PASSAGE OF THE DAY: "Judge Carla Archie ordered an evidentiary hearing, which started on Dec 8, 2020. At the hearing a forensic pathologist testified that the patient likely was injured 30-120 minutes before 10 p.m., seven hours after the state alleged that Shaw injured her. An expert in geriatric medicine also testified in this hearing that video of the resident after 2:45 p.m. showed she exhibited no signs of injury at that time. After three days of testimony, Mecklenburg County prosecution reviewed the case and new evidence and decided there wasn’t enough evidence to support the conviction. The defense and the state then jointly requested Shaw’s case be vacated."
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STORY: "Mecklenburg County man's conviction vacated after spending five years in prison," by reporter Paige Pauroso, published by WBTV on January 19, 2020.
GIST: "Willie Shaw was released from Mecklenburg County jail Tuesday afternoon after spending nearly five years in prison for a crime he says he didn’t commit.
This vacated conviction happened after years of work by Duke Law’s Wrongful Conviction clinic, which has exonerated ten North Carolinians for crimes they didn’t commit, including Ronnie Long.
In 2015, Shaw was accused of sexually assaulting a resident at a long-term care facility in Mint Hill where he worked. That woman later died from her injuries a few days later.
In 2016, Shaw entered an Alford plea, which allows a defendant to accept punishment while maintaining his innocence. He pleaded guilty to patient abuse and neglect charges in connection to the woman’s death.
As soon as he entered the plea though, Shaw says he began trying to prove his innocence.
The Wrongful Convictions Clinic starting working with Shaw’s case and their investigation revealed that the state’s allegations did not match the medical evidence.
According to the Wrongful Conviction Clinic, the state alleged Shaw, a certified nursing assistant, assaulted the resident at approximately 2:45 p.m., when Shaw provided her intimate care during her shower, but medical experts concluded that the injury happened 30-120 minutes before 10 p.m. when the patient was found bleeding in her bed.
The Clinic’s investigation also revealed that Shaw’s defense counsel conducted almost no investigation and instead encouraged Shaw to plead guilty rather than proceed to trial, where the prosecutors would enhance the charge to felony murder.
Judge Carla Archie ordered an evidentiary hearing, which started on Dec 8, 2020. At the hearing a forensic pathologist testified that the patient likely was injured 30-120 minutes before 10 p.m., seven hours after the state alleged that Shaw injured her.
An expert in geriatric medicine also testified in this hearing that video of the resident after 2:45 p.m. showed she exhibited no signs of injury at that time.
After three days of testimony, Mecklenburg County prosecution reviewed the case and new evidence and decided there wasn’t enough evidence to support the conviction. The defense and the state then jointly requested Shaw’s case be vacated.
“It was all about this timeline. That’s what we were able to identify in looking at this case. The way that the state and in Shaw’s plea said the crime occurred wasn’t possible and that was what our medical experts were able to tell us,” said Megan Mallonee, a third year law student at Duke Law.
Willie Shaw says he was overwhelmed with emotions but of happiness and scared of what’s to come. He says he’s going to take it day by day and visit his family in Chicago.
“It’s not easy to put into words. I’m happy. I’m thankful. I’m grateful. I’m ecstatic on the inside even though it’s not showing right now. It’s a scary happy feeling. Basically just waiting to see my kids and my mom and try to put my life back together,” he said moments after being released from jail.
WBTV reached out to the lawyer who was representing the family of the victim in the case. He said he was reviewing the case and the decision with the family but wasn’t yet able to give a statement."
