Sunday, January 16, 2022

Barry Jones: Arizona: Will the Supreme Court Send Barry Jones Back to Death Row? Important 'Intercept' article by Liliana Segura shows how the case has far-reaching implications as she asks, "should new evidence be ignored by the federal courts even when it exposes a wrongful conviction?" - and demonstrates how "shoddy police work, junk forensics, and a flawed defence" converge..."Had Jones’s lawyers been up to the task, there was plenty they could have done to defend their client. They could have pointed out that the lead detective, who examined Rachel at the hospital, didn’t bother to investigate how or when the child sustained her fatal injury — or consider a single other suspect aside from Jones. They could have called a medical expert to show that there was no real evidence that the child had been raped. Most crucially, Jones’s lawyers could have called a pathologist to challenge the state’s theory of the crime, which rested on a narrow timeframe during which Jones had supposedly assaulted Rachel the day before her death. Medical experts now say that Rachel’s abdominal injury could not have become fatal so quickly. One doctor said she was unaware of any reported cases in which such an injury could have resulted in death in under 48 hours."



STORY: "Innocence isn't enough,": Arizona urges the Supreme Court to send Barry Jones back to death row," by Reporter Liliana Segura,  published by 'The Intercept' on December 30, 2021. (Liliana Segura is an award-winning investigative journalist covering the U.S. criminal justice system, with a longtime focus on harsh sentencing, the death penalty, and wrongful convictions. )

SUB-HEADING: "The case has far-reaching implications: Should new evidence be ignored by the federal courts when it exposes a wrongful conviction?"

SUB-HEADING:"Shoddy police work, junk forensics, and a flawed defense converged in the case of Barry Jones. Did Arizona send an innocent man to die?"

GIST: "The morning of  the oral argument in Shinn v. Ramirez, the last case on the U.S. Supreme Court’s calendar in 2021, Barry Jones’s children gathered around a large flat-screen TV in Tucson, Arizona. Jones’s daughter Brandie was there, as well as her younger brother James. Their youngest sibling, Andrew, whom Brandie often relied upon to explain the confusing litigation in their dad’s case, was working a remodeling job in Nevada. He’d try to listen to the argument on his phone.


Now in their 30s, the siblings were just kids when their dad was sentenced to die. He’d been accused of an unfathomable crime: the rape and murder of his girlfriend’s 4-year-old daughter, Rachel. Jones swore he was innocent — and the case against him was flimsy from the start. 


In 2017, an evidentiary hearing finally dismantled the evidence that sent Jones to death row. The next year, a federal judge overturned his conviction, ordering the state to retry Jones or release him. But that never happened. Instead, Arizona appealed the decision all the way to Washington, D.C.


The siblings gathered at the home of their aunt Deborah Wheeler for the oral argument in early December. “I’ve always believed he was innocent,” Wheeler said. Although Jones had problems with drugs when he was younger, that didn’t make him a murderer, she said. “And I know he would never hurt a little kid.” 


Wheeler recalled a time when Jones stayed with her while working part time at a copper mine east of Phoenix. She was struck by Jones’s kindness to her daughters, as well as her disabled son. “Barry was always so good to him,” she said.


Wheeler was living in Phoenix when Jones was arrested in Tucson on May 2, 1994. Rachel’s lifeless body had been found earlier that morning in the trailer Jones shared with the child’s mother, Angela Gray. 


As they would later discover, Rachel had died following a rupture in her small intestine, which developed into a fatal condition called peritonitis. Although Jones was distraught after taking Rachel and Gray to the hospital, he soon became the sole suspect.

\

Wheeler was disturbed by the little she saw of Jones’s 1995 trial. “I remember thinking then, he had no defense, everything was just accusations,” she said. 


Jones’s court-appointed lawyers called no witnesses at the guilt phase apart from Brandie, who was 12 years old. When Wheeler was called to testify at the sentencing, “nobody prepared me,” she said.


Had Jones’s lawyers been up to the task, there was plenty they could have done to defend their client. 


They could have pointed out that the lead detective, who examined Rachel at the hospital, didn’t bother to investigate how or when the child sustained her fatal injury — or consider a single other suspect aside from Jones.


 They could have called a medical expert to show that there was no real evidence that the child had been raped.


 Most crucially, Jones’s lawyers could have called a pathologist to challenge the state’s theory of the crime, which rested on a narrow timeframe during which Jones had supposedly assaulted Rachel the day before her death.


 Medical experts now say that Rachel’s abdominal injury could not have become fatal so quickly. One doctor said she was unaware of any reported cases in which such an injury could have resulted in death in under 48 hours.


It was not until the evidentiary hearing 22 years after the trial that Jones’s federal public defenders presented this evidence, not to a jury but to U.S. District Judge Timothy Burgess. 


