Friday, October 15, 2021

Part Two: Flawed pathologist Marc Krouse: Tarrant County, Texas: He mistook a bullet wound for a surgical incision (the victims body had to be resumed) - and later found, in an audit, to have made 59 mistakes in 40 death investigations. (NBC 5 (Reporter Scott Gordon) revealed that the audit, conducted by longtime Tarrant County Medical Examiner Dr. Nizam Peerwani, "contains several errors itself."..."Benson Varghese, president of the Tarrant County Criminal Defense Lawyers Association, said the audit has the potential to affect hundreds of cases in Tarrant County. “A rough number that we’ve been hearing is 449 or 450 cases that are currently pending in Tarrant County that are related to deaths," he said. "So we’re not talking about all Tarrant County ME cases, just the subset is a huge number.” Varghese said defense attorneys will be responsible for investigating each case to determine whether there are issues they need to raise in court. Defense attorney and former prosecutor Christy Jack said Wednesday she has worked with both Krouse and Peerwani for years. “If we were to go back and audit all of his [Krouse] work for all of those years, who knows how many mistakes have been made?” she said. “I have a number of homicides that are pending, and I’m going through them right now." The Dallas County DA has been appointed to do an independent and full-scale review of Krouse’s work, prosecutors said."


PASSAGE ONE OF THE DAY: "The audit generally confirmed Krouse’s determinations of cause of death and manner of death in almost all but one of the cases examined. But it faulted him for repeatedly failing to request or review ambulance reports and hospital records. In more limited cases, the audit found Krouse failed to confirm a victim’s identity by a fingerprint or other scientific means, failed to collect blood and other issues describing injuries. In two of the 40 cases, Krouse’s errors were described as “egregious.” The audit began after the body of a shooting victim, 19-year-old Alfredo Olivares, had to be exhumed because Krouse failed to notice a second bullet during the autopsy. In all, Krouse made nine mistakes in Olivares’ autopsy, according to the audit, including failing to recognize injuries to the body and reporting Olivares was shot once when he, in fact, was shot twice. The second gunshot wound was noted in hospital and ambulance records that Krouse failed to read, the audit said. The review also criticized Krouse’s investigation involving a 57-year-old Fort Worth man, Jose "Lee" Moreno, who died in February 2020. Moreno became a paraplegic after he was shot in a workplace shooting in 1989 and a bullet lodged permanently in his spine. Krouse ruled the man died of complications from paraplegia due to the gunshot wound and classified his death as a homicide. Krouse did not do an autopsy and did not recover the bullet, according to the audit. The review found the homicide classification was inappropriate because Krouse should have further investigated other potential causes of death such as drug overdose or heart disease. "I want to know what happened to my dad," Kristina Moreno said. "Truly I want to know what happened."

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PASSAGE TWO OF THE DAY: "The audit itself appears to contain multiple mistakes. It includes the same Grand Prairie victim's name twice – once with a mistaken case number -- and gives a different age for the victim than what appears in online medical examiner records. Online records show he was 30. The audit reports his age as 38. The mistaken second case number was for a Fort Worth homicide -- not Grand Prairie, according to online records. The audit does not include information on the Fort Worth homicide even though the autopsy was conducted by Krouse during the time frame covered in the audit. The audit also gives conflicting information about a third case involving a 15-year-old boy’s death. It uses the same address where a 38-year-old man died in Fort Worth five days earlier. It’s not clear which information is correct. In yet another error, the audit claimed the autopsy of the 15-year-old boy was done on June 22 -- four days before his death was reported on June 26."

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STORY: Suspended Tarrant County coroner made 59 mistakes in 40 death investigations examined in audit," by Reporter Scott Gordon, published by NBC 5  on March 31, 2021.

GIST: An audit of 40 homicide cases found a suspended Tarrant County coroner made 59 mistakes, according to a copy of the document obtained by NBC 5.


The extraordinary review of 10 months of autopsies and death investigations by deputy medical examiner Dr. Marc Krouse contains several errors itself, according to a review by NBC 5.


