Sunday, February 28, 2021

Sue Neill-Fraser: Australia: Her long-awaited appeal begins tomorrow. (March 1, 2021 in Hobart's Supreme Court...Thanks to author/blogger Andrew L. Urban for providing the following 'appeal check list' on his 'Wrongful Convictions Report'. The 'check list' will make it easier to follow this very important (and very interesting) appeal. HL. (He cautions that this is not a comprehensive summary of the case - but rather a snapshot of key elements.)


BACKGROUND: ”Sue Neill-Fraser was convicted of murdering her partner Bob Chappell on Australia Day 2009, on board their yacht, Four Winds. She has maintained her innocence. She has been granted leave to appeal (in March 2019) after a three year process in which then homeless 15 year old Meaghan Vass admitted she was a witness to the murder and Neill-Fraser was not involved. Vass’ DNA was found on the deck." As per Yahoo News: 2020: "Ten years after being found guilty of murdering her partner Bob Chappell, Hobart grandmother Susan Neill-Fraser's second appeal against her conviction will be heard. Neill-Fraser is serving 23 years' jail for killing Mr Chappell on Australia Day 2009 on the couple's yacht in Hobart. Her legal team argues there is "fresh and compelling" evidence that places then-homeless teenager Meaghan Vass on board the boat the night in question."

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APPEAL CHECK LIST: By author/Blogger Andrew L. Urban, published on The Wrongful Conviction Report,  on The Wrongful Convictions Report, on February 26, 2021. (Andrew L. Urban is author of Murder by the Prosecution' and authoritative book on the Neill-Fraser case.)

GIST: On what evidence was Sue Neill-Fraser (SNF) convicted?

There was no primary or direct evidence, such as a weapon or an eye witness to the crime; the body of Bob Chappell has never been found; the prosecution presented the jury with only circumstantial evidence. The prosecutor speculated that SNF murdered Chappell below deck with some weapon like a wrench or a screwdriver, winched him up on deck and into the dinghy and then disposed of the body in the Derwent River, tied to a fire extinguisher.

What new evidence has triggered leave to appeal?
A large volume DNA sample in an area 26 cm x 21 cm (approx. size of an A4 page) on the yacht was matched to then homeless 16 year old Meaghan Vass, who denied at trial (and subsequently) that she had ever been aboard. She has since admitted that she had been there and witnessed an on-board fight between Chappell and two males who boarded the yacht with her, and that SNF was not there. Vass confessed on 60 Minutes (Channel 9, March 10, 2019, not shown in Tasmania) and in a sworn statement to the court. She saw a lot of blood … and claimed the material deposit with her DNA was her vomit. She finally came forward so “the lady could go home to her family”.

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Did the prosecution prove that Sue Neill-Fraser was on board the couple’s recently purchased yacht, Four Winds, when Bob Chappell was allegedly murdered?
No. The time of death was also unclear.

Was the body of Bob Chappell found and examined?
No.

Did the prosecution produce evidence of an actual murder weapon?
No.

In his summing up to the jury, what did the prosecutor Tim Ellis SC say about the DNA evidence found on the deck, (in a deposit area 21 x 26 cms) that was matched to then homeless girl, Meaghan Vass? 
” … we’ve had Meaghan Vass, a sixteen year old homeless girl, bullied and chased around by Mr Gunson all because some of her DNA was found in the one spot on Four Winds, one spot, one spot only, on the top of the deck – a sixteen year old girl. And the idea was to making you think that she could or was – to make a reasonable doubt in your minds that she was connected to this killing – but that gained her what? “Where were you living on the night of the 26th?”

“Don’t know” – two different stories, oh, homeless girl, two different stories. Treated ferociously, treated ferociously, while all the time it seems that she may have been in the Goodwood area, maybe she had something to do with an entry there, maybe not – probably not, I suggest, but the whole thing is such a red herring because when you realize that the DNA could have been transferred from someone onto Four Winds, and the number of people who were there and where they came from, it’s – it was a refinement of that red herring to say, “Were you down at Constitution Dock then?” as if she had necessarily stepped onboard, or even if someone had necessarily acquired some trace of her DNA, some strong sign of her DNA on their footwear before getting on the yacht. They could have got in – they could have acquired that anyway in Hobart, I suggest, anywhere she might have been, and we don’t know where she’s been, nor can she be expected to remember where she was on the 26th of January.

But it could have been put there at any time before the DNA swab was taken by anyone who had acquired some trace on their footwear.”

In his summing up to the jury, what did the judge say about the DNA?
“Now if Meaghan Vass was homeless in the northern suburbs one of the possibilities that I’d suggest you ought to be considering is whether she’d spat – it’s not a delicate subject, but had urinated or something like that somewhere where a policeman had trodden and then that officer had walked onto the deck or got into the car and driven to the boat and walked onto the deck, is it possible that that’s the mechanism by which her DNA got there and that she wasn’t there. Another possibility is that although she said she wasn’t there really on the night of the 26 January or sometime thereafter – sorry, on the night of the 26 January or sometimes thereafter she was on that boat, and given – if you accept that she didn’t get on at Constitution Dock then you’d need to consider whether it’s plausible that she got aboard while it was at its mooring or is it plausible that she got aboard while it was at Goodwood.

