FORENSIC SCIENCE GONE WRONG: THE MEDICAL EXAMINERS: "PASSAGE ONE OF THE DAY: "Dr. Arthur Gravatt, the local medical examiner, performed the autopsy on August 29, 1985. Because there was no fluid in Harding’s lungs, Gravatt determined that Harding, who was 24 years old, died by strangulation rather than from drowning. Gravatt examined the contents of Mary’s stomach, which contained the half-digested contents of her last meal, and said her death occurred about two to three hours after she ate. The autopsy also said the cuts were probably due to “scraping back and forth due to rough water, waves in the river, probably striking cinderblock and other materials in water.”
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PASSAGE TWO OF THE DAY: "Dr. Marcella Fierro with the state’s Office of the Chief Medical Examiner had signed off on the autopsy in early September. But on September 30, she appended Gravatt’s report and added that the slices along Harding’s back were made by a “cutting instrument.” She wrote that the cuts weren’t made post-mortem but were – along with strangulation – a cause of death."
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PASSAGE THREE OF THE DAY: "At the second trial... Fierro testified about the autopsy and the cause of death. She said the wounds on Harding’s body were “due to a cutting instrument” and that a Wildcat Skinner could have caused those injuries. During cross-examination, Parker showed Fierro a propeller and asked her whether it could have caused the wounds. She said that the propeller he showed her could not have caused the cuts.
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PASSAGE FOUR OF THE DAY: "In addition, Fierro had recanted her testimony on May 13, 2016. In her affidavit, Fierro said she reviewed the case file at the request of Stevens’s attorneys and consulted with a listserv of medical examiners. “I now believe that my initial opinion and trial testimony in reference to the cutting injuries was in error. The periodicity, location, depth, and extent of the wounds on Ms. Harding’s body are more consistent with a propeller and inconsistent with a knife.
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FORENSIC SCIENCE GONE WRONG: THE MARINE SCIENTIST: PASSAGE ONE OF THE DAY: "Witnesses had seen Stevens’s boat at Towles Point in the early morning of August 23, 1985, and to make the state’s theory of the crime work, prosecutors had to explain how Harding’s body, weighted down with a cinderblock, had drifted 10 miles north in four days. At the first trial, they turned to Dr. John Boon, a marine scientist at Virginia Institute of Marine Science at the College of William and Mary. He had testified that based on his study of charts and tables of the Rappahannock River, it was possible for a body to travel that distance in that amount of time. He had explained that the Rappahannock was in this section an estuarine river, where saltwater and fresh mingled, and that when the tide was flowing in, a body could move about one nautical mile upstream every 10 hours. At the second trial, Boon was unavailable to testify, and his testimony from the first trial was read to jurors.
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PASSAGE TWO OF THE DAY: "In 2016, his attorneys learned that a box of documents related to the Stevens case had been found at the Lancaster County Sheriff’s Office. The documents included part of the FBI’s investigative files as well as other records that hadn’t been disclosed to Walker before trial. The FBI files contained a notation that asserted it was likely that Harding’s body was dumped within 500 to 600 yards of where it was found, not 10 miles downstream. Separately, an Innocence Project attorney in 2013 had found a May 2, 1986, letter from Boon, the marine scientist, to Schmidt, that doubted the worth of his testimony at the first trial. Boon wrote: “In a brief ‘interview’ before my last appearance at the Circuit Court, your associate, Lt. Riley, applied what may be the correct term to my testimony in this case. He called it ‘eyewash.’”
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FORENSIC SCIENCE GONE WRONG: THE HAIR AND FIBRE ANALYST: PASSAGE ONE OF THE DAY: "The state had another piece of forensic evidence. Myron Scholberg, a former FBI hair and fiber analyst who worked part-time at a regional crime laboratory in northern Virginia, said he had examined a hair taken from a shirt found under a seat in Stevens’s truck. He said he compared the hair with one from Harding’s house and said they were “microscopically alike in all identifiable characteristics.”
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PASSAGE TWO OF THE DAY: "Separately, the petition noted microscopic hair analysis had been declared scientifically invalid as a tool for making individual identifications. Scholberg’s testimony also contributed to the wrongful convictions of Kirk Odom and Dennis Butler."
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THE 'AND SO MUCH MORE' : I will leave the rest up to you. Read on: HL.
