Wednesday, September 30, 2020

Joshua Maxton: Cincinnati: Police misconduct (police suppressed key evidence found at the crime scene that yielded a DNA databank “hit” to an alternate suspect) leads to a quite extraordinary civil rights settlement with the City of Cincinnati: Under the settlement, Independent investigators will review homicide cases for suppressed evidence in their DNA database: "The New York-based Innocence Project and Cincinnati law firm Gerhardstein & Branch have negotiated a settlement with the City of Cincinnati for an unprecedented audit of Cincinnati Police Department’s (CPD) DNA-based homicide cases. This marks the first time that a police department has agreed to turn over years of DNA database reports and homicide case records to a court-appointed, independent auditor to determine whether DNA evidence identifying alternate suspects was properly disclosed. in their DNA database..."

 

QUOTE OF THE DAY: "This settlement is historic. It acknowledges that Josh Maxton sat in jail for more than seven months on a wrongful murder charge, even after police were notified of DNA evidence that supported his longtime claim of innocence,” said Nina Morrison, Senior Litigation Counsel for the Innocence Project. “It also provides a novel and rigorous process to determine if other innocent people in Cincinnati were convicted of crimes they did not commit. Ultimately, this settlement is a powerful tool that protects public safety in Cincinnati — since any undisclosed DNA database ‘hit’ may well mean that the real perpetrator of a crime was identified, but never brought to justice.”

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PASSAGE OF THE DAY: 


RELEASE: "Innocence Project reaches landmark civil rights settlement with City of Cincinnati," released by The Innocence Project.


SUB-HEADING: "Independent investigators will review homicide cases for suppressed evidence in DNA database.


GIST: "September 14, 2020)

"The New York-based Innocence Project and Cincinnati law firm Gerhardstein & Branch have negotiated a settlement with the City of Cincinnati for an unprecedented audit of Cincinnati Police Department’s (CPD) DNA-based homicide cases. This marks the first time that a police department has agreed to turn over years of DNA database reports and homicide case records to a court-appointed, independent auditor to determine whether DNA evidence identifying alternate suspects was properly disclosed.   in  their DNA database.


"The settlement arises from a civil rights lawsuit filed in 2018 by the Innocence Project and Gerhardstein & Branch against the City and two police officials on behalf of Joshua Maxton. In June 2015, 26-year old Maxton, a Black man, was arrested for the murder of an 18-year-old Black woman who was shot and killed while sitting in a parked car in the North Avondale neighborhood of Cincinnati. Maxton was charged with murder and jailed for a year before trial. At all times, he maintained his innocence and turned down plea offers. Ultimately, he was unanimously acquitted by a jury in June 2016.


In the middle of Maxton’s trial, his defense attorneys learned for the first time that the Cincinnati Police Department had been notified seven months earlier, while Maxton was in jail, that key DNA evidence found at the crime scene yielded a DNA databank “hit” to an alternate suspect: Dante Foggie. The defense had always contended that Foggie was the lone shooter responsible for the murder because two neutral eyewitnesses contacted the Police Department to identify Foggie as the killer after Maxton’s arrest. Yet the database search showing that Foggie’s DNA was on a soda can dropped where the fatal bullet was fired was never disclosed to the defense. It only emerged by chance in the middle of the trial when a crime lab witness testified about it.

In addition to the historic audit, Maxton will receive a financial settlement as compensation for the seven months he spent in jail between the date that the CODIS database report was generated and the date of his acquittal.

The audit will be overseen by a “Special Master” appointed by the court. Federal Magistrate Judge Stephanie Bowman has appointed Chicago lawyer Ronald Safer, a former federal prosecutor and an experienced criminal defense and civil rights attorney, to serve in that role. Safer, who is donating his time to the audit, will work with a team of pro bono attorneys and students from the Ohio Innocence Project to review the cases in question.

Under the settlement agreement, the audit team will conduct a comprehensive investigation into a subset of homicide cases to determine whether DNA database evidence obtained by the CPD was properly disclosed to convicted persons, as is required by the law. The audit criterion covers cases from June 2011 to June 2018. The cases must involve DNA test results obtained during the investigation where the identified DNA did not come from the convicted person or the victim. Specifically, the auditors will determine whether a search of the FBI’s CODIS DNA database identified another individual, or a cross-match between crime scenes, as the source of this DNA — known more commonly as a “CODIS hit.” In any case where the CPD obtained a CODIS hit to someone other than the convicted person or the crime victim, the audit team will review CPD case files and correspondence to determine whether that information was disclosed. The Special Master will have the authority to provide any undisclosed CODIS information to the convicted person or their last-known counsel.  

“This settlement is historic. It acknowledges that Josh Maxton sat in jail for more than seven months on a wrongful murder charge, even after police were notified of DNA evidence that supported his longtime claim of innocence,” said Nina Morrison, Senior Litigation Counsel for the Innocence Project. “It also provides a novel and rigorous process to determine if other innocent people in Cincinnati were convicted of crimes they did not commit. Ultimately, this settlement is a powerful tool that protects public safety in Cincinnati — since any undisclosed DNA database ‘hit’ may well mean that the real perpetrator of a crime was identified, but never brought to justice.”  

The FBI’s CODIS database is an electronic compilation of over 18 million DNA profilestaken from people arrested for and convicted of crimes throughout the United States. It is regularly used by law enforcement to identify suspects and prosecute crimes, and it is a powerful tool for exonerating the wrongly accused and convicted. While other police agencies have made certain CODIS “hit” reports available to lawyers for the wrongly convicted as part of more limited DNA reviews, this settlement marks the first time an outside team of attorneys will have the opportunity to review CODIS hit reports along with the underlying paper trail and records of police homicide investigations. The settlement also provides that the Special Master will confer with a range of stakeholders in Hamilton County, Ohio, to review and recommend improved procedures for timely disclosure of DNA/CODIS evidence going forward. 

“What happened to Josh Maxton was an unconscionable breakdown of due process. Josh Maxton was innocent, yet he nearly went to prison for the rest of his life for a murder he did not commit,” said Jennifer Branch, a partner at Gerhardstein & Branch and one of Mr. Maxton’s lawyers. “We commend the City Solicitor and Mayor of Cincinnati for recognizing that the audit to identify if DNA/CODIS evidence was not disclosed is critical to determine whether any other Cincinnati citizens were wronged in a similar fashion. We appreciate their cooperation in this truly historic settlement, one that will only further a joint search for the truth."

