Bulletin: Robert Foxworth: Massachusetts: (Enough to make one weep)..."The violations included claims that a member of the prosecution team used threats to coerce the lone 15-year-old witness into identifying Foxworth. The witness has since recanted his testimony."...Major (Welcome) Development: He has been released after being wrongfully convicted of murder in 1991, on the request of District Attorney Rachael Rollins (Integrity Review Bureau) after spending (thirty) years in jail, CBS Boston reports. (December 23, 2020)..."A man wrongfully convicted of murder has been released after spending 30 years in jail. In an emergency hearing at the state’s Supreme Judicial Court on Wednesday, Suffolk County District Attorney Rachael Rollins asked the judge to grant a new trial for Robert Foxworth, who has been incarcerated ... for a 1991 homicide for which he has maintained his innocence. Rollins also asked that Foxworth be immediately released due to the COVID-19 pandemic. “He has always maintained his innocence during those thirty years – being denied parole twice at least in part because he would not admit guilt and ‘take responsibility’ for a crime he says he did not commit,” Rollins said...DA Rollins: "This is why we created the Integrity Review Bureau - because after spending 30 years behind bars for a crime he didn't commit, Robert Foxworth will be home for the holidays."

PUBLISHER'S NOTE:  Kudos to District Attorney Rachael Rollins and her  Integrity Review Bureau. I am following developments in this case.

Harold Levy: Publisher: The Charles Smith Blog.

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The entire story can be read at:

https://boston.cbslocal.com/2020/12/23/robert-foxworth-rachael-rollins-1991-wrongful-murder-conviction/

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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Junk Science: (Cameron Todd Willingham and other examples): Canadian publication shows growing public awareness of its dangers of - as editor and publisher Tim Bousquet illustrates, "how bogus forensic evidence is used to convict innocent people."..."One of the other hallmarks of wrongful convictions is “tunnel vision” — when police investigators get so focused on a particular suspect that they can’t step back and consider countervailing evidence and other theories of the crime. (Tunnel vision was certainly a contributing factor in the wrongful conviction of Glen Assoun.) So I’m conscious that I too could fall into a sort of reverse tunnel vision — seeing every case is a wrongful conviction. So as I’ve been looking through past convictions in Nova Scotia, I’ve tried to apply the highest skepticism to my own review of the cases. Still, even then, I’m pretty certain I’ve come across at least one other local wrongful conviction for murder, which is in part the result of junk science; I will find a way for the Examiner to write about that in the coming year. I’m additionally aware of a couple of other cases that merit deeper looks. If readers know of any other such cases, drop me a line; I can’t make any promises, but I’ll do what I can."

PASSAGE OF THE DAY: "It’s understandable how judges and jurors are swayed by flimsy evidence posing as science: an “expert” takes the stand and a long biography is read out listing the expert’s many years in the field and the courses and training they’ve taken. The court even certifies the person as an “expert,” and then the person goes on to talk definitively about the evidence in the case at hand. Often, the expert will say they’re “100% certain” their analysis is correct, or there’s “no chance of error”: the scientific evidence says that person right there is guilty of the crime. What’s a juror or judge to think? They’re not trained as scientists. They haven’t taken courses. It’s unlikely that even a judge has seen this sort of evidence before. So they trust the expert. But too often the science is complete bunk, and especially when it comes to forensic evidence."

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COMMENTARY: "Junk science: how bogus forensic evidence is used to convict innocent people, by Editor  and publisher Tim Bousquet,  published by 'The  Halifax Examiner'  on December 29, 2920. (The Halifax Examiner was founded by investigative reporter Tim Bousquet...From its site: "Bousquet is responsible for fearless investigative reporting that makes a difference, and the Halifax Examiner continues that tradition. It is an independent, adversarial news site devoted to holding the powerful accountable." I agree with every word of that. It's a feisty, hard-hitting publication, which has deeply into Canada's criminal justice system - as evidenced by his investigative work and overall coverage of the Glen Assoon miscarriage of justice. HL). 

GIST: "I have an interest in wrongful convictions, and lately I’ve been looking at one recurring theme in such cases: junk science."

It’s understandable how judges and jurors are swayed by flimsy evidence posing as science: an “expert” takes the stand and a long biography is read out listing the expert’s many years in the field and the courses and training they’ve taken. The court even certifies the person as an “expert,” and then the person goes on to talk definitively about the evidence in the case at hand. Often, the expert will say they’re “100% certain” their analysis is correct, or there’s “no chance of error”: the scientific evidence says that person right there is guilty of the crime. What’s a juror or judge to think? They’re not trained as scientists. They haven’t taken courses. It’s unlikely that even a judge has seen this sort of evidence before. So they trust the expert.

But too often the science is complete bunk, and especially when it comes to forensic evidence. To begin, the so-called expert often has no scientific training at all. In many cases, the expert is just a cop who has maybe taken a 40-hour course taught by someone who also isn’t a scientist.

