Tuesday, November 30, 2021

Faulty hair analysis: Colorado: Fifty-one people currently serving sentences in Colorado prisons will have their cases probed by state law enforcement and University of Colorado law school professors for potentially faulty hair analysis that could have led to wrongful convictions decades ago, CPR (Reporter Allison Sherry) reports..."This work started nationally in 2013, when the FBI acknowledged problems with hair analysis after DNA testing exonerated three men who had been wrongfully convicted based, in part, on bad testimony by FBI hair examiners. The FBI has since encouraged all states to conduct similar reviews of their own hair analysis work."



PASSAGE OF THE DAY: "CU’s (Colorado University)  Korey Wise Innocence Project and the Colorado Bureau of Investigation will review cases identified by investigators where hairs collected from crime scenes were visually compared to draw conclusions about whether the hair came from a suspect.  These visual comparisons are not believed to be as accurate as current DNA science and have led to convictions being overturned in other states. “This type of review is in the best interest of everybody,” said Anne-Marie Moyes, director of the Innocence Project at the CU law school. “If the wrong person is sitting in prison, we want to correct that error … It does not serve victims if the wrong person is in prison for that crime.”


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STORY: "51 prisoners will have their cases reviewed for potential wrongful convictions over hair analysis, CPR (Reporter Allison Sherry) reports, published on November 29, 2021. (Colorado public radio);


GIST: Fifty-one people currently serving sentences in Colorado prisons will have their cases probed by state law enforcement and University of Colorado law school professors for potentially faulty hair analysis that could have led to wrongful convictions decades ago.


CU’s Korey Wise Innocence Project and the Colorado Bureau of Investigation will review cases identified by investigators where hairs collected from crime scenes were visually compared to draw conclusions about whether the hair came from a suspect. 


These visual comparisons are not believed to be as accurate as current DNA science and have led to convictions being overturned in other states.


“This type of review is in the best interest of everybody,” said Anne-Marie Moyes, director of the Innocence Project at the CU law school. “If the wrong person is sitting in prison, we want to correct that error … It does not serve victims if the wrong person is in prison for that crime.”


In Colorado, investigators and lawyers will look at convictions between 1976 and 1995, where the prisoners are still alive and currently serving sentences. 


They identified 51 people whose cases involved hair analysis during the investigation and trial. 


Lawyers will review court transcripts for potentially inaccurate testimony to determine whether hair microscopy evidence played a central role in the conviction. 


If so, lawyers may pursue DNA testing to see whether those hair sample testimonies could have been inaccurate.


“There have been vast technological advances in forensic science, and DNA in particular,” said John Camper, CBI Director. “This review is an opportunity to ensure accuracy in scientific conclusions and testimony, no matter the age of the case.” 


Moyes said that it’s important for law enforcement and defense attorneys to partner up as the science of forensic analysis of crime scenes evolves and improves -- from eyeballing hair samples under a microscope to nailing down precise DNA comparisons.


“The science is ever changing. We continue to have scientific progress in all areas,” she said. “In forensics, when that progress happens and if it shows that some of the type of evidence that was previously admitted wasn’t reliable then that’s the very place where these kinds of partnerships should exist so we can together make sure, looking backwards, that no mistakes were made.”


This work started nationally in 2013, when the FBI acknowledged problems with hair analysis after DNA testing exonerated three men who had been wrongfully convicted based, in part, on bad testimony by FBI hair examiners. 


The FBI has since encouraged all states to conduct similar reviews of their own hair analysis work."


The entire story can be read at:


https://www.cpr.org/2021/11/29/51-prisoners-will-have-their-cases-reviewed-for-potential-wrongful-convictions-over-hair-analysis/

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

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

Susan Neill-Fraser: Australia: Major (Very Unwelcome) Development: She has lost her appeal against her murder conviction over the 2009 Bob Chappell disappearance, abc News (Reporter Laura Lohberger) reports..."Key points: "Two of three appeal judges have dismissed Neill-Fraser's second appeal against her 2010 murder conviction: Justice Stephen Estcourt said he would have allowed the appeal and ordered a retrial: Neither Mr Chappell's body nor a weapon have been found and Neill-Fraser has continued to maintain her innocence."..."Outside court, Neill-Fraser's daughter Sarah Bowles described the judgment as a "disappointing and devastating outcome for the family". She said the family would seek legal advice on the next steps. "There's nothing that's going to undo the institutionalising effects this has had on mum both physically and psychologically," she said. "It's really a tragedy and it is one we need to focus on and resolve and I'm going to do everything in my power and I know that we have got a huge number of people who are going to continue to fight for this to see justice achieved." Ms Bowles welcomed the dissenting judgment of one of the three justices. "It was great to see that Justice Estcourt could see that clearly there are glaring issues with this case which need to be examined. "I think that that then provides an opportunity for us to explore options within the justice system further". Ms Bowles said the case was about "more than us as a family and we need to protect other people downstream".