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PASSAGE OF THE DAY: (National Registry of Exonerations): "On July 26, 2019, clinic attorneys Jamie Lau and Theresa Newman filed a new Motion for Appropriate Relief, claiming that Loven failed to adequately investigate the case and provided ineffective assistance of counsel. These deficiencies made Shaw’s Alford plea unconstitutional, because it wasn’t intelligently entered with a full understanding of the evidence against him. The motion said Shaw did not know at the time of his plea that there was security camera footage of D.S. appearing uninjured several hours after the incident where she was said to have been harmed. There was also separate footage that contradicted the two witnesses who said that Shaw was upset at D.S. on May 14 because she had feces on her hands. One of those witnesses, Trevinia Graham, recanted her statement and said that the incident didn’t happen that day. While the state had said there was no evidence that D.S. could have harmed herself, that was false. Her records at Lawyers Glen showed D.S. had a history of self-inflicted harm around her groin, exhibiting a behavior found in dementia patients that can include the use of hands and foreign objects and can lead to injury. Early in the investigation, police interviewed Daniel Santiago, another CNA at Lawyers Glen. On May 20, 2015, Santiago told police that he might have injured D.S. when caring for her on May 13, 2015. “I probably got distracted and my fingers slipped in there, but I remember just being on the outside.” He later added that his finger went into D.S.’s vagina up to the first knuckle. Despite that statement, police did not consider Santiago a suspect because he wasn’t working at the time they believed D.S. was injured. Shaw didn’t know about these statements at the time of his plea. Later, at a post-conviction evidentiary hearing, Loven said that he never watched the video of Santiago’s interview, and that the police report on the interview didn’t mention these inculpatory statements."
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NATIONAL REGISTRY OF EXONERATIONS ENTRY (BY KEN OTTERBOURG). (Link below): "At approximately 10:20 p.m. on May 14, 2015, Willie Shaw found D.S. bleeding in her bed at the Lawyers Glen Retirement Living Center in Mint Hill, North Carolina, a suburb of Charlotte.
Shaw was 43 years old and a certified nursing assistant at the nursing home. He was one of D.S.’s caregivers and had given her a shower at around 2:45 p.m. that day.
D.S. was 86 years old and suffered from dementia. Shaw quickly sought help from other employees at the nursing home, who noted that the woman’s sheets were filled with blood and feces. She had also vomited a substance known as coffee-ground emesis, which contains coagulated blood. An ambulance was called, and D.S. was taken to a nearby hospital.
At the time, D.S. was on Coumadin, a blood thinner that can cause bleeding in the gastro-intestinal tract. When D.S. arrived at the hospital, she was taken off the blood thinner and given a transfusion. She was then given two ultrasounds, one transvaginal and one transabdominal, in an attempt to locate the source of the bleeding. D.S. was unable to remain still during the ultrasounds, and the images produced didn’t indicate the source of the bleeding.
Several hours later, doctors placed D.S. under anesthesia and examined her vaginal area. They found a 1.5 centimeter cut (0.6 inches) on her perineum and a 4.5 centimeter cut on her vagina. The doctors sutured the cuts. On May 17, 2015, D.S. died from aspiration pneumonia, which occurs when a foreign substance such as food, saliva, liquids or vomit are inhaled into the lungs.
The Mint Hill Police Department began an investigation into D.S.’s death and interviewed numerous employees at Lawyers Glen.
Two employees, Trevinia Graham and Marsha Pope, told police that on May 14 they heard Shaw complain about having to clean feces off of D.S.’s hands.
On May 29, 2015, Sergeant Errol Wedra of the Mint Hill Police Department interviewed Shaw. He was adamant that he did not harm D.S., but after several hours of questioning, he said that if he had caused any injury, it was accidental. “I just know that I went in and did my job. I didn’t mean the lady any harm if I did so-called harm her, but I don’t think I harmed her. I just gave her a shower.”
In his report, Wedra wrote that Shaw gave an “oral admission that he either placed a washcloth or a finger into the vagina of [D.S.] while giving her a shower on 05/14/2015.”
Shaw was arrested that day and charged with first-degree sex offense. He was quickly assigned a public defender named Dean Loven to represent him. In a television interview broadcast on June 10, 2015, Loven told a reporter that while Shaw was “doing his job,” a sex-offense charge was difficult to defend because it did not require the state to show any intent by the defendant to commit the offense.