The entire release can be read at:

https://www.innocenceproject.org/innocence-project-reaches-landmark-civil-rights-settlement-with-city-of-cincinnati/ 


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;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Tuesday, September 29, 2020

Robert DuBoise: Florida: Flawed bite-mark evidence/jailhouse informant case: Piling injustice upon injustice... "Despite being wrongfully imprisoned on rape and murder charges for 37 years, Robert DuBoise, proved innocent by DNA evidence and fully exonerated on Tuesday, is not eligible for state compensation," the Florida Phoenix (Reporter Laura Cassel)..."At the age of 18, he was convicted of raping and murdering Barbara Grams based on now-discredited bite-mark evidence and testimony from a jailhouse informant, also since discredited. Overlooked DNA evidence unearthed in a review of his conviction proved he was not Grams’ attacker."


PASSAGE OF THE DAY: "Two exonerations covered by the Florida Phoenix are cases in point:

Clifford Williams, wrongfully convicted of murdering a Jacksonville woman, was imprisoned for 43 years before the Innocence Project of Florida, an affiliate of the Innocence Project, collaborated with prosecutors to prove him innocent. Williams was ineligible for compensation due to the clean-hands provision. It took a special act of the 2020 Legislature to award him $2.15 million anyway.

Clemente Aguirre-Jarquin, also assisted by Innocence Project of Florida, was wrongfully imprisoned for 14 years for a murder he did not commit. The Florida Supreme Court vacated his conviction in 2016, triggering a 90-day deadline to file for compensation, but the prosecutor in his case demanded a retrial, keeping him behind bars for another two years. By the time Seminole County State Attorney Phil Archer, now president of the Florida Prosecuting Attorneys Association, dismissed charges against Aguirre-Jarquin in 2018, the deadline to seek compensation was long expired. A special bill of the Legislature was filed on Aguirre-Jarquin’s behalf in 2020 but did not pass. Bipartisan legislation last spring by Sen. Rob Bradley and Rep. Bobby DuBose to extend the compensation filing deadline to two years and to eliminate the clean-hands provision failed to pass."

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STORY: "Wrongfully imprisoned  man is finally free - but ineligible for nearly  $2 million  in state compensation: Why?," by reporter Laura Cassels, published big The Florida Phoenix on  September 15, 2020.

GIST: "Despite being wrongfully imprisoned on rape and murder charges for 37 years, Robert DuBoise, proved innocent by DNA evidence and fully exonerated on Tuesday, is not eligible for state compensation.


That’s because he had two prior felonies when he was 17 — considered non-violent property crimes.

Florida law allows wrongfully convicted people to be compensated by up to $50,000 for each year they were behind bars for crimes they did not commit. That would make DuBoise, now 55, eligible for more than $1.8 million of compensation.


Instead, Florida’s “clean hands” provision blocks compensation for a wrongfully convicted person who already had more than one felony on his or her record.


Attorneys for DuBoise described the felonies as non-violent property crimes – burglary (by entering an unlocked, vacant home) and grand theft (possession of stolen bicycles worth more than $300) – committed when he was 17 and for which he was sentenced to probation.


At the age of 18, he was convicted of raping and murdering Barbara Grams based on now-discredited bite-mark evidence and testimony from a jailhouse informant, also since discredited. Overlooked DNA evidence unearthed in a review of his conviction proved he was not Grams’ attacker.


Details of DuBoise’s offenses at age 17 could not be readily verified because files from 1982 are hard to access, according to court officials in Hillsborough County, where DuBoise was convicted in 1983 and was exonerated on Tuesday. The national Innocence Project, a legal-aid organization, and the conviction-review unit established by the 13th Judicial Circuit State Attorney’s Office in 2018 collaborated to investigate and overturn the conviction.


According to the  Innocence Project, only five of the 31 wrongfully convicted Floridians exonerated since 2008 have been awarded state compensation.


The majority are disqualified despite having been proved innocent because of the clean-hands provision or because they were unavailable to file for compensation in time to meet the tight deadline.


Two exonerations covered by the Florida Phoenix are cases in point:

Clifford Williams, wrongfully convicted of murdering a Jacksonville woman, was imprisoned for 43 years before the Innocence Project of Florida, an affiliate of the Innocence Project, collaborated with prosecutors to prove him innocent. Williams was ineligible for compensation due to the clean-hands provision. It took a special act of the 2020 Legislature to award him $2.15 million anyway.

Clemente Aguirre-Jarquin, also assisted by Innocence Project of Florida, was wrongfully imprisoned for 14 years for a murder he did not commit.


The Florida Supreme Court vacated his conviction in 2016, triggering a 90-day deadline to file for compensation, but the prosecutor in his case demanded a retrial, keeping him behind bars for another two years.


By the time Seminole County State Attorney Phil Archer, now president of the Florida Prosecuting Attorneys Association, dismissed charges against Aguirre-Jarquin in 2018, the deadline to seek compensation was long expired.


A special bill of the Legislature was filed on Aguirre-Jarquin’s behalf in 2020 but did not pass.

Bipartisan legislation last spring by Sen. Rob Bradley and Rep. Bobby DuBose to extend the compensation filing deadline to two years and to eliminate the clean-hands provision failed to pass."


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The entire story can be read at:

https://www.floridaphoenix.com/2020/09/15/wrongfully-imprisoned-man-is-finally-free-but-ineligible-for-nearly-2-million-in-state-compensation-why/

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;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Monday, September 28, 2020

Ronnie Long: North Carolina: Thank you change.org for pointing out that, "Ronnie Long has been officially added to the National Registry of Exonerations. He is #3 for longest time served as an innocent person. This is a list no one wants to be on."...change.org also points out that Ronnie Long still needs Governor Cooper to pardon him in order for him to receive any type of compensation from the State of NC. Link to National Registry entry provided:

Dear Readers: Check out the new post for my 'Selfless Warriors Blog' published earlier today at the link below:
'The lawyer, the journalist, and the scientist. A trio of ’Selfless Warriors’ whose lives were disrupted when they became personally involved - apart from their respective professional roles -  in the case of  David Dougherty who had been convicted of the abduction and rape of an  11-year old girl. Initially,  to Murray Gibson, the lawyer,  it was “just another case.’ To  Donna Chisholm, the  Sunday Star Times journalist  it was ‘a great story.’ To Arie Geursen, the scientist,  "the science was straight forward. They had the wrong man.” Little did they know that they would  become personally involved in a five year battle through a harrowing retrial, a protracted bid for compensation and the eventual arrest of the real rapist. The Sunday Star Times tells their gripping story in an article bearing the heading, “Falsely imprisoned’:  David Dougherty’s story," which ran  on May 30, 2009,  about eight years before David Dougherty tragically died on April 20, 2017, free but just 50 years old. '
selflesswarriors.blogspot.com
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The National Registry of Exonerations entry for Ronnie Long,  by Ken Otterbourg, can be read in its entirety at the link below:

PASSAGE OF THE DAY: "During the trial, the state sought to introduce testimony comparing the burnt matches found at the crime scene with the matchbooks found in the Long family car. Long’s attorneys fought to suppress this evidence. With the jury not present, Long’s attorneys sought more information about the testing done on the matches. First, Detective David Taylor said the officers had taken the matches from the car because they were similar to those found at Bost’s house. When asked if they matched, he responded, “I didn’t match them, no sir.” Judge William Z. Wood asked, “Then they were not matched?” Taylor said that was correct. “In other words,” asked Wood, “the matches you got out of the car do not match with those found at the crime scene?” Taylor said, “I can’t testify to that.” Finally, Wood asked Taylor if he had any information about comparing the matches, to which Taylor replied, “No sir, they did not match.” But with the jury present, Taylor repeated his claim that the matches he found in the Long family car were “of a similar nature” to burned matches found in Bost’s house. Detective Van Isenhour also testified about the investigation of the crime scene and the processing of evidence. He said that he had processed the shoe print on the banister and then also made a print of Long’s shoes for comparison. He testified that on May 11, 1976, he had brought this evidence to the SBI crime lab. He was asked if that evidence had ever left his possession or control. He replied that it hadn’t. He also said that Taylor had given him other evidence, including a leather jacket, the green hat, and the matches. He testified that the jacket had also never left his control. He made no mention of this evidence being tested. Dennis Mooney, the SBI’s print expert, testified about the footprints. He told jurors that the print on the banister “could have been made” by Long’s shoe, but he was not sure and it was not a “positive identification.”

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GIST: "It was just after 9:30 p.m. on April 25, 1976, when a man broke into a house on South Union Street in Concord, North Carolina, by climbing up a white banister and then entering through a window off the porch roof.

Sarah Bost, a 54-year-old widow, was home alone. She told police that the perpetrator surprised her in the kitchen, put a knife to her throat, and demanded money. But there was none in her purse, and Bost said the man then dragged her to the stairs, ripped off her clothing and raped her. She would later say that she kept trying to look at the man’s face, but he kept pushing her head to the side and telling her “Don’t look at my face.” She said she fought back. A medical report would note that some of her fingernails were “nearly bent backwards.” 

About 10 minutes into the attack, Bost’s phone rang. The assailant fled. Bost ran to a neighbor’s house, called 911, and was taken to Cabarrus Memorial Hospital. Along with treating Bost for the bruises and cuts she received in the attack, Dr. Lance Monroe combed her pubic area for hair samples and did a vaginal swab, in accordance with the emergency room’s rape protocols. 

At the hospital, two officers with the Concord Police Department showed Bost a photo array of 13 Black men between the ages of 20 and 30 years old. Bost, who was white, did not make an identification. But in the officers’ report, she described her attacker as “a Black male, height, five foot, five to five foot nine, slender build, slim hips. Subject was plain spoken, used correct English and at times spoke very softly. No speech defect, accent or noticeable brogue evident. Subject was wearing a dark waist length leather jacket, blue jeans with a dark toboggan pulled over his head. Could possibly have been wearing gloves.” 

Her initial descriptions included no mention of any facial hair. She would later describe her attacker as being “light-skinned” or “yellow,” or “not your normal black person.” 

The Concord Police Department’s investigation of the crime scene turned up several pieces of evidence. They found burned out matches on the floor of a bedroom near the window ledge off the porch roof. They also found a shoe print on the banister, and investigators were able to lift an impression of it.

A few days after the attack, 20-year-old Ronnie Long became a person of interest in the investigation. At the time, Concord police knew that Long had been a suspect in an investigation of a similar rape and burglary in Washington D.C. in August 1975 after his Social Security card was found at the crime scene. (No charges were ever filed. The victim was unable to make an identification; Long’s attorneys would later say he had lost his wallet while visiting the city.)

Police arrested Long on April 29, 1976 and charged him with trespassing in the public park near his home, which was about a mile or so from Bost’s house. He came to the police station the next day to be fingerprinted and photographed. A report noted he wore a waist-length black leather jacket and black gloves, and that he kept his gloves on for most of his time at the station. The report said “He was able to do things as normal as someone without gloves. He was able to take out of his billfold his drivers [license].” 

At the time, Long worked as a cement mason and lived with his parents. His court date on the misdemeanor trespassing charge was May 10. 

Although Concord police had a photo of Long to show Bost, they decided on another route. They asked her to accompany them to the courthouse on May 10, telling Bost that the man who raped her might or might not be present. Bost sat in the second row, disguised with a red wig and sunglasses. 

When Long’s case came up an hour or so later, he walked around to the defense table, wearing a flowered leisure shirt and a medium-length brown leather jacket. Even before Long spoke, Bost notified the officers that Long was her attacker. Later, at the police station, Bost picked Long’s photo out of an array. He was the only person in the array wearing a leather jacket.

Long’s trespassing charge had been dismissed, but the police showed up at his house a few hours later and told him he needed to return to the station to clear up a few matters. When he arrived, they arrested him and charged him with rape and burglary. For the next 44 years, he would remain behind bars. When police searched Long’s family car in the station’s parking lot, they found a green toboggan and some gloves. Long said he had never seen the hat. They also found several matchbooks. 

Long’s trial in Cabarrus Superior Court began on September 27, 1976, after a summer of demonstrations and protests surrounding his arrest. Prior to the voir dire of potential jurors, the Cabarrus County sheriff and other members of law enforcement reviewed a list of potential jurors and disqualified people from being called for jury duty. The county kept no record of the reasons for disqualification. The 49-person jury pool contained just two Black residents, and an all-white jury was seated for the trial. (At the time, Cabarrus County was approximately 20 percent Black.)

Bost testified that she was sure Long was her attacker, but her testimony differed from her earlier description and with Long’s appearance. Now, she said that her attacker wore a mustache. And she also continued to state that her attacker was light-skinned, although Long was dark-skinned. 

Monroe testified about the severity of Bost’s injuries and his examination of the vaginal fluid. He was not asked and did not testify about any samples he collected. 