THE DECISION: 


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STORY: "Susan Neill-Fraser loses appeal against murder conviction over 2009 Bob Chappell disappearance," by Reporter Laura Lohberger, published by ABC News on November 30, 2021.

KEY POINTS: "Two of three appeal judges have dismissed Neill-Fraser's second appeal against her 2010 murder conviction: Justice Stephen Estcourt said he would have allowed the appeal and ordered a retrial: Neither Mr Chappell's body nor a weapon have been found and Neill-Fraser has continued to maintain her innocence."


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GIST:  “Hobart woman Susan Neill-Fraser's appeal against her murder conviction has been dismissed by the Court of Criminal Appeal.


A Supreme Court jury in 2010 found Neill-Fraser guilty of murdering her partner Bob Chappell on board the couple's yacht, Four Winds, in 2009.


Mr Chappell's body has never been found.


The appeal is 67-year-old Neill-Fraser's second, and was made possible after a law change in 2015.


Neill-Fraser's daughters and a group of supporters, including former premier Lara Giddings attended the Supreme Court in Hobart for the judgment.


The appeal centred on questions about how the DNA of a then homeless teenager, Meaghan Vass, came to be found on the deck of the Four Winds.


At the 2010 trial, Ms Vass told the jury she did not remember ever being on or near the yacht at the time of Mr Chappell's disappearance, and could not remember where she was on the night of January 26, 2009.


The prosecution argued at trial that Ms Vass's DNA got onto the deck as a result of secondary transfer — such as from the sole of a shoe.


Neill-Fraser's lawyers relied on evidence from Victoria Police forensic specialist Maxwell Jones to argue the prosecution was wrong at trial to dismiss the DNA deposit as a red herring, and that if the jury had Mr Jones' evidence, there was a "significant possibility" of a different verdict.


Two of the three Justices rejected the appeal, with one returning a dissenting judgement.


In her reasons for dismissing the appeal, Justice Helen Wood said the jury did not need to decide whether Ms Vass's DNA was the result of a direct deposit or secondary deposit in order to have found Neill-Fraser guilty.


"It was entirely open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt and to regard the State's case that the appellant was the perpetrator as an overwhelming case," Justice Wood said.


"After careful consideration of this appeal I have reached the conclusion that the evidence relied upon by the appellant is not fresh, is not compelling," Justice Helen Wood said.


"There has not been a substantial miscarriage of justice."

Justice Robert Pearce said he would also dismiss the appeal, but Justice Stephen Estcourt wrote a dissenting judgment.


"I would uphold the appeal and quash the appellant's conviction for murder," he wrote in his reasons.


"In my view, the only appropriate order 3 … is an order that there be a retrial."


Just before the decision, Neill-Fraser smiled and mouthed "hello" to her daughters who were in the courtroom.


Family taking legal advice:

Outside court, Neill-Fraser's daughter Sarah Bowles described the judgment as a "disappointing and devastating outcome for the family".


She said the family would seek legal advice on the next steps.


"There's nothing that's going to undo the institutionalising effects this has had on mum both physically and psychologically," she said. 


"It's really a tragedy and it is one we need to focus on and resolve and I'm going to do everything in my power and I know that we have got a huge number of people who are going to continue to fight for this to see justice achieved."


Ms Bowles welcomed the dissenting judgment of one of the three justices.

"It was great to see that Justice Estcourt could see that clearly there are glaring issues with this case which need to be examined.


"I think that that then provides an opportunity for us to explore options within the justice system further".


Ms Bowles said the case was about "more than us as a family and we need to protect other people downstream".


She said there had been a lot of "vitriol and hatred" against the family for "pushing back". 


"Mum is now facing 13 Christmases in prison and hasn't spent a single Christmas with my kids and that's obviously very devastating," Ms Bowles said.


"I think that if people can suspend their judgement about what they might believe in this case and acknowledge what that might be like for her, and for us as a family, the ripple effect of a case like this is enormous".