Even when the expert has more training, the supposed “science” is nothing of the sort. There’s no scientific method behind many of these evidentiary claims. The methods and procedures haven’t been rigorously developed, with independent verification or blind studies. Too often, forensic science is based on little more than tradition and folk science.

The foundational problems with much forensic science were detailed in a 2009 National Academy of Sciences report titled Strengthening Forensic Science in the United States: A Path Forward.

While some of the problems outlined in the report are specific to the US — particularly the “fragmentation” of regulatory oversight between local, state, and federal governments — the broader scientific critiques hold in the rest of the world, including here in Canada:

Often in criminal prosecutions and civil litigation, forensic evidence is offered to support conclusions about “individualization” (sometimes referred to as “matching” a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. In terms of scientific basis, the analytically based disciplines generally hold a notable edge over disciplines based on expert interpretation. But there are important variations among the disciplines relying on expert interpretation. For example, there are more established protocols and available research for fingerprint analysis than for the analysis of bite marks. There also are significant variations within each discipline. For example, not all fingerprint evidence is equally good, because the true value of the evidence is determined by the quality of the latent fingerprint image. These disparities between and within the forensic science disciplines highlight a major problem in the forensic science community: The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. This is a serious problem. Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods.

The report goes on to review particular branches of forensic science involving the analysis of roadside drug testing, shoe prints and tire tracks, bite marks, hair and fibre, paint, fire scenes, and fingerprinting, among others.

My understanding from this report and other reading is that bite mark evidence in particular is completely bogus — there’s no scientific foundation for it whatsoever — none.

This is somewhat of an aside, but the first known case where bite mark evidence was presented, and found convincing by the jury, was in … the Salem Witch Trials. As Radley Balko wrote in the Washington Post in 2015:

On May 4, 1692, the Rev. George Burroughs was arrested in Salem, Massachusetts on suspicion of witchcraft. The only physical evidence against Burroughs were bite marks found on some of the girls he was accused of recruiting to join him. Summarizing the research of historians on the ordeal in an article for the February 2014 newsletter of the New York State Dental Association, William James Maloney writes that at trial, “the defendant’s mouth was pried open and the prosecution compared his teeth with the teeth marks left on the bodies of several injured girls present in the courtroom.”

At the urging of notorious witch hunter Cotton Mather, Burroughs was convicted, sentenced to death and hanged. Two months later, the governor of Massachusetts called for an end to the witchcraft trials. He also prohibited the use of “spectral and intangible evidence” in criminal trials. Two decades later, Burroughs was declared innocent, and the colony of Massachusetts compensated his children for their father’s wrongful execution.

With that inauspicious beginning, bite mark evidence went on to become an accepted form of forensic evidence, replete with supposed experts in the science of odontology who could match bite marks left on skin with castings taken of a suspect’s teeth. It made sense to juries and judges — after all, examining dental records to identify corpses is a legitimate and useful use of tooth comparison.

But over the past decade, it’s been well established that there’s no way to definitively compare marks left on pliable skin with one particular set of teeth, and now courts routinely disallow such evidence. Still, that doesn’t mean there still aren’t people sitting in prisons who were convicted by bite mark evidence.

Cameron Todd Willingham in his cell on death row, in 1994. He insisted upon his innocence in the deaths of his children and refused an offer to plead guilty in return for a life sentence.Photo: Ken Light

Fire analysis has its own long and sordid history, which I won’t go into here, except to note that it’s quite likely that the state of Texas executed Cameron Todd Willingham, a completely innocent man, based solely on such evidence.

Other sorts of problematic forensic evidence — including blood splatter analysis, gunshot residue, shaken baby evidence, and more — are explored in a new podcast series called Wrongful Conviction: Junk Science, hosted by defence lawyer Josh Dubin.

One episode of Dubin’s podcast series takes on the sacred cow of forensic science: fingerprint evidence. We all “know” that fingerprint evidence is solid, right? I at least did, until recently. But Dubin interviews a public defender in Minneapolis named Mary Moriarty who is trying to highlight the problems with such evidence:

Contrary to what pop culture has ingrained in the American conscience, matching known fingerprints of a suspect to prints left at the scene of a crime is not an exact science. It’s entirely subjective.

Moriarty explains that, unlike with DNA evidence, there are no population studies backing fingerprint evidence. A geneticist can tell you that a particular genetic pattern will show up on average in one in, say, 100 million people, but a fingerprint expert has no idea how many people might share the same five or 10 nodes of a fingerprint examined.