“Well Mr Grosser was cross-examined about the possibilities of transference and about the relative chances of the DNA coming directly from the girl or the DNA coming indirectly from her and being transferred there, perhaps on someone’s shoe. All that he really said was in substance that he couldn’t evaluate the possibilities, he couldn’t say whether one possibility was more likely than the other. He certainly didn’t say that transference – without the girl having got on the boat that transference was not plausible.”

The entire 'appeal check list' can be read at:

FacebookTwitterhttps://wrongfulconvictionsreport.org/2021/02/26/sue-neill-fraser-appeal-check-list/

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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Saturday, February 27, 2021

Patrick Pursley: Illinois; Ballistics: Major (Welcome) Development: Officially exonerated at last: Judge grants 'certificate of innocence.'..."Pursley was convicted of Ascher’s murder in 1994 and spent 23 years of a life sentence in prison before he was granted a new trial after ballistics tests showed the Taurus 9 mm handgun used to convict him was not the murder weapon."


PASSAGE ONE OF THE DAY: "Andy Ascher, 22, was shot to death during an attempted armed robbery as he sat in his car on Silent Wood Trail. Pursley’s girlfriend at the time implicated him in the homicide but later recanted her statements. Pursley was permitted to be released on bail in March of 2017 after McGraw ordered a new trial. Two years later, Pursley was acquitted. Pursley’s attorneys have filed a federal civil suit alleging Rockford police officers and forensic scientists from the Illinois State Crime Lab “knowingly fabricated and solicited false evidence implicating (Pursley) in the crime and pursued and obtained (his) conviction using that false evidence.”


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PASSAGE TWO OF THE DAY: "Pursley was convicted of Ascher’s murder in 1994 and spent 23 years of a life sentence in prison before he was granted a new trial after ballistics tests showed the Taurus 9 mm handgun used to convict him was not the murder weapon."


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POST: "Patrick Pursley officially declared innocent of 1993 murder in Rockford," by Reporter Ken DeCoster, published by The Rockford Register Star on Feb. 26, 2021. (Thanks to Dr. Michael Bowers of 'CSIDDS: Forensics and Law in Focus' for drawing this story to our attention.)


GIST:  "Two years after he was acquitted of a first-degree murder charge, former Rockford resident Patrick Pursley is celebrating another legal victory.


Judge Joseph McGraw granted Pursley’s petition for a certificate of innocence on Friday in the 1993 shooting death of Andy Ascher.


Pursley was convicted of Ascher’s murder in 1994 and spent 23 years of a life sentence in prison before he was granted a new trial after ballistics tests showed the Taurus 9 mm handgun used to convict him was not the murder weapon.


“I am convinced by the preponderance of the evidence that Mr. Pursley is actually innocent of the charge,” McGraw said in court Friday.


Pursley, 55, now lives in the Champaign area, and took part in Friday’s court proceedings via Zoom.


“I feel a sense of immense gratitude,” Pursley said. “This has been going since 1993 and I feel grateful to be done in state court. That’s the best way I can put it.”s


Chicago-based civil rights attorneys Rachel Brady and Alison Leff represented Pursley.


“We and Mr. Pursley are very happy and extremely relieved about this ruling,” Brady said. “Patrick has been fighting for over 25 years to prove innocence and also to prove he was convicted based on bad evidence. We are very happy and relieved that the court has now officially recognized his innocence. We’re hopeful that this will be a good first step to help him rebuild his life and reputation after more than two decades of wrongful imprisonment.”


A certificate of innocence comes with a number of potential benefits, some of which are guaranteed and some of which are discretionary, according to Brady.


“It allows the certificate of innocence holder to get a relatively modest amount of compensation from the state to provide financial assistance when they’re released from prison and declared innocent,” she said. “A certificate of innocence entitles the holder to expungement and it also can provide the individual with job counseling and placement services and other benefits that would help them re-enter society and get housing and work. Most importantly, it’s an official declaration of innocence that is so critical for people who have been fighting for somebody to recognize their innocence for decades. That official declaration from the courts is also extremely meaningful.”


Andy Ascher, 22, was shot to death during an attempted armed robbery as he sat in his car on Silent Wood Trail.


Pursley’s girlfriend at the time implicated him in the homicide but later recanted her statements.


Pursley was permitted to be released on bail in March of 2017 after McGraw ordered a new trial.


Two years later, Pursley was acquitted.


Pursley’s attorneys have filed a federal civil suit alleging Rockford police officers and forensic scientists from the Illinois State Crime Lab “knowingly fabricated and solicited false evidence implicating (Pursley) in the crime and pursued and obtained (his) conviction using that false evidence.”