During the trial, the state sought to introduce testimony comparing the burnt matches found at the crime scene with the matchbooks found in the Long family car. Long’s attorneys fought to suppress this evidence. With the jury not present, Long’s attorneys sought more information about the testing done on the matches. First, Detective David Taylor said the officers had taken the matches from the car because they were similar to those found at Bost’s house. When asked if they matched, he responded, “I didn’t match them, no sir.” Judge William Z. Wood asked, “Then they were not matched?” Taylor said that was correct. “In other words,” asked Wood, “the matches you got out of the car do not match with those found at the crime scene?” Taylor said, “I can’t testify to that.” Finally, Wood asked Taylor if he had any information about comparing the matches, to which Taylor replied, “No sir, they did not match.”

But with the jury present, Taylor repeated his claim that the matches he found in the Long family car were “of a similar nature” to burned matches found in Bost’s house.

Detective Van Isenhour also testified about the investigation of the crime scene and the processing of evidence. He said that he had processed the shoe print on the banister and then also made a print of Long’s shoes for comparison. He testified that on May 11, 1976, he had brought this evidence to the SBI crime lab. He was asked if that evidence had ever left his possession or control. He replied that it hadn’t. He also said that Taylor had given him other evidence, including a leather jacket, the green hat, and the matches. He testified that the jacket had also never left his control. He made no mention of this evidence being tested.

Dennis Mooney, the SBI’s print expert, testified about the footprints. He told jurors that the print on the banister “could have been made” by Long’s shoe, but he was not sure and it was not a “positive identification.”

Long did not testify, but he presented a strong alibi for the night of April 25, which was a Sunday. Witnesses said he had attended a meeting to plan a class reunion until about 8 p.m. He then went home from around 8:30 to 10 p.m., before leaving for a party in Charlotte, about 25 miles away. Witnesses said that while he was at home, he talked on the phone with his mother, his two-year-old son and the boy’s mother. People who saw him at the party testified that he had no bruises or signs of a struggle on his body. They also agreed that he was wearing khakis, not jeans, at the party and the reunion meeting, because at least one witness said he was at both events and made fun of Long’s attire. In addition, the witnesses said they never saw Long wear a toboggan. He favored leather hats.

In closing arguments, the prosecutor said, “We have shown that Ms. Bost’s testimony is not only accurate, but totally consistent with every piece of physical evidence existent. Everything she says happened that is capable of being corroborated by physical evidence ... is so corroborated.”

When Long’s attorneys argued there was no physical evidence that connected Long to the attack, prosecutors responded by saying that the absence of this evidence showed the honesty of the police, because it would have been easy for officers to rub Long’s clothing against the banister and put paint on the garments.

Rioting broke out in Concord after the jury convicted Long of burglary and rape on October 1, 1976. At the time of Long’s arrest, a rape conviction carried a mandatory death penalty in North Carolina, but the U.S. Supreme Court had struck down the state’s overly broad death penalty on July 2, 1976. He was sentenced to life in prison. 

Long’s first appeal claimed that Bost’s pre-trial identification was “impermissibly suggestive” because of flawed practices by the Concord Police Department. He also said the police searched his car without consent and that the shoe print testimony should have been excluded. The North Carolina Supreme Court rejected his appeal in 1977. 

In 1986, Long filed a Motion for Appropriate Relief, again arguing that the car search was illegal. Long also claimed that the jury selection was improper and racially biased. In addition, he said his attorneys had been ineffective in failing to adequately challenge the jury’s composition. The North Carolina Supreme Court denied his motion in 1988. 

Long then moved his appeals to federal court, raising many of these same issues in his first petition for a writ of habeas corpus. That petition was denied in 1990. 

On April 20, 2005, the North Carolina Center for Actual Innocence filed a motion on Long’s behalf asking a superior court judge to order the SBI, the Cabarrus County District Attorney’s Office, and the Concord Police Department to turn over all records and evidence collected in the case. The court granted the motion on June 7, 2005, and also ordered the hospital to turn over any records.

At a hearing a week later, the SBI said the only evidence it knew about was the shoe print. The police said they had a master case file, but the district attorney said a review of that file found “nothing of evidentiary value.” 

The records released by the hospital included Monroe’s report, which showed a release form signed by Bost allowing the hospital to turn over pubic hair samples and a test tube of vaginal samples to the Concord Police Department. An officer signed the form, stating that he had received the evidence.

Although the district attorney had downplayed the value of the master file, it contained significant information about the investigation and the evidence collected. 

The files showed that Isenhour had created two evidentiary reports, one undated and the other dated May 12, 1976. The undated report said that Isenhour had only taken the shoe prints to the SBI, while the other evidence had been held for further “investigative uses.” The May 12 report told a different story, stating that 14 pieces of evidence – clothes from Bost and Long, hair samples, carpet samples, and paint chips – were taken to the crime lab.

Six months later, the SBI turned over the evidence reports to Long’s attorneys. 

The reports said that the hair found at the crime scene was different from Long’s and more reddish in color. It also said no hair consistent with Long’s was found in Bost’s clothing, and Long’s clothing showed no paint or carpet fibers similar to the samples from Bost’s house. In addition, the report said that four of the five matchbooks found in the car were of a different color than the burnt matches found at the crime scene. The fifth lacked sufficient identifying characteristics, but the analyst said the burnt matches “probably didn’t originate from this matchbook.” 

In addition, the report made clear that Isenhour had not testified truthfully. He said the only evidence he had taken to the SBI was the shoe print, and that it had never left his control. In fact, the SBI had kept all the evidence that Isenhour brought for eight days. 

These SBI reports and related documents became the basis of a second Motion for Appropriate Relief Long filed in 2008, claiming that he was entitled to a new trial because the state had failed to turn over exculpatory evidence to his attorneys. This requirement is based on the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland. To win a new trial based on a Brady violation, a defendant must show that evidence was not disclosed, that it was favorable to the defendant, and that its disclosure had a reasonable probability of changing the verdict. 

During an evidentiary hearing on the motion, the prosecutor at Long’s trial said he had never seen the SBI reports, and that if he had, he would not have allowed Isenhour to testify in the manner that he did. 

But the state pushed back on Long’s Brady claims, arguing that the SBI reports that failed to connect him with the crime were inconclusive, rather than exculpatory, and were therefore immaterial. In addition, prosecutors noted that Long’s attorneys had plenty of opportunity to ask Monroe and the police officers about whether other tests had been performed. But they didn’t, and the state shouldn’t be penalized for a defense attorney’s trial strategy. 