We’ve all seen how on TV shows like CSI and Law & Order, a fingerprint lifted from a crime scene is “run through the computer database,” and out pops the match! Presto, the computer did it. But that’s not how it works at all. Computer databases might select potential matches, but the actual act of determining whether one print is a match to another is done by a human, who uses something called the ACE-V method (Analysis, Comparison, Evaluation, and Verification). As the 2009 NAS report explains:

Although some Automated Fingerprint Identification Systems (AFIS) permit fully automated identification of fingerprint records related to criminal history (e.g., for screening job applicants), the assessment of latent prints from crime scenes is based largely on human interpretation. Note that the ACE-V method does not specify particular measurements or a standard test protocol, and examiners must make subjective assessments throughout. In the United States, the threshold for making a source identification is deliberately kept subjective, so that the examiner can take into account both the quantity and quality of comparable details. As a result, the outcome of a friction ridge analysis is not necessarily repeatable from examiner to examiner. In fact, recent research by Dror has shown that experienced examiners do not necessarily agree with even their own past conclusions when the examination is presented in a different context some time later.

And the “verification” part of ACE-V is typically just one fingerprint analyst handing their results to a second analyst for review, and not an entirely independent blind look at the evidence. In other words, confirmation bias is built into the verification process.

There is one misidentification brought about by fingerprint evidence that has particularly highlighted the problems inherent in the field: the case of Brandon Mayfield, who was named as the suspect in the Madrid subway bombings that killed 193 people.

Mayfield, a lawyer in Oregon, had never been to Spain, and didn’t have a passport, but when his prints came up in the FBI database as a possible match to partial prints left at the crime scene, three FBI fingerprint analysts determined the match was “100% verified” and Mayfield was arrested and jailed for two weeks — even though Spanish officials rejected the same supposed fingerprint match. (Eventually, a group of Moroccan and Algerian terrorists were convicted for the bombings.)

As Hans Sherrer wrote:

A federal judge signed the material witness warrant authorizing Mayfield’s arrest based on a supporting affidavit by FBI agent Richard K. Werder. The affidavit’s lynchpin was the allegation that senior FBI fingerprint examiner Terry Green identified “in excess of 15 points of identification during his comparison” of Mayfield’s prints on file with the Army and the FBI, and a “photograph image” of a print recovered from a plastic bag containing several detonators found in a stolen van near where three of the bombed trains departed. The affidavit further alleges that the fingerprint identification was verified by an FBI fingerprint supervisor, and a retired FBI fingerprint examiner with 30 years of experience on contract with the lab’s Latent Fingerprint Section. In addition the affidavit states: “… the FBI lab stands by their conclusion of a 100 percent positive identification.”

A later review of the FBI agents’ analysis found, in part, that they were biased against Mayfield because he had married an Egyptian woman and converted to Islam, and because he had represented one of the Portland Seven, a terrorist cell based in Portland.

What’s the take-away here? If nothing else, I’d like judges, prosecutors, and potential jurors to familiarize themselves with the NAS report, and to become more skeptical of forensic evidence when it is presented in court.

One of the other hallmarks of wrongful convictions is “tunnel vision” — when police investigators get so focused on a particular suspect that they can’t step back and consider countervailing evidence and other theories of the crime. (Tunnel vision was certainly a contributing factor in the wrongful conviction of Glen Assoun.) So I’m conscious that I too could fall into a sort of reverse tunnel vision — seeing every case is a wrongful conviction. So as I’ve been looking through past convictions in Nova Scotia, I’ve tried to apply the highest skepticism to my own review of the cases.

Still, even then, I’m pretty certain I’ve come across at least one other local wrongful conviction for murder, which is in part the result of junk science; I will find a way for the Examiner to write about that in the coming year. I’m additionally aware of a couple of other cases that merit deeper looks.

If readers know of any other such cases, drop me a line; I can’t make any promises, but I’ll do what I can."

The entire commentary can be read at:

https://www.halifaxexaminer.ca/featured/junk-science-how-bogus-forensic-evidence-is-used-to-convict-innocent-people/

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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POST: Australia: A year in review: Author/Blogger Andrew L. Urban casts an eye over 2020, and sees: "Tunnel-vision-blighted police investigations, junk science as evidence, prosecutors ‘impermissibly straining for a conviction’ (as Justice Fullerton has put it) and judges failing to adhere to the rule of law - all causes of blunders resulting in wrongful convictions and failed appeals."

PUBLISHER'S NOTE:  Over the years, Australia has provided some of the most fascinating wrongful convictions loaded with forensic issues relevant to this Blog - and Andrew Urban has done a masterful job of guiding us through them. While the prosecutions he exposes in  this year-ender  are notorious for their blunders, my interest is not in putting down the state of criminal justice in Australia and those that operate within it.  It is rather to make the point that justice has no boundaries, to support those who have been wrongfully accused and convicted, and to put pressure on the criminal justice authorities  from abroad  to remedy the situation - just as I have done with other jurisdictions such as Texas, Louisiana, Alabama and Missouri, and from time time to time,  and far too often Ontario, which happens to be my own turf. So I'm grateful to Andrew Urban for bringing  these Australian cases to the rest of the world in such an intelligent, thoughtful  manner. They are well worth our attention.

Harold Levy: Publisher: The Charles Smith Blog.

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POST: "A year of blunders – 2020 in review," by Andrew L. Urban, published on his Blog 'The Wrongful Convictions Report' on December 20, 2020.