Former Tasmanian premier Lara Giddings, whose mother has been a long-time supporter of Neill-Fraser, spoke on behalf of the supporter group outside the court.


She said the group was disappointed, but did "take some hope" from Justice Estcourt's comments.


Ms Giddings also renewed her call for a commission of inquiry to investigate the case.


"We have many concerns about how this case has been handled from day one," she said.


Ms Giddings said Meaghan Vass should have been better supported when she gave evidence during the appeal hearing — evidence that was abandoned by Neill-Fraser's lawyers after Ms Vass gave contradictory statements.


She said the names Ms Vass mentioned in her testimony should have been suppressed.


"As soon as those names were published, her life was in danger," Ms Giddings said.

She said Neill-Fraser's supporters would continue their fight.


"This matter will not go away. It cannot go away, we cannot afford for it to go away.


"We will be continuing to work with the Upper House in the hope that we will get an inquiry that will allow a number of the issues that cannot and are not allowed to be exposed in the court to be exposed in the parliament.”


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Key dates:


  • 2009: Police respond to reports of a yacht taking on water moored in Hobart's River Derwent. Police find the owner of the Four Winds, Bob Chappell is missing and suspect foul play. Police arrest his de facto partner, Susan Neill-Fraser, at her West Hobart home and charge her with his murder

  • 2010: Neill-Fraser pleads not guilty and tells the jury she had no financial problems at the time and denies the pair's relationship was rocky. After deliberating for 18 hours, a jury finds her guilty of murdering Mr Chappell and she is sentenced to 26 years' jail with a non-parole period of 18 years

  • 2012: The Court of Criminal Appeal dismisses Neill-Fraser's appeal against the conviction but allows the appeal against her sentence which is eventually reduced to 23 years with a non-parole period of 13 years

  • 2015: Tasmania's parliament changes right to appeal laws, allowing her to launch another appeal on the grounds of "fresh and compelling evidence"

  • 2019: Neill-Fraser launches a second appeal after Justice Michael Brett found she has a reasonable case to present to the Court of Criminal Appeal, a case that includes questions over DNA evidence of then-homeless teenager Meaghan Vass found on the yacht

  • 2021: The second appeal is heard over three days, eventually being dismissed in a 2-1 judgement, with Justice Stephen Estcourt dissenting, saying he would order a retrial.
  • —————————————————————-

The entire story can be read at:


https://www.abc.net.au/news/2021-11-30/susan-neill-fraser-loses-appeal-dismissed/100660392

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

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

Dustin Shane Duty: Florida: Faulty eyewitness identification and much more); "Duty’s journey to exoneration was filled with roadblocks, some so formidable that the 37-year-old often feared that his dream of walking free would die on a courtroom floor. But a University of Miami School of Law professor and his passionate students never gave up on him, filing various motions over the past five years that exposed just how egregious his conviction was—one achieved through a faulty eyewitness identification, a dearth of evidence, and a defense lawyer who failed his client at every turn."..."A Jacksonville deputy sheriff detained him in the parking lot of a Safari Food Mart, saying that he fit the description of a suspect in an armed robbery that had been committed in the area only minutes earlier. Someone wearing a greenish gray sweatshirt and a red cap held a knife to Tiffany Saam’s neck and robbed her of $152 as she returned home from a job interview. After law enforcement officers transported Saam to the location where Duty was being held, she identified him as the assailant. Then, in a process that took hours but to Duty seemed to transpire in the blink of an eye, he was arrested, Mirandized, and taken to a police station for questioning. Inside the small interrogation room, a shirtless Duty pleaded his case. There had to be surveillance cameras somewhere along the route he took after exiting his boss’s vehicle. If there were, Duty knew, they would prove his claim of innocence that he was nowhere near the crime scene at the time it occurred. But the detective told him, “You are in the South. They don’t have cameras on a street corner.” Even Duty’s pleas—13 in all—for someone to call his boss were discarded. So, he was fingerprinted and booked, and on Dec. 13, 2013, after a one-day trial, a jury found him guilty. Two months later, a judge sentenced him to 20 years."