During the hearing, James Fuller, one of Long’s trial attorneys, said that the reports would have played a powerful role in undercutting Bost’s testimony. 

“I got one test here that does not implicate you,” he said. “Okay. I’ve got a second test that does not implicate you. And now the jury is paying attention. And now I’ve got a third test and a fourth test, and pretty soon it creates a snowball effect that you’re not the defendant. And that’s why I believe every one of those tests was critical.”

On February 20, 2009, Judge Donald Bridges of Cabarrus County Superior Court denied Long’s Motion for Appropriate Relief. He said there was no proof that the police or the district attorney’s office had ever received Monroe’s report, and that the defense had failed to ask Monroe any questions about his examination of Bost. Bridges wrote that the SBI lab reports didn’t provide meaningful analysis, which meant the state’s failure to disclose wasn’t a Brady violation. 

Jurors, Bridges said, had a chance to examine the evidence, if not hear about the reports, and that not all of the undisclosed evidence was beneficial to Long. “The cumulative effect of any items with any value is so minimal that it would have had no impact on the outcome of the trial.” 

Long appealed this ruling to the N.C. Supreme Court, which has seven justices. Justice Barbara Jackson was elected in 2010, after oral arguments had been held, and she took no part in the decision released on February 4, 2011. The remaining six justices deadlocked, affirming the lower court’s decision by default. 

Long then began a second series of appeals through the federal courts. He filed a petition for a writ of habeas corpus in U.S. District Court for the Middle District of North Carolina in 2012 that was dismissed because he had not obtained pre-filing authorization. 

After that dismissal, Long’s attorneys contacted the North Carolina Innocence Inquiry Commission, a state agency that investigates and makes recommendations on claims of innocence. As part of the commission’s initial review, it obtained 43 fingerprints – previously undisclosed, even after the 2005 order – that had been lifted from the crime scene by investigators with the Concord Police Department. Long’s fingerprints were excluded as contributors. Four of the prints were of sufficient quality to run through state and national databases. The Concord police said its comparison returned “no possible contributors,” but declined to state which databases they had queried. While Bost, who died in 2015, had testified that her attacker wore gloves, the burned matches suggested the attacker had taken them off at some point during the crime because it would be difficult to strike a match while wearing gloves. 

The vaginal samples collected by Monroe were never located. Because of a lack of DNA evidence in Long’s case, the Innocence Commission decided not to pursue further investigation.

Now represented by attorneys with Duke University’s Wrongful Convictions Clinic, Long filed a third petition for a writ of habeas corpus in 2016. This petition said that the fingerprints were new evidence of innocence, part of a legal strategy to allow Long to get around the limitations on successive appeals, although later federal court rulings said that Long needed first to litigate the fingerprint claim in state court. 

The petition argued that Bridges had erred in weighing the materiality of the state’s Brady violations and that Bost’s initial identification of Long was inherently flawed. His attorneys said there had been no need to bring her to the courthouse, where Bost waited nervously in disguise while a stream of Black men charged with crimes paraded past.

“Holding the procedure in a courtroom further enhanced the likelihood that the victim would select someone despite his possible innocence, because the courtroom itself conveys a message that the persons present were criminals,” the petition said. While Bost later selected Long from a photo array 20 minutes after the courtroom identification, Long’s attorneys said that selection was contaminated because Bost was “primed” to pick Long. 

Long’s petition was independently supported by dozens of attorneys, legal scholars and criminologists, whose brief provided context about the challenges of eyewitness identifications and the forensic evidence at the heart of the appeal.

The petition argued that Bridges’s ruling ran counter to federal law by trivializing the importance of the undisclosed evidence. Although this evidence didn’t directly exonerate Long, the petition said that it was exculpatory, and that it discredited the police investigation and impeached the state’s witnesses. Equally important, the petition said, it was the obligation of prosecutors to turn over this sort of evidence. The burden does not rest on defense attorneys to ask whether it existed. 

U.S. Magistrate Judge L. Patrick Auld recommended denying Long’s petition on May 22, 2018. While his findings acknowledged significant legal errors by Bridges in his interpretation of what constitutes exculpatory evidence, Auld agreed that the evidence wasn’t sufficiently material to have made a difference at trial. He said Bost’s identification was strong and decisive, and while her initial identification was “unorthodox,” Long’s attorneys couldn’t point to how it violated Long’s rights as a defendant. The district court adopted Auld’s recommendations. Long appealed to the U.S. Court of Appeals for the Fourth Circuit, where a three-judge panel heard arguments in March 2019.

By a 2-1 vote, the appellate court rejected Long’s appeal on January 8, 2020. In the majority opinion, written by Judge Julius Richardson and joined by Judge Paul Niemeyer, the court said that Bridges had not been unreasonable in how he viewed the materiality of the undisclosed evidence. The opinion said that most “jurors would consider the impeachment evidence peripheral.” The opinion also said that Congress had created a necessary high bar for defendants seeking relief in federal court, placing “great weight on the values of federalism and finality.”

Judge Stephanie Thacker wrote the dissent. She noted that Bost’s identification was neither as strong nor as consistent as previous courts or her colleagues had ruled. While the majority opinion said that Isenhour had offered an “incomplete picture of the testing he requested,” Thacker was more pointed. She wrote: “In short, he lied. Repeatedly.” (Isenhour pled guilty to possession of a stolen U.S. Treasury check in 1987 and was sentenced to four years in prison.)

Thacker criticized prosecutors for arguing during the years of appeals that Long’s attorneys should have tested the material themselves or asked the state’s witnesses whether items had been tested. 

“This argument is nonsensical and offensive. Such an argument completely turns the burden of proof in criminal cases on its head. Again, I am shocked as to the apparent need to educate the state that the burden of proof in criminal cases rests with the state, and remains with the state throughout the course of the trial.”

She closed by writing, “In this circumstance, Appellant must prevail. To hold otherwise would provide incentive for the state to lie, obfuscate, and withhold evidence for a long enough period of time that it can then simply rely on the need for finality. That, I cannot abide.”

Because of the split decision, Long petitioned the Fourth Circuit court for what is known as an en banc review of his case. (Less than 1 percent of these requests are granted.) On August 24, 2020, the judges, by a 9-6 vote, reversed the dismissal of Long’s petition. 

