Wednesday, March 31, 2021

Ashley and Albert Debelbot: Georgia: Major (Very Welcome) Development: A District Attorney has moved to dismiss the charges of murdering their child which have already kept the couple behind bars for 12 years. That's a good thing. They were innocent from the getgo. Their child sadly died a tragic, but natural death. My comments? Read "Publisher's Note' below. HL;


PUBLISHER'S NOTE: When is the last time you learned of a case in which a prosecutor files a motion in court asking a judge to dismiss murder charges against two defendants who have already spent 12 years of their life sentence for murdering their child? Most would agree that this is a very rare occurrence. Yet this is exactly what is happening in the case of Ashley and Albert Debelbot. (Georgia): To understand what is happening here,  a post which I ran on the Debelbot case on January 14, 2015,  should be helpful; "The headnote to this post read: "Having been convicted of crushing their three-day-old infant's skull in June 2008, they are set to have a mid-July hearing on a new-trial motion, with his defense aided by new medical evidence and an attorney from the Wisconsin Innocence Project." The post was based on a  story by reporter Tim Chitwood, published by the Ledger Enquirer on January 12  - to be found at the link below - which read in part

"After a Columbus jury convicted Albert Omenged Debelbot and Ashley Deone Debelbot of murder in the June 1, 2008 death of daughter McKenzy, then-Superior Court Judge Doug Pullen sentenced them to life in prison on Oct. 29, 2009. But defense attorneys maintain the Debelbots didn’t get a fair trial, and the infant’s death could have resulted from a problematic pregnancy and delivery.........A Georgia Bureau of Investigation medical examiner told police the child’s trauma was consistent with her having been slammed against a wall or stomped on the head. The Debelbots denied that. Now Albert Debelbot’s defense team has statements from medical experts who upon reviewing the records believe the infant was born with brain and skull abnormalities that could have led to her death. “The autopsy images show a grossly abnormal skull and brain. Trauma that occurred after McKenzy’s birth cannot explain these abnormalities,” wrote one physician, later adding: “The fracture on the right side of McKenzy’s skull had rounded edges and missing pieces which strongly suggest that the fracture was not acute. In other words, it is likely that it did not happen within hours of McKenzy’s death."

Twelve years is a terribly long time - especially since the charges should not have been laid in the first place - but at least, by moving to dismiss the charges in these most unusual circumstances, prosecutors are finally acknowledging what the Debelbots  maintained from the outset: The truth that the child tragically died because of physiological abnormalities - and the Debelbots had absolutely nothing to do with her death. The truth that they were innocent, grieving parents who should have been allowed to mourn, who should have been showered with the community's compassion and support, instead of being treated like violent criminals worthy only of stigma, punishment and scorn.

Harold Levy: Publisher. The Charles Smith Blog.

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

STORY: "DA files motion to dismiss charges against parents convicted of murdering  child," by Reporter Chuck Williams, published by WRBL on March 27, 2021.

PASSAGE OF THE DAY: "The child was born in late May 2008 at Martin Army Hospital on Fort Benning. Not long after she was home at their apartment on Buena Vista Road in Columbus, a bump was discovered on her forehead. She taken back to Martin Army Hospital, where she died June 1, 2008. The couple was convicted on murder charges and sentenced to life in prison. They had served about 12 years each on the sentences when the Supreme Court ruled “I don’t think that prosecuting this case is the best use of time in District Attorney’s office right now,” Jones said. “They have served a total of 24 years in prison.""

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

GIST: "Muscogee County District Attorney Mark Jones has filed a motion to dismiss charges against a Columbus mother and father convicted of murdering their child. Ashley and Albert Debelbot were convicted in Superior Court in 2009 of killing their daughter, McKenzy.

In February of last year, the Georgia Supreme Court overturned the convictions on grounds that the military couple was denied their Sixth Amendment right to effective assistance of counsel during their trial.

Jones inherited the case when he took office in January. Previous District Attorney Julia Slater’s office had indicated they were going to retry the couple in front of Judge Art Smith.

Jones’ tells News 3 his office is asking the court to drop the charges.  

“I am not saying they are innocent, but there is reasonable doubt,” Jones said. 

Expert defense witnesses were prepared to testify that the child suffered from a birth defect and was not harmed by the parents.

The child was born in late May 2008 at Martin Army Hospital on Fort Benning. Not long after she was home at their apartment on Buena Vista Road in Columbus, a bump was discovered on her forehead. She taken back to Martin Army Hospital, where she died June 1, 2008.

The couple was convicted on murder charges and sentenced to life in prison. They had served about 12 years each on the sentences when the Supreme Court ruled

“I don’t think that prosecuting this case is the best use of time in District Attorney’s office right now,” Jones said. “They have served a total of 24 years in prison.”

The motion has not been signed."

The entire story can be read at:

https://www.wrbl.com/news/crime/da-files-motion-to-dismiss-charges-against-parents-convicted-of-murdering-child/

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

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;

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

Tuesday, March 30, 2021

Derek Chauvin: On-going trial: MSNBC consultant Glenn Kirschner explains that the defence strategy "emphasises pathology," noting that, "(The) video of George Floyd's death may make folks think this is an easy case for the prosecutors. But the forensic pathology suggests otherwise."


PUBLISHER'S NOTE:  As the Chauvin trial will  probably be one of the most reported trials in history I will not be providing daily coverage. However, I will be reporting from time to time  on rulings made by the judge that are relevant to the subject matter of this Blog, and I will be referring to the occasional illuminating commentary, as is the case today.

Harold Levy. Publisher. The Charles Smith Blog.

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

PASSAGE OF THE DAY: "D.C. Fowler is a very accomplished forensic pathologist and a strong trial witness. Incidentally, he is also steeped in the controversial field of "excited delirium," which may or may not make a showing at the Chauvin trial. (The syndrome, which is not recognized by either the American Medical Association or the American Psychiatric Association, has been used by dozens of police offices to explain how suspects died suddenly in custody, often when drugs are involved. I worked with Fowler in an excited delirium case that was a bit infamous — the "D.C. 9 case.") We have already seen some of this defense strategy play out in opening statements."

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

COMMENTARY: "Derek Chauvin's defence strategy in George Floyd trial emphasises pathology,"by MSNBC Consultant Glenn Kirschner, published by MSNBC on  May 30, 2021."

SUB-HEADING: Video of George Floyd's death may make folks think this is an easy case for the prosecutors. But the forensic pathology suggests otherwise."

GIST: On Monday, 10 months after George Floyd's death, the trial of former Minneapolis police Officer Derek Chauvin began in Minnesota. Chauvin faces second-degree unintentional murder, third-degree murder and second-degree manslaughter charges in Floyd's shocking death, which was captured on bystander video and viewed around the world.