PUBLISHER'S NOTE:This Blog is interested in  false eye-witness identification issues because  wrongful identifications are at the heart of so many DNA-related exonerations in the USA and elsewhere - and because so much scientific research is being conducted with a goal to making the identification process more   transparent and reliable- and less subject to deliberate manipulation.  I have also reported far too many cases over the years - mainly cases lacking DNA evidence (or other forensic evidence pointing to the suspect - where the identification is erroneous - in spite of witness’s certainty that it is true - or where  the police have somehow  rigged the identification process in order to make a desired  identification inevitable. 
Harold Levy: Publisher: The Charles Smith Blog.
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PASSAGE OF THE DAY: "During her time as an intern in Miami Law’s Innocence Clinic, Lauren Van Buren had poured through hundreds of letters from convicted inmates in Florida wanting Trocino and his students to take on their case. The letter she opened from Duty one day five years ago was like none other. “Part of our job is not only to find the cases where people are innocent, but to rule out the ones that don’t add up. That way, we’re not spinning our wheels. We’d lose credibility if we pursued every letter that came to us,” Van Buren said. “So, we investigate to figure out whether a case is worth pursuing. And in Duty’s case, it was—without a doubt. I told Craig, ‘There’s no way we’re turning this one down.’ ” Duty’s conviction, she knew, hinged on a highly suggestive show-up in which the victim, Saam, was presented with only one suspect for identification and informed by sheriff’s deputies that they were holding someone who fit the description of the robbery suspect she provided. But Duty was not wearing the clothing Saam described. When deputy J.A. Taylor detained him, Duty was shirtless, wore a toolbelt and backpack, and donned duct-taped shoes—items of clothing Saam never described. What’s more, an important piece of evidence was missing: the $152 allegedly taken from Saam. It was not on Duty’s person. He had only $2.25 in his pocket—change from the money his boss had given him for cigarettes and beer.

 “If any case were the poster child for a miscarriage of justice, it was Duty’s,” said Trocino, noting that eyewitness misidentification is the single greatest cause of wrongful convictions."


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PASSAGE TWO OF THE DAY: "Vindication wouldn’t come until nearly four years later, when in late July 2021, Florida’s First District Court of Appeal sided with the Innocence Clinic and overturned the conviction, agreeing that Duty received ineffective assistance of counsel because his trial lawyer failed to call the one, credible alibi witness whose testimony could have cleared him: his boss.  Fred Davis had always maintained that at the time of the robbery, he was dropping Duty off from work. The appellate court also held that Duty’s trial attorney failed to impeach the lead detective on the case or challenge the highly suggestive show-up identification. Three months later, the State Attorney’s Office for the Fourth Judicial Circuit dropped the armed robbery charge."


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STORY: "Law School professor, students prove incarcerated man innocent," by Reporter Robert C. Jones Jr., published by The University of Miami publication, in November, 2021.


SUB-HEADING: "Wrongfully convicted of armed robbery in a court of law eight years ago, Dustin Duty is now a free man, thanks to the efforts of the University of Miami School of Law’s Innocence Clinic."


GIST: In the first hour of his newfound freedom, Dustin Shane Duty consumed half of a double bacon cheeseburger while sitting in the restaurant of a Jacksonville, Florida, hotel. Then, he borrowed his attorney’s cellphone to call the mother he hadn’t seen in more than eight years.


“I love you, Dottie,” Duty told his weeping mom.


The last time they spoke, he was in a Florida prison, serving a 20-year sentence for an armed robbery for which he had always maintained his innocence.


Now, after more than eight years behind bars, he was a free man, prosecutors deciding not to retry him after an appellate court overturned his conviction.


Duty’s journey to exoneration was filled with roadblocks, some so formidable that the 37-year-old often feared that his dream of walking free would die on a courtroom floor.


But a University of Miami School of Law professor and his passionate students never gave up on him, filing various motions over the past five years that exposed just how egregious his conviction was—one achieved through a faulty eyewitness identification, a dearth of evidence, and a defense lawyer who failed his client at every turn.


“This means a lot,” Craig Trocino, director of Miami Law’s Innocence Clinic, which took on Duty’s case in 2016, said of the five-year battle to vindicate him. “It means that we’re doing the right thing. It means that all our hard work and dedication is worth it. And most importantly, it means that we were able to give somebody his life back. If you ask me what our clinic does, it works to give life back to people who’ve had it taken away from them.”


The arrest

For Duty, life as he knew it was taken away from him on May 29, 2013.


That is when, after a long day of working a construction job in the hot Florida sun, his boss, Fred Davis, dropped him off on a Jacksonville street corner, giving him $8 to buy cigarettes and beer.


Duty made the purchase, but he never made it home. 


The letter

During her time as an intern in Miami Law’s Innocence Clinic, Lauren Van Buren had poured through hundreds of letters from convicted inmates in Florida wanting Trocino and his students to take on their case. The letter she opened from Duty one day five years ago was like none other.