After seven days of testimony at Tucson’s federal courthouse, Burgess concluded that Jones’s trial had been marred by ineffective assistance of counsel — a violation of his Sixth Amendment rights.


 But for the failures of Jones’s trial attorneys, Burgess wrote, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.”


But the Arizona attorney general challenged Burgess’s ruling, appealing first to the 9th U.S. Circuit Court of Appeals, which sided with Jones, and then to the U.S. Supreme Court.


 In their petition for certiorari, the brief asking the court to hear the case, Arizona prosecutors argued that Burgess and the 9th Circuit had violated the Antiterrorism and Effective Death Penalty Act. The law, known as AEDPA, limits the avenues for challenging a criminal conviction. 


According to Arizona, Burgess should never have been allowed to use the evidence presented at the hearing to overturn Jones’s conviction. In May, the Supreme Court announced that it would hear the case.


Jones’s attorneys had sent Wheeler a link to the oral argument. Over bacon and eggs, the family gathered to listen at 10 a.m. Tucson time. There was no video, only an image of the Supreme Court building, so it was hard to tell which of the justices was speaking — let alone what they were talking about. Jones’s family quickly got lost in the sea of legalese. “I kept asking, ‘Are they still talking about Dad?’” Brandie said. But one thing jumped out. The attorney for the state repeatedly told the justices, “Innocence isn’t enough.”


A Bellwether Case:


Although the question before the court is highly technical, the decision in Jones’s case will have far-reaching implications for people in prison and on death row. 


For those who are innocent, the stakes are uniquely high: The justices are effectively deciding whether new evidence — like that presented at Jones’s 2017 evidentiary hearing — should be ignored by the federal courts, even when it exposes a wrongful conviction.


In an amicus brief filed in September, the Innocence Network, a consortium of organizations that works to correct wrongful convictions, argued that exonerations won through Sixth Amendment challenges often hinge on evidence uncovered long after a defendant’s trial. 


“Without such evidence, basic failures to investigate cannot be corrected, faulty forensic evidence cannot be unmasked, and the innocent individuals who are the victims of these deficiencies have no route to justice,” the brief read.


News of the Supreme Court’s decision to take up Jones’s case arrived on the same day the high court announced that it would hear the Mississippi abortion case threatening Roe v. Wade. 


Although Jones’s case flew mostly under the radar, many legal experts saw the move as another emblem of the court’s extreme rightward shift since Justices Anthony Kennedy and Ruth Bader Ginsberg were replaced by Brett Kavanaugh and Amy Coney Barrett.


 “I think that if Justice Ginsberg and Justice Kennedy were still on the court, it’s not likely they would have granted cert to begin with,” said Jones’s longtime attorney, Arizona Assistant Federal Defender Cary Sandman.


“I think it’s important to understand the antics in this case as the antics that are happening elsewhere on the court’s docket this term.”


For law professor Leah Litman, an expert in federal post-conviction review and co-host of the podcast “Strict Scrutiny,” the court’s decision will also be “a bellwether case for how extreme this court will be” on other issues. 


In a call with reporters in early December, Litman pointed out an amicus brief in favor of Arizona brought by the former Texas solicitor general who authored the draconian abortion law known as S.B. 8. “I think it’s important to understand the antics in this case as the antics that are happening elsewhere on the court’s docket this term,” she said.


Among the small percentage of cases the court agrees to review every year, the justices have traditionally taken those that serve as vehicles for resolving conflicts between the lower courts.


 In Jones’s case, which was consolidated with that of another man on death row named David Ramirez under the title Shinn v. Ramirez, Arizona argued that the 9th Circuit had misconstrued a previous Supreme Court ruling, Martinez v. Ryan, in violation of AEDPA. 


Yet there was no dispute in the lower courts on the matter; no federal court has adopted Arizona’s argument. As Jones’s attorneys told the justices, the state sought “to manufacture a problem where none exists.”


Many legal experts saw Arizona’s real goal as overturning the court’s 2012 decision in Martinez.


The 7-2 ruling provided a lifeline to people in prison and on death row, who often face insurmountable barriers to getting their cases heard in federal court despite being entitled to federal review. 


Specifically, the decision sought to fix a long-standing problem for those who had shoddy representation at trial. 


Under Arizona law, defendants only had one chance following their conviction to argue in state court that their right to counsel had been violated.


Although indigent defendants were given lawyers to handle this critical stage of their appeal, many were similarly unqualified or ill-prepared to represent their clients. 


This had grave consequences: If a state post-conviction attorney failed to challenge a trial lawyer’s performance, their client would be forever barred from bringing the claim forward in federal court, a concept known as procedural default.


But Martinez created a path to relief.


If a defendant had not brought a substantive ineffective assistance claim because their post-conviction lawyer, too, was ineffective, the justices decided, this default could be excused, allowing a federal court to consider the claim.


