Monday, February 28, 2022

Detecting marijuana: Claimed 'breakthrough': 'fNIRS' (functional near-infrared spectroscopy) technology comes under deservedly blistering attack...Part One: The claimed breakthrough...Part two: The blistering attack:


PART ONE: The claimed breakthrough: 

PART ONE: PASSAGE OF THE DAY: "The MGH (Massachusetts General Hospital) researchers eschewed older methods that attempt to infer functional impairment from the amount of marijuana compounds in someone’s blood or saliva in favor of a more direct approach: Peering into the brain itself with light-based imaging. While further development and validation is needed, the team behind the work is hopeful it could lead to a roadside device that would allow police to catch dangerously stoned drivers without sweeping up law-abiding cannabis consumers and medical marijuana patients who have THC in their system but are not actively impaired. “For so long, our model has been alcohol, so there’s been a lot of focus on breath and blood levels,” Dr. Jodi Gilman, who led the research, said. “Our thought was, ‘What about looking directly at the brain?’ ”

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STORY: "MGH (Massachusetts General Hospital)  claims  break-through in detecting marijuana," The Boston Globe (Reporter Dan Adams) reports, on February 4, 2022.

SUB-HEADING: "Study also highlights flaws of existing "drug addiction expert" system/

PHOTO CAPTION: Researchers at Massachusetts General Hospital…say they have developed a novel approach for detecting cannabis impairment.


GIST: “Boston researchers say they’ve developed a new, noninvasive technique for detecting marijuana highs that can reliably tell the difference between people who are truly impaired by the drug and those who merely used it recently.


The claimed breakthrough by scientists at Massachusetts General Hospital comes amid intensified debate in the state over how to police stoned driving in the wake of cannabis legalization, with Governor Charlie Baker recently calling for a crackdown even as critics question the extent of the problem and warn that existing impairment tests are flawed.


The MGH researchers eschewed older methods that attempt to infer functional impairment from the amount of marijuana compounds in someone’s blood or saliva in favor of a more direct approach: Peering into the brain itself with light-based imaging.


While further development and validation is needed, the team behind the work is hopeful it could lead to a roadside device that would allow police to catch dangerously stoned drivers without sweeping up law-abiding cannabis consumers and medical marijuana patients who have THC in their system but are not actively impaired.


“For so long, our model has been alcohol, so there’s been a lot of focus on breath and blood levels,” Dr. Jodi Gilman, who led the research, said. “Our thought was, ‘What about looking directly at the brain?’ ”


In their study, published in January in the journal Neuropsychopharmacology, the MGH researchers first measured levels of oxygenated hemoglobin in the brains of 169 sober volunteers using functional near-infrared spectroscopy, or fNIRS.


Unlike the massive, electricity-hungry MRI scanning machines employed by hospitals, fNIRS is relatively portable; it measures the photon reflections from low-power LED bulbs mounted on a skullcap and shined into the skull.


 Similar technology is already widely used in smartwatches and other fitness gadgets to measure users’ heart rates and blood oxygenation.


After giving some of their volunteers THC capsules and others a placebo, the MGH team classified each person as impaired or not impaired based on self-reporting by the study subjects and the consensus of multiple clinicians who were unaware of which subjects had eaten the “real” edible and had made thorough before-and-after observations of their behavior (an impossibility on the roadside).


The researchers then conducted a second round of brain scans and found that the people classified as impaired had significantly higher levels of oxygenated hemoglobin than subjects who ate the placebo or didn’t get too high from the THC-infused edible.


“Essentially, the [impaired] brain becomes more active but less efficient at processing, so the body gives it priority and sends more oxygen,” said Dr. A. Eden Evins, who directs the MGH Center for Addiction Medicine and helped oversee the research.


Next, the scientists trained a computer algorithm to spot the differences in oxygenated hemoglobin between those who were deemed high and those who were not. 


Later, analyzing only the “after” scans, the software yielded false positives in just 10 percent of subjects and correctly guessed which were impaired about 76 percent of the time, a significant improvement over existing techniques and a figure the researchers believe they can boost substantially with further refinements.


Crucially, the system rarely indicated impairment in test subjects who consumed the THC-infused edibles yet were not deemed functionally impaired. 


That puts it far ahead of older methods that automatically designate anyone with a high enough level of marijuana metabolites in their system as impaired, regardless of how well they’re actually functioning.


The scan results lend further credence to a wave of recent studies indicating (as marijuana consumers have long insisted) that there is little if any connection between a given dose of THC, the level of marijuana metabolites in blood or saliva at a given time after use, and a particular level or even likelihood of impairment. 


Reactions to the drug simply vary too drastically between individuals, as do methods of ingesting cannabis and the rates at which people metabolize it


Meanwhile, heavy consumers appear to at least partially adapt, and some medical marijuana patients even show cognitive improvements following use.


Taken together, those confounding factors mean traditional blood and saliva tests are barely more accurate than a coin toss at detecting impairment, according to Dr. Thomas Arkell of the University of Sydney’s Lambert Initiative cannabis research center.