ENTRY: EMERSON STEVENS: NATIONAL REGISTRY OF EXONERATIONS: By Ken Otterbourg. Formally entered into the Registry on September 20, 2021. Contributing factors include: False or misleading forensic evidence, and police misconduct.
| GIST: "On the morning of August 23, 1985, Mary Harding failed to drop her two young children off at the sitters before going to her job at a local bank. A relative came by to check on the Harding house in Ottoman, Virginia, and found Ray Harding, then 4 years old, and his one-year-old sister alone. The boy told the relative, “Momma is gone.” Very quickly, a search for Harding began in Lancaster County and across Virginia’s Northern Neck, a peninsula bounded by the Rappahannock and Potomac rivers. Harding’s nude body was found on August 27, 1985 in the waters of the Rappahannock, near Belle Island State Park. A rope around her neck was attached to a cinder block. A heavy chain wrapped around her leg was tied into the rope. Her lower back had four parallel slices and there were several lacerations across her buttock. Dr. Arthur Gravatt, the local medical examiner, performed the autopsy on August 29, 1985. Because there was no fluid in Harding’s lungs, Gravatt determined that Harding, who was 24 years old, died by strangulation rather than from drowning. Gravatt examined the contents of Mary’s stomach, which contained the half-digested contents of her last meal, and said her death occurred about two to three hours after she ate. The autopsy also said the cuts were probably due to “scraping back and forth due to rough water, waves in the river, probably striking cinderblock and other materials in water.” The investigation into Harding’s death initially involved the Lancaster County Sheriff’s Office, the Virginia State Police, and the FBI. The newly elected sheriff, Ronald Crockett, appointed Officer Bruce Boles to lead the local effort. He had never investigated a homicide. Joining Boles was Special Agent David Riley, an experienced and assertive officer with the Virginia State Police. Harding’s employer, the Bank of Lancaster, offered a reward for information, and other persons and businesses contributed to the fund, which eventually grew to $20,000. Lancaster County was an isolated and insular community. Many men made their living off the water, and people recognized neighbors by the vehicles they drove. Investigators fanned out looking for leads. Early on, a tipster had called the sheriff’s office and said he had seen a light-colored pickup truck near Mary Harding’s house the night she went missing. Riley talked with Emerson Harding, Mary Harding’s husband, on August 25, 1985. He said he was out on a commercial fishing boat on August 22, Initially, Harding said he couldn’t think of a single person who would want to harm his wife. A week later, after the funeral, Riley called Harding. Now, Harding had a person in mind. He told the officer about a waterman named Emerson Stevens. He said Stevens, then 32 years old, was a known peeping Tom and kept his boat at the south end of the county, where Harding also had a slip. Harding said that he and Stevens had been tonging for oysters near a place called “Mary’s Hole,” when Stevens made a crude remark about the location in reference to Harding’s wife. Harding said he saw Stevens at an event after his wife’s funeral and that he seemed to be “shaky.” A few days later, a man named Clyde Dunaway said he had also seen a white pickup parked near the Harding house on August 22. He said he knew exactly who owned the truck: his cousin, Emerson Stevens. While Riley, Boles and federal agents continued to investigate other men, Stevens became the prime suspect. On September 25, 1985, Riley interviewed Stevens at length. The interview took place on Mary Harding’s porch. It’s not clear whether Stevens was read his rights. Stevens told the officer his alibi, that he ate supper with neighbors and put his children to bed. His wife, who worked at a nursing home, would tell investigators that she saw him when she came home around midnight from her shift. Riley told Stevens he had conclusive evidence of his guilt. Riley would later tell Washingtonian magazine that he planted an idea with Stevens to get him to admit to parking his truck near the Harding house. He told Stevens he probably stopped to relieve himself. Later, he told Stevens that he had failed a polygraph test and said it was either because he had killed Harding or was hiding something else. Stevens then told Riley he probably had stopped his truck near the house to urinate. Dr. Marcella Fierro with the state’s Office of the Chief Medical Examiner had signed off on the autopsy in early September. But on September 30, she appended Gravatt’s report and added that the slices along Harding’s back were made by a “cutting instrument.” She wrote that the cuts weren’t made post-mortem but were – along with strangulation – a cause of death. Police searched Stevens’s truck. They found a sheath, and witnesses said Stevens had owned a folding knife called a Wildcat Skinner, but they hadn’t seen the knife since Harding’s death. Stevens told investigators the knife had fallen out of his boat. In addition, a man named Earl Smith, who helped Stevens pull crab traps, said Stevens had shown up later than usual for work on August 23. A woman named Esther Stevens, the wife of a cousin, said she saw Stevens’s truck at 6:40 a.m. that morning at the boat dock. A fish wholesaler named Ray Reynolds initially told police that Stevens was late bringing his catch to market on August 23. On October 25, 1985, Stevens was