PREFACE:  "Tunnel-vision-blighted police investigations, junk science as evidence, prosecutors ‘impermissibly straining for a conviction’ (as Justice Fullerton has put it) and judges failing to adhere to the rule of law are all causes of blunders resulting in wrongful convictions and failed appeals. We reported on several of such blunders during the year; here is our Year in Review. "

GIST: "Among the many stories we publish (73 in 2020), some are especially pertinent as they demonstrate the inherent flaws of a justice system in need of reform – as well as highlighting the needless suffering of the wrongfully convicted. Also, Former High Court judge Michael Kirby reminds readers that Australia lags behind the rest of the Anglosphere in failing to establish a Criminal Cases Review Commission, while former senior detective and author Colin McLaren declares his loss of faith in the justice system.

From the most notorious to the most obscure cases, our stories during the year have elicited many comments from our readers – you are welcome to add yours.

January 7, 2020
Missed clues in Sue Neill-Fraser’s Statutory Declaration
Eleven years ago this month, at 12.10pm on Friday, January 28, 2009, a day after her partner Bob Chappell had disappeared from their yacht, Four Winds, Sue Neill-Fraser began making a Statutory Declaration at her Allison Street home in Hobart. It contained information – clues – that would have been useful to the police investigation, but were ignored.

new appeal in May 2020 against her 2010 conviction for the 2009 murder of her partner Bob Chappell should disqualify themselves and be replaced by interstate judges, says a former State and Federal court judge thoroughly familiar with the case. (The appeal is now scheduled to begin March 1, 2021.)

April 7, 2020
Pell convictions not supported by evidence – now quashed
In its unanimous 7 – 0 decision, the High Court concludes its summary of the decision in the George Pell appeal with an abundance of restraint: “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.

May 1, 2020
Man sues over false rape charges by his ex
The Australian’s Deborah Cornwall reports exclusively today: A Sydney man is suing his former wife, the NSW Police Force and a crown prosecutor for malicious prosecution and damages, accusing them of causing him “severe mental anguish” after persisting with false rape charges against him by his former wife.

May 24, 2020
Another CCRC established … but still not in Australia
A new, independent body that will have the power to send potential miscarriages of justice back to an appeal court is on track to begin receiving applications from July 1, 2020 – but not in Australia. It’s the New Zealand Criminal Cases Review Commission (NZCCRC), leaving Australia behind in dealing with miscarriages of justice, laments former High Court judge Michael Kirby AC CMG.

June 13, 2020
A cancerous phenomenon
One of Australia’s most respected former detectives, COLIN McLAREN, has broken rank from police circles, to speak out against a judicial system he no longer believes in. Indeed, he suffered threats of arrest because he dared to find glaring faults in a past murder case, forcing him to leave Australia, permanently. He will reside overseas until Australia installs a criminal cases review commission to tackle wrongful convictions. He filed this post as he left.

June 19, 2020
Robert Xie historic appeal to begin
Chief Justice of NSW Tom Bathurst QC will be one of the judges (along with Justices Hulme and Beech-Jones) to hear the appeal by Lian Bin (Robert) Xie against his five 2017 murder convictions, starting on Monday, June 22, 2020, in the spacious Banco Court of the Law Courts Building in Queens Square, Sydney. The convictions, we believe, are collectively unsafe; see below. Whatever the outcome of the appeal, it is destined to be a historic legal milestone – and we will be reporting on the proceedings.

July 21, 2020
Bradley Murdoch – how DNA may have misled the jury
When juries in a circumstantial case are told of DNA, they assume that it’s a solid piece of evidence, unquestionable. The prosecution relies on this assumption and tells its story as if every DNA sample was like a brick. The case of Bradley Murdoch’s conviction for the murder of Peter Falconio is a strong example of why this is not so; even DNA can lead to unsafe convictions, as revealed in Channel 7’s investigative documentary mini series, Murder in the Outback, which concluded on Sunday, July 19, 2020.

September 7, 2020
Incompetent, humiliated criminal system fails again
In just 60 Minutes last Sunday (6/9/20), Channel 9 has shown how the Cooks, a circus family from the Blue Mountains, were persecuted by a preposterous police prosecution of a case that not only lacked evidence of any kind, but defied the most basic tests of common sense. Sadly, it is not the only humiliating failure of the criminal justice system in Australia.

September 28, 2020
Letter from the rip
This private letter is from a man who has led an exemplary life, but when accused of historical sexual molestation by a vengeful woman, then a youngster, years after the alleged events, he was tried and convicted, his life ruined. He maintains his innocence (the accuser’s mother believes & supports him) and a lawyer has prepared pro bono a 70 page analysis of his case that shows how the system wrongly convicted him. He has given me permission to publish the letter.