The prosecution told jurors to "believe your eyes" when they watch and hear about Floyd’s death.


The prosecution told jurors to "believe your eyes" when they watch and hear about Floyd's final minutes. And video of the incident may make folks think this is an easy case for prosecutors. But the forensic pathology piece suggests otherwise. (Disclaimer: There is so much that could be written, discussed, argued and debated on the forensic pathology front, but I will touch on only some of the highlights here. As a warning, some readers may find the analysis and details below upsetting.)


The Hennepin County medical examiner who performed the autopsy, Dr. Andrew Baker, ruled that the cause of death was "cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression."


Derek Chauvin's trial begins with focus on video of George Floyd's death:

MARCH 29, 202102:44


"Cardiopulmonary arrest," in layman's terms, means "the heart stopped." Of course, it stopped while police officers were applying "restraint and neck compression." This is what makes this case a "homicide" — which simply means "death at the hands of another." Importantly, the word "homicide" does not connote criminality. If I kill someone in a lawful exercise of self-defense, I have committed a homicide but have done nothing criminal. Having absorbed the Floyd autopsy report and consulted with my friends in the forensic pathology community, I have a layman's explanation for Baker's findings: The pressure being applied to Floyd's neck and the pressure being applied to his torso, in combination, impeded his oxygenated blood flow, which resulted in his heart stopping. More specifically, it takes only about a few pounds of pressure on the veins in one's neck (arteries are a bit deeper) to significantly disrupt blood flow. Regarding the torso, if pressure is being applied, it can make it difficult to draw enough oxygen into the lungs to allow for the oxygenation of the blood in the first instance. Therefore, the combination of these applications of force and restraint caused Floyd's heart to stop.



We all watched George Floyd's death. In Chauvin's trial, what more could a jury need?


However, a number of forensic findings will give the defense some room to maneuver. Importantly, Baker found no clear injuries to Floyd's neck, either internally or externally. This tells us something (though not everything) about the amount of force Chauvin was applying to Floyd's neck. You can bet the defense will argue that the pressure was minimal. In my experience with manual strangulation cases, there are almost always injuries to the structures of the neck (a broken or fractured hyoid bone, for example, or fractured thyroid cartilage, etc.). It's worth mentioning that, in a manual strangulation incident, the victim can lose consciousness within 10 seconds and die in 3 to 5 minutes. Though this may sound counterintuitive, I suspect we will see the defense "embrace" the fact that Chauvin knelt on Floyd for 9 minutes and 29 seconds — not the infamous 8 minutes and 46 seconds, by the way — as evidence suggesting that Chauvin was not putting significant enough pressure on Floyd's neck to kill him via asphyxiation.


Though this may sound counterintuitive, I suspect we will see the defense “embrace” the fact that Chauvin knelt on Floyd for 9 minutes and 29 seconds.


Another important finding: Baker noted "no facial, oral mucosal, or conjunctival petechiae." In deaths involving manual strangulation/asphyxiation, there generally are petechial hemorrhages in the whites of the eyes and often in the gums and elsewhere. The absence of such hemorrhages suggests that there was not a sustained, acute cutting off of Floyd's airway. I can envision the defense arguing that these findings refute (at least in part) any suggestion that this was an asphyxial death (as Dr. Michael Baden, the forensic pathologist hired by the Floyd family, opined). But it's important to note again that you can have an asphyxial death without injuries to the neck and without petechial hemorrhages. The prosecution has several forensic pathologists it may call to the stand. The defense says it may call as many as eight medical experts of its own; key among them is likely to be Dr. David Fowler, the former chief medical examiner for Maryland. I know Fowler well, as I hired him and put him on the stand as the prosecution's independent expert witness (when I had a murder case with a specialized need beyond the expertise of the forensic pathologist who performed the autopsy in a given case). Indeed, I turned to Fowler in some of the most complicated cause-and-manner-of-death cases we dealt with in Washington, D.C. Fowler is a very accomplished forensic pathologist and a strong trial witness. Incidentally, he is also steeped in the controversial field of "excited delirium," which may or may not make a showing at the Chauvin trial. (The syndrome, which is not recognized by either the American Medical Association or the American Psychiatric Association, has been used by dozens of police offices to explain how suspects died suddenly in custody, often when drugs are involved. I worked with Fowler in an excited delirium case that was a bit infamous — the "D.C. 9 case.") We have already seen some of this defense strategy play out in opening statements. Chauvin's lead defense attorney, Eric Nelson, said Floyd displayed "none of the telltale signs of asphyxiation." There was "no evidence that Mr. Floyd's airflow was restricted," he claimed. I expect that the defense will continue to argue this point throughout the trial, contending that the findings during autopsy suggest that Chauvin was not placing any significant pressure on Floyd's neck and was not impeding his ability to breathe. Of course, given that the other defendants have been severed from the trial, Chauvin is also likely to argue that if any pressure was being applied to Floyd's torso by other officers (which could create a suggestion of asphyxia), they may be culpable even if he is not. To be clear, I am not suggesting this is a winning defense, but it is, at a minimum, a defense that will find at least some support in the autopsy findings."


The entire commentary can be read at:


https://www.msnbc.com/opinion/derek-chauvin-s-defense-strategy-george-floyd-trial-emphasizes-pathology-n1262332

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


Tonia Miller: Michigan: Shaken Baby Syndrome: (Very Welcome Development): Convicted of killing her daughter 20 years ago; sentenced to 20 to 30 years in prison: Now a judge has recommended to the Michigan Court of Appeals that she should have a new trial because of "new medical evidence"..."David Moran, a law professor and co-founder of the Innocence Clinic, argued Monday in a virtual hearing that Miller should have a new trial because four medical experts concluded that the child died from pneumonia and that the conclusion by a pathologist at the time of the trial that the child had been shaken was wrong."

QUOTE OF THE DAY: "Shaken baby syndrome is now a diagnosis that is subject to a good deal of controversy," the judge said. "There has been a shift in the scientific consensus." She said testimony from the experts shows there could have been alternative conclusions if presented at the trial to the jury. But in 2003 when doctors found evidence of the triad "you were steered in a certain direction."

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

"PASSAGE OF THE DAY: "Moran argued that since the trial the medical community has questioned the conclusion that brain bleeding, brain swelling and retinal bleeding, often called the triad, meant a child died from shaking. "In those days if you have those three symptoms that was the end of the game," Moran told the judge. He said defense attorney Edwin Hettinger was not even able to find a doctor or medical expert to testify at trial about another possible cause of death. "There is now controversy about shaken baby and abusive head trauma," Moran said, and he argued the four experts who reviewed the case said the child died of pneumonia and that other symptoms are explained by her medical history from birth."