“Part of our job is not only to find the cases where people are innocent, but to rule out the ones that don’t add up. That way, we’re not spinning our wheels. We’d lose credibility if we pursued every letter that came to us,” Van Buren said. “So, we investigate to figure out whether a case is worth pursuing. And in Duty’s case, it was—without a doubt. I told Craig, ‘There’s no way we’re turning this one down.’ ”


Duty’s conviction, she knew, hinged on a highly suggestive show-up in which the victim, Saam, was presented with only one suspect for identification and informed by sheriff’s deputies that they were holding someone who fit the description of the robbery suspect she provided.


But Duty was not wearing the clothing Saam described. When deputy J.A. Taylor detained him, Duty was shirtless, wore a toolbelt and backpack, and donned duct-taped shoes—items of clothing Saam never described.


What’s more, an important piece of evidence was missing: the $152 allegedly taken from Saam. It was not on Duty’s person. He had only $2.25 in his pocket—change from the money his boss had given him for cigarettes and beer.


“If any case were the poster child for a miscarriage of justice, it was Duty’s,” said Trocino, noting that eyewitness misidentification is the single greatest cause of wrongful convictions. 


Uphill battle

But what seemed like a slam-dunk case proved to be an uphill legal battle. In 2017, a circuit court denied post-conviction relief for Duty, delivering a blow to his hopes of being set free.


The wheels of justice had seemingly grinded to a halt. But “faith in God and knowing that I was truly innocent kept me going,” Duty said. “Sometimes, when things would get bad, I’d remember I had a mother and other people out there who cared for me.”


Vindication wouldn’t come until nearly four years later, when in late July 2021, Florida’s First District Court of Appeal sided with the Innocence Clinic and overturned the conviction, agreeing that Duty received ineffective assistance of counsel because his trial lawyer failed to call the one, credible alibi witness whose testimony could have cleared him: his boss.


 Fred Davis had always maintained that at the time of the robbery, he was dropping Duty off from work.


The appellate court also held that Duty’s trial attorney failed to impeach the lead detective on the case or challenge the highly suggestive show-up identification.

 

Three months later, the State Attorney’s Office for the Fourth Judicial Circuit dropped the armed robbery charge. 


Duty, who, with the assistance of the School of Law’s Innocence Clinic and the Tallahassee-based Innocence Project of Florida, had waged an eight-year battle to gain his freedom and emerged victorious after it was all over. 


Passionate students

A total of 18 Miami Law students worked on the case over the past five years, pouring over the original trial transcript, interviewing witnesses, conducting their own investigations, and filing legal motions.


As interns and fellows graduated, new teams of students would pick up the mantle, relying on the detailed notes of their predecessors to keep the appeals process moving forward. “It was that continuity in representation that was critical,” Trocino said. “Part of what the clinic does is train students to be good lawyers—and good lawyers document meticulously.”


Some, like Van Buren, who is now an attorney in the Miami office of the international law firm Greenberg Traurig, even continued to work on the case after they graduated from the School of Law. On the day of Duty’s first post-conviction hearing in 2017, she was already working for a private law firm but took the day off and drove the five hours from Miami to Jacksonville to attend the proceedings.


What convinced her that Duty was innocent was a geography experiment she conducted while still an intern at the clinic. Using Google Maps and armed with the locations of the crime scene, the street where Duty’s boss dropped him off, and the food mart where he purchased cigarettes and beer, Van Buren determined that it would have been nearly impossible for him to have covered that distance on foot and committed the crime at the time it reportedly occurred. “Not even an Olympic athlete could have done it,” she said.


Other Innocence Clinic interns, both current and former, are just as passionate about their work on the case. For School of Law student Jillian Kushner, who helped draft one of Duty’s post-conviction appeals, “there are no words to describe how I feel about this victory,” she said.


“We finally got a court to see what we saw. This is something that, of course, many attorneys dream of doing. It’s something that we go into every case hoping to achieve. But there are so many roadblocks that come up, so it’s hard to get someone out of prison, even when they’re innocent,” Kushner explained.


“I came to Miami because of this clinic; it’s what I wanted to do,” she continued. “Now, to actually help exonerate someone, even if it was just playing a small part, is incredibly fulfilling.”


Leticia L. Mora, who interned at the Innocence Clinic during the 2016-17 academic year, became so inspired by the legal work she performed on the Duty case that she worked briefly as a public defender after graduating from law school.