The audit was conducted by longtime Tarrant County Medical Examiner Dr. Nizam Peerwani.


Krouse joined the office in 1981 and has testified in some of Tarrant County’s most high-profile murder cases.


He was suspended from doing autopsies in homicide cases in November after he mistook a bullet wound for a surgical incision in one case and the victim’s body had to be exhumed, the audit said.


After the review, Krouse was placed on administrative leave on March 25 and plans to leave his job on April 24, the district attorney’s office said last week.


Dallas County District Attorney John Creuzot confirmed the investigation but declined further comment.


Tarrant County prosecutors said they recused themselves from the investigation but did send the audit to defense attorneys.


The Findings:

The audit generally confirmed Krouse’s determinations of cause of death and manner of death in almost all but one of the cases examined.


But it faulted him for repeatedly failing to request or review ambulance reports and hospital records. In more limited cases, the audit found Krouse failed to confirm a victim’s identity by a fingerprint or other scientific means, failed to collect blood and other issues describing injuries.


In two of the 40 cases, Krouse’s errors were described as “egregious.”


The audit began after the body of a shooting victim, 19-year-old Alfredo Olivares, had to be exhumed because Krouse failed to notice a second bullet during the autopsy.


In all, Krouse made nine mistakes in Olivares’ autopsy, according to the audit, including failing to recognize injuries to the body and reporting Olivares was shot once when he, in fact, was shot twice.


The second gunshot wound was noted in hospital and ambulance records that Krouse failed to read, the audit said.


The review also criticized Krouse’s investigation involving a 57-year-old Fort Worth man, Jose "Lee" Moreno, who died in February 2020.


Moreno became a paraplegic after he was shot in a workplace shooting in 1989 and a bullet lodged permanently in his spine.


Krouse ruled the man died of complications from paraplegia due to the gunshot wound and classified his death as a homicide.


Krouse did not do an autopsy and did not recover the bullet, according to the audit.


The review found the homicide classification was inappropriate because Krouse should have further investigated other potential causes of death such as drug overdose or heart disease.


"I want to know what happened to my dad," Kristina Moreno said. "Truly I want to know what happened."


She said nobody from the medical examiner's office has contacted the family to update them on the findings.


"I don't understand why you're going to waste all this time and not do a proper job, not do the proper job, and give people closure," said Moreno's sister Vanessa Morales. "It's not fair to just leave us in limbo."


The man convicted of shooting and kidnapping Moreno served 14 years in prison and was released on parole in 2007.


In another homicide of a man who was found stabbed and burned along some railroad tracks in Fort Worth, Krouse failed to describe defensive wounds and made “obvious errors” describing the injuries, the audit said.


Errors in Audit Itself:

The audit itself appears to contain multiple mistakes.


It includes the same Grand Prairie victim's name twice – once with a mistaken case number -- and gives a different age for the victim than what appears in online medical examiner records. Online records show he was 30. The audit reports his age as 38.


The mistaken second case number was for a Fort Worth homicide -- not Grand Prairie, according to online records. The audit does not include information on the Fort Worth homicide even though the autopsy was conducted by Krouse during the time frame covered in the audit.


The audit also gives conflicting information about a third case involving a 15-year-old boy’s death. It uses the same address where a 38-year-old man died in Fort Worth five days earlier.


It’s not clear which information is correct.


In yet another error, the audit claimed the autopsy of the 15-year-old boy was done on June 22 -- four days before his death was reported on June 26.


'Not a Big Deal':

In a phone interview Wednesday, Peerwani said he would amend the audit to correct the errors, which he described as typographical mistakes that did not impact the end result.

“I will look at it and change it,” he said. “It’s not a big deal.”

Peerwani declined further comment.


NBC 5 asked the Tarrant County District Attorney’s office if prosecutors still have faith in the audit and if they will notify defense attorneys of the discrepancies.


"We will provide any amended audit to defense attorneys," the DA said in a statement. 


"Our legal and ethical obligation is to provide to defense attorneys with homicide cases the information provided to us by Dr. Peerwani."