Now in the majority, Thacker wrote: “A man has been incarcerated for 44 years because, quite simply, the judicial system has failed him. Rather than overstepping our judicial role, as the dissent contends, today we remain faithful to our oath by “administer[ing] justice.”""

Judge Catherine Eagles of U.S. District Court granted Long’s petition for a writ of habeas corpus on August 27, 2020, and he was released from prison that day. The Cabarrus County District Attorney’s Office dismissed the charges on August 28. 

Long is now seeking a pardon of innocence from Gov. Roy Cooper, which would allow him to receive compensation for his wrongful conviction. Cooper served as attorney general from 2001-2017, and his office played a key role in representing the state during Long’s unsuccessful appeal of the order denying his 2008 Motion for Appropriate Relief. 

Long married in 2014, and he told CBS News that he wanted to spend time with his family and his son. He said he wanted to visit the graves of his parents, long dead. “I know my mother and father died with a broken heart. I’m gonna tell them now, when I visit the gravesite, ‘Your son is clear.’”


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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
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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;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;

Sunday, September 27, 2020

John Norman Huffington: Retired prosecutor Joseph Cassilly: Maryland: Dirty tricks? (A discredited FBI agent Michael Malone flawed hair and fibre analysis case.)... Board which investigates complaints against attorneys alleges that prosecutor intentionally suppressed reports and letters that found fault with a portion of the forensic evidence. "The Maryland Attorney Grievance Commission has asked the courts to discipline former Harford County State’s Attorney Joseph Cassilly for allegedly withholding evidence related to the so-called Memorial Day Murders, a gruesome double killing in Abingdon nearly 40 years ago. The case has been the subject of a decades-long legal fight. Cassilly twice prosecuted John Norman Huffington for the murders; the courts twice reversed his conviction to grant new trials. In November 2017, the two men agreed to a plea deal. Huffington was released for time served: 32 years, two months. Now, the Attorney Grievance Commission’s bar counsel — which investigates complaints against attorneys — alleges Cassilly intentionally suppressed reports and letters that found fault with a portion of the forensic evidence.'"

PASSAGE OF THE DAY: "Over the ensuing years, a series of reports by the FBI and an independent analyst found fault with Malone’s testimony, according to the complaint by the attorney grievance commission. In 1999, the Justice Department hired a hair and fiber analyst who reviewed Malone’s work in various cases and found mixed results. The analyst was unable to conclude that Malone performed his tests in a scientifically acceptable manner, the bar counsel wrote. These records were not turned over to Huffington or his lawyers, they wrote. Further, they alleged, Cassilly told the courts there were no problems with Malone’s testimony. Huffington obtained one of the reports from a reporter at The Washington Post. He sought a new trial. By 2013, the FBI was saying the hair samples did not match him, the attorneys wrote. The FBI declined a request for comment this week from The Baltimore Sun. Cassilly said he offered Huffington a plea deal rather than retry a 35-year-old case."

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STORY: "Maryland panel claims ex-Harford prosecutor Casually withheld evidence in 1981 double murder, seeks discipline," by Reporter Tim Prudente, published by The Baltimore Sun on September 15, 2020.

GIST: "The Maryland Attorney Grievance Commission has asked the courts to discipline former Harford County State’s Attorney Joseph Cassilly for allegedly withholding evidence related to the so-called Memorial Day Murders, a gruesome double killing in Abingdon nearly 40 years ago.


The case has been the subject of a decades-long legal fight. Cassilly twice prosecuted John Norman Huffington for the murders; the courts twice reversed his conviction to grant new trials. In November 2017, the two men agreed to a plea deal. Huffington was released for time served: 32 years, two months.


Now, the Attorney Grievance Commission’s bar counsel — which investigates complaints against attorneys — alleges Cassilly intentionally suppressed reports and letters that found fault with a portion of the forensic evidence. He retired in January 2019 after 36 years as state’s attorney for Harford County.


In a phone call Monday, he disputed the allegations and downplayed the significance of these records.


“It was irrelevant and did not bear on the overwhelming evidence against this guy,” Cassilly said. “Why the Attorney Grievance Commission wants to waste their time pursuing me on this is absolutely a complete puzzle to me. ... I haven’t practiced law in two years. I’m retired. What do they want?”


Huffington, meanwhile, said he would have gained his freedom years earlier had the records come to light. In November 2018, he filed a complaint against Cassilly to launch the commission’s investigation.


“My case has concluded; it’s not even about that,” Huffington said. “It’s about the truth, and it’s about maintaining the integrity of our system."


Their legal fight traces back to the early morning hours of Memorial Day 1981. Police found Diane Becker, 21, stabbed and beaten to death with a bottle in her camper home in an Abingdon RV park. They found her 4-year-old son in the camper too, traumatized but unhurt. Police found her boyfriend, Joseph Hudson, a popular local disc jockey, shot to death a few miles away on a path to a farm.


Prosecutors tried Huffington and an accomplice, Deno Kanaras, separately for the murders, saying the two friends killed the couple over cocaine and money. A jury convicted Kanaras of felony murder in Becker’s death. He was released from prison in 2008 after serving 27 years of a life sentence.


Kanaras was a key witness in the prosecution of Huffington. A jury convicted Huffington of two counts of felony murder; he was sentenced to death. He won a new trial in December 1982 on arguments that prosecutors presented inadmissible evidence. During his retrial, FBI agent Michael P. Malone testified that hair samples recovered from Becker’s camper matched Huffington. He was again convicted of two counts of felony murder and, ultimately, sentenced to life in prison.


Cassilly said the evidence went beyond the hair match to include Huffington’s fingerprint on the bottle and $980 in cash taken in the murders.


“Even without Malone’s testimony," Cassilly said, “the evidence against this guy was overwhelming.”


Over the ensuing years, a series of reports by the FBI and an independent analyst found fault with Malone’s testimony, according to the complaint by the attorney grievance commission.

In 1999, the Justice Department hired a hair and fiber analyst who reviewed Malone’s work in various cases and found mixed results. The analyst was unable to conclude that Malone performed his tests in a scientifically acceptable manner, the bar counsel wrote.


These records were not turned over to Huffington or his lawyers, they wrote. Further, they alleged, Cassilly told the courts there were no problems with Malone’s testimony.


Huffington obtained one of the reports from a reporter at The Washington Post. He sought a new trial. By 2013, the FBI was saying the hair samples did not match him, the attorneys wrote.


The FBI declined a request for comment this week from The Baltimore Sun.


