PASSAGE OF THE DAY: "Five years later, on March 19, 2009, Judge Orlando Hudson of Durham County Superior Court vacated Stanback’s judgments, allowing Allen to withdraw his Alford plea. He was released from prison on April 14, 2009, and placed in the Durham County Jail, and then released on bond September 9, 2010. Durham prosecutors intended to retry Allen, and his new attorney, Lisa Williams, began filing her own series of discovery requests in early 2010. She inspected the state’s files in April 2010, and then requested 23 pages missing from Gilliam’s report, which included the results of Ward’s polygraph test and Gilliam’s subsequent interview with Ward. Separately, an independent review of the SBI crime lab released in August 2010 found that the lab’s analysts had routinely filed misleading reports that failed to adequately disclose negative results, often burying those contradictory findings in cryptically written lab notes. Then-Attorney General Roy Cooper commissioned the review after the exoneration of Gregory Taylor. As with Allen’s case, a lab chemist had reported the presence of blood in his report linking Taylor to a murder but had not included further tests that were either negative or inconclusive. The review found 230 cases, including Allen’s, where analysts didn’t adequately disclose the results of lab work."
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RECENT ENTRY INTO U.S. NATIONAL REGISTRY OF EXONERATIONS: Author Ken Otterbourg; Posted on December 16, 2021. Contributing factors; False or misleading forensic evidence; perjury or false accusation; official misconduct; Inadequate legal defence. (A lethal cocktail indeed.)
GIST: "On the afternoon of February 9, 1998, Derrick Allen called 911 and said that a toddler in his care, 2-year-old Adesha Artis, was unresponsive.
Paramedics arrived at the apartment in Durham, North Carolina, where Allen lived with Adesha and Diane Jones, Adesha’s mother. They found Adesha had no pulse. They also noticed what appeared to be a small amount of blood on the inside left leg of her pantsuit. Allen told the paramedics that Adesha had complained of leg pain and become unresponsive after he took her out of the bathtub.
The paramedics took Adesha to the hospital, but she was unable to be revived. The attending physician who examined the girl said there was a “fresh noticeable tear” in the girl’s vagina, with “some blood [being] found inside the vagina and on the clothes [Adesha] wore to the hospital. An emergency-room nurse said that Allen was looking at Adesha’s vaginal area in the moments after the girl was pronounced dead.
Later that day, police charged Allen with a statutory sex offense. A medical examiner performed an autopsy. The examiner’s report said that there were cuts and abrasions on Adesha’s vagina. It also said the girl had subdural and subarachnoid hemorrhaging of the brain, moderate swelling of the brain, bleeding in her spinal column, and bleeding in her retinas. The medical examiner said that Adesha's death was the result of shaken baby syndrome.
Allen had not been the only adult looking after Adesha on the day she died. Jones’s cousin, Kia Ward, had slept over the night before and helped care for Adesha on February 9.
Ward gave investigators a statement on February 10. She said that she cared for Adesha by herself until around 11 a.m., when Allen woke up. She said that Allen became frustrated with Adesha because the toddler wet her clothes. He took her into the bathroom, where he bathed her and spanked her. He then dressed the girl.
Later, Ward said, she noticed that Adesha was “shaking – almost like she was having a seizure.” She asked Allen what was wrong, and he said that he had been giving Adesha a piggy-back ride, and she had fallen off. Ward said she then saw Allen changing Adesha’s underwear. Ward said that Allen then asked her whether she noticed that Adesha was limping, and Ward said she had. Ward said Allen then picked up the girl and placed her on the bed in Jones’s room. Ward said she left the apartment at around 2 p.m., about a half hour before the 911 call.
On February 29, 1998, Special Agent Mike Wilson with the North Carolina State Bureau of Investigation administered a polygraph test to Ward. He asked Ward a series of questions, including whether Ward had harmed Adesha and whether Ward had been truthful with him and with Detective Dwight Gilliam of the Durham Police Department. Wilson would write in a report that Ward was “not deceptive” in her responses.
After the polygraph test, Gilliam asked Ward some additional questions. She admitted to smoking marijuana but said she didn’t smoke on the day Adesha died or the day before. She also told Gilliam that she had sex with Allen two summers earlier but had not had much contact with him since then, and that they had become “kind of like enemies.”
On March 2, 1998, a Durham County grand jury indicted Allen for two additional crimes, first-degree murder and felony child abuse. A judge granted prosecutors approval on July 6, 1998 to seek the death penalty against Allen, who denied any involvement in Adesha’s death.
The police submitted several pieces of Adesha’s clothing to the SBI crime laboratory for testing. Jennifer Elwell, a forensic scientist, conducted the testing on August 17-18, 1998. First, Elwell performed a preliminary test on Adesha’s training pants and two of her sleepers. She said in her report that these items “exhibited chemical properties consistent with what [she] would see in a bloodstain.”
Elwell then moved to perform a confirmatory test on the samples. This test, known as a Takayama test, came back negative. There was no mention of these results in Elwell’s report, but in her lab notes she placed a small dash next to the word “Takayama” for each tested item.
As the case moved to trial, Allen’s attorneys – Robert Brown with the Durham County Public Defender’s Office and Stephen Freedman with the Center for Death Penalty Litigation – began filing discovery motions with the Durham County District Attorney’s Office. The state provided Allen’s team with Elwell’s report and her lab notes. Part of another motion asked for any evidence of drug use by potential state’s witnesses during the relevant time period. Prosecutors said they had no such reports.
A judge hearing the discovery motions denied Allen’s request for prior witness statements, and prosecutors did not provide the results of Ward’s polygraph test or her responses to the subsequent questions asked by Gilliam.