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

STORY: "Judge recommends new trial for mother convicted of infant's death," by Reporter Trace Christenson, published by The Battlecreek Enquirer on January 25, 2021.

GIST: A judge Monday recommended a Battle Creek woman convicted of killing her infant daughter 20 years ago should have a new trial.


Tonia Miller, 37, is serving a 20 to 30 year sentence after her conviction of second-degree murder in the death Oct. 20, 2001 of her daughter, Alicia Duff.


Miller was 19 when the 11-week-old girl died. Following a jury trial she was sentenced to prison five days before her birthday in 2003. Prosecutors argued that Miller shook the child, causing fatal injuries.


But now a judge has agreed with attorneys from the Michigan Innocence Clinic at the University of Michigan that the medical testimony about the cause of death is flawed and new evidence could change the outcome of a trial.


Barry County Circuit Court Judge Vicky Alspaugh made her ruling after hearing testimony last year and listening to arguments Monday. The recommendation for a new trial will go the Michigan Court of Appeals which said in August that new medical evidence entitled Miller to an evidentiary hearing.



David Moran, a law professor and co-founder of the Innocence Clinic, argued Monday in a virtual hearing that Miller should have a new trial because four medical experts concluded that the child died from pneumonia and that the conclusion by a pathologist at the time of the trial that the child had been shaken was wrong.


Moran argued that since the trial the medical community has questioned the conclusion that brain bleeding, brain swelling and retinal bleeding, often called the triad, meant a child died from shaking.


"In those days if you have those three symptoms that was the end of the game," Moran told the judge.


He said defense attorney Edwin Hettinger was not even able to find a doctor or medical expert to testify at trial about another possible cause of death.

"There is now controversy about shaken baby and abusive head trauma," Moran said, and he argued the four experts who reviewed the case said the child died of pneumonia and that other symptoms are explained by her medical history from birth.


Calhoun County Assistant Prosecutor Karen Pawloski argued a new trial is not warranted because pneumonia was introduced at the trial and the evidence presented by the Innocence Clinic is not new.


Moran countered that there was only a passing reference to pneumonia during the trial and no experts were called to suggest it as a possible cause of death.

"This was a clear case of fatal pneumonia," Moran said.


At trial, Miller testified her baby frequently stopped breathing but that doctors didn't believe anything was wrong.

"They told me she was holding her breath," Miller testified. She told the court that she was feeding the child the day before she died and she began gasping for air.

"She wasn't breathing and she looked straight at me and one eye had gone off to the side. I shook her enough where she started back up."


Miller told the jury the shaking was slight. "I did not stand there shaking my baby."

The judge had to determine if there was new evidence and if Hettinger had been ineffective before she could recommend a new trial.


"Shaken baby syndrome is now a diagnosis that is subject to a good deal of controversy," the judge said. "There has been a shift in the scientific consensus."

She said testimony from the experts shows there could have been alternative conclusions if presented at the trial to the jury. But in 2003 when doctors found evidence of the triad "you were steered in a certain direction."


Hettinger provided a competent defense, she said, because he was not able to find any experts who would dispute the conclusion that the baby died from shaking.

"If given an alternate cause for this young baby's death, I think a different verdict would be probable," the judge said.


Judge Alspaugh said her recommendation will be sent to the Court of Appeals which will make the decision for a new trial.


Miller is housed at the Huron Valley Complex for Woman in Ypsilanti. She is eligible for parole in 2023."


https://www.battlecreekenquirer.com/story/news/2021/01/25/judge-recommends-new-trial-mom-accused-infants-death/6700304002/?fbclid=IwAR0vXC68nv_JSahcv7rNRS3HKrhTlDvdnJdh_nwra7OQtE-sFLE9cMK0lio

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

Monday, March 29, 2021

Ray Krone: Arizona: Major (Welcome) Development: Arizona passed a law this week that will expand legislation that enables inmates to petition the courts to have DNA evidence from their case run through the national database to try and prove their innocence to henceforth also provide access to fingerprints, firearms, and all the local and national law enforcement databases detectives use right now to solve cold cases..."In 2001 a judge ordered the newly accredited Phoenix Police crime lab to run the DNA evidence from Ray's case the original detectives never even bothered to put in the system. "And that's when everything changed for me. Finally, after almost ten years, DNA results came back with a match to another man," Krone said. Kenneth Phillips, a convicted sex offender, later pleaded guilty. And here's the kicker: Phillips' prints that were never run before Ray's trial had been in the system since the '80s. So even if the DNA in Ray's case hadn't been preserved for some reason, that could have been used to prove his innocence. Except here in Arizona, like in most other states, inmates aren't given legal access to the fingerprint database and other forensic archives -- until now."


PASSAGE OF THE DAY: "Nineteen years ago, Ray Krone was released from the Arizona Department of Corrections, the 100th death row inmate to walk out of prison a free man after spending a decade behind bars for a murder he didn't commit. Arizona's Family was there when he walked out of the courthouse on April 8, 2002. "I can't dwell on what I've lost or what used to be because I think that would tear me apart. I'm gonna look at it with brand new eyes, brand new hope, brand new dreams," he said at the time. After spending 3 of his 10 years in prison on death row, Ray Krone started losing hope. "I'm thinking, oh my god, I'm going to die in here for something I didn't do," Krone said. He was convicted for the 1991 rape and murder of Phoenix bartender Kim Ancona at the CBS Lounge & Restaurant. Crime scene detectives found fingerprints, shoe prints, saliva, blood, and hair. None of it matched Ray. He was put away on circumstantial bite mark evidence multiple experts disagreed on in court. A retired detective who reviewed the case at the time said it was a tragedy that could happen to anyone in the wrong place at the wrong time."


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


STORY: "STORY: "Proof of innocence: New Arizona law opens testing national data-bases," by TV Anchor Nicole Crites, published by AZfamily.com on  March 25, 2021. (Thanks to Dr. Michael Bowers of 'CSIDDS: Forensics and law in focus' for bringing this story to our attention. See link to his site below. His comment: "While the bitemarkers argued amongst themselves abt Ray Krone’s crooked tooth, DNA AND fingerprint evidence existed that would have dismissed his case before trial. It took multiple trials, his conviction to death row, and a decade of appeals to get this evidence tested. This law orders the police and DAs stop hiding behind junk experts who charge them $$$."

https://csidds.com/2021/03/27/forensics-bitemark-fiasco-leads-to-proof-of-innocence-new-arizona-law-opens-testing-national-databases/



GIST: "For the last 20 years, Arizona inmates have been able to petition the courts to have DNA evidence from their case run through the national database to try and prove their innocence.