Writing for the majority, Kennedy explained the importance of the ruling. 


For a person facing a lifetime in prison — or worse, execution — an ineffective post-conviction lawyer likely meant that “no state court at any level will hear the prisoner’s claim.”


Without the remedy created by Martinez, there would be no way to uphold defendants’ Sixth Amendment right to counsel — “a bedrock principle in our justice system.”


Tough Luck:

For Jones and Ramirez, who had been on death row for a combined 40 years when Martinez was decided, the ruling opened a door that had long been closed.


Both men had been shut out of federal court after their state post-conviction lawyers failed to challenge their trial lawyers’ most egregious mistakes.


Jones’s post-conviction lawyer had repeated the errors of his trial attorneys, failing to investigate the medical basis for the state’s case, which would have debunked the whole theory of the crime. 


After Burgess overturned Jones’s conviction, a unanimous panel of the 9th Circuit rejected Arizona’s appeal, upholding the order to release or retry him.


Ramirez’s case followed a different trajectory.


 Convicted of murdering his girlfriend and her teenage daughter in 1989, he did not claim his innocence.


 But he did have significant mental impairments and a long history of childhood trauma, abuse, and neglect. 


Ramirez’s lead trial attorney, who had never handled a death penalty case, did not investigate this evidence. 


His post-conviction lawyer largely failed to do the same. Although a federal district court initially rejected Ramirez’s argument that he was entitled to an evidentiary hearing in light of Martinez, a unanimous 9th Circuit panel reversed the decision, directing the court to allow the hearing.


The 9th Circuit rulings came months apart.


 The Arizona attorney general’s office blamed a common denominator for its defeats: not the years of incompetent lawyering now haunting the state’s capital convictions, but the fact that the Supreme Court’s Martinez ruling was allowing defendants to prove their ineffective assistance claims in federal court.


 In the state’s view, neither Jones nor Ramirez should have ever made it so far. 


Prosecutors specifically pointed to a provision of AEDPA that forbade federal courts from holding evidentiary hearings on claims that had not been developed in state court. Just because Martinez allowed defendants to bring a claim that had been previously barred did not mean they were entitled to prove it.


Practically, the argument made no sense. Why would the Supreme Court dangle the chance to get back into federal court if defendants were doomed from the start?


 In Jones’s case, the 9th Circuit panel had seemed baffled by the rationale offered by Assistant Attorney General Myles Braccio at oral argument. He insisted that while Martinez may have allowed for the evidence uncovered by Jones’s federal public defenders to get Jones’s claim of ineffective assistance before a judge, Burgess was required by AEDPA to ignore that same evidence when deciding whether Jones’s trial lawyers had been ineffective. Instead, he should have relied on the state record.


 “But that doesn’t make sense if the claim wasn’t developed in state court,” one judge told Braccio. “You’d be looking at a vacuum.” Another judge called it “a Catch-22.”


Why would the Supreme Court dangle the chance to get back into federal court if defendants were doomed from the start?


Although the 9th Circuit rejected Arizona’s position — and denied its appeal for a rehearing — the state’s argument gained currency elsewhere on the bench. 


Judge Daniel Collins, a Trump appointee, dissented from the court’s refusal to rehear the case, accusing his colleagues of using Martinez to create a judge-made exception to AEDPA in the cases of both Jones and Ramirez.


 Legislators had crafted such procedural rules to ensure finality, he said. If the result seemed harsh, tough luck. “To the extent that it seems unfair that a potentially meritorious claim might escape federal habeas review, that feature is inherent in the restrictions that AEDPA imposes.”


It’s true that AEDPA set a deliberately high bar for federal review, which has proven disastrous for countless defendants since its passage. 


But it’s not true that the law was explicitly designed to be quite as harsh as Collins or the Arizona attorney general insisted. 


When President Bill Clinton signed AEDPA in 1996, he emphasized that the provision barring evidentiary hearings should not be read “to deny litigants a meaningful opportunity to prove the facts necessary to vindicate federal rights.”


In an amicus brief filed on behalf of Jones and Ramirez, legal scholars traced the language of this provision to show that legislators had aimed to limit hearings only when defendants were at fault for failing to develop evidence in state court.


 In Martinez, the Supreme Court provided a chance at relief for defendants like Jones and Ramirez on the grounds that they were not responsible for the failures of their post-conviction lawyers.


Nevertheless, Collins’s dissent formed much of the basis of Arizona’s petition to the Supreme Court in Shinn v. Ramirez. 


The Texas attorney general, joined by a dozen death penalty states, filed a brief urging the court to take the case, “to reassert [AEDPA’s] primacy over the judge-made rule of Martinez.” After the justices granted review, a number of additional briefs were submitted on behalf of Ramirez and Jones.


