and Scientific Evidence:
Among the CRU’s exonerations, seven cases (Bloom; Davidson; Hicks; Harrison; Mitchell; Martinez/Velasco/Vargas; Yeats/Watson) were based, at least in part, on new scientific evidence or expert consultation, including DNA analysis and consulting with experts in medicine, forensic psychology, and fire science. In one case (Martinez/Velasco/Vargas), the CRU-retained expert found that scientific evidence provided in the original trial was not valid under modern standards. The other cases involved expert analysis, testing, or examination of medical records that had not occurred during the original proceedings.

a. DNA Evidence: 

DNA exonerations represent around 15% of all post-conviction exonerations in the U.S. justice system. Among the CRU’s exonerations, just two cases— Yeats/Watson and Mitchell—were based in part on DNA evidence.
In the Yeats/Watson case, the CRU found the results of new DNA analysis to be the most significant factor in its decision to vacate defendants’ convictions. No DNA analysis had been conducted initially, as the technology existed in only rudimentary form at the time—the crime occurred in 1992 and the trials occurred in 1994, when comparatively large samples of biological material were required to obtain DNA results. As a result of one defendant’s (Yeats) motion to vacate his conviction based in part on newly discovered evidence, however, the medical examiner used newly-available technology and tested DNA recovered from one victim’s clothing as well as DNA from fingernail scrapings of another victim. The DNA profile recovered from the fingernail scrapings excluded both defendants,and was also consistent with the DNA recovered from an unsolved homicide that occurred in 1999—5 years after the trials.Importantly, many of the circumstances of the 1999 homicide matched the circumstances of the Yeats/ Watson case—e.g., similar injuries, the victim was a drug abuser, and the victim was killed at a different location and the body was staged. As discussed above, Mitchell’s DNA was on a hat found outside the store where the shooting took place, evidence which the CRU concluded was fatally undermined because of serious questions about the police account regarding where that hat was found. Another hat was found inside the store, with DNA from an unidentified major contributor and two unidentified minor contributors. The DNA found on this inside hat, however, was never analyzed against Mitchell’s DNA profile, even though one witness claimed that the shooter had this hat and dropped it at the scene. At the CRU’s request, the medical examiner’s office performed this analysis and excluded Mitchell as a potential donor as to any of the DNA recovered on the inside hat. This further undermined the verdict. In light of M.W’s testimony, for Mitchell to have been the shooter, he would have had to possess the inside hat without leaving his DNA on it, drop that hat upon fleeing the location, and then either before or after, have disposed another hat with
his DNA on it at some unknown location outside the store where no one but a canine officer would see it. The CRU determined this to be implausible.


b. Fire Science:

In Martinez/Velasco/Vargas, the three defendants were convicted of arson and felony murder based in part on the fire marshal’s conclusion that the fire was set intentionally. The fire marshal based this conclusion on his determination that the fire originated in two separate locations and his determination that an accelerant was used.
During its investigation, the CRU reviewed a report prepared by a fire investigation expert recently retained by one of the defendants. This expert concluded that the fire marshal’s determination that the fire was intentionally set was not supported by the evidence, based on the following:
  1. 1)  While consistent with common understanding when the investigation was performed in 1980, the fire marshal’s determination that the fire had multiple origins due to multiple low burn patterns does not comport with current knowledge. Modern fire science recognizes that those patterns can be explained by “flashover,” where a fire gets so hot that the entire room catches on fire.
  2. 2)  There was no reliable evidence to suggest that flammable fluid or accelerant was involved in starting the fire. Current fire protection standards provide against identifying the use of a flammable liquid through visual burn patterns, as the fire marshal did here. Rather, further testing or other corroboration is needed, but in this case lab tests came back negative for the presence of flammable liquids.
  1. 3) The fire marshal likely carried expectation bias into his investigation due to the fact that he interviewed the key witness (J.P.)—who claimed the fire was a result of arson—before examining the scene of the fire.
The CRU consulted with another recognized fire investigations expert who generally agreed with this expert’s conclusions. He said that there was not a single piece of evidence that would lead to the conclusion of an intentionally set fire under modern standards, and the fire cause should have been categorized as “undetermined.” The CRU concluded that the fact the jury was informed otherwise fatally undermined the verdict.