A new state law passed this week heading for the governor's desk will expand access to fingerprints, firearms, and all the local and national law enforcement databases detectives use right now to solve cold cases.


Nineteen years ago, Ray Krone was released from the Arizona Department of Corrections, the 100th death row inmate to walk out of prison a free man after spending a decade behind bars for a murder he didn't commit. Arizona's Family was there when he walked out of the courthouse on April 8, 2002.


"I can't dwell on what I've lost or what used to be because I think that would tear me apart. I'm gonna look at it with brand new eyes, brand new hope, brand new dreams," he said at the time.


After spending 3 of his 10 years in prison on death row, Ray Krone started losing hope.

"I'm thinking, oh my god, I'm going to die in here for something I didn't do," Krone said.


He was convicted for the 1991 rape and murder of Phoenix bartender Kim Ancona at the CBS Lounge & Restaurant. Crime scene detectives found fingerprints, shoe prints, saliva, blood, and hair. None of it matched Ray.


He was put away on circumstantial bite mark evidence multiple experts disagreed on in court. A retired detective who reviewed the case at the time said it was a tragedy that could happen to anyone in the wrong place at the wrong time.


In 2001 a judge ordered the newly accredited Phoenix Police crime lab to run the DNA evidence from Ray's case the original detectives never even bothered to put in the system.

"And that's when everything changed for me. Finally, after almost ten years, DNA results came back with a match to another man," Krone said.


Kenneth Phillips, a convicted sex offender, later pleaded guilty.


And here's the kicker: Phillips' prints that were never run before Ray's trial had been in the system since the '80s. So even if the DNA in Ray's case hadn't been preserved for some reason, that could have been used to prove his innocence. Except here in Arizona, like in most other states, inmates aren't given legal access to the fingerprint database and other forensic archives -- until now.


"Fingerprints, ballistics, all those things have evolved over the years, and our system needs to keep up with that. Even somebody who's been locked away 10, 15, 20 years, if you're innocent, you don't quit fighting!" Krone said.


Arizona lawmakers just unanimously passed a new law, SB-1469, that lets innocent people behind bars, like Ray, access the same law enforcement databases detectives use to solve cold cases.


Lindsay Herf is executive director at the Arizona Justice Project.

"People can look at (Ray's) case now, and it is such a clear-cut innocence case, and they can look at the fingerprints, and they can look at the DNA, but it wasn't like that for 11 years. And that's why the use of this forensic testing and these databases in seeking the truth is just SO important!" Herf said.


Herf says they get about 400 calls a year from Arizona inmates asking for help to review their case. She says of the 2,729 exonerations in the United States since 1989, about 2,200 came from reviewing evidence other than DNA; 10 involved fingerprints, 16 used firearms forensics.

"Our justice system it's run by people, and people make mistakes, and we need to be able to correct those mistakes," Krone said.


Ray hasn't taken a day of his freedom for granted. He founded the nonprofit Witness to Innocence fighting to give hope to others who are innocent behind bars.

"This isn't about freeing guilty people. This isn't about being soft on crime. This is about getting to the truth and having an opportunity to release those that are innocent, and only then can we actually find who truly was guilty," Krone said.


The entire story can be read at:


https://www.azfamily.com/news/features/proof-of-innocence-new-arizona-law-opens-testing-national-databases/article_c01c31d8-8dd5-11eb-87c7-cb33c2a3f6a7.html?block_id=997197


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

Sunday, March 28, 2021

Washington D.C. Crime lab: Major (extremely disturbing in the context of wrongful convictions, tainted prosecutions, and the administrative chaos Development.)...Here (sadly) we go again: Years after we first heard the names 'Annie Dookhan' and 'Sonja Farak' another proverbial 'earth quake' has struck a U.S. crime lab: (The Dookhan and Farak after-shocks are still being felt); It's so bad that the Washington Post (Reporter Keith L. Alexander) reports that experts have recommended that the lab "stop all firearms analysis" in the wake of its handling of evidence in two 2015 shootings. The story is headed: “Ballistics work at D.C’s crime lab criticised by forensic experts."..."Attorneys at the District’s Public Defender Service said they have asked federal prosecutors to “conduct a comprehensive review of post-conviction cases” handled by the lab. Jessica Willis, special counsel for forensic science for the service, said the U.S. attorney’s office has not responded to their request. “PDS has been attempting to assess the impact the lab’s problems have had on former clients’ cases,” she said. Other local attorneys are pressing for prosecutors to reexamine all gun cases handled by the city’s forensic lab. “Retesting all the firearms evidence in past and present cases is a herculean endeavor, but must be done in the interest of justice,” said defense attorney Corinne Schultz."


PASSAGE OF THE DAY:  "Attorneys at the District’s Public Defender Service said they have asked federal prosecutors to “conduct a comprehensive review of post-conviction cases” handled by the lab. Jessica Willis, special counsel for forensic science for the service, said the U.S. attorney’s office has not responded to their request. “PDS has been attempting to assess the impact the lab’s problems have had on former clients’ cases,” she said. Other local attorneys are pressing for prosecutors to reexamine all gun cases handled by the city’s forensic lab. “Retesting all the firearms evidence in past and present cases is a herculean endeavor, but must be done in the interest of justice,” said defense attorney Corinne Schultz."


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


STORY: “Ballistics work at D.C’s crime lab criticised by forensic experts, by Reporter Keith L. Alexander, published by The Washington Post on March 26, 2021. (Keith L. Alexander covers crime and courts, specifically D.C. Superior Court cases, for The Washington Post. Alexander was part of the Pulitzer Prize-winning team that investigated fatal police shootings across the nation in 2015.)


GIST: “The District’s crime lab erroneously concluded bullet casings found at the scenes of two fatal shootings were fired from the same gun, then sought to minimize the mistake, according to a panel of independent forensic experts commissioned by the D.C. attorney general.


The experts have recommended that the lab stop all firearms analysis in the wake of its handling of evidence in the 2015 shootings. A detective testified about the flawed analysis before a grand jury, and the two men charged in both cases now argue the case was tainted.

Federal prosecutors said in court filings the error was uncovered when outside examiners took a fresh look at the evidence. The auditors concluded the D.C. Department of Forensic Sciences (DFS) failed to own up to the mistake even though internally it reached the same result after a follow-up examination. The auditors also said management pressured an analyst into changing their second finding. They said the lab “misrepresented” the mistakes to two national forensic accrediting boards.