Pursley said he plans to pursue a law degree and continue to work with I Am Kid Culture, the nonprofit organization he founded while in prison to benefit at-risk youth.


“There’s no lingering bitterness. That’s unnecessary baggage,” Pursley said of his time spent in prison for a crime he didn’t commit. “Of course, it hurts but it is what it is.”


The entire post can be read at: 


https://www.rrstar.com/story/news/2021/02/26/patrick-pursley-gets-certificate-innocence-after-wrongful-conviction/6814469002/


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PASSAGE ONE OF THE DAY: National Registry: "Daniel Gunnell, a crime lab analyst for the Illinois State Police, testified that he examined the gun seized from Crabtree’s apartment and the two recovered bullets. He told the jury that he had compared test-fired bullets to the recovered bullets, as well as the casings recovered at the scene to casings from the test-fired bullets. He said that the gun, a Taurus nine-millimeter pistol, was the murder weapon “to the exclusion of all others.”


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PASSAGE TWO OF THE DAY: National Registry: "The defense presented a ballistics expert, David Boese, who testified that he was unable to make a conclusive identification that the bullets from the scene were fired from Crabtree's gun. He testified that the crime scene bullets were probably fired from a Taurus gun, but not the Taurus seized by police. He could not conclusively exclude the gun, either, saying there were insufficient markings to make a determination. On April 28, 1994, the jury convicted Pursley of first-degree murder. He was sentenced to life in prison without parole.


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PASSAGE THREE OF THE DAY:  National Registry: "Pursley went to trial a second time in January 2019, and asked that Judge McGraw hear the case without a jury. The prosecution again called Gunnell as well as another Illinois State Police ballistics analyst. However, both said that their comparisons of the crime scene bullets and casings were inconclusive. The defense presented ballistics experts who testified that the Taurus was not the murder weapon. On January 16, 2019, Judge McGraw announced his decision. He noted that the “evidence in 1993 was scant by today’s standards, and when you start with scant evidence you’re not in a good position to reevaluate it years later.” Judge McGraw said the defense ballistics experts demonstrated conclusively that the cartridge cases were not fired from the gun attributed to Pursley. McGraw acquitted Pursley saying, “No one id’d the bullets recovered from the scene as fired from the Taurus.” Pursley subsequently filed a federal lawsuit seeking damages for his wrongful conviction. In February 2021, Judge McGraw granted Pursley a certificate of innocence, clearing the way for Pursley to seek compensation from the state of Illinois."


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Read the National Registry of Exonerations entry by Maurice Possley at the link below.


GIST: "At about 10 p.m. on April 2, 1993, 22-year-old Andrew Ascher and his girlfriend, Becky George, were sitting in a parked car in front of George’s brother’s apartment on Silent Road in Rockford, Illinois when a masked gunman yanked open the driver’s side front door and announced a stickup.


As Ascher dug for his wallet, George offered $60 from her purse, but the robber did not take it. Instead, George heard two gunshots and Ascher slumped down. The robber fled on foot. George ran to her brother’s apartment and called police.


George said the robber was wearing dark clothing, a blue ski mask, and a hoodie with a zipper. She said the man was black, but could not otherwise identify him.


Ascher was shot twice in the head. Police recovered one of the bullets from the dashboard of the car. Another bullet was recovered during the autopsy. Two shell casings were recovered as well.


On June 8, 1993, Marvin Windham called Crime Stoppers and said that the day after the shooting, 28-year-old Patrick Pursley admitted that he killed Asher.


On June 10, 1993, Rockford police set up surveillance of an apartment Pursley shared with Samantha Crabtree. At 1:25 p.m., Pursley and Crabtree left the apartment and drove off with Crabtree behind the wheel. While the officers were following in an unmarked van, Crabtree stopped suddenly and Pursley jumped out and eluded the officers.


The police said Crabtree voluntarily agreed to go to the police station.


On the way to the station, the police stopped and searched Crabtree's apartment with a warrant they had already obtained. They recovered a nine-millimeter pistol, a pull-over-style black hooded sweatshirt, black jeans, and a document from the Illinois Department of Employment Security with Pursley’s name on it.


Police later said that Crabtree told them that Pursley told her that if she ever said anything to the police he would kill her. Police said that Crabtree admitted that on the night of the murder, she and Pursley were driving around looking for a house to rob. She said Pursley was wearing black combat boots, black jeans, a black hooded sweatshirt, and was carrying a navy blue ski mask.


Crabtree said Pursley told her to pull over to the side of Silent Road and wait, but to keep the car running. Pursley got out and walked toward some apartment buildings. Two or three minutes later, she heard gunshots and then Pursley returned to the car carrying her nine-millimeter gun. She said that while she was driving home, she made several wrong turns because she was nervous and that Pursley threatened several times to kill her. 


In the statement, Crabtree said that when they got back to her apartment, Pursley took what looked like about $100 from his pocket. She said that later that night, she and Pursley saw a television news report of Ascher’s murder and Pursley told her not to say anything to anyone.


On June 12, 1993, Windham called Crime Stoppers again and gave a statement to police.