“Wrongful convictions,” she said, “are the epitome of the justice system failing, and the repercussions stemming therefrom are immeasurable. I wanted to have a role in fixing that.”

 Mora is still in “shock and disbelief that something [the Duty case] we worked on as students has manifested and had very real-life implications years after,” she said.


The Duty case is Tori Simkovic’s third successful exoneration. As an investigative student journalist for Northwestern University’s famed Medill Justice Project, she helped vindicate two wrongfully convicted inmates. Clearing the innocent, said the third-year School of Law student, never becomes mundane.


“Victories like this are hard to come by. Even when you have the strongest of cases and are absolutely convinced of a client’s innocence, there’s always the last hurdle of proving it in court. And that’s a very difficult challenge,” said Simkovic, who worked on Duty’s successful post-conviction motion and drove to Jacksonville to greet him when he was released.


MacKenzie Zales, who is now an attorney in Washington, D.C., spent an entire summer working on the case as an Innocence Clinic fellow. “It was a total immersion,” she recalled. “The trial transcript, witness depositions, the recording of Dustin’s interrogation—it was long hours going through every piece of evidence.”


From the way in which suspects are identified and interrogated to the stringent deadlines that come with the lengthy appeals process, Trocino and his students all agree that the Duty case, like other wrongful convictions, exposed flaws in a criminal justice system that can make it difficult to correct miscarriages of justice.


Though some reform has taken place, more needs to be enacted, Trocino said.


“In Florida, there’s a relatively new statute on eyewitness identifications. There are now codified methods for how they’re supposed to be done. So, that will alleviate or prevent some of the undue suggestion that caused the problem in Dustin’s case,” explained Trocino, referring to the Eyewitness Identification Reform Act.


Passed by the Florida Legislature in 2017, four years after Duty’s conviction, the statute requires law enforcement officers to conduct blind lineups in which the person administering the lineup is unaware of the suspect’s identify, instructing the eyewitness that the perpetrator may or may not be present. 


When Saam identified Duty in the parking lot of the Jacksonville food mart, deputies told her they had apprehended someone who fit the description she gave. 


Reforms to the post-conviction appeals process are needed as well, Trocino said. “Over the last three or four decades, the procedural rules have developed in a way that becomes almost grotesquely antagonistic to anyone making a wrongful conviction claim,” he said. “And that’s what can cause the lengthy litigation process.”


Trocino also pointed to the Antiterrorism and Effective Death Penalty Act of 1996, which, he said, can “dramatically curtail” a state prisoner’s ability to appeal at the federal level. 


Growing caseload

The clinic’s caseload continues to grow. Most of the appeals the group handles do not involve DNA evidence. “But we do handle those. There’s not very many of them left, where there’s DNA that had not been tested,” Trocino said.


 “When the innocence movement started in 1990, there were thousands of cases where there were biological samples but no DNA testing because no one knew how to do it back then. So, that’s where the genesis of this started. We’d go back and test these biological samples and say, ‘The guy who got sentenced to life in prison is scientifically excluded from being the donor of that particular semen or blood or whatever.’ That’s where it all started.”


Trocino, who once defended death row inmates as an attorney for the Capital Collateral Regional Counsel’s southern office, and his students are currently appealing three cases that involve DNA evidence, one of them a murder conviction. 


“The judge has ruled that we’ll get an evidentiary hearing on that one. It’s a compelling case,” he said, without revealing too many details.


As for Duty, he’s planning a big reunion with his mother Dottie in Akron, Ohio, and he’s got a lot of catching up—and adjusting—to do. “I used to be able to get a haircut for $8. Now, it’s $30,” he said. 


His former boss, Fred Davis, has offered him his old construction job back. But for now, Duty is working elsewhere.


He said he is not bitter in the least about the eight years he lost. “I’m not going to sit around sulking and feeling sorry for myself,” he said. “I’m just moving forward, picking up the pieces.""


The entire story can be read at: 


https://news.miami.edu/stories/2021/11/law-school-professor,-students-prove-incarcerated-man-innocent.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;
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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;

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


Monday, November 29, 2021

Extraordinary first person account by investigative journalist John Sweeney who fought for Sally Clark and other cot deaths mothers and says that he is "still haunted by their fate", published by The Guardian..."John Sweeney reported on the women wrongly jailed for murder. Now, referring to Kathleen Folbigg, he fears we have not seen the end of a modern witch hunt"...."The question at the heart of Sally’s tragedy – and those of Angela Cannings and Donna Anthony – was not, “Who murdered this child?” but, “Was there a crime?”. And the truth was there had been no crime. In none of these cases was there any good evidence of child abuse, let alone child murder. There is a fourth case, that of Kathleen Folbigg, an Australian mother who lost four children. She is still in prison. These tragedies are examined in a major new series by Discovery +, released this weekend, on which I am interviewed."