The statement did not address the question about whether prosecutors have confidence in the audit.


Krouse could not be reached and the medical examiner’s office declined to forward a request for comment to him."


The entire story can be read at: 

https://www.nbcdfw.com/news/local/tarrant-coroner-made-59-mistakes-in-40-death-investigations-audit/2593797/

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: "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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FINAL, FINAL, FINAL WORD: “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.

Flawed Forensics: Resources: 'A Failure of Forensics'...Interview with Professor Brandon Garrett of Duke Law School and Dr. Peter Stout of the Houston Forensic Science Center. In Part 1 they explain the impact forensic evidence can have at trial and the severe consequences when forensic labs get it wrong - as well as the sway of forensic evidence among juries, how judges determine the admissibility of forensic evidence, and the role of defense attorneys in the courtroom...In Part 2 they discuss how the Houston Forensic Science Center (often regarded as a model of reform) operates, including implementing blind quality control programs and independent oversight - and the also explore the legal and policy changes that can be instituted at the lab level and systemwide to address the failures in forensic labs.


PUBLISHER'S NOTE: There are some fascinating interviews in the 'talksonlaw' continuing education series. Fortunately, the publisher's have provided free  public access to the interviews.  (Access to the related 'materials' is restricted to CLE (Continuing Legal Education) recipients. This is an excellent, much appreciated  public service. (Many other interesting topics in the series).

Harold Levy: Publisher: The Charles Smith Blog. 

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The entire interview and notes can be read at: 

https://www.talksonlaw.com/talks/a-failure-in-forensics

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INTERVIEW: 'A FAILURE OF FORENSICS': An interview with  Professor Brandon Garrett of Duke Law School and Dr. Peter Stout of the Houston Forensic Science Center.  

Thursday, October 14, 2021

Michael Politte: Missouri: Outdated arson 'science.' and much more: As Kansas City Star (Reporter Luke Nozicka) reports in the story, headed "A terrible mistake: One juror now says Missouri prisoner is innocent in 1998 murder," "At trial, the case against Politte rested largely on testimony from fire investigators who said the blaze was started by an accelerant and that he had gas on his shoes — the only physical evidence linking him to the killing. Those findings were based on fire investigation techniques that have since been discredited, and the state has conceded in the intervening years that Politte did not have gas on his shoes, according to his petition. The compounds were simply ones “commonly used in the shoe manufacturing process,” Politte’s lawyers said, citing an analysis by one of the country’s top experts. Even before the 2002 trial, the crime lab admitted it knew the testing methods it used on Politte’s shoes produced unreliable evidence, said Megan Crane, one of his attorneys. The lab adopted new methods because of it in the late 1990s. “Yet they didn’t retest his evidence,” Crane told The Star."


STORY: "A terrible mistake: One juror now says Missouri prisoner is innocent in 1998 murder," by Reporter Luke Nozicka, published why The Kansas City Star, on October 14, 2021.

PASSAGE ONE OF THE DAY: "The latest juror to come forward, Dickerson-Bell, saw on Facebook that Politte’s attorneys filed a petition in an appeals court in August. She sent a message to his lawyers that said, “What can I do to help make this right?” Now head of St. Francois County’s Habitat for Humanity, Dickerson-Bell said she previously hesitated to watch an MTV documentary series that featured Politte’s case, but wondered if it would put her “mind at peace” about the verdict.  Instead, she learned there was not gasoline on Politte’s shoes, which she called the “nail in the coffin” for her. “After learning about the new evidence, my guilt has only grown,” she wrote. “I now firmly believe ... that we made a terrible mistake.""

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PASSAGE TWO OF THE DAY: " Crane, co-director of the MacArthur Justice Center’s Missouri office, described it as “striking” when more than one juror comes forward to say they got the verdict wrong. But she said it’s not surprising given that the “only evidence” against Politte was undeniably false. ”The state’s prioritization of finality over fairness is premised on protecting the jury’s verdict,” Crane said. “That goes out the window when the jurors themselves believe he is innocent and want their verdict reversed.” 