On June 16, 1993, in response to a notification from Crime Stoppers that said Pursley was at the Fairgrounds Valley low income housing project, police spotted him hiding under a ramp of an abandoned building and arrested him.


In April 1994, Pursley went to trial in Winnebago County Circuit Court. Windham testified that in April 1993, Pursley showed him a newspaper clipping about the murder and admitted that he had robbed and killed Ascher. On cross-examination, Windham admitted he had received $2,650 in reward money for his information. He said he called Crime Stoppers two months later because Pursley threatened him. Windham also admitted that he had two criminal charges pending against him.


Crabtree testified and recanted her statement to police as well as her testimony to the grand jury that mirrored the statement. She said that in fact Pursley was home with her on the night of the murder.


She told the jury that police had threatened to take away her three children unless she implicated Pursley. She said she was two months pregnant at the time, and was feeling sick and scared. The detectives kept yelling at her, she said, and one officer declared, “I can make it so you don’t see your children until they are 40.”


Crabtree finally relented and agreed to make a statement implicating Pursley. “I would have said anything to make them stop yelling at me so I could go home and be with my kids,” she testified.


The prosecution was allowed to impeach her testimony with her police statement and her grand jury testimony. In that testimony, she said the gun seized during the search of her apartment was hers and that Pursley used it to shoot Ascher.


The detectives testified that they did not threaten or mistreat Crabtree.


Daniel Gunnell, a crime lab analyst for the Illinois State Police, testified that he examined the gun seized from Crabtree’s apartment and the two recovered bullets. He told the jury that he had compared test-fired bullets to the recovered bullets, as well as the casings recovered at the scene to casings from the test-fired bullets. He said that the gun, a Taurus nine-millimeter pistol, was the murder weapon “to the exclusion of all others.”


The defense called several witnesses, including Myra Foster, the grandmother of Pursley's nine-year-old son, and Tracy Foster, the boy’s mother. They testified that on the day of the murder, Pursley was in Rockford with his son and Myra’s seven-year-old son. However, during cross-examination they admitted that two weeks earlier, they told the police that they were not sure that Pursley came to Myra's home on April 2.


Penny Bunnell, testified that on April 2, 1993, she was visiting Myra Foster when Pursley came and picked up the two boys around 5:30 p.m. The boys testified that Pursley took them to his residence the night of April 2, and that they all played with a chemistry set until 11 p.m. On cross-examination, however, they both admitted that they told the police two weeks before their testimony that Pursley had picked them up in the afternoon, not at night.


Sixteen-year-old David Bodell, who lived in the neighborhood where Ascher was killed, testified that he heard three gunshots and a woman scream. Shortly after, he said he walked outside and saw a man crouched down in front of a dumpster that was about 30 feet away. Bodell testified that the man began running toward an open field when police sirens could be heard. The man was about 6 feet 3 inches tall—about five inches taller than Pursley.


The defense presented a ballistics expert, David Boese, who testified that he was unable to make a conclusive identification that the bullets from the scene were fired from Crabtree's gun. He testified that the crime scene bullets were probably fired from a Taurus gun, but not the Taurus seized by police. He could not conclusively exclude the gun, either, saying there were insufficient markings to make a determination.


On April 28, 1994, the jury convicted Pursley of first-degree murder. He was sentenced to life in prison without parole.


In 1996, the Illinois Appellate Court upheld Pursley’s conviction. In 1997, Pursley, acting as his own lawyer, filed a post-conviction petition seeking a new trial. The petition was dismissed without a hearing and the dismissal was upheld by the Illinois Appellate Court. In 1999, Pursley filed another petition, but that was dismissed as well without a hearing.


Pursley then filed a request with the trial court asking for ballistics testing under the Integrated Ballistics Identification System (IBIS), a ballistics database that can be used to compare casings and bullets. That motion was denied when the trial judge ruled that the Illinois statute allowing for post-conviction testing only applied to fingerprint comparison and DNA testing.


In 2007, prompted in part by Pursley’s advocacy from prison, the Illinois legislature amended the statute to allow for ballistics testing and comparison.


In April 2008, Pursley, still acting as his own lawyer, filed a motion for ballistics testing. In October 2008, Northwestern University’s Center on Wrongful Convictions and lawyers from the law firm of Jenner & Block appeared in court to represent Pursley. In January 2009, they filed an amended motion for testing, which was denied in July 2009.


Judge Joseph McGraw agreed that the new legislation authorized the testing and that the testing was not available at the time of the trial. However, he ruled that even if IBIS testing were used, any potential match would still require hands-on comparison and testing by a ballistics expert.


McGraw decided that IBIS testing was not comparable to DNA testing because it provided “a course or gross collection of specimens for purposes of later refined testing by a well-qualified expert using stereomicroscopy.” He concluded that IBIS testing did not supersede the comparisons performed by ballistics experts, and that at Pursley’s trial, “all the ballistics evidence was tested by firearms experts and nothing was left out.” 