“People wanted an easy cutoff like the blood alcohol limit, but it turns out cannabis doesn’t really work that way at all,” said Arkell, who conducted a simulated driving study last year in which common limits on THC concentrations in blood failed to accurately sort out which test subjects were actually stoned. “There is a need for a new model.”


The MGH study also raises troubling questions about the validity of another existing technique for measuring pot impairment: examinations by so-called drug recognition experts, police officers who are trained to detect impairment through a series of observations and simple physical tests like those used to assess suspected drunk drivers.


The researchers had initially planned to compare their experimental results to verdicts rendered by DREs, which proponents hail as the gold standard for assessing drug impairment.


 Officers across the country, including dozens in Massachusetts, have been using the system for years to evaluate suspected drugged drivers and present evidence against them in court.


But the MGH scientists quickly discarded the DRE protocol as a reference after their experiments showed it produced false positives in a staggering 34 percent of the subjects who were not deemed impaired by the clinical and self-assessments.


 The DRE-trained observers even incorrectly flagged 20 percent of the volunteers who had eaten the placebo and were verifiably sober as stoned.


Baker last year proposed a bill that would significantly expand the deployment of DRE-trained officers in Massachusetts and require courts to accept their testimony as experts.


 Critics have warned the proposed law, under which drivers who refuse a blood test for cannabis metabolites would lose their licenses, is subjective, prone to officer bias, and would result in the arrests of innocent marijuana consumers.


 Earlier this week, a key State House committee sent the proposal to study, likely ending its hopes of passage during the current legislative session.


Evins and Gilman hope their novel, more objective approach will prove it can sidestep those limitations, though they stressed it isn’t ready to be deployed. 


One critical next step will be testing the system on a larger group of volunteers, in part to ensure that other drugs or health conditions don’t produce scan results that mimic those of stoned people. 


Researchers will also need to develop a slightly smaller and more rugged fNIRS device suitable for roadside use, perhaps one that sends its readings over the cellphone data network to a remote computer for analysis.


“Officers need a better tool,” Evins said. “A big part of what got us going was the potential for bias in the system that exists now. There’s a real urgency to develop a reliable and objective way to identify marijuana impairment and make our roads safer, and we’re delighted to contribute to that.”


Other researchers in the field praised MGH’s innovation as intriguing and worthy of further study, but also pointed to potential limitations.


“A lot of factors can potentially influence blood flow in that part of the brain,” Arkell said. “Without having an individual baseline, I’m not sure how effective this would be as a roadside strategy.”


Dr. Timothy Naimi, a Boston Medical Center physician and public health researcher at the Boston University Schools of Medicine and Public Health, said MGH’s approach was promising but would need to be extensively validated in future studies that included driving simulations instead of leaning on self-assessments of impairment.


“There could be a host of legal issues about using this in practice,” he said. “The reliability would have to be really good to use as the basis of a [court] proceeding.""


The entire story can be read at: 

https://www.bostonglobe.com/2022/02/04/marijuana/mgh-claims-breakthrough-detecting-marijuana-impairment/

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PART TWO: The deservedly blistering attack: Launched by MassPrivate1 - a Blog devoted to privacy, civil rights and homeland security issues.

PART TWO: PASSAGE OF THE DAY: "What has happened to so-called Drug Recognition Experts (DRE)? Have the courts finally realized that police officers using pupil dilation charts to determine which type of drugs a motorist is under is junk science?  Nope, because soon, DRE police officers across the country will be using pupil dilation charts and portable fNIRS brain scanners to determine if someone is under the influence of drugs...The image of government agents stopping motorists under a pretext and forcing them to submit to a field sobriety test, breathalyzer, blood draw and roadside brain scan is something that film director Wes Craven would have turned into a horror movie in the 1980s."

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GIST: "If Mass General Hospital (MGH) has its way, law enforcement officers in the United States will soon be using portable functional near-infrared spectroscopy (fNIRS) scanners on motorists.


A recent Boston Globe article describes fNIRS as a "breakthrough" in detecting marijuana impairment.


"Boston researchers say they’ve developed a new, noninvasive technique for detecting marijuana highs that can reliably tell the difference between people who are truly impaired by the drug and those who merely used it recently."


What has happened to so-called Drug Recognition Experts (DRE)? Have the courts finally realized that police officers using pupil dilation charts to determine which type of drugs a motorist is under is junk science? 

Nope, because soon, DRE police officers across the country will be using pupil dilation charts and portable fNIRS brain scanners to determine if someone is under the influence of drugs.


"For so long, our model has been alcohol, so there’s been a lot of focus on breath and blood levels," Dr. Jodi Gilman, who led the research, said. "Our thought was, ‘What about looking directly at the brain?’ "


The MGH study claims that fNIRS scanners are accurate 76 percent of the time.


"The scientists trained a computer algorithm to spot the differences in oxygenated hemoglobin between those who were deemed high and those who were not. Later, analyzing only the “after” scans, the software yielded false positives in just 10 percent of subjects and correctly guessed which were impaired about 76 percent of the time, a significant improvement over existing techniques and a figure the researchers believe they can boost substantially with further refinements."


