PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of scientific research showing how vulnerable suspects (especially young suspects) are to widely used interrogation methods such as the notorious ‘Reid Technique.’ As all too many of this Blog's post have shown, I also recognize that pressure for false confessions can take many forms, up to and including inducement. deception (read ‘outright lies’) physical violence, and even physical and mental torture.
Harold Levy: Publisher; The Charles Smith Blog:
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PASSAGE OF THE DAY: "The suit alleges that, during their nine-hour interrogation of Dement, who was under the influence of drugs and alcohol, state police officials threatened him, lied to him, and fed him details of the murder. Similar tactics used against Black resulted in another coerced confession, which he recanted almost immediately. Dement later recanted his false confession to a private investigator but disavowed that recantation to acquiesce to a plea deal when threatened by the prosecutor with a longer sentence. Although DNA evidence at the time excluded Philip and Nathan as contributors, they were convicted after a trial in 2008. Two years later, in 2010, the West Virginia Supreme Court of Appeals vacated Nathan and Philip’s convictions, holding that “the lower court abused its discretion by excluding evidence that Dement had told a defense investigator that his confession was false.”
STORY: "Exonerated Brothers Philip and Nathan Barnett File Wrongful Conviction Lawsuit," published by huntingtonnews.net on April 26, 2022.
The lawsuit, brought against the Cabell County Commission and several West Virginia State Police officials, alleges that police and prosecutorial misconduct caused their wrongful convictions for the August 2002 murder of Deanna Crawford.
The State’s case against Philip and Nathan rested almost entirely on a false confession state police officials coerced from co-defendant Brian Dement implicating them in the crime, but multiple rounds of DNA testing conducted on evidence from the crime scene proved the brothers’ innocence.
“Philip and Nathan were only 25 and 28 when they were unjustly convicted and robbed of their freedom,” said KLLF partner Douglas Lieb in a press release.
“Although nothing can erase the harms caused by this nightmarish ordeal, Philip and Nathan now seek justice and accountability from the state and local officials whose misconduct deprived them of a collective 18 years of life.”
Philip and Nathan’s convictions were vacated in May 2019 based on new DNA testing on semen obtained from the victim’s pants and cigarette butts found near the crime scene that matched to a convicted sex offender Timothy Smith, who was then incarcerated in Ohio for a sex-related conviction.
The State formally dismissed all charges against Philip, Nathan, and another co-defendant, Justin Black, on October 5, 2021. Black, who has also filed a civil rights lawsuit, is represented by Loevy & Loevy, based in Chicago, Illinois.
According to today’s lawsuit, state police officials fabricated evidence by extracting false and coerced confessions from Dement, a heavy drug user with significant cognitive impairments.
The suit alleges that, during their nine-hour interrogation of Dement, who was under the influence of drugs and alcohol, state police officials threatened him, lied to him, and fed him details of the murder.
Similar tactics used against Black resulted in another coerced confession, which he recanted almost immediately.
Dement later recanted his false confession to a private investigator but disavowed that recantation to acquiesce to a plea deal when threatened by the prosecutor with a longer sentence.
Although DNA evidence at the time excluded Philip and Nathan as contributors, they were convicted after a trial in 2008.
Two years later, in 2010, the West Virginia Supreme Court of Appeals vacated Nathan and Philip’s convictions, holding that “the lower court abused its discretion by excluding evidence that Dement had told a defense investigator that his confession was false.”
Terrified that a retrial would lead to another unjust conviction, Philip and Nathan made the agonizing decision to accept Kennedy (or Alford) pleas in 2011, allowing them to maintain their innocence while nonetheless being convicted.
The suit also claims that the Cabell County Prosecuting Attorney’s Office possessed numerous items of exculpatory evidence and information that it failed to disclose to the Barnett brothers’ defense counsel during their trial, in violation of the Fourteenth Amendment.
Such evidence included, among other information, a laboratory analysis of the tire marks found at the crime scene excluding as a match the vehicle the State accused the men of driving to the scene, and the fact that the only other person to testify against Philip and Nathan—William Scott Harbour, who had numerous open criminal cases at the time—was offered favorable consideration in exchange for his testimony.
“Philip and Nathan continue to live with devastating psychological consequences that are a direct result of the wrongdoing of state and local officials in this case,” KLLF attorney Alyssa Isidoridy said. “We now seek to ensure that their appalling abuse of power does not go unchecked.”
Philip and Nathan Barnett are represented by KLLF’s Doug Lieb, Ali Frick, and Alyssa Isidoridy."