c. Medical Evidence:
The CRU investigated two cases in which medical evidence contradicted the prosecution’s theory regarding the details of the crime (Hicks) or the defendant’s physical capacity to commit the crime (Harrison).
As discussed above, medical evidence contradicted the sole eyewitness’s account of the shooting in the Hicks case.228 The witness, N.K., testified that the shooting occurred within a small vestibule, and that, after being shot several times, the victim ran out of the vestibule down five stairs and out to the sidewalk where he collapsed.
The CRU investigated two cases in which medical evidence contradicted the prosecution’s theory regarding the details of the crime (Hicks) or the defendant’s physical capacity to commit the crime (Harrison).
The CRU consulted with a pathologist from the Office of the Chief Medical
Examiner to determine the plausibility of the eyewitness’s account. The doctor
opined that, based on the injuries, the victim would have been immediately
incapacitated, making it virtually impossible for him run from the vestibule
some fifteen feet as the witness claimed he did.
 Furthermore, he explained
that, had the shooting taken place within the vestibule as N.K. claimed, there would have been blood both within the vestibule and on the sidewalk leading from the vestibule to where the victim was found near the curb.
 No blood, however, was found in any of those places. The CRU concluded that the medical and scientific evidence proved conclusively that the shooting did not occur as N.K. testified. As discussed above, none of these anomalies or inconsistencies in the medical evidence was presented to the jury. In Harrison, the defendant was convicted based on the premise that he beat the victim to death during a violent struggle and then dragged the victim’s body some distance to where she was ultimately found. But the defendant’s ability to commit such a crime was questionable based on the fact that he was injured and on crutches at the time. During its investigation, the CRU obtained the defendant’s medical records, which indicated that he had suffered two gunshot wounds less than a year prior to the crime. Furthermore, the records indicated that the defendant experienced several complications and additional surgeries due to the injuries and that those issues were not resolved in the months leading up to the crime. In fact, an examination from less than 3 weeks before the crime showed that the defendant’s leg remained injured and that the defendant had to continue using crutches. Based on these records, the CRU concluded that it would have been very difficult for the defendant to accomplish killing the victim and moving the body consistent with the prosecution’s theory of the crime, which casts doubt on his guilt. The fact that the defendant’s records were not obtained and entered into evidence contributed to the CRU’s finding that the defendant was deprived of a fair trial.

d. Forensic Psychology:

The CRU consulted with forensic psychology experts in two of the exoneration cases. In one case (Bloom), the experts identified issues with defendant’s cognitive ability, and in the other (Davidson), the expert analyzed the record regarding the rape victim’s eyewitness identification and observed the presence of multiple factors supporting a conclusion that she had unconsciously misidentified Davidson as one of her assailants.
As discussed above, Bloom pled guilty to raping a woman with intellectual disabilities, notwithstanding a potentially viable defense that he himself was too intellectually disabled to understand her ability to consent or the crime.
During its investigation, the CRU engaged a forensic psychologist to help determine the extent of the defendant’s (and the victim’s) intellectual disabilities. Based on mental status tests and review of medical records, the psychologist concluded that the defendant suffered from significant neurocognitive disorder and possessed a low IQ equivalent to that of the victim and in the range of mental retardation. She opined that the defendant likely viewed the victim as his equal and could not understand or appreciate that the victim could not legally give consent. She further opined that the defendant was not even able to appreciate what he was pleading guilty to or being sentenced for, which was demonstrated by the defendant’s confused responses during the plea proceedings.
On the basis of these conclusions—which was further supported by an expert independently retained by Bloom’s post-conviction attorneys—the CRU determined that Bloom pled guilty to a crime which he may not have legally committed.Furthermore, the CRU found that defendant’s plea of guilty was probably unknowing and, consequently, involuntary.
As detailed above, the CRU retained an eyewitness identification expert who concluded that N.W.’s identification of Davidson in the rape/robbery was not reliable under modern psychological principles. This expert found that N.W.’s inconsistent accounts over time and other factors demonstrated that she was not encoding memories properly due
to the trauma of the attack.
 Her ultimate identification of Davidson in a lineup can be explained by unconscious transference, given that just days prior she had been shown Davidson’s photo in a photo array (and not identify him
at that time). The expert also explained how the certainty of the victim’s identification in court was likely due to principles of commitment and confidence malleability, in which positive feedback and reinforcement makes the witness more certain of an erroneous identification.
On the basis of these conclusions, the CRU concluded both that there was substantial doubt about the reliability of the rape victim’s identification, and that the prosecution and defense’s failures to appreciate the causes and risks of misidentification denied Davidson a fair trial."


  1. STAY TUNED: Next: Part Three:   The section of the landmark report dealing with...

    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: Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: Please send any comments or information on other cases and issues of interest to the readers of this blog to:  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;