On October 15, 2015, Dr. Dawn LaJoie of the Mecklenburg County Medical Examiner’s Officer filed her autopsy report, which said that D.S. died from “Complications of blunt force trauma to perineum and vagina,” because the injuries to her genitalia necessitated the surgery that led to the aspiration pneumonia that killed her. She also said that “Investigation revealed that the injuries to her genitalia most likely occurred during personal hygiene care performed by a staff member (the Defendant). The possibility that injury was accidental in manner, rather than intentional, given the described circumstances of the event, cannot be excluded.” The report made no mention of the coffee-ground emesis or a recent bout of pneumonia diagnosed before D.S. went to the hospital.
Shaw was unhappy with Loven’s representation. On January 26, 2016, he filed a motion to remove Loven as his attorney. The motion was never heard. The next month, Shaw was re-indicted, and the state added a new charge of patient abuse and neglect.
On June 1, 2016, Shaw filed a second motion to remove Loven as his attorney. The next day, an assistant district attorney in Mecklenburg emailed Loven with a plea offer and sentencing recommendations for the abuse and neglect charge. If Shaw didn’t accept, the prosecutor said, he would be indicted again, this time for first-degree murder under the felony murder rule.
Shaw learned of the plea offer on June 9, the day of his hearing to remove Loven. Shaw tried to fire Loven at the hearing. Loven tried to prevent Shaw from talking by claiming attorney-client privilege.
Although Shaw had been arrested a year earlier, Loven said he had only done 30 hours of work on the case. Shaw said Loven had not shared with him any discovery material or other evidence from his work. Loven told the court that he was waiting for the interns to arrive at the public defender’s office before doing a fuller investigation. Shaw’s motion to dismiss was denied.
Three weeks later, on June 30, 2016, Shaw entered an Alford plea in Mecklenburg Superior Court to the abuse and neglect charge. The sex abuse charge was dismissed. An Alford plea allows defendants to maintain their innocence but plead guilty because it is in their best interest. Shaw was sentenced to between 104 and 137 months in prison.
In support of the plea, the state referred to LaJoie’s report, as well as statements Shaw was said to have made to two bail bondsmen. In those statements, Shaw said he might have cut D.S. while giving her a shower without gloves.
Assistant District Attorney Samantha Pendergrass said the case was circumstantial. “The defendant is the only one who had access to her, who provided her intimate care. And given his statements to the bondsmen, the State went forward with the charges.”
After his conviction, Shaw filed a motion for DNA testing and also a pro se Motion for Appropriate Relief. Both were denied in 2017. After those denials, the Wrongful Convictions Clinic at Duke University School of Law began representing Shaw.
On July 26, 2019, clinic attorneys Jamie Lau and Theresa Newman filed a new Motion for Appropriate Relief, claiming that Loven failed to adequately investigate the case and provided ineffective assistance of counsel. These deficiencies made Shaw’s Alford plea unconstitutional, because it wasn’t intelligently entered with a full understanding of the evidence against him.
The motion said Shaw did not know at the time of his plea that there was security camera footage of D.S. appearing uninjured several hours after the incident where she was said to have been harmed.
There was also separate footage that contradicted the two witnesses who said that Shaw was upset at D.S. on May 14 because she had feces on her hands. One of those witnesses, Trevinia Graham, recanted her statement and said that the incident didn’t happen that day.
While the state had said there was no evidence that D.S. could have harmed herself, that was false. Her records at Lawyers Glen showed D.S. had a history of self-inflicted harm around her groin, exhibiting a behavior found in dementia patients that can include the use of hands and foreign objects and can lead to injury.
Early in the investigation, police interviewed Daniel Santiago, another CNA at Lawyers Glen. On May 20, 2015, Santiago told police that he might have injured D.S. when caring for her on May 13, 2015. “I probably got distracted and my fingers slipped in there, but I remember just being on the outside.” He later added that his finger went into D.S.’s vagina up to the first knuckle.