One, brought by a group of former Department of Justice prosecutors, warned that Arizona was trying to “transform Martinez into a hollow precedent” offering “an empty promise of judicial review.” 


Another, filed on behalf of former federal judges and state supreme court judges, called Arizona’s argument “absurd,” warning that a ruling in the state’s favor would make federal judges “complicit in the greatest miscarriage of justice of all — the imprisonment and execution of innocent people.”


The Problem of Innocence:

Shinn v. Ramirez was argued on December 8 before a mostly empty court. 


The justices had already heard two hours of oral arguments that morning in a case involving religion and education, which provided a stark reminder of the court’s lurch toward the right; at one point, Justice Sam Alito invoked critical race theory.


Just before noon, Arizona Assistant Attorney General Brunn Wall Roysden III took his place. 


While the justices had spent most of the past year and a half working remotely before implementing strict Covid protocols to reconvene in person, Roysden, who goes by Beau, had spent his time challenging local mask and vaccine mandates on behalf of his boss, Arizona Attorney General Mark Brnovich.


AEDPA set a deliberately high bar for evidentiary hearings, Roysden told the court. “Congress thus spoke clearly, and the courts’ role is to apply the statutory language,” he said. “That no fact-finder could have found the prisoner guilty is not enough.”


Justice Clarence Thomas asked the first question. Although he’d been one of two dissenters when the court decided Martinez almost a decade earlier, he declared it “odd” to allow a defendant to bring a previously barred claim of ineffective assistance of counsel only to forbid them from presenting the evidence to support it. “It seems pretty worthless” to excuse the procedural default in the first place, he said. “To what end?”


Echoing Braccio’s argument at the 9th Circuit, Roysden said that a judge could simply rely on the state court record. 


Since AEDPA forbade Burgess from considering new evidence to decide Jones’s case, he should never have held an evidentiary hearing without ensuring that the state record was enough to decide the case. “It’s a fruitless exercise,” Roysden said.


“But it’s a basic syllogism,” Chief Justice John Roberts interjected. “The idea is, if you do get the right to raise the claim for the first time, because your counsel was incompetent before, surely you have the right to get the evidence that’s necessary to support your claim.”


Kavanaugh chimed in. If what Roysden was saying was true, then “what’s the point of Martinez?” he asked. “The court obviously carefully crafted an opinion to give you the right to raise an ineffective assistance claim, to make sure it’s considered at least once, and this would really gut that in a lot of cases.”


If AEDPA and Martinez could not be reconciled, “then at the end of the day, Martinez should be overruled,” Roysden replied, finally stating outright what Arizona’s critics had identified as the real goal all along.


Kavanaugh showed some resistance to the idea of overturning Martinez. “I mean, you have to assume that the court majority was unaware somehow of how this would play out,” he said. It’s not like the justices were unaware of AEDPA’s provisions when it ruled. “It’s hard to envision the court thinking that that would make any sense.”


Roysden again emphasized Congress’s intent when it passed AEDPA. “Innocence isn’t enough here,” he said.


“Whether you’re innocent or guilty, you have a right to a fair hearing. You have a right to an effective trial counsel.”


Justice Elena Kagan pointed out that AEDPA’s provision prohibiting evidentiary hearings was based on the assumption that a defendant was at fault for failing to develop the evidence in state court. “But that’s not always the rule,” Kagan said. In fact, the whole basis of Martinez was that the defendants in question were not at fault, she said, citing multiple passages from the decision.


“I think Martinez is not the last word,” Roysden replied.


The justices seemed skeptical of Arizona’s argument. But this was far from a guarantee.


 When attorney Robert Loeb stood to argue on behalf of Jones and Ramirez, reiterating that, under Martinez, they were not at fault for the failures of their post-conviction lawyers, Thomas once again declared the argument “odd.” 


Didn’t this “basically eviscerate the restrictions of AEDPA?” he asked. 


Justice Samuel Alito echoed the concern while tacitly acknowledging that there was no disagreement on the matter among the lower courts. “I certainly understand why the courts of appeals have interpreted Martinez the way they did,” he said.


 “But the fact remains that we have to follow the federal habeas statute. We have to follow AEDPA, unless it’s unconstitutional.”


Although he had joined the majority in Martinez, Alito now seemed to suggest that AEDPA had been in tension with their decision all along but no one had noticed: “The fact of the matter is that this whole … issue was not briefed by anybody in Martinez, and the court didn’t address it.” 


Roberts, who was also in the majority in Martinez, asked Loeb if he could point to “a case that says how we’re supposed to reconcile those two things.” Loeb responded that the two were not actually in conflict.


Kavanaugh returned to the problem of innocence. 


Although Loeb decried the state’s argument that a federal court should “turn a blind eye” to evidence showing Jones was wrongly convicted, Arizona countered that state law offered defendants an alternate means to prove their innocence.