Claiming that fNIRS is 76 percent accurate and yielded just 10 percent false positives doesn't add up. Either fNIRS gets it right 76 percent of the time or it does not. But without any independent research to back up MGH's claims, the public will probably never know if those figures are close to being accurate.

If we use the history of breathalyzer source codes being hidden from researchers as a barometer, then one can safely assume that fNIRS scanner source codes will be no different.


The image of government agents stopping motorists under a pretext and forcing them to submit to a field sobriety test, breathalyzer, blood draw and roadside brain scan is something that film director Wes Craven would have turned into a horror movie in the 1980s.

Both Harvard University and Mass General Hospital are working together to turn cops into brain scanning marijuana detectors according to the Harvard Gazette.


“Our research represents a novel direction for impairment testing in the field,” says lead author Jodi Gilman, investigator in the Center for Addiction Medicine, MGH, and associate professor of psychiatry at Harvard Medical School. “Our goal was to determine if cannabis impairment could be detected from activity of the brain on an individual level. This is a critical issue because a ‘breathalyzer’ type of approach will not work for detecting cannabis impairment, which makes it very difficult to objectively assess impairment from THC during a traffic stop.”


What "novel direction" will our justice system take when it authorizes 700,000 cops to scan people's brains looking for marijuana impairment.

As the Harvard Gazette points out, there are considerable advantages to turning cops into infrared brain scanning pot detectors.


"While the study did not specifically assess fNIRS in roadside assessments of impaired driving, it did cite considerable advantages for such an application. These include the feasibility of inexpensive, lightweight, battery-powered fNIRS devices that allow data to either be stored on wearable recording units or transmitted wirelessly to a laptop. Moreover, fNIRS technology could be incorporated into a headband or cap, and thus require minimal set-up time."

Read a different way; Mass General Hospital and Harvard University would profit immensely from selling portable fNIRS scanners to law enforcement

As the website Breathalyzer alcohol tester.com points out, selling portable alcohol detectors is a hugely profitable business.


"Cost per test is roughly $0.06 each time. Bill and coin operated versions are available. Maintenance is easy. The pre calibrated field replaceable sensor have eliminated the delays and complications of recalibration by allowing users to simply snap out an old sensor module and "snap in" a new one."

From ignition interlock devices installed in cars, to mandatory "in-air" alcohol detectors in new cars, to brain scanning motorists, Big Brother has effectively destroyed our Bill of Rights in the name of public safety.

When it comes to fNIRS scanners and policing in America, one cannot help but think of the image from the 1980's movie "Scanners" and the poster's iconic words: "There are 4 billion people on earth. 237 are Scanners. They have the most terrifying powers ever created... and they are winning."

Giving hundreds of thousands of cops terrifying new powers to scan 331 million people's brains is best left to Hollywood because if portable fNIRS scanners become a reality, then driving in America will become a real-life horror movie."


https://massprivatei.blogspot.com/2022/02/us-cops-to-become-brain-scanning.html

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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;




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;

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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;

Sunday, February 27, 2022

Nancy Smith; Joseph Allen: Ohio: From our 'Enough to make one weep' department: Both wrongly convicted of sexually abusing children who had been coached by the mother of one of them (Mary Grondin) to falsely accuse them. (No medical evidence to back up the children's allegations); Nancy Smith spent 15 years in prison before being exonerated; Joseph Allen a total of 23 years behind bars. ABC News (Associated Press Reporter Mark Gillispie) reports that their charges were dismissed on February 25th as, "A judge on Friday dismissed charges against two people who had been imprisoned for years over a woman's accusations they molested her daughter and other Ohio 'Head Start' pupils, saying new evidence would not support convictions if new trials were granted. "Among the evidence cited by Lorain County Judge Chris Cook were affidavits signed by the woman's son and her ex-husband that said she coached her daughter to accuse Nancy Smith, 64, and Joseph Allen, 68, of abuse in the early 1990s."...In dismissing the case, Cook cited additional affidavits including one from retired Lorain police detective Tom Cantu, whose investigation found no evidence of abuse. His report was never given to Smith and Allen's attorneys to use at trial."


PASSAGE OF THE DAY: "Grondin's ex-husband, Dino Grondin Sr., said he witnessed the woman coaching her daughter. “Margie was persistent in trying to get her daughter to agree with what she said happened,” he said. “Margie told me that she was going to ‘get paid’ after the case was over.” Head Start reached a financial settlement with Grondin and other parents who claimed their children were abused. Her son, Dino Grondin Jr., said Grondin coached his sister and other Head Start children in a makeshift classroom in her home's basement. “The kids had to say the allegations of sexual abuse the way she wanted them to say in order to advance the game,” Dino Grondin Jr. said."

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STORY: "Judge dismisses charges against 2 in 1990s child abuse case," published by ABC News (Associated Press Reporter Mark Gillispie) on  February 25, 2022.

SUB-HEADING: "A Judge in Ohio has dismissed charges against two people who say thy were falsely accused of sexually abusing children from a Hard Start program in the early 1990's."