October 12, 2020
Dr Colin Manock and the Baby Deaths – Ch 9 Oct 14, 2020
This Wednesday 14 October, at 8.40pm Channel 9 will broadcast ‘Bodies of Evidence’ as part of their Australian Crime Series. It will focus on the appalling failures in relation to the work of Dr Colin Manock, former chief forensic pathologist in South Australia for nearly 30 years.

October 15, 2020
Road to Damnation follows the science to a wrongful conviction
In his important new book, Road to Damnation, Chris Brook takes the reader on a gripping journey to the darkest reaches of human experience – the drowning of three children – when it intersects with the law. Brook places the case of Robert Farquharson – their father – at the interface between law, science, society and psychology.

November 23, 2020
Scott free
After 13 years in jail, 45 year old Scott Austic has finally regained his freedom and his official innocence last week, when a WA jury acquitted him after two hours of deliberations. As we reported in May this year, Austic had lost his first appeal against his conviction for the murder of his pregnant girlfriend, Stacey Thorne, 35, who was 22 weeks pregnant when she was stabbed 21 times at her Boddington home, about 120 kilometres south-east of Perth.

December 17, 2020
New Year hopes for old injustices
Should we call them mis-convicted murderers, perhaps, those poor unfortunate souls who have suffered the catastrophe of a wrongful conviction? As we prepare to leave 2020 behind and look across time into 2021, we must hope along with them that the criminal justice system will correct those wrongful convictions, in many cases far too long after the verdict was delivered (37 years, in the case of Derek Bromley).

Closing note: 
Barristers and judges in the criminal justice system cannot be sued for negligence, thus are sheltered from real-world accountability and penalties.

The most recent assertion of lawyers’ immunity – largely on the ground that legal actions must have some finality – was D’Orta-Ekenaike v Victoria Legal Aid (Australian High Court, March 10, 2005).

But as Graham Zellick, CBE, QC, Chair of the Criminal Cases Review Commission in the UK has said: “There is no principle of finality. If it is thought that a mistake may have been made, the public interest demands that it be put right … the principle of finality has no place in the criminal law, not in our system.”

Those in favour in the 2005 High Court assertion were Murray Gleeson CJ and Michael McHugh, Bill Gummow, Ken Hayne, Dyson Hayden, and Ian Callinan JJ. When the lone dissenter, Justice Michael Kirby, shortly had an emergency heart bypass operation, legal magazine Justinian, commented: ‘It’s sad to see that the only judge on the court with a heart is now having trouble with it."

The entire post can be read at:

’https://wrongfulconvictionsreport.org/2020/12/20/a-year-of-blunders-2020-in-review/#more-2609

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;

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

Excited Delirium: Mic Reporter Tracey Anne Duncan investigates what this psychomedical-sounding term actually means and why police officers shouldn't be able to hide behind it anymore... "Some cops have been known to repeatedly and magically dodge misconduct charges that they clearly deserve. One shield that they've used to do so is a "condition" called excited delirium, which has been used to justify bodily violence against Elijah McClain, George Floyd, and many others. Mic's Tracey Anne Duncan investigates what this psychomedical-sounding term actually means and why police officers shouldn't be able to hide behind it anymore."

NOTA BENE: Check out the  latest post on my  weekly 'Selfless Warriors Blog' published earlier today at the link below. It is about Marlene Truscott's inspiring battle to clear her husband Steven's name...According to the IMDB (an online film database): "Marlene' (premiered on December 18 at the Whistler Film Festival)  is a film inspired by Marlene Truscott, a housewife who fought to exonerate her husband from a crime he didn't commit. Marlene became involved in the fight for justice at a young age, when Steven was arrested at 14 and sentenced to be hung. When Steven was released from prison ten years later, she fell in love with him. Marlene's story is a story of hiding, living under an assumed name and protecting her children. He was free, but now she was in prison. Through it all Marlene was determined that Steven would get justice, that they would find light in the darkness, a darkness that buried the truth. Surrounded by boxes of files Marlene found a world of lies, cover-ups, and secrets. A very female story about an extraordinary woman, written and directed by women." 'Marlene'  is  based on  the book,   "Until you are dead: Steven Truscott's long ride into history," by Canadian investigative journalist Julian Sher.  

https://selflesswarriors.blogspot.com

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Back  to the Charles Smith Blog: 

STORY: "What exactly is excited delirium, the "condition" cops use to justify excessive force?, by reporter Tracey Anne Duncan, published by MIC on December 14, 2020. PASSAGE OF THE DAY: "Firstly, if “excited delirium” sounds familiar, it could be because it was also used as a justification for the police killing of George Floyd. It’s definitely not because it’s a legitimate and well-researched medical condition. In fact, “excited delirium” is not recognized by the World Health Organization, the American Psychiatric Association, or the American Medical Association. In other words, you won’t find this term in the Diagnostic and Statistical Manual of Mental Disorders (DSM) or indeed anywhere else in medical literature, CBS reported. Spoiler alert: This should clue you in that the science on this “condition” is flimsy as hell." --------------------------------------------------------- SET-UP:  "Some cops have been known to repeatedly and magically dodge misconduct charges that they clearly deserve. One shield that they've used to do so is a "condition" called excited delirium, which has been used to justify bodily violence against Elijah McClain, George Floyd, and many others.  Mic's Tracey Anne Duncan investigates what this psychomedical-sounding term actually means and why police officers shouldn't be able to hide behind it anymore." --------------------------------------------------