PASSAGE OF THE DAY: "Back in 1999 Professor Sir Roy Meadow was a kind of child abuse god, author of The ABC of Child Abuse and star witness for the crown...Meadow’s claims to be a scientist of standing fell apart when we learned that his database wa s not founded on laboratory science but on 81 court cases.that he had, in the words ofProfessor Jean Golding, “cherry-picked”. To save space, Meadow had shredded his research database so it was impossible to go through his workings. Jean Golding, professor of epidemiology at Bristol, compared his scientific rigour to “stamp-collecting” and said that he was not a reliable witness. But it was Meadow’s Law that really took the biscuit. More boys than girls die from cot death which means that it is in some way genetic, though we don’t understand the exact mechanism.    Our Radio 5 Live documentary on Sally Clark in 2001 ended like this: “Unless proven otherwise, one cot death is a tragedy and two cot deaths are a tragedy and three cot deaths are a tragedy.”

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STORY: "I fought for Sally Clark and other cot death mothers. I'm still haunted by their fate, by John Sweeney, published by The Guardian on November 20, 2021.

SUB-HEADING: "John Sweeney reported on the women wrongly jailed for murder. Now, 22 years on, he fears we have not seen the end of a modern witch hunt."

GIST: "Child abuse is an evil thing but it’s always worse when the perpetrator is the state.


 Twenty-two years ago this month, Sally Clark was convicted of murdering her two baby boys, Christopher and Harry, and blaming it on cot death.


 She was sentenced to life in prison. 


There was a secret sentence, crueller even than that. The murder charge meant that in the family court, behind closed doors, she lost the right to be a mother to her surviving son, and that extra cruelty broke her. 


The British state committed child abuse by depriving her third boy of his mother for no good reason.


The question at the heart of Sally’s tragedy – and those of Angela Cannings and Donna Anthony – was not, “Who murdered this child?” but, “Was there a crime?”. And the truth was there had been no crime. In none of these cases was there any good evidence of child abuse, let alone child murder.


 There is a fourth case, that of Kathleen Folbigg, an Australian mother who lost four children. She is still in prison. These tragedies are examined in a major new series by Discovery +, released this weekend, on which I am interviewed.


Back in 1999 Professor Sir Roy Meadow was a kind of child abuse god, author of The ABC of Child Abuse and star witness for the crown. 


He advanced “Meadow’s Law”, that “unless proven otherwise, one cot death is tragic, two is suspicious and three is murder” and told the jury at Sally Clark’s trial that the chances of someone like Sally, a middle-class, non-smoking mother, having two cot deaths was “73 million to one”.


 This was an arrow that shot though Sally’s defence and one, it seemed at the time, for which there was no answer.


My interest in Sally’s case was all Martin Bell’s fault.


 Had my old journalist pal from Bosnia not stood for election in Tatton in 1997, he would not have made friends with the chaplain for the prison where Sally ended up.


 The Reverend Pauline Pullen pushed me up against a wall and jabbed me with her finger: “You’re the investigative reporter. Everybody in that prison, the cons, the screws, even the governor knows she’s innocent. Go on, Sweeney, do your job.”


I had recently left the Observer for BBC Radio 5 documentaries and luckily my producer, Bill Law, was already on the case. The more Bill and I dug, the more the evidence against Sally crumbled to dust.


The statistic “73 million-to-one” that Meadow used against Sally was, according to Peter Donnelly, professor of statistics at Oxford University, “just plain wrong”.


 The odds of a middle-class non-smoking mother having a cot death were 8,543-to-one. Sally lost two boys so 8,543 times 8,543 equals, roughly, “73 million-to-one”. It’s a schoolboy error to multiply odds in this way.


By way of analogy, the moment a rank outsider wins the Grand National, the odds of it doing it again the following year drop massively. 


The true number the murder trial should have heard is that once you have suffered one cot death, the chances of a second are 60-1. The statistic Meadow gave the court was poisonously untrue.


Meadow’s claims to be a scientist of standing fell apart when we learned that his database was not founded on laboratory science but on 81 court cases.that he had, in the words ofProfessor Jean Golding, “cherry-picked”. 