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PASSAGE THREE OF THE DAY:Missouri has recently been in the national spotlight for two high-profile cases that local prosecutors say are wrongful convictions. In Kansas City, Jackson County Prosecutor Jean Peters Baker’s office determined Kevin Strickland, 62, has spent more than 40 years in prison for a triple murder he did not commit.  A hearing during which she will argue he is innocent is set for Nov. 8. On the other side of the state, St. Louis Circuit Attorney Kim Gardner’s office concluded Lamar Johnson, 47, has spent the past 26 years in prison for a 1994 murder he did not commit. Johnson also remains behind bars. Baker and Gardner have faced opposition from the Missouri Attorney General’s Office in their efforts to free the men. The Associated Press contributed to this report."

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GIST: "A juror who voted to convict a Missouri man of killing his mother more than 20 years ago now believes he is innocent, according to a petition filed late Wednesday in the state Supreme Court. She is the second juror to publicly change course. 

Michael Politte, 14 at the time, quickly became the prime suspect in his mother’s 1998 murder after he found her body burning on the floor of their Hopewell home in eastern Missouri, his lawyers say. 

He was convicted of second-degree murder four years later and sentenced to life in prison. Now 37, Politte and his sisters maintain he was wrongly convicted. 

So do two jurors who voted to find him guilty, including one who recently contacted his attorneys, according to the Midwest Innocence Project and the MacArthur Justice Center.

 In an affidavit last week, Linda Dickerson-Bell, of Bonne Terre, said she always had doubts about Politte’s guilt, but that she was pressured to vote to convict him by other jurors, including one who said he wanted to “hang the kid.” “If I had known then what I know now, I would not have convicted,” Dickerson-Bell said, adding that the verdict has weighed on her heavily. “I now believe Michael is innocent.

 In their petition before the state’s highest court, Politte’s attorneys argued that he was convicted because of a biased investigation, faulty science and an incompetent new public defender at trial.

 They hope it leads to his exoneration and release. Josh Hedgecorth, the current prosecutor in Washington County, where Politte was prosecuted, said he had no comment. 

A spokesman for Missouri Attorney General Eric Schmitt declined comment. On Dec. 5, 1998, Politte and a friend awoke to smoke at his mother’s mobile home, according to his petition. He told law enforcement he found the burning body of his mother, Rita, in her bedroom.

 She had also suffered blunt force trauma to her head. Investigators quickly decided the fire was started with gasoline, and law enforcement immediately zeroed in on Politte as a suspect. 

But no blood or other injuries were found on him, the petition alleges. Investigators also misinterpreted his trauma and stress as indicators of guilt, his lawyers said. 

Law enforcement did not investigate other viable suspects, including Politte’s father — recently divorced from his mother — who had been ordered to pay a “significant” financial settlement the week before she died, the petition claims.

Witnesses also said a cousin of Politte’s father was seen around the home shortly after the fire. A murder weapon was never found. Politte was arrested two days after his mother’s killing. 

While being handcuffed, he “frantically asked the officers to take his fingerprints because someone was trying to frame him,” his lawyers wrote.

 At trial, the case against Politte rested largely on testimony from fire investigators who said the blaze was started by an accelerant and that he had gas on his shoes — the only physical evidence linking him to the killing. 

Those findings were based on fire investigation techniques that have since been discredited, and the state has conceded in the intervening years that Politte did not have gas on his shoes, according to his petition. The compounds were simply ones “commonly used in the shoe manufacturing process,” Politte’s lawyers said, citing an analysis by one of the country’s top experts.

 Even before the 2002 trial, the crime lab admitted it knew the testing methods it used on Politte’s shoes produced unreliable evidence, said Megan Crane, one of his attorneys. The lab adopted new methods because of it in the late 1990s. “Yet they didn’t retest his evidence,” Crane told The Star.