 “I have no idea whether this is sufficient, but I just want you to respond to it,” Kavanaugh said. Loeb pointed out that no one had ever successfully availed themselves of this statute


. But more importantly, “whether you’re innocent or guilty, you have a right to a fair hearing. You have a right to an effective trial counsel.” 


Telling a defendant to rely on such a law after a trial in which their constitutional rights had been violated was like a basketball game in which one team gets five players and the other gets one — but the latter gets to shoot the ball from half court. “That does not make the game fair, Your Honor.”


A Sense of Urgency:


A ruling in Shinn is expected in the spring. 


If Jones prevails, it will place him in the same position he would have been in back in 2018 had Arizona prosecutors heeded Burgess’s order to release or retry him. 


With the state’s evidence against Jones thoroughly discredited, the Pima County Attorney’s Office is unlikely to seek a new trial.


Although the Tucson office has gained a reputation for being progressive in recent years, it has thus far declined to use its available recourses to exonerate Jones.


 The office’s newly revamped Conviction Integrity and Sentencing Unit, which reinvestigates possible innocence cases, refused to examine Jones’s conviction as it made its way through the federal courts.

 Asked whether the office might consider the case in the coming year, the new head of the unit, Jack Chin, wrote that “while I am aware of this case, I have not spent a great deal of time on it because it is not before this office now.”


For those close to Jones, the lack of urgency is one of the hardest things to tolerate. “



I just want it over for him,” said Andrew Sowards, who spent more than a decade working on Jones’s case as an investigator for the Arizona federal public defender. 


Sowards, who retired this year, has been convinced of Jones’s innocence since he first uncovered evidence that had been withheld by the state at trial.


 Although he thought the oral argument had gone as well as it could have for Jones, his frustration over Jones’s predicament was palpable.


“We’ve asked so much of him,” he said. “I mean, that office has had him for 21 years now. You know, there’s only so many times you can ask for someone’s patience.”


In the years since Burgess overturned Jones’s conviction, the prosecutors who represented the state in trying to keep him on death row have moved on with their careers.


 One is now a judge in Pinal County, home to Arizona’s death row. 


Another is employed at the Pima County Attorney’s Office. 


In the fall, Burgess announced that he would retire at the end of this year.


Among those who once celebrated Jones’s vacated conviction, not all have lived long enough to see whether he will ever go free. 


On the night before the oral argument in Shinn, I discovered that one of Jones’s trial jurors, who I’d interviewed in 2017, died last year. 


Hildegard Stoecker was haunted by Jones’s conviction — and disturbed that Arizona would continue to fight his appeal.


 In an email in 2018, she reiterated that she never would have voted to convict Jones if she’d been aware of the evidence presented at the evidentiary hearing. 


She expressed hope that he would find the strength to move forward once his case was resolved.


“Barry Jones will have to find a way to reclaim his life after decades on death row,” she wrote. “I will have to find a way to deal with the fact that I was part of the system that made that happen.”"


The entire story can be read at:


https://theintercept.com/2021/12/30/barry-jones-arizona-supreme-court/

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;

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

SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:



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;

Earl Washington: Jr. Virginia: Unique lawsuit of the day: (Another one for our 'enough to make one weep' department - a truly disturbing case. HL); As Forensics Magazine reports, "Having come within days of being executed in Virginia for a murder he didn't commit, his lawyer has filed a Freedom of Information Act lawsuit against a state forensic science agency that’s withholding records the attorney believes will show authorities could have gotten the right suspect..."Washington, with an IQ of 69, narrowly escaped being executed in 1985 after police led him into a false confession by giving him details of a killing. In 2007, Kenneth Tinsley, who is now dead, admitted he raped Rebecca Lynn Williams in 1982 and conceded that prosecutors’ evidence, which included DNA, could have proven his guilt beyond a reasonable doubt when it came to her killing. The Department of Forensic Science has documents that could answer a question related to Tinsley, and Hall wants the public to have access to them. Hall suspects test results will show Tinsley had a unique blood marker found at the crime scene, which investigators knew Washington did not have, according to a news release issued by Hall’s attorney. Hall believes the lab results were changed for prosecutors’ convenience, depriving law enforcement of an opportunity to connect Tinsley to the crime in 1984."


PASSAGE OF THE DAY: "When Hall sought Tinsley’s blood test results last January, Amy Jenkins, the department’s general counsel, responded that the department had documents on the results, but was not releasing them because of a criminal record exemption. Later in the year, a new law expanded the type of records that must be released. When Hall made another FOIA request, the department said it does not have to turn them over because it’s not a law enforcement agency. Hall wrote in his lawsuit that the new law applies to all public bodies. Department Director Linda Jackson declined to answer when asked why she did not turn over the records.