“In the opinion of the audit team, such actions by management indicate a lack of adherence to core principles of integrity, ethics, and professional responsibilities,” the report says. Even though the incident is largely confined to the firearms unit, the report adds, “management has cast doubt on the reliability of the work product of the entire DFS laboratory,” which includes numerous units other than firearms examiners.

The 20-page report, which was filed in D.C. Superior Court, calls on the lab to “immediately cease performing casework” and bring in outside experts “to determine if additional errors have been made.” It also says the competence of analysts should be evaluated and they should be retrained.

DFS, an independent city agency, operates out of a $220 million facility in Southwest Washington that opened in 2012. In addition to firearms analysis, the lab handles the examination of DNA and other evidence collected in criminal investigations.


In filing the report, federal prosecutors said the District’s Office of the Inspector General in December opened a criminal investigation into the lab and has conducted interviews and reviewed thousands of documents. The status of that investigation is not clear and a spokesperson at the inspector general’s office declined to comment.

It also is not clear what — if any — impact the report will have on the lab’s operations or any court cases in which analysts there played a role. Prosecutors had routinely relied on the lab’s analysts to testify about their findings at trials.

Jenifer Smith, director of the Department of Forensic Sciences, would not discuss the audit’s conclusions. In an emailed statement, she said such a review must be conducted by a national accrediting body and the document filed in court “does not meet this criteria and cannot be considered an audit of the department.”


The U.S. attorney’s office for the District declined to comment on the audit or say whether it has or will stop using the department’s work in criminal cases. The office of D.C. Mayor Muriel E. Bowser (D) did not respond to a request for comment.


Federal prosecutors question ‘integrity and competence’ of D.C. crime lab


The audit followed prior concerns by prosecutors about DFS. In early 2020, the U.S. attorney’s office, along with the FBI, investigated the lab’s operations and raised questions about the “integrity and competence” of employees. A report by prosecutors said they found lapses in ballistic examinations, including some that lacked supporting documentation.

Then in November, prosecutors brought the newest problem with the lab’s firearms evidence finding to the inspector general’s attention. The office, after conducting its own interviews with lab employees, sought forensic specialists to investigate the lab’s practices. The Office of the Attorney General and the U.S. attorney’s office identified three independent experts — Bruce Budowle, James Carroll and Todd J. Weller — to handle the investigation. The three have worked closely with federal prosecutors and have testified as experts on behalf of the government on past cases.


Earlier this month, they filed their report in the case of Rondell McLeoud, 27, who, along with Joseph Brown, 31, are charged in two 2015 fatal shootings.

The first homicide happened a little past noon on Aug. 18, 2015, as Amari Jenkins was standing in the 4900 block of East Capitol Street SE. Authorities said a minivan pulled up and two assailants jumped out with semiautomatic handguns. Both opened fire, killing Jenkins and littering the pavement with 15 casings from a 10 mm firearm, authorities said.

Three months later, on Nov. 12, Antwan Baker was shot shortly before 11 a.m. in the 5300 block of Clay Terrace NE, and a second victim was wounded, authorities said. As in the earlier killing, authorities said, the attackers left numerous spent shells on the ground, including a dozen casings from a 10 mm weapon.


The wounded man, who fired back with a gun of his own, identified Brown and McLeoud as the assailants, authorities said. They said other physical evidence and witness statements also linked the two men to the Aug. 18 slaying. At the scene of the second killing, 10 mm shells were also recovered. Investigators sought to link those shells to the 10 mm shells in the earlier homicide.

“Analysis by a firearms examiner from the Department of Forensic Sciences determined that a 10 mm cartridge casings [sic] recovered from the shooting” of Baker “matched a 10 mm cartridge casings [sic] recovered from the shooting” of Jenkins, a prosecutor said in an early court filing.

When prosecutors brought their evidence before a grand jury, a D.C. homicide detective testified about the lab’s finding of a match, according to court papers. The jurors then voted to indict the two men in both cases.


As the case was moving to trial, the homicide prosecutors then hired the outside analysts to retest the cartridge shell casings. But instead of bolstering the case, they determined the casings were not fired from the same gun.

Prosecutors then informed the city’s lab of the contradictory finding.

According to the audit, two examiners took another look at the bullet casings and decided the outside experts were correct.

But the lab did not report that its initial analysis was wrong, according to the audit. Instead, the audit said, lab employees at a meeting determined their report should say their finding was “inconclusive.” The auditors said lab employees “misled their accrediting organization, oversight boards, clients, and other stakeholders about their processes and conclusions.”


Prosecutors have pressed forward with the cases against McLeoud and Brown, saying in court papers that ample evidence ties them to the shootings.


Attorneys for the men say their clients were harmed by the false grand jury testimony and have asked for the charges to be dismissed. That request remains pending before Judge Milton Lee.

“I’m representing a man charged with first-degree murder. The entire rest of his life depends on the outcome of this case,” said McLeoud’s attorney Steve Kiersh. “And here you have the Department of Forensic Sciences violating all rules of protocol, methodically and credibility. This had the potential for a horrible result based on this transgression by DFS. Fortunately, it was uncovered.”


Prosecutors criticize D.C. crime lab’s handling of some DNA evidence


The firearms examination unit is not the only part of the lab that has come under scrutiny. In 2016, after prosecutors said there were errors in cases analyzed by the DNA lab, the lab suspended DNA forensic work for 10 months as new practices were adopted.


Marrisa Geller, spokeswoman for the Office of the Attorney General, which handles prosecutions of juvenile defendants, said the office has ceased using the firearms lab for its criminal cases.

“We hope the questions we still have about the Department of Forensic Sciences are resolved so that we can go back to working with the Firearms Examination Unit on criminal cases,” Geller said in a statement.

Attorneys at the District’s Public Defender Service said they have asked federal prosecutors to “conduct a comprehensive review of post-conviction cases” handled by the lab. Jessica Willis, special counsel for forensic science for the service, said the U.S. attorney’s office has not responded to their request. “PDS has been attempting to assess the impact the lab’s problems have had on former clients’ cases,” she said.

Other local attorneys are pressing for prosecutors to reexamine all gun cases handled by the city’s forensic lab.

“Retesting all the firearms evidence in past and present cases is a herculean endeavor, but must be done in the interest of justice,” said defense attorney Corinne Schultz.""