On August 18, 1999, Assistant District Attorney Freda Black wrote to Brown to discuss a plea deal, urging him to get Allen to accept what was their “bottom line” offer. She said it was in Allen’s best interest, and she provided several statements made by Ward that inculpated Allen.
Allen entered an Alford plea to second-degree murder and first-degree sexual offense before Judge Leon Stanback of Durham County Superior Court on August 26, 1999. Under an Alford plea, a defendant doesn’t admit guilt but acknowledges the state has sufficient evidence to convict.
Because Allen didn’t admit guilt, the state had to present a factual basis for the plea. Black told Stanback that the blood on Adesha’s clothing was one of the state’s most important pieces of evidence. She also mentioned the emergency-room nurse’s statement and one of Ward’s statements to the police. Stanback sentenced Allen to between 43 years and nine months and 54 years and one month in prison.
Allen filed a pro se petition on January 27, 2004, challenging his conviction, arguing that Stanback had sentenced him too harshly given the absence of aggravating factors or proof of criminal history.
Five years later, on March 19, 2009, Judge Orlando Hudson of Durham County Superior Court vacated Stanback’s judgments, allowing Allen to withdraw his Alford plea. He was released from prison on April 14, 2009, and placed in the Durham County Jail, and then released on bond September 9, 2010.
Durham prosecutors intended to retry Allen, and his new attorney, Lisa Williams, began filing her own series of discovery requests in early 2010. She inspected the state’s files in April 2010, and then requested 23 pages missing from Gilliam’s report, which included the results of Ward’s polygraph test and Gilliam’s subsequent interview with Ward.
Separately, an independent review of the SBI crime lab released in August 2010 found that the lab’s analysts had routinely filed misleading reports that failed to adequately disclose negative results, often burying those contradictory findings in cryptically written lab notes.
Then-Attorney General Roy Cooper commissioned the review after the exoneration of Gregory Taylor. As with Allen’s case, a lab chemist had reported the presence of blood in his report linking Taylor to a murder but had not included further tests that were either negative or inconclusive. The review found 230 cases, including Allen’s, where analysts didn’t adequately disclose the results of lab work.
On October 12, 2010, Williams filed a motion to dismiss the charges against Allen. She argued that the state “knew or should have known that the written conclusion contained in [Elwell’s] lab report contained false, misleading and incomplete information;” that the state had failed to disclose information about Ward’s polygraph results in a timely manner; that the state failed to treat Ward as a possible suspect or pursue alternate suspects; and that numerous pieces of evidence had been lost, including all specimens and samples taken from Adesha’s body.
Judge Hudson held a hearing on December 9-10, 2010. He heard from several witnesses, including Black, the prosecutor, and Elwell, the lab chemist. Elwell said it was SBI practice in cases with negative Takayama results to report the last “valid” test without comment. Black said she had no knowledge prior to Allen’s plea that Ward considered Allen an enemy or that Elwell’s reported test was inconsistent with a later test mentioned in her lab notes.
After hearing from the witnesses, Hudson dismissed the charges against Allen on December 10, 2010. He followed up the bench ruling with an order filed March 9, 2011, that harshly criticized the SBI and prosecutors for their actions and failure to turn over evidence to Allen’s attorneys. He said the state had used the threat of the death penalty as leverage to secure a plea from Allen, while at the same time withholding evidence to which he was entitled. Hudson called the SBI lab results “deceptively written” and “designed to obscure the fact that confirmatory testing was performed … and yielded negative results.”
Hudson also said he didn’t believe Black’s testimony that she didn’t know about the inconclusive test when she presented the factual basis for Allen’s plea. He noted that Elwell’s phone log said she spoke with Black on August 18, 1998. Hudson also said Black had misled Stanback, when she said there was no evidence suggesting a state witness had used illegal drugs. Hudson said that this misconduct, combined with the loss of evidence and the inability of police to locate Kia Ward, made it impossible for Allen to receive a fair trial.
The state appealed Hudson’s ruling dismissing the charges with prejudice. On September 4, 2012, the North Carolina Court of Appeals reversed and sent the case back to Durham County. The opinion, written by Justice Samuel J. Ervin IV, said Hudson had misapplied the law in dismissing the case. It noted that because Allen’s case had never gone to trial, the state’s failure to disclose exculpatory evidence wasn’t a violation of Allen’s rights.
“Although we agree with the trial court that the polygraph report and Ms. Ward’s statement tended to undermine her credibility and did, for that reason, have impeachment value, the State is not constitutionally required to disclose material impeachment evidence prior to the defendant’s decision to enter a guilty plea,” the ruling said.
The appellate court noted that the state had turned over Elwell’s report and lab notes before Allen entered his plea. While the documents were hard to decipher, a more thorough investigation could have uncovered the meaning of the dash marks next to the Takayama tests, the court said.
“We share the trial court’s displeasure with the manner in which the blood testing results were disclosed to Defendant and the manner in which aspects of the prosecution of this case have been handled. Even so, given our inability to discern any legal basis for the sanction imposed in the trial court’s order, we are obligated to reverse it,” the court wrote.
More than four years later, on October 25, 2016, prosecutors dismissed the charges against Allen.
“After significant investigation by law enforcement and the District Attorney’s Office, witnesses essential to the prosecution of this case either cannot be located or are uncooperative and refuse to assist in the prosecution,” wrote Assistant District Attorney Luke Bumm. “As a result, the State cannot meet the burden of proving every element of the offense beyond a reasonable doubt and therefore cannot proceed with the prosecution of this case.”
In 2019, Allen filed a pro se lawsuit in U.S. District Court for the Middle District of North Carolina against Elwell, Black, the SBI and other officials involved in his prosecution. On October 6, 2021, Judge Thomas Schroeder dismissed most of the complaint, except for the claims against Elwell.
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PUBLISHER'S NOTE: "I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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.