McGraw ruled that IBIS testing would not provide a reasonable likelihood of more accurate results, and the evidence would not be relevant to Pursley’s claim of innocence.


In 2011, the Illinois Appellate Court reversed that ruling and ordered that Pursley be given a hearing. The court held that the statute authorized a defendant to petition for testing and that tests be done. Because an IBIS analysis might result in a different weapon being implicated, the court ruled that the hands-on analysis cited by Judge McGraw “would not be the same hands-on analysis that was already performed.”


The ruling was the first in the United States allowing post-conviction ballistics testing.


Ultimately, a hearing was held in December 2016. Gunnell testified that he had re-examined the evidence in 2013 and that while he still believed it was more than likely that the Taurus fired the bullets, he now said his examination was “inconclusive.” Pursley’s lawyers presented evidence from two ballistics experts who said that new testing excluded the Taurus seized in Crabtree’s apartment as the murder weapon.


In March 2017, Judge McGraw granted the petition for a new trial and vacated Pursley’s conviction. The judge concluded that the new ballistics evidence would “likely change the result on retrial.” On April 27, 2017, Pursley was released on bond.


The prosecution appealed the ruling, and in April 2018, the Illinois Appellate Court upheld the grant of a new trial.


In November 2018, Pursley’s lawyers filed a motion seeking dismissal of the case. The motion said that the prosecution had recently revealed a statement made 18 months earlier by Lois Ascher, the victim’s mother. In the statement, she said that not long after Pursley was convicted in 1994, a detective told her that the actual murder weapon couldn’t be found, so officers planted the gun that was said to be the murder weapon.


Lois Ascher’s statement was made in April 2017. The prosecutor claimed he did not consider the statement credible at the time, so he did not disclose it.


At a hearing in December 2018, Lois Ascher told a different story. She testified that police never told her that the gun was planted, but that her husband, who had since passed away, told her that he had been so informed by detectives.


Five former Rockford police officers, who were on the force back in 1993, testified that they never spoke with Lois Ascher or her husband about a planted gun. The five also said they never made such statements to anyone.


On December 28, 2018, Judge McGraw denied the motion to dismiss the case. Although the judge found that the prosecution had acted “with gross negligence,” he said that the evidence was “uncorroborated hearsay.” 


Pursley went to trial a second time in January 2019, and asked that Judge McGraw hear the case without a jury. The prosecution again called Gunnell as well as another Illinois State Police ballistics analyst. However, both said that their comparisons of the crime scene bullets and casings were inconclusive. The defense presented ballistics experts who testified that the Taurus was not the murder weapon.


On January 16, 2019, Judge McGraw announced his decision. He noted that the “evidence in 1993 was scant by today’s standards, and when you start with scant evidence you’re not in a good position to reevaluate it years later.” Judge McGraw said the defense ballistics experts demonstrated conclusively that the cartridge cases were not fired from the gun attributed to Pursley.


McGraw acquitted Pursley saying, “No one id’d the bullets recovered from the scene as fired from the Taurus.”


Pursley subsequently filed a federal lawsuit seeking damages for his wrongful conviction. In February 2021, Judge McGraw granted Pursley a certificate of innocence, clearing the way for Pursley to seek compensation from the state of Illinois."


https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5487


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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

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

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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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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Bulletin: Innocence List: Death Penalty Information Center. (DPIC): Sedley Alley: Pervis Payne: DPIC releases report adding 11 cases to its 'innocence list.'...One interesting observation in the report: Misconduct was present in 85.7 percent of the cases in which DNA evidence contributed to proving a death-row exoneree’s innocence, suggesting that the denial of DNA testing or absence of DNA evidence has caused innocence to be undetected or contributed to the denial of relief in other innocence cases."


PUBLISHER'S NOTE: Another important  report from the Death Penalty Information Center received the following reaction: “The Death Penalty Information Center’s findings are alarming, but not surprising,” Christina Swarns, Executive Director of the Innocence Project, said. Racism pervades every stage of the criminal legal system and sends far too many innocent people of color to prison and to the execution chamber. The good news is that more Americans are now taking this issue seriously." You can read the entire report - and summaries of the 11 cases - at  the link below. I am focusing my comments on the forensic content of the DPIC report - while  stressing how important  and disturbing are the other areas covered in the report. 

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RELEASE: "Death penalty Information Center  (DPIC) adds 11 to innocence list," released by The DPIC on February 18, 2021.

MAJOR THEME: One of the  most important  themes of the document  is that new analysis of death row exonerations is that official misconduct was found to be more likely in cases with innocent  Black and Latinx defendants.