The entire story can be read at:

https://www.washingtonpost.com/local/public-safety/dc-crime-lab-ballistics-mistake/2021/03/26/42e992aa-8c0e-11eb-a730-1b4ed9656258_story.html

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

Rosa Jimenez: Texas: A baby-sitter's unthinkable ordeal (thanks to the state of Texas) when accused not only of a crime she did not commit - but a crime that did not happen: (Like so many of the defendant caregivers and parents in the Charles Smith cases). Her story - and its context among U.S. exonerations of women - is beautifully told by The Innocent Project's Danielle Selby..."In 2005, a year later, Ms. Jimenez was convicted based on the testimony of medical professionals, who were not pediatric airway experts, who testified at trial that Bryan Gutierrez could not have accidentally choked. The prosecution argued that Ms. Jimenez had actually forced the toddler to ingest paper towels, even though there was no evidence that she had ever abused him. Approximately 40% of female exonerees were wrongly convicted of harming their children or other loved ones in their care, according to the National Registry of Exonerations."


BACKGROUND: "United States District Judge Lee Yeakel has overturned the murder conviction of Estela Rosa Jimenez and ordered a new trial based on Jimenez being denied her constitutional right to present qualified medical experts at her trial in August 2005. The decision is grounded on the earlier recommendation of United States Magistrate Judge Andrew Austin issued in September 2018. It has been almost 15 years since Jimenez was convicted of murder for the death of a 21-month-old child in her care. Jimenez has always maintained her innocence and stated the child’s death was a tragic accident and not murder.  Lawyer Bryce Benjet:  

 “Rosa Jimenez was convicted based only on the scientifically invalid medical theory that was physically impossible for an infant to have choked on a wad of paper towel. There were no signs of abuse, Ms. Jimenez immediately tried to resuscitate Bryan Gutierrez and called for help. As any parent knows, the state’s theory made no sense. We have since presented leading experts in pediatric choking who described similar incidents of accidental choking and confirmed that nothing about this case suggested foul play.  Unfortunately, Ms. Jimenez’s appointed defense counsel failed to hire a competent medical expert and the jury made its decision based on invalid science. Judge Yeakel’s decision today granting a new trial confirms the findings of both the trial judge and the state habeas judge that there is a reasonable likelihood Ms. Jimenez was wrongfully convicted. There is simply no evidence that this little boy’s death was anything but a tragic accident. Ms. Jimenez and her family have likewise suffered immeasurably. Her children have grown up without their mother, and Ms. Jimenez’s health has deteriorated while she spent almost half of her life imprisoned for a murder that never even happened."

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


QUOTE OF THE DAY: "Confused, close to giving birth, and now totally alone, she was even more afraid than she had been at the Travis County Correctional Complex, where the women incarcerated inside had pointed and jeered at her arrival. “I couldn’t figure out what they were saying because I didn’t really speak English, but I could tell they were saying ugly, ugly things,” Ms. Jimenez remembered. “Some of them were yelling, they were hitting the windows … I thought they might kill me.” Like other women wrongly accused of harming children — including exonerees Hannah Overton and Kristine Bunch — the news had made her out to be a monster."


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


PASSAGE ONE OF THE DAY: "On Jan. 27, 2021, after pediatric airway experts from the country’s top children’s hospitals testified that all the evidence indicates that Bryan Gutierrez accidentally choked, Travis County Trial Court Judge Karen Sage granted Ms. Jimenez relief and recommended her conviction be vacated. Judge Sage found, “There was no crime committed here … Ms. Jimenez is innocent,” and added that it was “clear” that Ms. Jimenez would not have been convicted for Bryan Gutierrez’s murder had false and misleading testimony not been presented.


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

PASSAGE TWO OF THE DAY: "The harsh coverage of Ms. Jimenez’s case was not entirely unique. Crimes involving female suspects tend to receive more media spotlight than similar cases involving men, especially when the accusations against them involve children. Media coverage of women suspected of harming children often weaponizes gender stereotypes, painting women as “evil” or “bad mothers” and portraying them as having fallen short of the traditional gender roles of gentle and nurturing mothers. These biases can contribute to wrongful conviction."


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


STORY: "She wanted to be a mom. Wrongful conviction shattered her dreams. Rosa Jimenez was pregnant with her second child when she was arrested  for a crime she didn't commit," by Danielle Selby, published by The Innocence Project on March 

 26, 2021.


GIST: Emanuel.” Scared, alone, and very pregnant, Rosa Jimenez decided that’s what she would call her son, her second child.

She’d found the name in her Spanish Bible, one of the few things she had with her in the Travis County Jail in Austin, Texas, where she was awaiting trial for a crime that had never happened.

Emanuel means “God is with us.”

“I thought — okay. I’m going to name him Emanuel because I need to name him something that gives me hope and because I do believe that God will be with us,” Ms. Jimenez said. “I thought, now every time that I look at him, he’s gonna remind me that there is something more than just this place.”

“This place” — the county jail — was somehow more terrifying than the the last place — the Travis County Correctional Complex, where Ms. Jimenez had been sent first. But with her due date approaching, she had been sent to the smaller county jail which was closer to the hospital “in case something happened.”

But “something” had already happened.

Bryan Gutierrez, a 21-month-old who Ms. Jimenez regularly babysat and loved like her own, had died after a tragic accident, and Ms. Jimenez had been wrongly accused of killing him. Even worse, she would soon be wrongly convicted for his death and sentenced to 99 years in prison.


“There was nothing and nobody” at the county jail, Ms. Jimenez remembered. “Just a little room with a bed, and nobody inside with me, nobody on one side or the other. Just me, by myself.”

Confused, close to giving birth, and now totally alone, she was even more afraid than she had been at the Travis County Correctional Complex, where the women incarcerated inside had pointed and jeered at her arrival.

“I couldn’t figure out what they were saying because I didn’t really speak English, but I could tell they were saying ugly, ugly things,” Ms. Jimenez remembered. “Some of them were yelling, they were hitting the windows … I thought they might kill me.” Like other women wrongly accused of harming children — including exonerees Hannah Overton and Kristine Bunch — the news had made her out to be a monster.

The harsh coverage of Ms. Jimenez’s case was not entirely unique. Crimes involving female suspects tend to receive more media spotlight than similar cases involving men, especially when the accusations against them involve children. Media coverage of women suspected of harming children often weaponizes gender stereotypes, painting women as “evil” or “bad mothers” and portraying them as having fallen short of the traditional gender roles of gentle and nurturing mothers. These biases can contribute to wrongful conviction.


Ms. Jimenez said, at first, Red, a tall Black woman with unmissable red hair, was the only person who stood up for her at the correctional complex. Red would buy her snacks to quell her pregnancy cravings, before she learned how commissary worked. And eventually, other women began to come around.

But at the county jail, she didn’t have Red or anyone else. Alone, she worried that she would be isolated throughout her incarceration — the duration of which was still yet to be determined. 


There was nothing and nobody”:


During this period, what she describes as the “ugliest time” in her pregnancy, the only gesture of kindness came, unexpectedly, from a corrections officer.