arrested. He was charged with first-degree murder and abduction with intent to defile. Because of pre-trial publicity and the difficulty of finding a jury that wasn’t connected to either the victim or the defendant, Stevens was tried with an out-of-county jury. The first trial in Lancaster County Circuit Court, before jurors from Westmoreland County, began on February 24, 1986. It ended in a mistrial. The second trial, before jurors from Essex County, began on July 7, 1986. While the FBI had actively participated in the investigation, it was no longer involved by the time of the trial. But the agency had produced an extensive case file, and Stevens’s attorney, James Parker, asked Commonwealth Attorney Jeffers Schmidt to allow him to review the file. Schmidt declined. Parker argued for the records before Judge Dixon Foster, who was presiding over the trial. Schmidt said he had received a copy of the FBI’s report with the understanding that it was confidential. He said that he had looked through the file and found nothing exculpatory. He gave some of the file to Foster for review. On July 9, Foster denied Parker’s request for the file. He also said that it contained no exculpatory evidence. The state’s theory was that Stevens abducted Harding and killed her during the struggle. Then, he took her to his boat anchored at Towles Point, at the south end of Lancaster County, motored out a short distance into the Rappahannock, and dumped her body, which was weighted down with the cinderblock secured to her body by rope and chain. Witnesses had seen Stevens’s boat at Towles Point in the early morning of August 23, 1985, and to make the state’s theory of the crime work, prosecutors had to explain how Harding’s body, weighted down with a cinderblock, had drifted 10 miles north in four days. At the first trial, they turned to Dr. John Boon, a marine scientist at Virginia Institute of Marine Science at the College of William and Mary. He had testified that based on his study of charts and tables of the Rappahannock River, it was possible for a body to travel that distance in that amount of time. He had explained that the Rappahannock was in this section an estuarine river, where saltwater and fresh mingled, and that when the tide was flowing in, a body could move about one nautical mile upstream every 10 hours. At the second trial, Boon was unavailable to testify, and his testimony from the first trial was read to jurors. Fierro testified about the autopsy and the cause of death. She said the wounds on Harding’s body were “due to a cutting instrument” and that a Wildcat Skinner could have caused those injuries. During cross-examination, Parker showed Fierro a propeller and asked her whether it could have caused the wounds. She said that the propeller he showed her could not have caused the cuts. The state had another piece of forensic evidence. Myron Scholberg, a former FBI hair and fiber analyst who worked part-time at a regional crime laboratory in northern Virginia, said he had examined a hair taken from a shirt found under a seat in Stevens’s truck. He said he compared the hair with one from Harding’s house and said they were “microscopically alike in all identifiable characteristics.” Smith testified about his later-than-usual meetup with Stevens on August 23, 1985, which was a Friday. He said that Stevens told him he had a doctor’s appointment. But on cross-examination, he said he wasn’t sure it was a Friday. Smith also said that Stevens kept a knife on the dashboard of his truck, and he remembered seeing it in early August but not after Harding’s death. Ernest Talley was a drinking buddy of Stevens’s. He testified that the 14-foot length of chain found with Harding looked like a piece of chain he and Stevens had used in the summer of 1985 to pull a motorist out of the mud with Stevens’s truck. “If it ain’t the chain, it’s the twin of it,” Talley said, although on cross-examination he said he couldn’t be sure it was the same chain. Dunaway testified that he saw Stevens’s truck parked 250 yards from Harding’s house on the night of her murder and that he reported what he knew to Riley. On cross-examination, Dunaway was asked three times if he had ever made inquiries about the reward money. Each time, he said he hadn’t. Anne Dick had testified at the first trial that she was driving to Richmond early on August 23 and saw Stevens’s truck at 4:45 a.m. She said its lights weren’t on, and the driver had on a plaid shirt. (Prosecutors introduced a plaid shirt found in Stevens’s truck into evidence.) But at the retrial, she said it wasn’t Stevens behind the wheel. The driver appeared to be much slimmer. She said that she had told Riley about the discrepancy before the first trial, and he told her not to mention that fact. Before the second trial, where Dick also testified, she confronted Riley and Schmidt. “Detective Riley told me never to mention the size of the person in the truck,” she testified. Schmidt told her to adjust her testimony to obscure what she might have seen. Dick testified that, before the first trial, she had asked Riley and Boles whether any other light-colored pickups could have been on that section of the road in the early hours of August 23. They told her no. But Dick said they lied to her. Before the second trial, she testified, she drove around that area, near the hamlet of Morratico, and saw numerous white and light-colored pickups. Her husband, Louis Dick, a crabber and retired Maryland state trooper, had testified at the first trial that Stevens had told him on August 23 that he was