GIST: "A judge on Friday dismissed charges against two people who had been imprisoned for years over a woman's accusations they molested her daughter and other Ohio Head Start pupils, saying new evidence would not support convictions if new trials were granted.


Among the evidence cited by Lorain County Judge Chris Cook were affidavits signed by the woman's son and her ex-husband that said she coached her daughter to accuse Nancy Smith, 64, and Joseph Allen, 68, of abuse in the early 1990s.


Lorain County Prosecutor J.D. Tomlinson's office previously reviewed the cases of Smith and Allen and concluded they were innocent. He had said previously he would ask Cook to dismiss the charges.


Smith spent 15 years in prison and Allen a total of 23 years behind bars.


Struggling to maintain their composure, both thanked their attorneys, the judge and those believed in their innocence on Friday.


The abuse case began in May 1993 when Margie Grondin told Lorain police that Smith had driven her daughter and other young children on a Head Start bus to a home where they were sexually abused.


In dismissing the case, Cook cited additional affidavits including one from retired Lorain police detective Tom Cantu, whose investigation found no evidence of abuse. His report was never given to Smith and Allen's attorneys to use at trial.


The affidavits, Cook said, “would torpedo any effort to convict them at a new trial.”


Attempts to reach Grondin, who now uses the last name Perazzola, were unsuccessful.

Cantu was removed from the investigation after Grondin complained that her allegations were being ignored. A new team of detectives were assigned to the case and Grondin convinced other parents their children were molested as well, Smith and Allen's attorneys say.


Allen became a suspect after Grondin's daughter told police the man who molested her and the other children was named Joseph. A detective recalled that Allen had been convicted in the mid-1980s of sexual battery of a child.


Smith and Allen went to trial together in the summer of 1994 and were convicted based on the testimony of four children, including Grondin's daughter. No medical evidence of abuse was presented at trial.


Smith was originally sentenced to 30 to 90 years in prison. Allen received five consecutive life sentences plus 22 to 50 years. Unsuccessful appeals followed.


They were back in court in 2009 to fix errors in their original sentences. A judge vacated those sentences and later acquitted them after finding no evidence to support their convictions. Smith and Allen were released from prison.


The Ohio Supreme Court ruled the judge lacked the authority to overturn their convictions and new sentencing hearings were ordered. Smith, in an agreement with prosecutors, was found guilty of lesser charges in 2013 and was allowed to remain free.


Allen, also was convicted of lesser charges, but was ordered back to prison with a parole date in 2023. Cook released him on a personal bond in December.


Grondin's ex-husband, Dino Grondin Sr., said he witnessed the woman coaching her daughter.


“Margie was persistent in trying to get her daughter to agree with what she said happened,” he said. “Margie told me that she was going to ‘get paid’ after the case was over.”


Head Start reached a financial settlement with Grondin and other parents who claimed their children were abused.


Her son, Dino Grondin Jr., said Grondin coached his sister and other Head Start children in a makeshift classroom in her home's basement.


“The kids had to say the allegations of sexual abuse the way she wanted them to say in order to advance the game,” Dino Grondin Jr. said.


The Ohio Innocence Project, based at the University of Cincinnati College of Law and led by attorney and professor Mark Godsey, has represented Smith since 2004. The National Center for Reason and Justice hired local attorneys to represent Allen in 2013."


The entire story can be read at:


https://abcnews.go.com/Travel/wireStory/judge-dismisses-charges-1990s-child-abuse-case-83119113

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;

Anthony Broadwater: (Alice Sebold rape): New York State: Flawed microscopic hair analysis: Mistaken eyewitness identification: Wrongfully convicted of the Alice Sebold rape, he has sued New York state for a #50 million, the Guardian (Reporter Edward Helmore) reports..."In 1999, Sebold published Lucky, an account of her ordeal in which she described seeing a Black man in the street months later who she believed to be her attacker. Broadwater was arrested, but despite Sebold failing to identify him in a lineup, authorities put him on trial. Sebold identified Broadwater as her rapist on the witness stand. He maintained his innocence and was denied release five times because he refused to admit any guilt. When he was released, the year Lucky was published, he was required to register as violent sex offender. A re-examination of the case found serious flaws in Broadwater’s arrest and trial, including microscopic hair analysis that tied him to the crime but was later deemed to be unreliable. The unraveling of Broadwater’s conviction came five months after Timothy Mucciante, the producer of planned film adaptation of Lucky, developed doubts about Broadwater’s culpability."


PASSAGE OF THE DAY: "After Broadwater’s conviction was overturned, Sebold apologised, saying she struggled with the role she played “within a system that sent an innocent man to jail”. As a “traumatised 18-year-old rape victim”, she said, she had chosen to put her faith in the legal system. “My goal in 1982 was justice – not to perpetuate injustice,” she said. “And certainly not to forever, and irreparably, alter a young man’s life by the very crime that had altered mine. “I will also grapple with the fact that my rapist will, in all likelihood, never be known, may have gone on to rape other women, and certainly will never serve the time in prison that Mr Broadwater did.”