“I don’t know how he knew, but when I was pregnant with Emanuel I used to crave pretzels with mustard. And one day, just out of the blue, he came with two bags of pretzels and packages of mustard. And he did that every single day until I had my baby — it was crazy,” she said.

“I think he felt sorry for me, but just that little thing made me feel like even then God was still with me.”

Everything she knew about what to expect when expecting in prison, she had learned from the women she’d met back at the correctional complex. Most of them were mothers, too. In fact, over 60% of women in prison have children under the age of 18 and almost 80% of women in jail are mothers, according to the Prison Policy Initiative.



After giving birth, they told her, they were allowed to go to the nursery to visit their babies — of course, under the supervision of an officer. They had been able to spend at least three days with their newborns. Some said even a whole week.

But that was not the case for Ms. Jimenez, who had been accused of harming a child.

“I hardly ever got to touch my baby,” she said. On each of the three days she spent in the hospital after giving birth, she was allowed to see her baby for five minutes. On the third day, when they informed her that she would be going back to jail after only having spent a total of 15 minutes with her son, she was hysterical.

“I was literally begging the nurse. And just saying, ‘Please… please… just let me hold him, I don’t know when I’m going to touch him again,’” Ms. Jimenez recalled through tears. “I was crying so badly, I guess she felt bad for me and so she brought him in. They took pictures of us together — and that was the last chance I had to touch him.”

And then she was sent back to jail to await her trial.


A dream derailed:


Ms. Jimenez was born in Ecatepec, a city just outside of Mexico City, the third of six siblings all raised by a single mother, who sold tamales from her pushcart. And at 17, Ms. Jimenez moved to the United States to help support her family, making her way to Austin, where she immediately fell in love with the city and, shortly after, with the future father of her children.

“I was so happy when I found out I was pregnant with my first child, Brenda — that day was the happiest day of my life,” Ms. Jimenez recalled. “My dream was always to be a mom. I remember in school, the teacher would always ask us to draw pictures of what you want to be when you grow up and mine were always me as a mom with a bunch of kids.”

From the moment her daughter was born, they were inseparable.

“She was so little that I literally carried her everywhere,” Ms. Jimenez said. “We would go to a lot of parks. There was one we always went to with a pond that had a bunch of ducks. And I loved to just sit and watch the escenario,” she added, slipping into Spanish momentarily.

“And she was born with so much hair, I used to always do her little hair and dress her up really cute for picnics in the park.”

Because she worked as a babysitter, taking care of children in her community, she was able to stay home and spend more time with Brenda, which is what she was doing on the afternoon of Jan. 30, 2003, a day that altered the course of her life.

As Ms. Jimenez prepared lunch for her 1-year-old daughter and Bryan Gutierrez, she noticed the boy grasping at his throat. Quickly realizing that he was choking, she tried to help. When that didn’t seem to work she ran to her neighbor with the child. When the paramedics arrived a short while later, they were able to remove the obstruction from his throat — a wad of paper towels — and resuscitate him. He was taken to the Children’s Hospital of Austin where he was placed on a ventilator, but by then the lack of oxygen had caused brain damage.

Ms. Jimenez, then pregnant with Emanuel, was taken in for questioning. But the officer conducting the interrogation, though allegedly bilingual, could “hardly speak Spanish,” Ms. Jimenez remembered. Language barriers can make Latinx people who are not fluent in English uniquely vulnerable to wrongful convictions, especially during law enforcement interrogations where an interpreter is not constitutionally guaranteed, unlike at trial.

Ms. Jimenez thought he wanted her help to save Bryan Gutierrez, who was then still in the hospital. But when he told her Brenda had been taken from her father and was in the custody of Child Protective Services, all she could think of was how corrupt police in Mexico would sometimes threaten people’s families to extort them. After she begged to see her daughter, who was still breast-feeding at the time, a caseworker brought her in for a few minutes before taking her away, and questioning resumed.

“I thought, whatever it is they want from me in order for me to keep Brenda — I’ll do it,” she said. “I was really scared I would lose her, and she was just a little kid, she don’t know nothing.” 

But Ms. Jimenez never wavered from the fact that she had not hurt Bryan Gutierrez. She was questioned for a total of five hours that day before she was allowed to go home. But at 11 p.m. that same night, police returned to arrest her.



“A picture of a mother”:


When Ms. Jimenez finally saw her daughter again, it was through the glass partition of the jail’s visitation room. By that time she’d been in jail a year, and Brenda, a toddler, cried, unable to understand why she couldn’t reach out and touch her mother.

Unable to soothe her crying child, Ms. Jimenez was in agony. But she was not allowed to have physical contact with children under the age of 18, including her own, because she had been accused of harming a child.

In 2005, a year later, Ms. Jimenez was convicted based on the testimony of medical professionals, who were not pediatric airway experts, who testified at trial that Bryan Gutierrez could not have accidentally choked. The prosecution argued that Ms. Jimenez had actually forced the toddler to ingest paper towels, even though there was no evidence that she had ever abused him. Approximately 40% of female exonerees were wrongly convicted of harming their children or other loved ones in their care, according to the National Registry of Exonerations

Ms. Jimenez fought fiercely against her wrongful conviction, but there was little she could do to fight the injustice of missing out on raising her own children. Her conviction meant she would have to wait until Brenda, now 3, was an adult to embrace her again.


For years, she watched as the other mothers held their children during cherished visits. And once a year, while the children of incarcerated mothers played in the big, bright bounce castles the prison would bring in for “Mom’s Day,” Ms. Jimenez sat in lock down.

“They would put them in the middle of the prison and you could not miss them. And it was so painful to watch because I couldn’t do that with my kids,” Ms. Jimenez recalled.



When she finally got to hug her daughter, her little girl was 18 — legally an adult — and had no interest in bounce castles. And though Ms. Jimenez had spent more than a decade picturing the moment, it was nothing like either of them had envisioned. 

 

Brenda had been too young to keep in touch over the phone when Ms. Jimenez was first incarcerated. Then, for a few years, she and her brother lived in Mexico with their grandmother, making it even harder to stay connected. Eventually, they were placed in foster care. Children of incarcerated mothers are fives times more likely to be placed in foster care than children of incarcerated fathers.

 

Their foster family lived in Texas, which, at least, enabled Ms. Jimenez to see Brenda and Emanuel — whose foster parents called him Aiden — more often.

Still, it wasn’t enough for Ms. Jimenez to be able to bond with her children the way she’d always wanted to. She’d pictured raising a tight-knit family, of watching movies with her kids, and teaching them the Latin American New Year’s tradition of eating 12 grapes while making a wish with each stroke of the bell at midnight.