To save space, Meadow had shredded his research database so it was impossible to go through his workings.


 Jean Golding, professor of epidemiology at Bristol, compared his scientific rigour to “stamp-collecting” and said that he was not a reliable witness.


But it was Meadow’s Law that really took the biscuit. More boys than girls die from cot death which means that it is in some way genetic, though we don’t understand the exact mechanism. 


Our Radio 5 Live documentary on Sally Clark in 2001 ended like this: “Unless proven otherwise, one cot death is a tragedy and two cot deaths are a tragedy and three cot deaths are a tragedy.”


Mothers found guilty of killing their children are the lowest of the low in the British prison system.


 Word got back to us that, after our documentary was broadcast, the other prisoners were less cruel to Sally. 


Meanwhile Steve Clark, Sally’s husband, went through the mass of medical evidence not heard by the court.


 He found bacteria test results showing that baby Harry had Staphylococcus aureus in his spinal fluid, indicating he could have died from natural causes.


Angela Cannings suffered three cot deaths so, according to Meadow’s Law, she had to be a murderer.


 He gave evidence against her at her trial and she was duly convicted in 2002.


For BBC Real Story we investigated Angela’s family tree.


 The court had heard that there had been two cot deaths in Angela’s family but that was not thought to be a gamechanger. I had a hunch that there might be more in Angela’s Irish family.


Assistant producer Sarah Mole went to the Dublin records office and discovered that Angela’s grandmother had had a cot death and her great-grandmother two.


After our programme went out Angela Cannings’s solicitor, the late Bill Bache called me. 


To my dying day I will remember the wonderment in his voice. “John, your programme…” “What is it, Bill?” 


He went on to explain that Angela’s half-sister, a woman Angela did not know existed, had got in touch to say that her two babies had both suffered life-threatening events. They were rushed to hospital and lived but the genetic pattern was crystal-clear.


Donna Anthony suffered two cot deaths and she, too, had been convicted on the evidence of Meadow. Once again, there was no credible evidence that she had committed any child abuse, let alone child murder.


In 2003 Meadow gave evidence against Trupti Patel, who had lost three babies and therefore, according to Meadow’s Law, was a murderer.


 But this time the jury got it, understanding that there is some kind of genetic factor at play, and she was cleared.


That same year, Sally Clark and then Angela Cannings were freed. Two years later, Donna Anthony was freed. George Hawks, her solicitor, explained: “She was convicted of the worst crime any mother can be convicted of – the murder of her own babies – but there was no direct evidence that she had done any such thing. She was condemned by theory based on suspicion which was masquerading as medical opinion, and it was completely wrong. The case against Donna was completely flawed and she is absolutely shattered about what has happened to her over the last seven years.”


The case was theory based on suspicion masquerading as medical opinion. And it was wrong’

George Hawks, solicitor 


Meadow’s work was not done. In 2005 Angela and Ian Gay were found guilty of manslaughter, following the death of their adopted son, Christian. 


The prosecution built their case on Meadow’s 1993 paper “Non-accidental salt poisoning”.


 The trial judge cited Meadow’s paper five times during his summing up.


For Radio 4’s File on 4, I spoke to both Professor Golding and Professor Ashley Grossman who questioned the science behind Meadow’s paper. Once again, nature – in this case diabetes insipidus which can raise salt level to a lethal state – was to blame rather than deliberate salt poisoning by two people. They, too, were freed.


Meadow was struck off by the GMC. He appealed and won, with one judge dissenting, and to this day his supporters defend him. Discovery + approached him for a comment but he did not reply.


In 2004 Meadow’s ex-wife, Gillian Paterson, suggested that he was a misogynist. She said: “I don’t think he likes women… although I can’t go into details, I’m sure he has a serious problem with women.”


Poor Sally never got over her enforced separation from her surviving child. I was doing battle against the Church of Scientology in Florida in 2007 when the news broke that Sally had died. I had to apologise to two ex-members of the church I was interviewing and walked away and burst into tears.


I remain haunted by her case and the others, and the fact that in the 21st century a witch-hunt, powered by ignorance and prejudice, had the power to destroy wholly innocent women. I fear that the same thing is happening in Australia, that Kathleen Folbigg, too, is a victim of a monstrous injustice.


The Baby Killer Conspiracy is available to stream now on Discovery+


The entire story can be read at:

https://www.theguardian.com/uk-news/2021/nov/20/sally-clark-cot-death-mothers-wrongly-jailed
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: "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;

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