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STORY: "Man wrongfully convicted of Alice Sebold rape sues New York for $50 m," by Reporter Edward Helmore, published by The Guardian, on February 26, 2022. (Edward Helmore has been a reporter with The Observer since 1996 and the Guardian since 2010.)


SUB-HEADING: "Anthony Broadwater served 16 years in prison but was exonerated last years after prosecutors abandoned case."


GIST: "Anthony Broadwater, who served 16 years in prison for the 1981 rape of the author Alice Sebold but was exonerated last year, has filed a $50m wrongful conviction lawsuit against New York state.


Broadwater, 61, was cleared in November of his conviction for the rape after a re-examination of the case found serious flaws in his arrest and trial.


He was convicted of raping Sebold, then an 18-year-old student at Syracuse University, in a tunnel near the college campus.


In 1999, Sebold published Lucky, an account of her ordeal in which she described seeing a Black man in the street months later who she believed to be her attacker. Broadwater was arrested, but despite Sebold failing to identify him in a lineup, authorities put him on trial.


Sebold identified Broadwater as her rapist on the witness stand. He maintained his innocence and was denied release five times because he refused to admit any guilt. When he was released, the year Lucky was published, he was required to register as violent sex offender.


A re-examination of the case found serious flaws in Broadwater’s arrest and trial, including microscopic hair analysis that tied him to the crime but was later deemed to be unreliable.


The unraveling of Broadwater’s conviction came five months after Timothy Mucciante, the producer of planned film adaptation of Lucky, developed doubts about Broadwater’s culpability.


Mucciante hired a private investigator, Dan Myers.


“After a conversation of over an hour with Anthony Broadwater, I knew this guy was innocent,” Myers, a 20-year police veteran, told the Washington Post.


In November, the conviction was vacated.


The Onondaga county district attorney, William Fitzpatrick, said: “I’m not going to sully this proceeding by saying, ‘I’m sorry.’ That doesn’t cut it. This should never have happened.”


Broadwater said he “never, ever, ever thought I would see the day that I would be exonerated”.


According to the new lawsuit, Broadwater “always maintained his innocence – from the investigation, through trial and on appeal, while incarcerated, after his release, and up to today”.


The lawsuit also says: “He dutifully sought to overturn his conviction on at least five occasions in the decades following his conviction.”


The case posed questions about the inequities of the US criminal justice system, and how the word of a white woman was taken over that of a Black man.


“He was smiling as he approached,” Sebold wrote in her memoir, of recognising her attacker. 


“He recognised me. It was a stroll in the park to him; he had met an acquaintance on the street. ‘Hey, girl,’ he said. ‘Don’t I know you from somewhere?’ I looked directly at him. Knew his face had been the face over me in the tunnel.”


Lucky became a bestseller. Sebold went on to write The Lovely Bones, about the rape and murder of a young girl, a success that made her famous.


After Broadwater’s conviction was overturned, Sebold apologised, saying she struggled with the role she played “within a system that sent an innocent man to jail”.


As a “traumatised 18-year-old rape victim”, she said, she had chosen to put her faith in the legal system.


“My goal in 1982 was justice – not to perpetuate injustice,” she said. “And certainly not to forever, and irreparably, alter a young man’s life by the very crime that had altered mine.

“I will also grapple with the fact that my rapist will, in all likelihood, never be known, may have gone on to rape other women, and certainly will never serve the time in prison that Mr Broadwater did.”


In a statement, Broadwater said: “I’m relieved that she has apologised. It must have taken a lot of courage for her to do that. It’s still painful to me because I was wrongfully convicted, but this will help me in my process to come to peace with what happened.”


Sebold’s publisher, Scribner, said Lucky would be withdrawn and subject to revision. The film adaptation was abandoned."


The entire story can be read at:


alice-sebold-man-wrongfully-convicted-anthony-broadwater


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PASSAGE  OF THE  DAY: National Registry of Exoneration: 


"Steven Kaszubinski, a police crime lab analyst, testified that he compared a pubic hair that was recovered from Sebold to a pubic hair obtained from Broadwater. 


Mastine asked, “Were the various characteristics found consistent or inconsistent with the hair…having come from Anthony Broadwater?”

“The hair recovered…was consistent as having come from Anthony Broadwater,” Kaszubinski testified. 

“All the various characteristics you had mentioned, did you find anything at all inconsistent between these two hair samples?” Mastine asked.

“No, I did not,” Kaszubinski replied.

Justice Walter Gorman, who was presiding over the trial, interjected and asked Kaszubinski, “Through the testing that you performed on the two samples of hair that you prepared… it is simple to rule someone out?”

“Yes, it is,” Kaszubinski said.

“With respect to the hair sample, you stated that all the tests that you had—all the comparisons, all the characteristics were similar, is that correct,” Justice Gorman asked.

“That is correct,” Kaszubinski said.

“They were consistent?” Justice Gorman asked.

“They were all consistent,” Kaszubinski said.

“But even with that testimony, you cannot say positively, based upon, say a reasonable degree of chemical certainty, that the defendant is the person?” Justice Gorman asked."


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PASSAGE TWO OF THE DAY: "National Registry of Exonerations."