But none of that was possible from behind prison walls and instead her children grew up only ever knowing her through prison glass and monitored conversations. At most, she was “a picture of a mother,” framed by the window of the prison visitation room, Ms. Jimenez said.



When Brenda turned 18 and came to visit her mother in prison, they hadn’t seen each other in about five years. So when Ms. Jimenez entered the visitation room, she wasn’t quite sure who she was looking for.

“I had this little girl in my mind — like in my mind she hadn’t grown up,” Ms. Jimenez said. Eventually, she spotted Brenda, but said that if she’d passed her on the street, she probably wouldn’t have recognized this woman, who had long grown out of the pink dresses and bows she had loved to dress her in.

“We had to find out what our level of comfort was that [contact] first visit. Because we weren’t strangers, but in some ways we were,” Brenda said. Growing up, she said, it was sometimes difficult to balance the knowledge that her mother would want to be with her if she could be, with the reality of having foster parents that had chosen to raise her.

“And there were so many moments where it was like maybe she was finally going to get out or no, it turns out she’s not getting out — it was this rollercoaster,” Brenda said. “At some point, it was hard to keep getting my hopes up every time.”

During her long incarceration, four judges stated they believed Ms. Jimenez was likely innocent. And in 2019, a judge overturned her conviction, but the State appealed the ruling and she was not released. Still, Ms. Jimenez said the idea that she might one day be reunited with her kids gave her the strength to keep fighting.


A long-awaited reunion:


On Jan. 27, 2021, after pediatric airway experts from the country’s top children’s hospitals testified that all the evidence indicates that Bryan Gutierrez accidentally choked, Travis County Trial Court Judge Karen Sage granted Ms. Jimenez relief and recommended her conviction be vacated. Judge Sage found, “There was no crime committed here … Ms. Jimenez is innocent,” and added that it was “clear” that Ms. Jimenez would not have been convicted for Bryan Gutierrez’s murder had false and misleading testimony not been presented.


There was no crime committed here … Ms. Jimenez is innocent:


Almost 73% of women exonerated since 1989 were wrongfully convicted of crimes that never happened — including events determined to be accidents, deaths by suicide, and crimes that were fabricated — and at least 87 female exonerees were wrongly convicted in cases involving false or misleading forensic evidence.

However, Ms. Jimenez cannot be fully exonerated until the Court of Criminal Appeals rules on her case.

The next day, Ms. Jimenez reunited with her children and was finally able to freely hold her son for the first time since his birth. That weekend she attended her daughter’s wedding. Both were moments Ms. Jimenez spent nearly 18 years envisioning, but in the end, neither was quite like she’d imagined. Too much had already been lost.

But what Ms. Jimenez, Brenda, and Aiden all still share is hope — the hope that they can start building a closeness, which they’ve never had the chance to do before.


“I cannot get the time that I lost back and I don’t like to dwell so much on it because it is so, so sad. So I’m concentrating more on the new memories I can make. Good memories. And believe with all my heart that I’m going to be able to be there for my kids or my grandkids and we’re all going to be okay,” Ms. Jimenez said.

She hopes that one day, her mother, who still lives in Mexico, and her kids will be able to join her in Austin.


After nearly two decades of wrongful incarceration, Ms. Jimenez is now adjusting to her 

new life and precarious freedom while she waits for the courts to rule on Judge Sage’s recommendation that her conviction be vacated. In addition to her continued battle for justice, she is also dealing with advanced Stage 4 kidney disease.

In some ways, she and Brenda, who is now the same age as Ms. Jimenez when she was arrested, are starting their lives as independent adults at the same time.

“It’s like Rosa’s life was put on pause when she went to prison and now she’s starting her life and I’m starting my life, and it’s kind of like she’s starting where I am. We’re both worrying about things like paying rent, buying our own groceries, and phone bills — things she couldn’t do in jail and I’m doing now,” Brenda said.

For Ms. Jimenez, even the freedom to buy her own groceries has been a joy.

“I love to go shopping. Not for anything really, but even the grocery store or the Dollar Store. Just walking in that door and seeing whatever they have, and if I want it, I can get it because I have that choice,” she said.

At first, she worried she’d forgotten how to cook after not having the opportunity to cook her own meals for so long. After realizing she’d forgotten how to make rice, she called her mother in a panic. Her mother, patient as always, walked her through the steps of her rice recipe — flavored with onions, garlic, and chicken broth.


“I kept worrying I was doing something wrong and my mom kept talking to me, telling me to leave it, distracting me until it was ready. It turned out fluffy and so good — it was perfect. And I was like I did that!”

But starting life over again after a nearly 20-year-long interruption has not been easy. Even after two months of freedom, she still worries it might all be a dream that could evaporate overnight.

“Sometimes I still wake up and I can’t go back to sleep. And sometimes I’m scared to go to sleep because I’m worried that this isn’t real and if I go to sleep I might wake up back in prison,” she said.

Bit by bit, she is settling into the life she should always have had. She’s reconnecting with friends and family members and learning what she has in common with her children — she and Aiden are both big fans of “The Walking Dead” and she and Brenda are both looking forward to the day that Ms. Jimenez will get to dote on her grandchildren.

“I do hope that we’re able to have the kind of relationship where we’ll talk and I can go see her and she’ll come see me regularly and where we can celebrate big moments like birthdays together,” Brenda said. “Rosa said she would love to spoil her grandkids one day and take care of them and teach them Spanish, and I’d like that, too.”


For now, Ms. Jimenez has just one dream.

“While I was in prison this was the one thing that I wanted to do so bad with my kids. Like I always thought, if I could do this once, then my whole life would be complete. Me and my kids — me in the middle of the bed, Brenda on one side, Aiden on the other — watching a movie with pizza and popcorn,” she said.

“That will be the best day of my life.""


The entire story can be read at:


https://innocenceproject.org/rosa-jimenez-motherhood-wrongful-conviction/?utm_source=Main+IP+Email+List&utm_campaign=f2d933175f-FY21_Email_03262021_RosaUpdate&utm_medium=email&utm_term=0_016cb74fd6-f2d933175f-350264629&mc_cid=f2d933175f&mc_eid=8b36d51157


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;

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


The entire story can be read at:


https://innocenceproject.org/rosa-jimenez-motherhood-wrongful-conviction/?utm_source=Main+IP+Email+List&utm_campaign=f2d933175f-FY21_Email_03262021_RosaUpdate&utm_medium=email&utm_term=0_016cb74fd6-f2d933175f-350264629&mc_cid=f2d933175f&mc_eid=8b36d51157


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