GIST: "Elijah McClain, a 23-year-old Black man who was killed by police in Aurora, Colorado in August of 2019, was pronounced brain dead immediately following an encounter with Aurora law enforcement. He died from a heart attack three days after being placed in a chokehold and then receiving a high dose of ketamine in order to sedate him. Police have justified their brutality against McClain by saying that McClain was in a state of “excited delirium” that warranted the lethal force used against him, CBS reported. Since “excited delirium” is becoming a constant wolf cry when cops are accused of brutality, let’s break down what the term means.

Firstly, if “excited delirium” sounds familiar, it could be because it was also used as a justification for the police killing of George Floyd. It’s definitely not because it’s a legitimate and well-researched medical condition. In fact, “excited delirium” is not recognized by the World Health Organization, the American Psychiatric Association, or the American Medical Association. In other words, you won’t find this term in the Diagnostic and Statistical Manual of Mental Disorders (DSM) or indeed anywhere else in medical literature, CBS reported. Spoiler alert: This should clue you in that the science on this “condition” is flimsy as hell.

“Excited delirium,” is less a medical condition and more a police term, then. In fact, all the studies about “excited delirium” that I could find in my research for this piece specifically concerned the use of the term when used to describe someone who died or was injured in police custody. To be fair, some of the descriptions of delirium in the DSM could be interpreted as “excited” states, but that doesn’t mean that cops are qualified to diagnose them. But even if you’re willing to set aside the dubious delirium diagnosis, some experts are even skeptical about how law enforcement seems to be using the word “excited,” because there is no scientific consensus about what excited means.10

Ending Hair Discrimination with The CROWN 

Loosely defining “excitement” gives law enforcement a lot of leeway. “The problem with the lacking criterion for an excited state is that it allows for room for law enforcement to create the excited state that they are then diagnosing as problematic,” says says Dulcinea Pitagora, New York City-based psychologist. In other words, cops may say that they killed a suspect because he was in a state of “excited delirium” and was therefore dangerous, but actually he could have been in an anxious or excited state because of his interaction with the cops.

“If the general public weren’t afraid of law enforcement due to excessive force, interactions with them may not incite an excited state that could be read as excited delirium,” says Pitagora. In other words, cops could be creating the state of mind in people that they are then using as a justification for using force against them.

This — and the fact that police involved in a tense situation will probably also be in a state of excitement — makes it extremely unlikely for law enforcement to accurately diagnose an alleged perpetrator, Pitagora says. “Because law enforcement aren’t trained to psychologically diagnose anyone, it’s impossible for them to know what sort of mental status they’re dealing with, therefore it doesn’t seem to be an appropriate or accurate way to justify using lethal force,” Pitagora explains."

The entire story can be read at:

https://www.mic.com/p/what-exactly-is-excited-delirium-the-condition-cops-use-to-justify-excessive-force-50491363?utm_campaign=mic-check-2020-12-15&utm_medium=mic&utm_source=newsletter&utm_session=d82cc19d-7cf1-4ea9-83af-02ed77ea1230

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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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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Adora Perez; Chelsea Becker: California: Criminalizing pregnancy: Stillbirths and murder; "With a woman in prison for stillbirth, California murder law is tested," The San Diego Union Tribune (Reporter Alex Wigglesworth) reports. Perez was charged with murder after she delivered a stillborn baby at a hospital in California’s Central Valley, with authorities alleging methamphetamine use while pregnant was responsible. Faced with the possibility of life in prison, Perez accepted a plea deal, lost an appeal and busied herself adjusting to the rhythms of time behind bars. But to McNamara, the law in California was clear: A woman cannot be convicted of killing her unborn child, and no woman before Perez had been sent to prison in such a case. The 32-year-old inmate is now at the center of a high-stakes legal fight between a team of lawyers headed by McNamara and a district attorney who believes Perez and others like her are criminals. If the prosecutor prevails, women’s rights advocates say, it will open the door to charges against any woman who suffers a miscarriage or stillbirth."

QUOTE OF THE DAY: "Expanding the law to criminalize pregnancy outcomes opens the door for women to be charged with murder for any behavior that could potentially harm their pregnancy,” said attorney Jennifer Chou of the ACLU of Northern California, “including things like jaywalking and working a physically demanding job.”

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PASSAGE OF THE DAY: "And over the span of a few years in the 1990s, prosecutors in three counties brought murder charges against women who were accused of killing their unborn children with drug use. In each case, the charges were thrown out or withdrawn. “There have been no cases,” McNamara said, “where any woman has been successfully prosecuted in California as a result of her pregnancy outcome.” Until Perez."