In 1989, the physical evidence was destroyed. As a result, when DNA testing became available, Broadwater was unable to avail himself of it to prove his innocence.

In 2012, following the exoneration of several defendants who were wrongly convicted on the basis of hair comparison testimony, the FBI began an internal review of microscopic hair analysis cases. The review found that virtually all of the testimony involved using the word “consistent” to describe hair recovered from crime scenes. The report concluded that using the words “consistent with” was erroneous.

In 2015, the U.S. Department of Justice and the FBI joined with the Innocence Project and the National Association of Criminal Defense Lawyers to examine hair analysis errors in cases before December 1999. A review of 268 cases revealed erroneous testimony in 96 percent of the cases. In these cases, analysts gave scientifically invalid testimony, such as saying that hairs were a positive match or gave unsupported mathematical odds of a match. Twenty-seven of 29 analysts either gave faulty testimony or submitted erroneous reports.'


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Read National Registry of Exonerations entry by Maurice Possley, last-updated on February 25, 2022, at thee link below: Contributing factors: Mistaken witness identification; False or misleading forensic evidence; Perjury or false accusation; Official misconduct;


GIST: "On November 21, 2021, nearly 40 years after Anthony Broadwater was convicted of raping a Syracuse University student who went on to become a best-selling author, his conviction was vacated and the charges were dismissed in an Onondaga County courtroom.


The exoneration was a stunning turn of events for the 61-year-old Broadwater, who was convicted in May 1982 of raping Alice Sebold on May 8, 1981 and sentenced to 8 1/3 to 25 years in prison. 

Numerous attempts to overturn the conviction were unsuccessful. and on December 31, 1998, Broadwater was released from prison on parole. He was required to register as a convicted sex offender.

While Broadwater was spending his last year in prison, Sebold was at the University of California, Irvine completing a Masters of Fine Arts degree that included a course on memoir writing. Eight months after Broadwater was released, on August 4, 1999, Sebold launched her literary career with a memoir, “Lucky,” that detailed the attack and identified Broadwater as “Gregory Madison.” Sebold went on to write “The Lovely Bones,” which sold more than five million copies, and was made into a feature film.

The memoir, which sold more than one million copies, ultimately contained details which, when finally pieced together with other evidence, fueled the effort to clear Broadwater of a crime he had always maintained he did not commit.

The attack occurred shortly after midnight on May 8, 1981, the day Sebold was to return home at the end of her freshman year. She was walking to her dormitory through Thornden Park when she was grabbed from behind. She said the man threatened her with a knife, though she did not see the weapon, and dragged her under an archway where she was raped and sodomized.

She described her attacker as a Black man, 16 to 18 years old, muscular, and about 150 pounds. She said he was wearing a dark blue sweatshirt and dark jeans with a short afro-style haircut.

Police later recovered a pocketknife and her broken glasses. A partial fingerprint was found on the knife, but police could not link it to anyone.

The crime was unsolved when Sebold returned to the university for her sophomore year. At about 6:20 p.m. on October 5, 1981, she was walking on Marshall Street near the campus when she saw a man who she believed was her attacker. She said the man was talking to a police officer and that he “reminded [her] very much” of her attacker. She said the man called to her, “Hey, girl. Don’t I know you from somewhere?” She said she left immediately and went to her dorm room.

When Sebold notified police about 45 minutes later, she provided a more detailed description and a sketch she drew after returning to her dorm room. She said the man was Black, 5 feet five inches to 5 feet 7 inches tall, 165 to 175 pounds, “very stockily built, very muscular looking with short cropped hair that was down in the front, a pug nose but wider” than most Black men. “The eyes were almond shaped almost Oriental” and the suspect’s mouth had a thick bottom lip and a thin upper lip. She said he had a short neck with a boxy jawline and a dark, “but not too dark” complexion.

Police put out a bulletin, and Officer Paul Clapper reported that he had been on Marshall Street and spoke with Broadwater at the time Sebold said she saw her attacker.

On November 4, Broadwater stood in a lineup along with four other men. He was in position number 4. Sebold selected the man in position number 5. Even though she failed to identify him, Broadwater was indicted on charges of rape, sexual abuse, sodomy, robbery, and assault.

On May 17, 1982, Broadwater went to trial in Onondaga County Supreme Court. Broadwater chose to have his case decided by a judge instead of a jury. Sebold recounted the attack and identified Broadwater—the only Black man in the courtroom—as her attacker. 

“He was walking up that street and he walked diagonally across the street and he said to me…‘Hey, girl, don't I know you from somewhere?’ I looked at him, and that was indeed the man who had raped me on May 8th,” Sebold testified.

Sebold admitted she did not select Broadwater in the lineup. She said that Broadwater and the man in position number five—Henry Hudson—resembled each other. She said she picked Hudson “because he looked at me” through the glass window.

She said she marked the box indicating she had picked the man in position five “because I was very scared, and he was looking at me and I saw the eyes, and the way the line-up is—it is not like it is on television. And you are standing right next to the person and he looks like he is two feet away from you. He looked at me, and I picked him.”