FIRST MAJOR THEME OF INTEREST TO THIS BLOG: "Misconduct was present in 85.7 percent of the cases in which DNA evidence contributed to proving a death-row exoneree’s innocence, suggesting that the denial of DNA testing or absence of DNA evidence has caused innocence to be undetected or contributed to the denial of relief in other innocence cases.  (At the top of every post on a case where DNA testing is denied, I attach the following note: "WORDS TO HEED: FROM OUR POST ON KEVIN COOPER'S  APPLICATION FOR POST-CONVICTION DNA TESTING; CALIFORNIA: (Applicable wherever a state resists DNA testing): "Blogger/extraordinaire Jeff Gamso's blunt, unequivocal, unforgettable message to the powers that be in California: "JUST TEST THE FUCKING DNA." (Oh yes, Gamso raises, as he does in many of his posts, an important philosophical question: This post is headed: "What is truth, said jesting Pilate."...Says Gamso: "So what's the harm? What, exactly, are they scared of? Don't we want the truth?""  https://smithforensic.blogspot.com/2018/06/kevin-cooper-2-california-application.html

SECOND MAJOR THEME RELEVANT TO THIS BLOG: "False or misleading forensic evidence was present in 31.8 percent (59) of exoneration cases and false or fabricated confessions were implicated in 16.2 percent (30) of exonerations."

 THIRD MAJOR THEME RELEVANT TO THIS BLOG:  "Many people are fighting to add more names to DPIC’s innocence list", including: (Two cases - both in Shelby County Tennessee - and both  being cases which have been  followed by this Blog are listed:)

SEDLEY ALLEY:  "The daughter of Sedley Alley, who was executed in 2006 after a Shelby County court denied DNA testing based on a case that has since been overturned, is currently petitioning for post-humous DNA testing. Mr. Alley said that he was coerced into falsely confessing to a murder, which is supported by details in his statement that do not match the forensic evidence. An expert in false confessions has concluded that Mr. Alleys confession was likely false."

PERVIS PAYNE:  "In addition, Pervis Payne, a Black man with intellectual disability, has maintained his innocence for 34 years. He was convicted in Shelby County, which has a long history of lynchings and racial terror, after the prosecution withheld exculpatory evidence and argued without factual support that Mr. Payne was a drug abusing superpredator looking for a white woman to rape."

IMPLICATIONS: "Kirk Bloodsworth, Executive Director of Witness to Innocence and the first death-row survivor to be exonerated by DNA, said the addition of 11 new people to DPIC’s innocence list makes him certain that “innocent people are still on death row today.”He added, "with such a large number of mistakes uncovered, there's no need to wonder anymore, we can also be sure that innocent people have been executed.”

POLITICAL CONSIDERATIONS: "On February 9, 2021, more than 80 criminal justice and civil rights organizations cited DPIC’s innocence list to show “the high propensity for error in our criminal legal system” in calling onPresident Bidento abolish the federal death penalty and to commute the sentences of the 49 federal death-row prisoners."

The entire release can be read at:

https://documents.deathpenaltyinfo.org/pdf/Innocence-Epidemic-Press-Release.pdf

Read DPIC’s Special Report: The Innocence Epidemic here: https://tinyurl.com/356x2feb 

Read summaries of the 11 cases here: https://tinyurl.com/4xavzwss

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;
------------------------------------------------------------------------------------------------

Friday, February 26, 2021

Corey Pickett: New Jersey: Mark this name! I will repeat it. 'Corey Pickett.' Here's why! (In just a few paragraphs).


THE CASE: New Jersey prosecutors are attempting to use sophisticated 'probabilistic genotyping software known as 'TrueAllele" to convict this man of murder. 

PROSECUTOR'S DILEMMA: As much as they want to convict, they want to keep the manufacturer's happy by protecting the software's source code as a 'trade secret.' i.e. Keep it from the defence.

DEFENCE POSITION: Software is not immune from error. The consequences of a murder conviction are enormous. How can I conduct an independent review of this novel DNA technology without being able to examine its inner workings?

WHAT IT LOOKS LIKE: Right to make full answer and defence versus greedy corporations backed up by the state which is eager to get a conviction at any cost. Civil liberties 101?

WHY MARK COREY BOOKER'S NAME:  Because, as you will see from the 'Forensic Magazine; article at the link below, Mr. Pickett has actually won his challenge in the New Jersey courts - at least for now. 

NEXT STEP: (You probably guessed it).  The prosecutors are seeking a review of the New Jersey decision.

SIGNIFICANCE: This is an epoch battle between the public  constitutional right to defend and very private interests  that is being fought not just in Jersey but elsewhere in the U.S.A.  (Apart from the crucial importance of the issue to Corey Pickett )

BOTTOM LINE: Mark that name...I will be following developments in this case and elsewhere.

Harold Levy: Publisher: The Charles Smith Blog:

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STORY: "Corey Pickett Case Puts New Jersey Courts and TrueAllele Head-to-Head," by Editor-in-chief  Michelle Taylor  (who has done an excellent job of making complex technological subject matter crystal clear) published by 'Forensic Magazine' on February 24, 2021. 

GIST: "After a successful appeal by the defendant, state attorneys have filed a motion to reconsider the use and evaluation of probabilistic genotyping software TrueAllele in the case of Corey Pickett, a man charged with murder in New Jersey.