 Prosecutors at trial also claimed Politte, while attempting suicide at a juvenile detention center, uttered, “I am have not cared since Dec. 5, that’s when I killed my mom.” But his attorneys contend he said “when they” killed his mom. “What he actually said has been hotly disputed ever since,” they wrote. 

Politte’s petition includes an affidavit from Tammy Nash, who was a Washington County deputy sheriff who helped investigate the killing. She said investigators were split on whether Politte was guilty. Her doubts grew as she got to know him. Nash remembers Politte crying frequently and saying, “if my mam was here, she would tell them I would never hurt her and I did not do this,” according to her affidavit. Nash believes Politte is innocent.

 The latest juror to come forward, Dickerson-Bell, saw on Facebook that Politte’s attorneys filed a petition in an appeals court in August. She sent a message to his lawyers that said, “What can I do to help make this right?”

Now head of St. Francois County’s Habitat for Humanity, Dickerson-Bell said she previously hesitated to watch an MTV documentary series that featured Politte’s case, but wondered if it would put her “mind at peace” about the verdict. 

Instead, she learned there was not gasoline on Politte’s shoes, which she called the “nail in the coffin” for her. “After learning about the new evidence, my guilt has only grown,” she wrote. “I now firmly believe ... that we made a terrible mistake.”

 Jurors thought of Politte as “Burny” because that was how he was referred to at trial, Dickerson-Bell’s affidavit stated. 

The prosecutor also told jurors he liked to burn things. She now knows his nickname was “Bernie,” which stemmed from his middle name. 

Dickerson-Bell was not the only hold-out juror at the time. In a 2017 affidavit, another juror, Jonathan Peterson, said he did not think “justice was served” when Politte was convicted.

He did not believe Politte was innocent, but he also did not think the teenager could have killed his mother by himself. While he was “unsure” Politte “did it,” he voted to convict after he felt pressured by the judge to make a decision, according to his affidavit. 

But the jury foreman, Victor Thomas, now believes Politte is innocent and “should be freed to correct this wrong.”

 He and other jurors would not have convicted the boy had they know about the victim’s divorce and other evidence, he said in a 2017 affidavit. 

“The jury never heard evidence about any other possible suspects,” he recalled.

 Crane, co-director of the MacArthur Justice Center’s Missouri office, described it as “striking” when more than one juror comes forward to say they got the verdict wrong. 

But she said it’s not surprising given that the “only evidence” against Politte was undeniably false. ”The state’s prioritization of finality over fairness is premised on protecting the jury’s verdict,” Crane said. “That goes out the window when the jurors themselves believe he is innocent and want their verdict reversed.” 

Politte remains imprisoned at the Jefferson City Correctional Center. In a recent interview with St. Louis Public Radio, Politte said prosecutors offered him a 15-year prison sentence if he agreed to plead guilty to voluntary manslaughter. He would have been released more than a decade ago had he taken it, he said. “I didn’t murder my mother,” he told the radio station. 

 Ricky Kidd, a Kansas City man who spent 23 years in prison for a double murder he did not commit, told The Star he found Politte to be “authentic” when he told him he was innocent. “It was a problem for me to hear everybody say they innocent because ... the voices of those who were truly innocent were drowned out,” Kidd, who was freed in 2019, said Wednesday. “But I always had a sense that when Michael said he was innocent, I believed him.”

 Missouri has recently been in the national spotlight for two high-profile cases that local prosecutors say are wrongful convictions. In Kansas City, Jackson County Prosecutor Jean Peters Baker’s office determined Kevin Strickland, 62, has spent more than 40 years in prison for a triple murder he did not commit. 

A hearing during which she will argue he is innocent is set for Nov. 8. On the other side of the state, St. Louis Circuit Attorney Kim Gardner’s office concluded Lamar Johnson, 47, has spent the past 26 years in prison for a 1994 murder he did not commit. Johnson also remains behind bars.

 Baker and Gardner have faced opposition from the Missouri Attorney General’s Office in their efforts to free the men. The Associated Press contributed to this report."

The entire story can be read at:

https://www.kansascity.com/news/state/missouri/article254959457.html#storylink=cpy

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: "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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FINAL, FINAL, FINAL WORD: “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.