Assistant District Attorney William Mastine Jr. asked, “Is there any doubt in your mind, Miss Sebold, that the person you saw on Marshall Street is the same person who attacked you on May 8th in Thornden Park?”

“No doubt whatsoever,” Sebold replied.

Officer Clapper testified that on October 5, 1981, after he heard a bulletin with the description that the man Sebold saw was speaking to an officer, he realized he was the officer and that she was referring to Broadwater. Clapper testified that when Broadwater approached him, Clapper said, “Don’t I know you?” Clapper said he spoke briefly with Broadwater before they parted ways.

A physician testified that a rape kit was taken at the hospital after the assault. The physician described Sebold’s injuries and said that Sebold had been forcibly raped.

Assistant District Attorney Gail Uebelhoer testified that she was present during the lineup. She said that prior to the lineup, Broadwater asked that one of the four fillers in the lineup be replaced by Hudson, who was in the jail. 

She said the four fillers had been selected by jail authorities. However, Broadwater “requested that a different person be put in the lineup and apparently he was unhappy with one of the people in the lineup,” Uebelhoer said. “Specifically, (he) requested that a different person, who he knew to be in the jail, be brought down and be placed in the lineup and that was the person that was brought down and put in the lineup [in] position five.”

A police officer described the unsuccessful effort to link the pocketknife to Broadwater by the partial fingerprint. The knife was not allowed into evidence because Sebold never saw it and it could not be connected to the crime.

Steven Kaszubinski, a police crime lab analyst, testified that he compared a pubic hair that was recovered from Sebold to a pubic hair obtained from Broadwater. 

Mastine asked, “Were the various characteristics found consistent or inconsistent with the hair…having come from Anthony Broadwater?”

“The hair recovered…was consistent as having come from Anthony Broadwater,” Kaszubinski testified. 

“All the various characteristics you had mentioned, did you find anything at all inconsistent between these two hair samples?” Mastine asked.

“No, I did not,” Kaszubinski replied.

Justice Walter Gorman, who was presiding over the trial, interjected and asked Kaszubinski, “Through the testing that you performed on the two samples of hair that you prepared… it is simple to rule someone out?”

“Yes, it is,” Kaszubinski said.

“With respect to the hair sample, you stated that all the tests that you had—all the comparisons, all the characteristics were similar, is that correct,” Justice Gorman asked.

“That is correct,” Kaszubinski said.

“They were consistent?” Justice Gorman asked.

“They were all consistent,” Kaszubinski said.

“But even with that testimony, you cannot say positively, based upon, say a reasonable degree of chemical certainty, that the defendant is the person?” Justice Gorman asked.

“No, sir, I cannot,” Kaszubinski said.

No serological testing was performed on the rape kit, although semen was identified as being present.

Broadwater testified and denied committing the attack. He said he was on Marshall Street on October 5, 1981, but that he hailed officer Clapper by saying, “Hey, haven’t I seen you somewhere before?” Broadwater said Clapper first confused him for his brother, Wade, and then recognized him from past encounters. He denied that he addressed Sebold in any fashion.

Broadwater testified that he had a scar on his forehead and under his eye. He and also had a tooth which that had been chipped half off while he was in the Marines—distinguishing features that Sebold had not mentioned in her description.

Broadwater also denied that he knew Henry Hudson or that he demanded that Hudson be placed in the lineup.

During closing arguments, Mastine, the prosecutor, noted that Kaszubinski, the hair analyst, had compared physical characteristics of the pubic hair recovered from the rape kit with Broadwater’s pubic hair. “[T]here was not one…characteristic out of some 11 or 12 named by Kaszubinski that were inconsistent,” Mastine declared.

“So all he could say was that it was consistent,” Mastine said. “I don’t like to use the word at all. That is the most anybody could ever say about a hair sample is that it was consistent. The same way that is all [the physician] could say about the fact that this woman was raped. That it was consistent. I would draw a parallel between the two. The seriousness, which I think the Court should give to those two pieces of evidence.”

At the conclusion of the closing arguments, Justice Gorman convicted Broadwater of first-degree rape, first-degree sexual abuse, first-degree sodomy, first-degree robbery, and assault. He sentenced Broadwater to 8 1/3 to 25 years in prison.

Broadwater sought to overturn the conviction several times, but his efforts were fruitless. He was denied parole five times because he refused to admit guilt. He took two polygraph examinations—one after he was released on parole—and the examiners said he was truthful when he denied involvement in the crime. He once sent a check for $1,000 to renowned defense lawyer Johnnie Cochran, but the check was returned.

In 1989, the physical evidence was destroyed. As a result, when DNA testing became available, Broadwater was unable to avail himself of it to prove his innocence.

In 2012, following the exoneration of several defendants who were wrongly convicted on the basis of hair comparison testimony, the FBI began an internal review of microscopic hair analysis cases. The review found that virtually all of the testimony involved using the word “consistent” to describe hair recovered from crime scenes. The report concluded that using the words “consistent with” was erroneous.