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

STORY: "Attorney sues Virginia forensic lab for withholding DNA records." published by Forensic Magazine, on January 10, 2021."

GIST: "An attorney for a man who came within days of being executed in Virginia for a murder he didn’t commit has filed a Freedom of Information Act lawsuit against a state agency that’s withholding records the attorney believes will show authorities could have gotten the right suspect.

Attorney Robert Hall, who has represented Earl Washington Jr. since 1985, filed the lawsuit Tuesday against the Virginia Department of Forensic Science, The Richmond Times-Dispatch reported.

Washington, with an IQ of 69, narrowly escaped being executed in 1985 after police led him into a false confession by giving him details of a killing. In 2007, Kenneth Tinsley, who is now dead, admitted he raped Rebecca Lynn Williams in 1982 and conceded that prosecutors’ evidence, which included DNA, could have proven his guilt beyond a reasonable doubt when it came to her killing.

The Department of Forensic Science has documents that could answer a question related to Tinsley, and Hall wants the public to have access to them. Hall suspects test results will show Tinsley had a unique blood marker found at the crime scene, which investigators knew Washington did not have, according to a news release issued by Hall’s attorney. Hall believes the lab results were changed for prosecutors’ convenience, depriving law enforcement of an opportunity to connect Tinsley to the crime in 1984.

When Hall sought Tinsley’s blood test results last January, Amy Jenkins, the department’s general counsel, responded that the department had documents on the results, but was not releasing them because of a criminal record exemption. Later in the year, a new law expanded the type of records that must be released. When Hall made another FOIA request, the department said it does not have to turn them over because it’s not a law enforcement agency. Hall wrote in his lawsuit that the new law applies to all public bodies.

Department Director Linda Jackson declined to answer when asked why she did not turn over the records.

The lawsuit asks a judge to find that Jenkins and Jackson violated the Freedom of Information Act and order them to stop claiming they are exempt and turn over the records. A court hearing is scheduled for Jan. 11.

The entire story can be read at: 

 https://www.forensicmag.com/582516-Attorney-Sues-Virginia-Forensic-Lab-for-Withholding-DNA-Records/

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

PASSAGE OF THE DAY: National Registry of Exonerations. "The prosecution's case hinged on Washington's statements as well as his identification of a shirt given to the police by the victim's family six weeks after the crime. A forensic analyst conducted serology testing on evidence from the crime scene and detected a rare plasma protein. Once Washington, who does not possess the rare protein, became a suspect, an amended forensic report was prepared (without additional testing being conducted) that said testing for the rare protein was "inconclusive."

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

PASSAGE TWO OF THE DAY: "Of the five "confessions," the first four were dismissed by the Commonwealth because of the inconsistencies of the testimony and the inability of the victims to identify Washington. In the fifth confession, however, Washington said that he raped and killed Rebecca Lynn Williams. Questioning revealed that Washington did not know the race of his victim, the address of the apartment where she was killed, or that he had raped her. Washington also testified that Ms. Williams had been short when in fact she was 5'8", that he had stabbed her two or three times when the victim showed thirty-eight stab wounds, and that there was no one else in the apartment when it was known that Ms. Williams' two young children were with her in the apartment on the day of the crime. Only on the fourth attempt at a rehearsed confession did authorities accept Washington's statement and have it recorded in writing with Washington's signature. He only picked out the scene of the crime after being taken there three times in one afternoon by the police, who in the end had to help him pick out Williams' apartment. The confession proved to be the prosecution's only evidence linking Washington to the crime. Psychological analyses of Washington reported that, to compensate for his disability, Washington would politely defer to any authority figure with whom he came into contact. Thus, when police officers asked Washington leading questions in order to obtain a confession, he complied and offered affirmative responses in order to gain their approval. At trial, only the State's psychologist testified, claiming that Washington was competent when his statement was given."

Read the National Registry of Exonerations entry  dated before June 2012 (provided by The Innocence Project) at the link below:  DNA contributed to his exoneration: Contributing factors: false confession, false or misleading forensic evidence,  legal defence.

GIST: "In June 1982, Rebecca Lynn Williams, a nineteen year old mother of three was raped and murdered in her Culpeper, Virginia apartment. Almost a year later, Earl Washington, a twenty-two year old black man with a general I.Q. in the range of 69, was arrested in neighboring Fauquier County for an alleged burglary and malicious wounding. From that moment on, Washington remained in police custody. After two days of questioning, police claimed he had "confessed" to a total of five different crimes, including the murder of Rebecca Lynn Williams.