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PASSAGE TWO OF THE DAY: "McNamara and attorneys assisting her have asked the appeals court to reopen the case. They’ve found a powerful ally in California Atty. Gen. Xavier Becerra. Although the attorney general typically fights alongside county district attorneys to uphold convictions, Becerra is trying to undo Fagundes’ work. He has said he supports Perez’s release, and wrote in a court filing that he would not oppose the effort to reopen her appeal.

“We will continue to work to see our laws properly applied in order to end Ms. Becker and Ms. Perez’s imprisonments and protect women from similar prosecution in the future,” Becerra said in a statement. In backing efforts to win Becker’s release, Becerra wrote in a court filing that the charges are based on a misinterpretation of the law, and urged the judge to dismiss the case. More recently, Becerra issued a call for the state Supreme Court to intervene. The court has until Christmas to decide whether to weigh in." (I will be following developments. Stay tuned! HL);

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STORY: "With a woman in prison for stillbirth, California murder law is tested," by reporter  Alex Wigglesworth, published  by The San Diego Union Tribune on December 16,  2020.

SUB-HEADING: Adora Perez was imprisoned for delivering a stillborn baby after using drugs. Her case largely went unnoticed until another woman was charged."

GIST: "Adora Perez was two years into an 11-year prison sentence when she got a phone call.

From inside the women’s state prison in Chowchilla, Calif., Perez listened as attorney Mary McNamara introduced herself, saying she had been looking into Perez’s case — and found it deeply flawed.

Perez was charged with murder after she delivered a stillborn baby at a hospital in California’s Central Valley, with authorities alleging methamphetamine use while pregnant was responsible. Faced with the possibility of life in prison, Perez accepted a plea deal, lost an appeal and busied herself adjusting to the rhythms of time behind bars.

But to McNamara, the law in California was clear: A woman cannot be convicted of killing her unborn child, and no woman before Perez had been sent to prison in such a case.

The 32-year-old inmate is now at the center of a high-stakes legal fight between a team of lawyers headed by McNamara and a district attorney who believes Perez and others like her are criminals. If the prosecutor prevails, women’s rights advocates say, it will open the door to charges against any woman who suffers a miscarriage or stillbirth.

Before Perez’s arrest, it was settled law in California that women could not be prosecuted for killing their fetuses.

In 1970, after California’s Supreme Court overturned the murder conviction of a man who beat his pregnant wife and killed her unborn child, legislators changed the state’s homicide law to make it possible to charge someone for the death of a fetus.

But a section in the law states it does not apply to acts “solicited, aided, abetted, or consented to by the mother of the fetus,” and attempts to convict women of killing their unborn children have been knocked down. In one of the more extreme tests of the law, a municipal court judge in Santa Barbara ruled in 1973 that a woman who ended her pregnancy by shooting herself in the stomach could not be tried for murder. (The woman, Claudia Tucker, pleaded guilty to performing an illegal abortion and was sentenced to probation.)

And over the span of a few years in the 1990s, prosecutors in three counties brought murder charges against women who were accused of killing their unborn children with drug use. In each case, the charges were thrown out or withdrawn.

“There have been no cases,” McNamara said, “where any woman has been successfully prosecuted in California as a result of her pregnancy outcome.”

Until Perez. In her case, Kings County Dist. Atty. Keith Fagundes found a chance to challenge what he believed had been decades of improper rulings.

“It flies in the face of logic,” he said, “that if the father of a fetus can kill a fetus, why can’t the mother of a fetus be responsible for killing a fetus?”

Fagundes said he believed the exception for pregnant women written into the murder statute applies only to women who seek legal abortions. McNamara said the language clearly includes exceptions for abortions as well as for acts performed by pregnant women.

“That law did not go into effect to protect the mother of the fetus at all,” Fagundes continued. “It went into effect to protect the fetus and give the fetus rights.”

If allowed to stand, that interpretation would mark a profound shift in the law, McNamara and others say.

“Expanding the law to criminalize pregnancy outcomes opens the door for women to be charged with murder for any behavior that could potentially harm their pregnancy,” said attorney Jennifer Chou of the ACLU of Northern California, “including things like jaywalking and working a physically demanding job.”

Perez grew up in Hanford, Calif., an old railroad town south of Fresno. Her childhood was short. She said she was molested repeatedly by a family friend and became pregnant by another man at 14. By 16, she was smoking meth.

At 21, she met the man who would become the father of eight of her children. He beat her brutally throughout each of those pregnancies, said an aunt, Sabrina Perez, who helped raise her. “In her head she felt she deserved it,” her aunt said, “that he was teaching her how to grow up, because he’s older than her.”

Perez tried to break the hold of her addiction many times, including during her most recent pregnancy, when she moved back in with her aunt and managed to stay clean for nearly three months, her aunt said.

But her success was undercut by the boyfriend, the aunt said. He talked her into renting a hotel room, where her tenuous grip on sobriety slipped.