Part One: Flawed pathologist Marc Krouse: Tarrant County; Texas: Major Development: Stephen Barbee's execution has been stayed by a federal court because he was denied access to a spiritual advisor. Of particular interest to this Blog, as set out by The Death Penalty Information Center: "In addition to his religious freedom issues, Barbee has argued that his conviction should be overturned because his lawyers unconstitutionally conceded his guilt at trial against his wishes. He also is seeking a new trial because, he says, newly discovered evidence shows that his conviction rested on false forensic testimony by a coroner who was subsequently suspended from performing autopsy examinations on homicide cases because of a pattern of errors and negligent practices. The U.S. Supreme Court on October 4, 2021 declined (to its shame. HL) to review Barbee’s challenge to his attorneys’ conduct. The Texas Court of Criminal Appeals on October 8, 2021 denied (to its shame HL) his challenge to the alleged false forensic testimony." (This is a 'big deal.' Allegation of 'false forensic testimony' in a death penalty case from Texas (surprise, surprise! HL);


PASSAGE OF THE DAY: "In March and April 2021, prosecutors for the first time disclosed to the defense evidence that Barbee’s lawyers say show that Dr. Krouse had been fired as a result of errors, omissions, and negligence “in virtually all of his recent autopsies.” In an October 1, 2021 habeas corpus filing in the TCCA, Barbee’s counsel notes that an audit of Dr. Krouse’s autopsies conducted by the Tarrant County Medical Examiner’s Office found that Krouse “had made 59 mistakes during the autopsies of 40 murder victims over a 10-month period in 2019 and 2020.” Barbee’s counsel further alleges that their ongoing investigation “has shown that Dr. Krouse’s incompetence goes back to well prior to Mr. Barbee’s trial,” citing evidence that the Lubbock County District Attorney’s office accused Krouse in 2000 of conduct that “was ‘grossly negligent’ or untruthful.” Prosecutors also failed to disclose to the defense at trial the fact that Krouse had been the subject of a criminal complaint for domestic violence.  Barbee’s TCCA petition presented an evaluation by an independent pathologist who, the defense says, “identified many errors, flaws and omissions in Dr. Krouse’s conclusions as to Lisa Underwood’s death and his trial testimony based on those conclusions.” Dr. William Anderson, a former associate and chief medical examiner in North Carolina, California, Georgia, and Florida, disputed Krouse’s conclusions as to the time of death, mechanism of death, and how long it took for Underwood to die. Dr. Anderson found “minimal evidence of blunt force injury to the neck …, strongly mitigating against [the state’s] manual strangulation scenario.” He further found that “[n]o internal photos were taken and no microscopic analysis of the tissues, essentially meaning that there is no documented evidence that connects that injury to [Underwood’s] subsequent death.”

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POST: "Texas Federal Court Stays Execution of Stephen Barbee on Religious Freedom Issue, Defense Seeks Review of False Forensic Testimony," published by The Death Penalty Information Center on October 12, 2021.


GIST:  "A federal court in Texas has stayed the October 12, 2021 execution of Texas death-row prisoner Stephen Barbee on his claims that the state’s refusal to allow his spiritual advisor to administer last rites, touch him, or pray out loud in the execution chamber violates his constitutional and federal statutory rights to free exercise of religion. Judge Kenneth M. Hoyt of the U.S. District Court for the Southern District of Texas issued the stay on October 7, 2021, citing the U.S. Supreme Court’s decision to hear argument on the same issue in the case of Texas death-row prisoner John Henry Ramirez. 


Texas prosecutors did not appeal the district court’s stay order.


“I am very grateful for the stay of execution in Mr. Barbee’s case as it will allow the court time to evaluate these important religious rights issues,” Richard Ellis, Barbee’s attorney, told the Associated Press.