While Cybergenetics’ TrueAllele has had over 25 admissibility cases in multiple states and federal court, New Jersey is not one of them. The Pickett case is the first time a New Jersey court has addressed the use of probabilistic genotyping software.

At an evidence hearing in 2019, the court heard TrueAllele’s admissibility testimony The court fell in line with other state courts that have moved to protect the software’s source code as a “trade secret.” However, defense attorneys for Pickett have argued that they need access to the source code to commence an independent review. An appeal was granted in February 2021 by the appellate court, sending the case back to the trial court.

“In appropriate circumstances, especially where civil liberties are on the line, independent source code review is critical when determining reliability at a Frye hearing. These case studies illustrate that software is not immune from error. Fundamental due process and fairness demand access,” wrote Judge Fasciale in the appellate division of the Superior Court of New Jersey.

Days later, prosecutor Esther Suarez filed a motion to reconsider, taking legal aim at three specific arguments used in the February appeal decision: 1) widespread use of probabilistic genotyping software; 2) the 2016 PCAST report; and 3) relevant rulings from other jurisdictions.

Case background

Pickett was charged in connection with a fatal shooting that occurred in Jersey City, New Jersey. On April 17, 2017, Pickett and an alleged accomplice opened fire into a crowd, killing one man with a shot through the head and injuring a 10-year-old girl, who suffered a non-fatal wound to the stomach when a bullet entered the car she was waiting in. Police apprehended Pickett and his alleged accomplice, and recovered two handguns and a ski mask.

Traditional DNA analysis indicated Pickett as a major source contributor for the DNA profiles lifted from the ski masks. Remaining samples were sent to Cybergenetics for analysis. TrueAllele then identified Pickett as a source of DNA found on one of the handguns as well as a ski mask. Ferrara could not be identified as a contributor to any of the samples.

The motion to reconsider

The appellate decision said errors in the source code of probabilistic genotyping software have been found, and that there is no reason to assume that TrueAllele is immune from these errors since “peer-reviewed studies are not a substitute for source-code review.” However, pointing to a paper by John Buckleton et. al, the state says discovery of miscode has not been found by code review, rather by empirical testing. Buckleton—who is the creator of STRmix, TrueAllele’s competitor—and his team uncovered a minor issue in the Forensic Statistical Tool probabilistic genotyping software created and used by the Office of the Medical Examiner of New York City.

“This minor and largely innocuous routine was rediscovered by testing and subsequently confirmed in the code. In our experience this is the normal sequence. The testing identifies an unusual behavior in the software, the cause of which is subsequently found in the code once both a suitable test example is available, and a portion of the code comes under scrutiny,” the paperpublished in WIREs Forensic Science, reads.

The appellate decision also references the 2016 PCAST report that takes aim at the methods used in DNA analysis of complex mixture samples. The state argues the report has been denounced by both forensic science and law enforcement, including the Department of Justice announcing that it would not follow the report’s recommendations. It should be noted that TrueAllele, like STRmix, has been validated and is in compliance with the FBI’s Scientific Working Group on DNA Analysis Methods (SWGDAM).

Lastly, the motion to reconsider points to the relevant rulings from other jurisdictions in which similar claims regarding the TrueAllele source code were rejected. The Pickett case is unusual in that there was no hearing or chance for cross-examination. The state argues there have been a number of other courts that have addressed the source code issue after cross-examination of experts, and all come to the same conclusion. The motion references eight cases in seven states—Ohio, Virginia, Pennsylvania, Washington, Tennessee, Georgia and Nebraska—that say TrueAllele meets the Daubert standard, validation studies show its reliability, and it can be evaluated without access to the source code.

Source codes as trade secrets

On a broader level, the issue comes back to the question of if the source code of probabilistic genotyping software—current and future—should be considered a trade secret. Cybergenetics has entered trade secrets claims in more than 10 cases where TrueAllele’s findings were used as evidence. Thus far, the courts have sided with the company, every time.

In previous cases, Cybergenetics has granted use of its software to expert witnesses for the defense for testing. The company has also provided source code under a protective order.  The company offered the same to the defense in the Pickett case, but the two sides could not come to an agreement on the extent of the protections. Cybergenetics offers inspection of the source code by an expert defense witness, but requires that expert to accept responsibility for any legal and financial consequences in the event of a breach. Experts for Pickett’s legal team did not agree to that liability.

But Perlin, CEO of Cybergenetics, is adamant about protecting his source code in what he calls a “highly competitive commercial environment.” He also says the source code is just not necessary to test the accuracy of any his software—nor anyone else’s.

“An algorithm describes a procedure. A programmer writes in a computer language, translating the algorithm into source code text. A compiler turns the text into executable software that runs as a smartphone, laptop or other computer app. Algorithms are shared, software is tested. Since software pirates can easily copy text files, trade secret law protects source code confidentiality,” Perlin explains. “You don’t learn how a car works by reading its blueprints; you take it for a test run. Lawyers read, scientists test.”