Cassilly said he offered Huffington a plea deal rather than retry a 35-year-old case. Huffington submitted an Alford plea to two counts of murder in exchange for time served. With an Alford plea, a defendant maintains his innocence but acknowledges there’s enough evidence to convict.


In their petition, the Attorney Grievance Commission lawyers accuse Cassilly of misconduct for failing to disclose the reports. They asked the Maryland Court of Appeals to discipline or fine the retired prosecutor, but left any punishment up to the courts.


Cassilly said he’s mystified: “I’m still trying to figure out what the bar counsel is trying to accomplish.” The matter could be resolved at trial.


“Too often we see this in cases," Huffington said, "where prosecutors get away with these kinds of things. They are not challenged. They are not scrutinized. I’m grateful that happened in this case.""


The entire story can be read at:

https://www.baltimoresun.com/maryland/harford/bs-md-cr-joseph-cassilly-discipline-20200915-funczwyaafen5gavehwrtirycq-story.html

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;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Saturday, September 26, 2020

Cheron Shelton; Robert Thomas: Pennsylvania: Jailhouse informants: Another important expose by The Appeal (Reporter Jerry Iannelli) - this time on how Pittsburgh prosecutors relied on a man who allegedly killed a baby as a witness in this series of bungled cases that highlights law enforcement’s long-troubled use of jailhouse informants who agree to testify in separate legal cases in exchange for benefits such as reduced sentences.

Jailhouse informants have probably been around for as long as there have been jails and inmates willing to trade information for a favor or two — including more privileges or a shorter sentence. “Incentivized informants” is the legal term of art, but too often they also have “a strong incentive to lie,” said Michelle Feldman, state campaigns director for the Innocence Project. That explains why, according to the project’s figures, 16 percent of DNA exonerations involved false testimony by informants. Broader studies of wrongful convictions put the figure as high as 46 percent. Innocent people have spent decades in prison while the guilty remained free, and often the victims of those informants never see justice either — a lose-lose-lose for the criminal justice system.
Boston Globe Editorial:  February 15, 2020.
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QUOTE OF THE DAY: "“In 2018, the Allegheny County DA’s office made the decision to release Gregory Parker, a confessed baby killer, in order to salvage their death penalty case against Cheron Shelton and Robert Thomas,” Paul Jubas, an attorney representing both Shelton and White’s family, told The Appeal. As part of the family’s complaint, they’ve demanded that Zappala’s office be taken off the Parker case“They decided to use Gregory Parker in the Wilkinsburg massacre trial, to release him after he confessed to killing baby Marcus, and to not charge him for killing baby Marcus, despite the fact that they knew that he gave false information about the Wilkinsburg massacre,” Jubas added. During the case, testimony from two other key jailhouse informants—Kendall Mikel and Frederick Collins—also fell apart under basic scrutiny, and prosecutors ultimately declined to call either Mikel or Collins to testify during the trial."

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PASSAGE OF THE DAY: "Criminal legal reform advocates and law professors have long warned that jailhouse informants are incentivized to fabricate evidence. Jailhouse informants, wrote Harvard Law professor Alexandra Natapoff in a 2018 explainer for The Appeal, “are a particularly risky and unreliable category of criminal informant.” In 2015, the National Registry of Exonerations, a project of the University of Michigan Law School, found that 23 percent of all death penalty exonerations involved false jailhouse informant statements.  Furthermore, ProPublica reported last year that more than 140 people convicted of murder between 1966 and 2019 were exonerated because of false jailhouse informant testimony. Jailhouse informant rings have been uncovered in cities including Los AngelesDetroit, and Chicago."

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STORY: "Pittsburgh prosecutors relied on man who allegedly killed baby as witness in bungled case," by reporter Jerry Iannelli, published by The Appeal on Sept, 16, 2020.

SUB-HEADING:  "Documents obtained by 'The Appeal' raises questions about a Pittsburgh-area mass shooting case that all apart due to prosecutorial misconduct."

GIST: "In 2017, Gregory Parker admitted to Pittsburgh-area law-enforcement agents that he was involved in the 2013 murder of Marcus White, Jr., a 15-month-old baby. But Parker, now age 22, was not arrested—he was the Allegheny County district attorney’s star witness in a 2016 mass shooting in Wilkinsburg, a suburb about nine miles from Pittsburgh. Five people were killed in the incident, including a pregnant woman. Prosecutors relied on Parker’s testimony as a jailhouse informant in their case against two men—Cheron Shelton and Robert Thomas—accused of murder in the mass shooting. Prosecutors had been seeking to put both men to death.


But the prosecutors’ gamble backfired spectacularly: neither Shelton nor Thomas were convicted. In February, Shelton was acquitted in after his attorneys said prosecutors waited until the night before the trial to divulge evidence that they’d struck a deal with Parker in exchange for his testimony, in violation of the U.S. Supreme Court decision Brady v. Maryland. So, the 2016 mass shooting remains unsolved. And, after prosecutors finally charged Parker with killing White this year, his family filed a federal lawsuit against the Allegheny County DA’s office alleging it knew of Parker’s culpability in the murder for years and chose not to arrest him.


Now, The Appeal has obtained even more evidence that defense attorneys say DA Stephen Zappala’s office hid from them—including a document alleging that law enforcement agents recorded an interview with Parker in 2018 that was not entered into evidence during Shelton’s trial until Shelton’s defense team complained.


“In 2018, the Allegheny County DA’s office made the decision to release Gregory Parker, a confessed baby killer, in order to salvage their death penalty case against Cheron Shelton and Robert Thomas,” Paul Jubas, an attorney representing both Shelton and White’s family, told The Appeal. As part of the family’s complaint, they’ve demanded that Zappala’s office be taken off the Parker case.


“They decided to use Gregory Parker in the Wilkinsburg massacre trial, to release him after he confessed to killing baby Marcus, and to not charge him for killing baby Marcus, despite the fact that they knew that he gave false information about the Wilkinsburg massacre,” Jubas added. During the case, testimony from two other key jailhouse informants—Kendall Mikel and Frederick Collins—also fell apart under basic scrutiny, and prosecutors ultimately declined to call either Mikel or Collins to testify during the trial.


Representatives for the Allegheny County DA’s office did not respond to a request for comment from The Appeal. But in June, a spokesperson for the DA’s office told the media that the White family’s complaints were “wrong on the facts,” “wrong on the law,” and “frivolous.”


This series of bungled cases highlights law enforcement’s long-troubled use of jailhouse informants who agree to testify in separate legal cases in exchange for benefits such as reduced sentences.