Of the five "confessions," the first four were dismissed by the Commonwealth because of the inconsistencies of the testimony and the inability of the victims to identify Washington. In the fifth confession, however, Washington said that he raped and killed Rebecca Lynn Williams. Questioning revealed that Washington did not know the race of his victim, the address of the apartment where she was killed, or that he had raped her. Washington also testified that Ms. Williams had been short when in fact she was 5'8", that he had stabbed her two or three times when the victim showed thirty-eight stab wounds, and that there was no one else in the apartment when it was known that Ms. Williams' two young children were with her in the apartment on the day of the crime. Only on the fourth attempt at a rehearsed confession did authorities accept Washington's statement and have it recorded in writing with Washington's signature. He only picked out the scene of the crime after being taken there three times in one afternoon by the police, who in the end had to help him pick out Williams' apartment. The confession proved to be the prosecution's only evidence linking Washington to the crime.
 
Psychological analyses of Washington reported that, to compensate for his disability, Washington would politely defer to any authority figure with whom he came into contact. Thus, when police officers asked Washington leading questions in order to obtain a confession, he complied and offered affirmative responses in order to gain their approval. At trial, only the State's psychologist testified, claiming that Washington was competent when his statement was given.
 
The prosecution's case hinged on Washington's statements as well as his identification of a shirt given to the police by the victim's family six weeks after the crime. A forensic analyst conducted serology testing on evidence from the crime scene and detected a rare plasma protein. Once Washington, who does not possess the rare protein, became a suspect, an amended forensic report was prepared (without additional testing being conducted) that said testing for the rare protein was "inconclusive."
 
At the penalty phase of the trial, the defense did not offer any counter argument to the jury concerning a sentence of death. The jurors returned with their verdict of death on January 20, 1984. In May 1984, Washington pled guilty to an unrelated case of burglary and malicious wounding and was sentenced to two consecutive fifteen year sentences.
 
Washington's direct appeal failed. In August 1985, with a September execution date imminent, another death row inmate, Joseph Giarrantano, alerted Marie Deans (a non-lawyer, who for years had been assisting capital prisoners voluntarily) and a lawyer who was at the Virginia prison working on another case, of Washington's story. That lawyer brought Washington's case to her New York law firm, where it was picked up pro bono. These attorneys filed a state habeas corpus petition and secured a stay of execution for Washington nine days before he was scheduled to die.
 
In 1993, the United States Court of Appeals for the Fourth Circuit ruled that although Washington had been denied his constitutional right to effective assistance of counsel at trial because of the defense's failure to introduce exculpatory biological evidence, this failure was harmless in light of the other evidence, namely the "confessions". At this desperate point the parties involved in the case agreed to conduct DNA testing on the biological evidence. 
 
In October 1993, the test results revealed that Washington was excluded as a contributor of the seminal stain. Even with this evidence, Washington was time barred by Virginia law, which allowed a defendant twenty-one days to introduce new evidence. Instead, on January 14, 1994, then Governor Wilder commuted Washington's sentence to life imprisonment. Washington remained in prison for six more years before his counsel persuaded the newly elected Governor Gilmore to seek additional DNA testing. On October 2, 2000, Governor Gilmore announced the results of the STR based DNA test and granted Earl Washington an absolute pardon for the capital murder conviction, even though he refused to consider the unrelated burglary and malicious wounding charges. The Virginia Department of Corrections determined that regardless of Governor Gilmore's refusal to pardon the lesser charges, Washington would have been eligible for parole on January 25, 1989, for the burglary and malicious wounding convictions, thereby granting Earl Washington his release from prison to parole supervision on February 12, 2001.
 
In 2007, the State of Virginia agreed to settle a lawsuit brought on behalf of Washington for $1.9 million.
 
To learn more, please see: Frontline - The Case for Innocence.
 
Summary courtesy of the Innocence Project, http://www.innocenceproject.org/. "

casedetail.aspx

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

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;

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

SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:



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!

Melissa Lucio: Texas: Bulletin: A petition for "an innocent woman on death row' becomes all the more urgent as a date has been set for her execution: April 27, 2022. Link provided to enable signing..."The State of Texas vs. Melissa, a 2020 documentary by Sabrina Van Tassel, highlights many of the concerning facts around Lucio’s case, including the following: Lucio’s lawyers have contested the cause of death, presenting expert testimony from a neurosurgeon that Mariah may instead have died from head trauma caused by falling down a flight of stairs - fall that was witnessed by Melissa’s children. Lucio’s original lawyer did not call any of her children as witnesses, including the ones who saw Mariah fall down the stairs. What’s more, he willingly ignored evidence that another child had admitted being abusive to Mariah. Right after the trial, he became a Cameron County prosecutor. Raw footage shows the interrogation, which lasted almost seven hours on the night of Mariah’s death, to be clearly coercive. Dr. John Pinkerman, a psychologist, and Norma Villanueva, a mitigation specialist, hoped to testify that Lucio was susceptible to making a false confession during a coercive investigation. They were both barred by the trial court from testifying as to her innocence at the guilt/innocence phase of her trial. Armando Villalobos, the district attorney who prosecuted Lucio’s case, was convicted of bribery and extortion in 2014 for accepting over $100,000 in exchange for favorable outcomes in criminal trials. He is now serving a 13 year sentence in prison. He was known to bribe judges and lawyers and was suspected of using Melissa’s case to be re-elected."