In addition to his religious freedom issues, Barbee has argued that his conviction should be overturned because his lawyers unconstitutionally conceded his guilt at trial against his wishes. He also is seeking a new trial because, he says, newly discovered evidence shows that his conviction rested on false forensic testimony by a coroner who was subsequently suspended from performing autopsy examinations on homicide cases because of a pattern of errors and negligent practices. The U.S. Supreme Court on October 4, 2021 declined to review Barbee’s challenge to his attorneys’ conduct. The Texas Court of Criminal Appeals on October 8, 2021 denied his challenge to the alleged false forensic testimony.


Prior to receiving a stay of execution, Barbee submitted a clemency petition asking Governor Greg Abbott to commute his death sentence based on these issues. The Texas Board of Pardons and Paroles “discontinued” the clemency application on October 8 in light of the federal court stay.


The Religious Exercise Issue in Texas Executions

On September 7, 2021, the Texas Department of Criminal Justice informed Barbee’s designated spiritual advisor, Barry Brown, that Brown would not be able to verbally perform religious rites or touch Barbee in the execution chamber during his execution. The next day, September 8, 2021, the U.S. Supreme Court stayed John Ramirez’s execution to review his claim that the state’s refusal to allow his pastor to “lay hands” on him or pray audibly during the execution violated the federal Religious Land Use and Institutionalized Persons Act and his First Amendment right to the free exercise of religion. The Court on September 9 set an expedited briefing schedule in Ramirez’s case and scheduled oral argument in the case for November 1.


Barbee formally filed a grievance of TDCJ’s limitations on his spiritual advisor on September 15, and Ellis sent a letter via email to the Texas Department of Criminal Justice (TDCJ) Office of General Counsel to determine TDCJ’s position on Barbee’s “request that his spiritual advisor be permitted to audibly pray and physically touch Mr. Barbee to administer spiritual comfort and a blessing upon him at the time of his death.” TDCJ denied Barbee’s grievance on the 16th, writing that “[a]t this time, the spiritual advisor is not allowed to touch the inmate or speak out loud once inside the execution chamber.” By email that day, the Office of General Counsel refused to answer Ellis’ question, stating that Barbee would have to seek a response through the grievance process. 


Ellis filed a civil rights complaint on behalf of Barbee in federal district court on September 19, seeking to allow Barbee’s spiritual advisor “to be physically present in the chamber, to audibly pray and to physically touch Mr. Barbee in order to confer ministrations and a spiritual blessing upon him at the time of his death.” Counsel also sought a stay of execution, alleging that the limitations Texas placed on Barbee’s spiritual advisor “violate the First Amendment’s Free Exercise Clause and substantially burden the exercise of his religion in violation of the Religious Land Use and Institutionalized Persons Act.”


As they did in Ramirez’s case, Texas prosecutors opposed Barbee’s request, arguing that the religious practices he wants his spiritual advisor to perform would create a security risk. Judge Hoyt granted Barbee’s stay application, writing, “[s]taying Barbee’s execution will allow time to explore and resolve serious factual issues concerning the balance between his religious rights and the prison’s valid concerns for security.”


A diverse group of individuals and organizations have filed amicus curiae briefs in the U.S. Supreme Court in support of Ramirez. The eleven friend-of-the-court briefs represent a variety of religious rights groups, including the Becket Fund for Religious Liberty, Protect the First Foundation, and Alliance Defending Freedom, as well as the United States Conference of Catholic Bishops and Texas Catholic Conference of Bishops, religious liberty scholars, spiritual advisors who have ministered to prisoners during prior executions, and former prison officials. 

The Catholic bishops argue that Texas’ policies violate not only the prisoners’ religious rights but those of their ministers as well. “By denying chaplains the ability to personally and effectively minister to their death-row church members in their final moments—including through the laying on of hands and the vocalization of prayers in the execution chamber—they impermissibly infringe upon the First Amendment freedoms of religious organizations and their ministers.” 


The brief submitted by spiritual advisors and former prison officials notes that the religious practices requested by Ramirez have safely been performed in numerous previous executions, including many in Texas before TDCJ changed its execution policies. “In most of [the state’s 572] executions, TDCJ permitted spiritual advisors to lay hands on the condemned during the execution,” the officials explained. “Likewise, up until recently, it was common for TDCJ to permit the spiritual advisor to audibly pray at the time of death. Never did these practices cause a disruption or security threat during the execution.”