In 2015, the U.S. Department of Justice and the FBI joined with the Innocence Project and the National Association of Criminal Defense Lawyers to examine hair analysis errors in cases before December 1999. A review of 268 cases revealed erroneous testimony in 96 percent of the cases. In these cases, analysts gave scientifically invalid testimony, such as saying that hairs were a positive match or gave unsupported mathematical odds of a match. Twenty-seven of 29 analysts either gave faulty testimony or submitted erroneous reports.

In 2020, production was ongoing to turn Sebold’s memoir into a feature film. The film’s executive producer, Timothy Mucciante, became concerned that Broadwater was, in fact, innocent. Mucciante hired a private investigator to take a look at the case. The investigator eventually connected Mucciante to Syracuse defense lawyer David Hammond, who brought in another criminal defense lawyer, Melissa Swartz.

Ultimately, following the re-investigation, the lawyers brought the case to the Conviction Integrity Unit of the Onondaga County District Attorney’s Office. On November 10, 2021, Hammond and Swartz filed a motion seeking to vacate Broadwater’s convictions.

The motion cited the discrediting of hair comparison testimony and also cited a portion of Sebold’s memoir that described the lineup. Sebold said that the men in positions four and five “looked like identical twins.” She had doubts about her selection immediately, telling a detective who was running the lineup, “It was four, wasn’t it?” Sebold wrote that when the detective said he could not tell her, she realized, “I needed to rebuild my case.”

Sebold wrote that right after, the prosecutor, who was Uebelhoer, entered the room in a state of anger. Sebold said the prosecutor said, “Well, we got the hair out of the bastard.”

When the detective said that Sebold now “thinks it was four,” Uebelhoer told Sebold, “Of course you chose the wrong one…He and his attorney worked to make sure you’d never have a chance.” Sebold noted that the detective warned Uebelhoer to stop talking, but Uebelhoer replied, “She has a right to know.”

The memoir quoted Uebelhoer as saying that Broadwater “had his friend come down and stand next to him. We had to send a car to the prison to get him here. They wouldn’t go ahead until he showed…They totally worked a number on you. He uses that friend, or that friend uses him, in every lineup they do. They’re dead ringers.”

According to the memoir, Uebelhoer explained that the “friend” purposefully looked scary to psych her out while Broadwater looked innocently downward.

The motion for a new trial noted, however, that none of that was true. “Broadwater had never participated in a lineup procedure before this one, he was not friends with person number five Henry Hudson, Mr. Hudson was not ‘transported from prison,’ and they were not ‘dead ringers,’ given their only common characteristic was their race,” the motion said. Uebelhoer’s explanation to Sebold was never disclosed to Broadwater’s defense attorney.

The motion also noted that since Broadwater’s trial, extensive research had been done showing that cross-racial identifications (Sebold is white) have significantly higher rates of mistakes than same-race identifications.

“Not a shred of reliable trial evidence connects him to this crime,” the motion said.

On November 17, 2021, Onondaga District Attorney William Fitzpatrick filed a response, joining in the motion to vacate the convictions. Fitzpatrick said he was “very disturbed” by Sebold’s account of being told by the detective that she picked the wrong person and the prosecutor’s strategy of how to deal with the misidentification.

Fitzpatrick was an assistant district attorney at the time of the trial, but had no memory of it. He said that he “never saw anything” from Uebelhoer to suggest “any deviation from high ethical standards.” However, Fitzpatrick said, “This was a time for a supervisor to order a step back and release Mr. Broadwater and review all of the evidence.”

Fitzpatrick noted that Kaszubinski “did not exaggerate his findings, although it certainly could be argued that the trial prosecutor did.”

He also noted that following the report by the FBI and Innocence Project on the high rate of erroneous testimony by hair comparison analysts, his office sought to identify any cases involving hair testimony for review. A legal database was searched for “hair comparison.” Broadwater’s case eluded that dragnet because the his appellate decision in that case did not contain that phrase.

“The identification in this case was seriously flawed and perhaps, through no fault of Ms. Sebold, tainted as well,” Fitzpatrick said. “The People join Mr. Broadwater’s motion to vacate his conviction.”

On November 22, 2021, Supreme Court Justice Gordon Cuffy granted the motion to vacate the convictions. Fitzpatrick then dismissed the case. Broadwater sobbed at the defense table, holding his head in his hands.

Later, he said, “I never, ever, ever thought I would see the day that I would be exonerated.”

Eight days later, Sebold issued an apology. “I am grateful that Mr. Broadwater has finally been vindicated, but the fact remains that 40 years ago, he became another young Black man brutalized by our flawed legal system. I will forever be sorry for what was done to him,” her note declared. “I will continue to struggle with the role that I unwittingly played within a system that sent an innocent man to jail. I will also grapple with the fact that my rapist will, in all likelihood, never be known, may have gone on to rape other women, and certainly will never serve the time in prison that Mr. Broadwater did.”

The project to turn “Lucky” into a feature film was scrapped.

In February 2022, Broadwater filed a claim in the New York Court of Claims seeking $50 million in compensation. He also filed a notice of intent to file a federal lawsuit against the city of Syracuse and the Oneida County District Attorney's Office.:


https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6082


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