running behind due to a doctor’s appointment and would be late getting to the seafood wholesaler. But like his wife, he thought Riley was pressuring witnesses to adjust their testimony to fit the state’s case. Now, he testified that he wasn’t sure what day he had the conversation with Stevens. Stevens’s doctor testified and said the appointment had been on August 22. Emerson Harding also testified about his wife’s death. He said that Stevens made the crude remark about his wife when he and Stevens were out oystering two weeks before her death. Schmidt had built the state’s case on circumstantial evidence, including testimony that Stevens owned a knife like the type that the medical examiner testified could have made the cuts on Harding’s body. But there was no weapon to present to jurors. As the trial drew to a close, Howard Stevens, Emerson’s father, testified that he had taken the knife and tossed it into the woods. “There was so much hearsay about the knife, I thought I'd do away with it,” he said. Howard Stevens said he told his son what he did a day or two later. During his testimony, Emerson Stevens said that he lied to investigators about the knife’s disappearance to protect his father. He said that he told Riley that he parked near Harding’s house to relieve himself as a way to end hours of questioning and constant harassment. “I said that so he would leave me alone,” Stevens testified. Stevens said that on August 22, 1985, he cut the grass, then ate supper with his children at a neighbor’s house and left about 9:30 p.m., about the time Mary Harding would have been hanging up the phone after talking to her sister. Stevens’s daughter, Jennifer, confirmed that account, and said she would have heard her father leave because his truck made a lot of noise. The neighbor, Kendrick Walker, said the Stevens family was at his house. And another person at the supper, Tim Lewis, said he stayed until around 1 or 2 a.m. and didn’t hear Stevens leave. Like Jennifer Stevens, Lewis said the pickup had a distinctive noise. Sandra Stevens also said her husband had been home when she returned from work, and she heard him leave for work around 6 a.m. During closing arguments, Schmidt said numerous witnesses had seen Stevens’s truck either parked near Harding’s house on August 22, 1985 or driving in the early morning the following day. Schmidt said Scholberg was intellectually honest with the jurors and testified that “[While] it’s a possibility it’s not her hair, it is unlikely in the populace there will be two peoples’ hair I cannot tell the difference in with my great experience.” He also said that Stevens had slashed Harding’s body to “drain the blood to draw the crabs so they would do their work.” He reminded jurors of Stevens’s two previous convictions for larceny, which went to his credibility as a witness. After deliberating about six hours, the jury convicted Stevens of both counts on July 12, 1986. He was sentenced to 99 years in prison on the murder charge and 65 additional years for the abduction charge. Stevens appealed, arguing that there had been insufficient evidence to convict. The Court of Appeals of Virginia denied his appeal on March 21, 1989. It said that while the case against Stevens was entirely circumstantial, “We find that these circumstances do concur to form an unbroken chain linking the defendant to the crime.” While this appeal was underway, Dunaway pled guilty on March 1, 1988, to obstruction of justice after being indicted on a perjury count for giving false testimony at the Stevens trial. He had actually made several inquiries about the reward money to Riley and Boles. During his plea agreement, the special prosecutor handling the case and Dunaway’s attorney both argued that Dunaway’s false statements were harmless errors, and that when Dunaway said he had made no inquiries, what he had actually meant was that he had no interest in the reward money. Over the next 25 years, Stevens filed a series of unsuccessful state and federal habeas petitions. The Innocence Project at the University of Virginia School of Law began representing him in 2010. In 2012, it had DNA testing performed on the hair strand found in Stevens’s truck. The testing was inconclusive. In 2016, his attorneys learned that a box of documents related to the Stevens case had been found at the Lancaster County Sheriff’s Office. The documents included part of the FBI’s investigative files as well as other records that hadn’t been disclosed to Walker before trial. The FBI files contained a notation that asserted it was likely that Harding’s body was dumped within 500 to 600 yards of where it was found, not 10 miles downstream. Separately, an Innocence Project attorney in 2013 had found a May 2, 1986, letter from Boon, the marine scientist, to Schmidt, that doubted the worth of his testimony at the first trial. Boon wrote: “In a brief ‘interview’ before my last appearance at the Circuit Court, your associate, Lt. Riley, applied what may be the correct term to my testimony in this case. He called it ‘eyewash.’” The records contained several witness reports created by Riley that indicated the testimony of witnesses differed greatly from their initial statements. Smith, for example, while testifying that he wasn’t sure which day Stevens had been late, had actually told Riley that Stevens had been on time on August 23, 1985. Emerson Harding had testified that Stevens made the crude remark about his wife two weeks before her death. But Riley’s report said Harding had said the remark by Stevens was a year prior. In addition, the