Criminal legal reform advocates and law professors have long warned that jailhouse informants are incentivized to fabricate evidence. Jailhouse informants, wrote Harvard Law professor Alexandra Natapoff in a 2018 explainer for The Appeal, “are a particularly risky and unreliable category of criminal informant.” In 2015, the National Registry of Exonerations, a project of the University of Michigan Law School, found that 23 percent of all death penalty exonerations involved false jailhouse informant statements.  Furthermore, ProPublica reported last year that more than 140 people convicted of murder between 1966 and 2019 were exonerated because of false jailhouse informant testimony. Jailhouse informant rings have been uncovered in cities including Los Angeles, Detroit, and Chicago.


The Wilkinsburg mass shooting isn’t even the first mass shooting case tainted by an informant scandal in the last decade. In 2011, a gunman in Orange County, California, shot eight people, including his ex-wife, to death in a local salon. While the shooter, Scott Dekraai, ultimately pleaded guilty, his public defender, Scott Sanders, revealed that Orange County law-enforcement officials  had been secretly running an unconstitutional jailhouse informant program for years. Sanders accused Orange County prosecutors of planting an informant inside a local jail near Dekraai in order to elicit testimony from him. Then-California Attorney General Kamala Harris and the U.S. Department of Justice then launched probes into police informant usage, though no one was ultimately disciplined.


In the Wilkinsburg mass shooting case, prosecutors relied on three jailhouse informants against Cheron Shelton, and all three fell apart in their own unique ways.


Without testimony from these jailhouse sources, the Allegheny County DA’s office appeared to have a weak case. At around 10:45 p.m. p.m. on March 9, 2016, two people allegedly surrounded a backyard cookout in Wilkinsburg and opened fire. One shooter used a .40-caliber handgun and another used an assault-style rifle. The shooter with the handgun fired a blast meant to scare the people in the yard—and whoever used the assault rifle then shot people as they all tried to run inside the home.


But the evidence linking Shelton to the murder was circumstantial at best. The sole witness tying Shelton to the crime was Wilkinsburg Police Detective Michael Adams, who said he saw Shelton acting “weird” a few blocks from the shooting. Adams tried to speak to Shelton, but Shelton simply stared and didn’t answer any of his questions. (During the trial, prosecutors also didn’t disclose evidence proving that Adams had actually run Shelton’s license plate that day until after the trial began.)


To bolster their case, prosecutors relied on the three jailhouse witnesses, including two who initially claimed to have overheard Shelton and Thomas confess to the mass killing. The first witness, Kendall Mikell, told the media earlier this year that he’d previously been barred from working as an informant and had been paid under the table by police and the DA’s office. In February, the Pittsburgh Post-Gazette reported that the DA’s office had paid Mikell $1,756 from its “witness relocation fund” in 2016. Defense attorneys later stated in court filings that payments from the DA’s office to Mikell were not disclosed and that he was “purposefully” placed in a cell next to Shelton’s.


Prosecutors decided not to rely on the second witness, Frederick Collins, because of his history of outbursts during court proceedings. In 2015, Collins began screaming during a hearing related to a domestic dispute and threatened to kill a woman involved in the incident. Collins was charged, and then, during a hearing related to those charges, he threatened to murder the judge overseeing his case.


That left the third witness, Parker. In February 2017, Parker was indicted. Parker then began cooperating with Allegheny County law enforcement—and on Nov. 30 of that year, he agreed to a sit-down, recorded interview with prosecutors. During that interview, Neal Carmen, an agent with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), was recorded saying that the government was “going to uphold our end, and we are going to do the best we can. There are guarantees in there that have already been talked about and are hoping to more than what is guaranteed, depending on what is needed.”  Carmen also stated that he hoped to get Parker “back on the street” so he could become a productive member of society.

A Pittsburgh Police detective then yelled: “Hey Neal, it is still recording you know.”

(In a deposition that occurred during Shelton’s and Thomas’s case, Carmen stated that he’d only “guaranteed” that he would inform a judge that Parker had been cooperating with law enforcement, but admitted that Allegheny County Police had offered to help relocate Parker and one of his family members.)


In a Jan. 30 legal filing, Shelton and Thomas’s defense attorneys said that prosecutors failed to turn over any records showing that Parker had struck any type of cooperation deal with the government until the eve of the trial. 


“Exculpatory evidence was withheld in clear violation of Brady under the guise that it was protected grand jury material from other cases when, in fact, it was not grand jury material,” Shelton’s lawyers wrote.


But that’s not the only evidence that appears to have gone undisclosed. According to ATF and Allegheny County Police investigative documents obtained by The Appeal, law enforcement officials interviewed Parker again on Feb. 15, 2018. An Allegheny County Police report shows that Parker said he “had information regarding the Wilkinsburg homicide where 6 people were killed.” A county detective, Todd Dolfi, wrote that Parker said he spoke to a man inside the jail nicknamed “Millhouze,” who explained that someone at the cookout had killed a friend of theirs, and that the two shooters opened fire in revenge. The police report stated that Allegheny Police recorded Parker’s interview, but Shelton’s lawyers told The Appeal the DA’s office also withheld the audio until the last minute.


Eventually, Allegheny County prosecutors stopped relying on Parker’s testimony. In February, a local judge dropped the case against Thomas, granting a motion stating that prosecutors had insufficient evidence to bring it to trial. Allegheny County Common Pleas Judge Edward Borkowski added that relying on jailhouse informants was “treacherous waters; we know that from experience.”


Later that month, a jury acquitted Shelton of every count against him—including five counts of murder, homicide of an unborn child, three counts of aggravated assault, three counts of attempted murder, one count of conspiracy, and six counts of reckless endangerment.

But Shelton wasn’t free for long: On February 25, a federal grand jury in the Western District of Pennsylvania indicted Shelton on charges of felony possession of a firearm and ammunition by a convicted felon. Shelton has a prior felony drug conviction, and investigators say that during the mass shooting investigation, they found a .22-caliber rifle and ammunition in his mother’s home. Importantly, however, prosecutors do not believe that gun was used in the 2016 cookout massacre.  Shelton is still being held in jail pretrial."


The entire story can be read at:

https://theappeal.org/pittsburgh-prosecutors-informant/?utm_source=The+Appeal&utm_campaign=666ea80d43-EMAIL_CAMPAIGN_2018_08_09_04_14_COPY_01&utm_medium=email&utm_term=0_72df992d84-666ea80d43-58434439

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;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
----------------------------------------------------------