Two other Texas prisoners with pending execution dates—Kosoul Chanthakoummane (November 10) and Ramiro Gonzales (November 17)—have also raised similar religious freedom claims.


Allegations of False Forensic Testimony

Barbee was convicted and sentenced to death on charges that he had murdered his ex-girlfriend, Lisa Underwood, and her son. After police threatened him with the death penalty, Barbee initially said that he caused the deaths but that they were accidental and unpremeditated. He immediately recanted his confession, which he said was coerced, and continuously thereafter has maintained his innocence. His pleadings in the U.S. Supreme Court and in the Texas Court of Criminal Appeals note that “[n]o DNA or forensic evidence from the crime scene, the victim’s car, or the victim’s clothing connect[ ] Mr. Barbee to the murders.”


Barbee’s trial took only 2½ days, with the defense case at the guilt phase encompassing barely three pages of the trial transcript. Although Barbee repeatedly told his lawyers he wanted to maintain his innocence, counsel told the jury in his closing argument that Barbee had held down his ex-girlfriend by the throat, accidentally causing her to die. Dr. Marc Krouse, the coroner who testified for the prosecution, told the jury that Underwood had sustained soft-tissue injuries caused by 5 to 7 minutes of between 100 and 400 pounds of force. 


In March and April 2021, prosecutors for the first time disclosed to the defense evidence that Barbee’s lawyers say show that Dr. Krouse had been fired as a result of errors, omissions, and negligence “in virtually all of his recent autopsies.” In an October 1, 2021 habeas corpus filing in the TCCA, Barbee’s counsel notes that an audit of Dr. Krouse’s autopsies conducted by the Tarrant County Medical Examiner’s Office found that Krouse “had made 59 mistakes during the autopsies of 40 murder victims over a 10-month period in 2019 and 2020.” Barbee’s counsel further alleges that their ongoing investigation “has shown that Dr. Krouse’s incompetence goes back to well prior to Mr. Barbee’s trial,” citing evidence that the Lubbock County District Attorney’s office accused Krouse in 2000 of conduct that “was ‘grossly negligent’ or untruthful.” Prosecutors also failed to disclose to the defense at trial the fact that Krouse had been the subject of a criminal complaint for domestic violence. 


Barbee’s TCCA petition presented an evaluation by an independent pathologist who, the defense says, “identified many errors, flaws and omissions in Dr. Krouse’s conclusions as to Lisa Underwood’s death and his trial testimony based on those conclusions.” Dr. William Anderson, a former associate and chief medical examiner in North Carolina, California, Georgia, and Florida, disputed Krouse’s conclusions as to the time of death, mechanism of death, and how long it took for Underwood to die. Dr. Anderson found “minimal evidence of blunt force injury to the neck …, strongly mitigating against [the state’s] manual strangulation scenario.” He further found that “[n]o internal photos were taken and no microscopic analysis of the tissues, essentially meaning that there is no documented evidence that connects that injury to [Underwood’s] subsequent death.”


Barbee’s sought an order returning the case to the trial court for an evidentiary hearing on the prosecution’s “presentation of false evidence and nondisclosure of material impeachment evidence of a crucial State’s witness.” It also asked the TCCA to stay Barbee’s execution so counsel can further investigate Krouse’s “incompetence and botched autopsies.” The TCCA denied the petition on October 8."


The entire post can be read at: 

https://deathpenaltyinfo.org/news/texas-federal-court-stays-execution-of-stephen-barbee-on-religious-freedom-issue-defense-seeks-review-of-false-forensic-testimonyhttps://deathpenaltyinfo.org/news/texas-federal-court-stays-execution-of-stephen-barbee-on-religious-freedom-issue-defense-seeks-review-of-false-forensic-testimony

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: "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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FINAL, FINAL, FINAL WORD: “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.