TrueAllele’s competitor, STRmix, has never filed a trade secrets claim. The algorithms to both software programs have been published in peer-reviewed literature."

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The entire story can be read at:

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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Thursday, February 25, 2021

Bart McNeill; Illinois: Major (Very Welcome) Development...(Exactly what a man sentenced to100 years imprisonment (in for 22 years already) for the murder (suffocation death) of 3-year-old daughter, needs. He's now got two major innocence organisations on his side and new scientific evidence - and hope that he will soon have a court date and be cleared. "In the 65-page petition and four volumes of exhibits, lawyers with The Exoneration Project and the Illinois Innocence Project challenge key evidence used by the state to convict McNeil during a four-day bench trial before now-retired judge Michael Prall."


QUOTE OF THE DAY: "The bottom line is that modern science completely repudiates Hnilica’s testimony regarding any alleged motive,” states the defense motion.

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PASSAGE OF THE DAY: "In the 65-page petition and four volumes of exhibits, lawyers with The Exoneration Project and the Illinois Innocence Project challenge key evidence used by the state to convict McNeil during a four-day bench trial before now-retired judge Michael Prall.  A pathology report by Dr. Violette Hnilica claiming Christina was sexually molested before she was smothered will be challenged with new scientific evidence, according to defense lawyers. “Applying modern scientific principles, a renowned forensic pathologist has now concluded that  noting about the autopsy findings in Christina McNeil’s case supports an objective, independent diagnosis that she was smothered or that the manner of death was a homicide,” said the petition. Lawyers argue a child abuse expert will testify the state’s accusation of molestation was equally faulty.

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

STORY: "Bart McNeil seeks new trial on murder charges," by Reporter Edith Brady-Lunny, published by WGLT on February 23, 2021.

SUB-HEADING: "Bart McNeil said he was anxiously awaiting the new petition and a court date.

GIST: "New evidence in the 1998 death of 3-year-old Christina McNeil exonerates her father of murder charges, according to a petition filed on Tuesday by lawyers for Bart McNeil.

McNeil is serving a 100-year sentence on murder charges in the suffocation death of his daughter.

In the 65-page petition and four volumes of exhibits, lawyers with The Exoneration Project and the Illinois Innocence Project challenge key evidence used by the state to convict McNeil during a four-day bench trial before now-retired judge Michael Prall. 

A pathology report by Dr. Violette Hnilica claiming Christina was sexually molested before she was smothered will be challenged with new scientific evidence, according to defense lawyers.

“Applying modern scientific principles, a renowned forensic pathologist has now concluded that  noting about the autopsy findings in Christina McNeil’s case supports an objective, independent diagnosis that she was smothered or that the manner of death was a homicide,” said the petition.

Lawyers argue a child abuse expert will testify the state’s accusation of molestation was equally faulty.

“The bottom line is that modern science completely repudiates Hnilica’s testimony regarding any alleged motive,” states the defense motion.

Much of the court filing focuses on the defense theory that a second, more likely suspect who was later convicted of another murder, avoided serious consideration as a suspect by authorities. McNeil’s former girlfriend, Misook Nowlin, was jealous, vindictive and had a history of physically abusing adults and children, according to McNeil’s counsel.

The night before Christina’s body was found in her bed at her father’s Bloomington apartment, McNeil and Nowlin had a bitter disagreement at a restaurant that ended their relationship. Evidence that someone may have entered the child’s room through a window and knocked over a fan was dismissed by Bloomington police detectives.

Lawyers point out it was McNeil who summoned police to his home to investigate what he thought was the murder of his daughter.

During his trial, McNeil’s lawyer, Tracy Smith, was barred from introducing evidence of an alternative suspect.

The results of DNA tests performed during McNeil’s post-conviction proceedings show Nowlin, Christina and McNeil could not be excluded from DNA profiles collected from a bedsheet. Hair collected from inside a pillowcase was not Christina’s, but consistent with Nowlin’s DNA, said the petition.

Nowlin’s actions in the 2011 strangulation death of her mother-in-law Linda Tydashowed her “idiosyncratic and patterned history of homicide,” according to a chart included with the filing of 11 similarities between the two deaths.  

The defense also asks the court to consider new allegations about Nowlin’s suspicious conduct the night of the child’s death and her presence at the apartment the next morning when police arrived. Information that Nowlin told her former husband Don Wang that she killed Christina also should be heard, said the petition.  

In a recent phone call with WGLT from the Pinckneyville Correctional Center, McNeil said he was anxiously waiting for the new petition and a court date.

“I’ve already been locked up for 20 years. If justice is going to be done, let’s not draw this out any longer. I hope justice is served for my daughter, whose killer or killers have paid no penalty for her death,” said McNeil.

A court date has not been set on the petition for a new trial.

McNeil's conviction was the subject of the WGLT podcast Suspect Convictions in 2018.

The entire story can be read at:

bart-mcneil-seeks-new-trial-murder-charges

The petition can be read at:

https://mail.google.com/mail/u/0/#inbox?projector=1

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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