documents hinted at the possibility of Emerson Harding as a suspect, noting that he had received $80,000 in a life insurance settlement and quickly bought a sports car and started dating. The FBI files mentioned several other men in Lancaster County as possible suspects, including a man who had been charged with rape in Newport News, Virginia. Separately, the petition noted microscopic hair analysis had been declared scientifically invalid as a tool for making individual identifications. Scholberg’s testimony also contributed to the wrongful convictions of Kirk Odom and Dennis Butler. In addition, Fierro had recanted her testimony on May 13, 2016. In her affidavit, Fierro said she reviewed the case file at the request of Stevens’s attorneys and consulted with a listserv of medical examiners. “I now believe that my initial opinion and trial testimony in reference to the cutting injuries was in error. The periodicity, location, depth, and extent of the wounds on Ms. Harding’s body are more consistent with a propeller and inconsistent with a knife.” Judge Michael McKenney of Lancaster County Circuit Court denied the petition on December 1, 2017. He said the new evidence presented by Stevens’s attorney wouldn’t have changed the outcome of the trial. After the Supreme Court of Virginia denied his appeal, Stevens returned to the federal courts. In a habeas petition filed in U.S. District Court for the Eastern District of Virginia, Stevens repeated these earlier claims and also said the wrongful conviction was due in large part to Riley’s tunnel vision and misconduct, noting that a federal judge had found his methods in the case of Beverly Monroe to be “deceitful, manipulative, and inappropriate.” The petition repeated claims about Riley’s tactics with Ann Dick and Earl Smith but also included an affidavit from a man named Ray Reynolds, a seafood wholesaler, who was a prosecution witness and was prepared to testify that Stevens had come in late to sell crabs on August 23. Just before Reynolds was to testify at the first trial, he checked his records and realized the day Stevens was late was August 22. He told Riley, according to the affidavit, and Riley began yelling and swearing at him, telling him to stick to his original story. Reynolds said he couldn’t, and he didn’t testify at either trial. “Riley quickly latched on to Mr. Stevens as the culprit, and simply ignored countless signs that he was focused on the wrong man,” the petition said, noting the FBI files on alternate suspects. It criticized McKenney’s ruling as nonsensical for suggesting that Stevens’s stronger alibi was somehow less credible than the weaker alibis of these other men. Because Stevens had already filed a federal habeas petition in 1992, he needed authorization from the U.S. Court of Appeals for the Fourth Circuit to file this successive petition. The authorization required him to show that he had new facts to support his claim and that these facts could establish by “clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” After reviewing Stevens’s application, a three-judge appellate panel ruled unanimously on April 15, 2020, that Stevens could file a new habeas petition in federal court. Stevens had been released from prison on May 19, 2017, but the appellate judges noted that the conditions of his parole still constituted “restraints on his liberty.” The main opinion, written by Justice Julius Richardson, did not elaborate on the merits of Stevens’s application. “At this stage,” Richardson wrote, “he need not convince us that he will ultimately satisfy this provision’s strict dictates. All he must do is make a prima facie showing that he can do so.” The ruling also noted the limited role of the federal courts in successive habeas petitions, which “shift[ed] the focus to those actors who possess the ultimate discretion to prosecute, pardon, and preserve convictions. And, consistent with this great power, we expect executive actors to wield their authority in a manner consistent with our finest values and traditions.” In her concurring opinion, Judge Stephanie Thacker wrote, “I simply cannot see how any reasonable factfinder could convict in this case. There is now no reliable physical evidence, the prosecution’s theory that Stevens’s knife caused the back wounds is no longer viable, the jury could seriously question at least one prosecution witness’s credibility based on his false testimony, and the FBI report at least makes the prosecution’s theory that the body traveled ten miles much more difficult to believe.” After the appellate ruling, the UVA Innocence Project submitted a clemency petition to Gov. Ralph Northam. On August 13, 2021, Ralph Northam granted an absolute pardon to Stevens. He said the pardon reflected Stevens’s innocence in the death and abduction of Mary Harding, and that that the Fourth Circuit court had encouraged him to use his powers of pardon. Jennifer Givens, the director of the UVA Innocence Project, said, “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. We're hopeful that continued reforms to Virginia's criminal justice system will decrease the number of men and women who are convicted of crimes they did not commit." Stevens said, “I spent more than 31 years in prison for a murder that I didn't commit. From the first moment I was questioned about the death of Mary Harding, I swore again and again that I was innocent and never touched Mary Harding."" The entire entry can be read at: |
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6023
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;