Despite that statement, police did not consider Santiago a suspect because he wasn’t working at the time they believed D.S. was injured.
Shaw didn’t know about these statements at the time of his plea. Later, at a post-conviction evidentiary hearing, Loven said that he never watched the video of Santiago’s interview, and that the police report on the interview didn’t mention these inculpatory statements.
Shaw’s motion said, “Unlike traditional guilty pleas, where the defendant’s admission of guilt helps the State meet its burden to lay a proper factual foundation for the plea, Alford requires that the facts alone – without relying on the defendant’s admission of guilt – support the plea.” This new evidence, which the motion asserted a more robust investigation by Loven would have found and used, showed there wasn’t sufficient proof of a crime.
Under North Carolina law, to establish felony patient neglect the prosecution must prove there was “intentional conduct that proximately causes the death of a patient or resident.” But Shaw’s attorneys said in their motion the state never established that Shaw “performed with the necessary intent.”
The motion requested an evidentiary hearing, which began on December 8, 2020.
Prior to the hearing, D.S.’s medical records were reviewed by Dr. Thomas Owens, the chief medical examiner in Mecklenburg County. He had been LaJoie’s supervisor when she did the initial review, but he was not required to approve her report. Although Owens is a public employee, he operates a private consulting business, and it was in that capacity that Shaw’s legal team hired him. By the time of the 2020 hearing, LaJoie had retired and was unable to testify.
In a letter to Shaw’s attorneys dated September 29, 2020, Owens said it was his opinion that D.S.’s vaginal injuries occurred between 30 minutes and three hours before she was discovered bleeding in bed. That was several hours after Shaw gave her a shower.
Owens agreed with LaJoie that here was no way to tell whether the injuries were accidental or intentional, but he disagreed with his colleague’s opinion that these injuries set off a chain reaction that ended in D.S.’s death.
“[D.S.] died from sepsis as a result of aspiration pneumonia. The cause and time of the aspiration is unknown,” Owens wrote. “Prior to May 2015, [D.S.] was already at risk for aspiration and aspiration pneumonia due to her dementia and age, she had previously been treated for those problems.”
Owens testified about his report at the hearing. Shaw’s attorneys also presented testimony from an expert in geriatric medicine who reviewed video footage of D.S. taken shortly after the shower in which Shaw was alleged to have injured her. The expert said D.S. showed no signs of injury.
Three days into the hearing, the state asked for a delay in the proceedings so prosecutors could further review the case.
On January 19, 2021, Mecklenburg County District Attorney Spencer Merriweather III and Lau filed a joint Motion for Appropriate Relief.
That motion said that at the time of Shaw’s plea, the state’s case was based on a series of events: that Shaw injured D.S. while giving her a shower; that D.S. was found bleeding badly later that night; and that the anesthesia given to allow the suturing of her vaginal wounds led to the aspiration pneumonia that killed her.
“The forensic opinions offered by Dr. Owens, someone who is frequently relied upon both by the State and by counsel for criminal defendants for authoritative analysis, cast significant doubt on critical elements of the basis offered for this conviction,” the motion said.
The motion also noted that the statements from the bail bondsmen used to support the plea were wrong. They had told the state that Shaw said that he might have cut D.S. when bathing her without gloves, but that didn’t happen. Video footage showed Shaw putting on gloves prior to giving D.S. a shower.
The motion made no mention of Loven’s representation of Shaw; in 2019, he joined the DA’s office as an assistant prosecutor.
Judge Carla Archie of Mecklenburg Superior Court granted the motion on January 19, 2021, and the district attorney then dismissed the charge. Shaw was released from prison that day.
Following his release, Shaw told WBTV-TV: “It’s not easy to put into words. I’m happy. I’m thankful. I’m grateful. I’m ecstatic on the inside even though it’s not showing right now. It’s a scary happy feeling. Basically just waiting to see my kids and my mom and try to put my life back together.”
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5903
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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