Perez delivered her stillborn son, Hades, at Adventist Health Hanford the night of Dec. 30, 2017. A test came back positive for methamphetamine and a doctor told investigators he believed the drug use had caused the death, court records show. Officers arrested her in the hospital’s birthing center two days later.

She struggles to find the words to describe the loss, but says she’s not a murderer.

“I didn’t mean to intentionally hurt my child,” Perez said. “You don’t know what it’s like to be on drugs unless you’ve been on drugs.”

Perez had been sitting in jail for about three months when prosecutors offered her a deal: The murder charge would be dropped if she pleaded no contest to voluntary manslaughter — a lesser crime that carries a sentence of three to 11 years.

They presented the agreement as a way for Perez to avoid spending the rest of her life in prison. And Perez says her attorneys didn’t tell her about the glaring problem with the deal: that the state’s laws don’t include a provision for a woman to be charged with killing her fetus. “They made it sound like they were getting me a sweet deal,” she said.

Perez took the plea bargain, but almost immediately regretted it.

“I realized, ‘Oh my God, I just pleaded guilty without pleading guilty,’” she said, referring to the no-contest plea, which is tantamount to a conviction.

She and her family scraped together several thousand dollars to hire a private attorney in an attempt to withdraw the agreement, but Kings County Superior Court Judge Robert Burns refused to allow it. Instead, in June 2018, he sentenced Perez to the maximum time behind bars.

There was no money left to pay a lawyer to pursue an appeal. A court-appointed attorney took the case, but failed to raise any specific legal challenges, said McNamara, who now is representing Perez.

When an appeals court upheld Perez’s plea in March 2019, her case seemed shut for good.

Then another Kings County woman was arrested.

The similarities were striking: Chelsea Becker also grew up in Hanford, struggled with methamphetamine addiction, and delivered a stillborn at Adventist Health nearly two years after Perez. Hospital staff called authorities. In November 2019, Fagundes charged her with murder.

She was appointed the same public defender as Perez and appeared before the same judge. Unable to make the $2-million bail the judge imposed, Becker is in Kings County Jail.

But unlike Perez’s case, Becker’s arrest received attention. Her tear-streaked mugshot ran in newspapers and on national news broadcasts alongside stories that largely did not question the charges against her.

The publicity made lawyers aware of Becker, and a team backed by National Advocates for Pregnant Women took on her case. Several women’s rights groups and medical associations signed on to a legal brief calling for her prosecution to be dropped.

Attorneys discovered Perez when a Los Angeles Times reporter, while writing about Becker, came across the case and asked lawyers at the ACLU about the validity of Perez’s conviction.

McNamara was asked to look into Perez’s case, and it didn’t take long for her to become convinced that the charges, the plea deal and the legal advice Perez received had all been faulty. In the phone call to Perez in prison, she offered to take on her case at no charge.

“I’m hoping that, in the end, I do get to go home,” Perez said. “And when I do go home, I am going to seek rehab.”

For the last three months, she’s been going through a treatment program, she said, and she feels like the haze that years of trauma and drug use cast over her mind is finally clearing.

“I used to check in and check out whenever I wanted to,” she said. “And now ... I can’t check in or check out because I’m behind walls. I want to be with my kids so bad.”

McNamara and attorneys assisting her have asked the appeals court to reopen the case.

They’ve found a powerful ally in California Atty. Gen. Xavier Becerra. Although the attorney general typically fights alongside county district attorneys to uphold convictions, Becerra is trying to undo Fagundes’ work. He has said he supports Perez’s release, and wrote in a court filing that he would not oppose the effort to reopen her appeal.

“We will continue to work to see our laws properly applied in order to end Ms. Becker and Ms. Perez’s imprisonments and protect women from similar prosecution in the future,” Becerra said in a statement.

In backing efforts to win Becker’s release, Becerra wrote in a court filing that the charges are based on a misinterpretation of the law, and urged the judge to dismiss the case. More recently, Becerra issued a call for the state Supreme Court to intervene. The court has until Christmas to decide whether to weigh in.

The involvement by the state’s top prosecutor has rankled Fagundes.

“He is encouraging women to abuse their fetuses, and the next step from there is they’ll abuse their children once they’re born,” Fagundes said. “Because it appears there’s no limit to what people like Xavier Becerra will allow.”

It’s part of what the district attorney describes as a larger problem of “liberal California politics” and advocacy groups that he says prioritize political agendas over human life.

“Through this process, I’ve seen scores of people coming to the aid of women who overdose their babies, but no one is coming to give a voice to this healthy fetus,” he said, referring to Perez’s stillborn son.

If lawyers for the women agree with Fagundes about anything, it is that the stakes are high.

“Unless we win these cases, this is going to continue,” McNamara said. “And that’s a thought that just keeps me up at night.""

The entire story can be read at: 

https://www.sandiegouniontribune.com/news/california/story/2020-12-16/adora-perez-appeal-stillborn-murder-charge

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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