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

ACCESS PETITION HERE: 


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

GIST: Melissa Lucio has spent  over a decade on death row for the alleged murder of her two-year-old daughter, Mariah. In 2008, Lucio became the first Latina woman sentenced to death in Texas. She is now scheduled to be killed on April 27, 2022.

[Scroll down to see actual petition language.]

Listen to the Wrongful Convictions Podcast on this case. Read the brief filed in August by the Innocence Project & a coalition of former prosecutors and anti-violence organizations in support of Melissa Lucio.

UPDATE (January 14, 2021): On Monday, October 18, 2021, the US Supreme Court DECLINED to consider this case. Melissa is now scheduled to be executed on April 27, 2022. 

In July, 2019, the U.S. Court of Appeals for the Fifth Circuit overturned a Texas court ruling and found Lucio’s right to a “complete defense” had been violated in her original trial. In February, 2021, a sharply divided court of appeals reversed the 2019 grant of relief by a vote of 10 to 7.

Melissa's life now depends on a decision by the Texas Board of Pardons and Paroles and Texas Governor Greg Abbott. This petition will be delivered in advance of Melissa's clemency hearing, which has not yet been set. In the petition we are urging the addressees to take the unusual step of watching an award-winning new documentary which sheds light on the controversy of her conviction, revealing a case with no investigation, a coerced confession, an incomplete defense, and a corrupt DA.

The State of Texas vs. Melissa, a 2020 documentary by Sabrina Van Tassel, highlights many of the concerning facts around Lucio’s case, including the following:
  • Lucio’s lawyers have contested the cause of death, presenting expert testimony from a neurosurgeon that Mariah may instead have died from head trauma caused by falling down a flight of stairs - fall that was witnessed by Melissa’s children.
  • Lucio’s original lawyer did not call any of her children as witnesses, including the ones who saw Mariah fall down the stairs. What’s more, he willingly ignored evidence that another child had admitted being abusive to Mariah. Right after the trial, he became a Cameron County prosecutor.
  • Raw footage shows the interrogation, which lasted almost seven hours on the night of Mariah’s death, to be clearly coercive. 
  • Dr. John Pinkerman, a psychologist, and Norma Villanueva, a mitigation specialist, hoped to testify that Lucio was susceptible to making a false confession during a coercive investigation. They were both barred by the trial court from testifying as to her innocence at the guilt/innocence phase of her trial.
  • Armando Villalobos, the district attorney who prosecuted Lucio’s case, was convicted of bribery and extortion in 2014 for accepting over $100,000 in exchange for favorable outcomes in criminal trials. He is now serving a 13 year sentence in prison. He was known to bribe judges and lawyers and was suspected of using Melissa’s case to be re-elected.

Please sign this petition asking the Texas Board of Pardons and Paroles to watch The State of Texas vs. Melissa and to recommend that Governor Greg Abbott grant clemency to Melissa Lucio.

For more information on Lucio’s case:

Documentary Trailer: https://www.youtube.com/watch?v=9wn4J8lQcNc

Watch The State of Texas vs. Melissa, Free! (limited time special engagement.)

https://deathpenaltyinfo.org/news/federal-appeals-court-overturns-mothers-conviction-in-texas-child-murder-case-that-may-have-been-an-accidental-death

https://spectrumlocalnews.com/tx/south-texas-el-paso/news/2020/05/18/death-row-inmate-s-defense-revived-in--the-state-of-texas-vs--melissa-

ADDITIONAL PROCESS INFORMATION

Petitions will be delivered on your behalf advance of Melissa's clemency hearing.

Additionally, you may also contact the Board at bpp_clemency@tdcj.texas.gov and the Governor at https://gov.texas.gov/contact/ and (512) 463-1782. You can simply leave a voice message, or choose to speak to a representative if you prefer.

Please note: In Texas, the Governor has limited power when it comes to the death penalty. But the story we are told that "it's out of the governor's hands," is only true if we allow it to be. Yes, the Texas Board of Pardons and Paroles must recommend clemency in that state in order for the Governor to grant clemency (mercy) by commuting a death sentence. But the fact is that the governor appoints the members of the Board of Pardons and Paroles. He can choose to appoint members who will take valid claims and concerns more seriously, instead of acting like rubber-stamping gate-keepers. He can still use his position of power and influence to enact justice in the State of Texas.  

The entire petition can be accessed at:

https://actionnetwork.org/petitions/melissa-lucio-innocent-woman-on-death-row-in-texas-2

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;



SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:




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.