The entire story can be read at:
http://www.huntingtonnews.net/178328
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NATIONAL REGISTRY OF EXONERATIONS: PASSAGE OF THE DAY: "On January 18, 2011, Phillip and Nathaniel each entered Alford pleas to voluntary manslaughter in Crawford’s death. Phillip Barnett also entered an Alford plea for malicious wounding. Under an Alford plea, a defendant doesn’t admit guilt but acknowledges the state has sufficient evidence to convict. Phillip Barnett received seven to 25 years in prison; Nathaniel Barnett received 15 years. At sentencing, Nathaniel Barnett said: “We maintain our innocence. We’re sorry for what happened, but we didn’t have anything to do with it. We wasn’t even there.” Black continued to pursue his claims of innocence, filing several petitions for writs of habeas corpus in state and federal court. Separately, in 2011, Black filed a pro se motion for post-conviction DNA testing and sought appointed counsel to assist him. There is no indication from the court docket that the motion was initially acted upon, but four years later, in November 2015, the motion was resubmitted after Josh Tepfer of the Exoneration Project, with the University of Chicago School of Law, began representing Black The new motion sought new DNA testing of the evidence collected from Crawford’s body or near where her body was found, including fingernail scrapings, her pants, the beer can and mug, and the cigarette butts. In addition, it also sought to retest the sexual-assault kit. The motion noted that technological advancements enabled the detection of DNA in samples that would have previously been unusable, either because of degradation or the size of the sample. The state pushed back against the petition, arguing that the testing would not prove Black’s innocence. It said in a court filing that there was no testimony that any of the men had sex with Crawford, and the area where the loggers found Crawford’s body was a known party spot; someone other than the killer or killers could have left the beer can and cigarette butts. After the state’s response, the Barnett brothers joined Black’s motion for DNA testing. They were now represented by the West Virginia Innocence Project of the West Virginia University School of Law and the New York-based Innocence Project. The motion for DNA testing was granted on September 29, 2016, with the court ordering the testing to be done by Bode Cellmark Forensics and for any profiles developed from the testing to be uploaded to the FBI’s Combined DNA Index System, known as CODIS, and the National DNA Index System, known as NDIS. In 2017, the CODIS database reported that a DNA sample from the crotch of Crawford’s pants had been found to be consistent with a profile of man, known as T.S., who was then in prison in Ohio. He had lived in Huntington in 2002. He also had pled guilty in 2011 to a sex crime involving a 13-year-old girl."
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READ NATIONAL REGISTRY OF EXONERATIONS ENTRY BY KEN OTTERBOURG (UPDATED ON APRIL 27, 2022, AT LINK BELOW: (Contributing factors: Perjury or false accusation and official misconduct. DNA evidence contributed to the exoneration.)
GIST: "On August 8, 2002, loggers found the body of a young woman near a barn-like structure in the Hickory Ridge community in a remote section of Cabell County, West Virginia. The woman’s body was badly decomposed, making visual identification impossible. But the police were able to obtain a fingerprint, which they used to identify the woman as 21-year-old Deanna Crawford.
Crawford was nude except for a black tank top pushed up under her arms. Her pants were found nearby. Crime-scene technicians recovered five cigarette butts, as well as a beer can, a snuff can, and a glass mug from the area. They were able to obtain DNA evidence from the butts and from fingernail scrapings on Crawford’s hand.
Crawford’s autopsy said she had been dead for three to five days and that she died from strangulation; the hyoid bone in her neck was fractured, and there were lacerations on the hyoid cartilage. In addition, the autopsy noted numerous bruises and abrasions on her body.
Crawford had a troubled past, including recent charges of prostitution. The initial investigation, led by the West Virginia State Police, focused on her known associates, and on men with allegations of violence against sex workers. One friend said Crawford had last been seen alive about 9 p.m. on August 4. A potential suspect was eliminated after his DNA was excluded as a possible contributor to the genetic material found on the cigarettes or the fingernail scrapings. The case went cold.
On January 11, 2007, Deputy Jim Schiedler of the Cabell County Sheriff’s Office told the state police that a man named Greg Bailey had information about the murder. Bailey, who had a history of drug abuse and convictions, said that his nephew, Brian Dement, had told him that he and three friends – Justin Black, Nathaniel Barnett, and Phillip Barnett – had killed Crawford. Bailey said he had first heard Dement’s account about two years earlier. Bailey said Dement told him that the four young men had picked up a girl, raped her, and then killed her after they got scared. Bailey said Dement had told versions of this story to other family members, including Bailey’s wife.
At the urging of law enforcement, Bailey tried to secretly record a confession from Dement. He asked Dement whether he was involved in just that one murder, and Dement replied with a vaguely responsive affirmation. Asked why he did it, Dement said, “I don’t know.” Bailey then asked who killed the woman. Dement answered, “They did it,” but he said he was present.
The West Virginia State Police brought Dement in for questioning on the night of January 28, 2007, and interrogated him for nine hours. Dement gave three statements. The first statement, at around 10 p.m., and the second, at 3:30 a.m., were written down by the police. The third, at 4:52 a.m. on January 29, 2007, was tape-recorded. While all the statements implicated Dement, Black, and the Barnetts in Crawford’s death, the accounts varied in the details. In his first statement, for example, Dement said Phillip Barnett pulled Crawford out of the car. In his third statement, Dement said he was the one who grabbed Crawford by the throat and dragged her from the vehicle. In his first statement, he said that the four men left the crime scene together, returned to Black’s nearby house, and Dement then walked to a small market and called a cab to take him to his uncle’s house in Huntington. In the third statement, Dement said he hid from the others, who drove off without him, and then he walked to his uncle’s house, about 17 miles away. After giving his third statement, the police charged Dement with first-degree murder.
After Dement gave his first statement, officers with the West Virginia State Police brought in the Barnetts for questioning. They denied any involvement and left a few hours later. The police had informally interviewed Phillip Barnett in August 2002, when they were canvassing the Hickory Ridge area after hearing of several parties on the weekend Crawford went missing. Barnett had told them about a keg party at Black’s house on August 5, 2002.
Also on January 29, 2007, Black, now 23 years old, heard the police were looking for him. He volunteered to come in and answer questions. He arrived in the afternoon, and his interrogation continued into the night. What happened next is in dispute. According to later filings by Black, he repeatedly told police that he was innocent, and that he didn’t know Crawford or who was responsible for her death. At the time, Black was on parole for a conviction of malicious wounding, and he would later say that the police threatened to revoke his parole.
At 2:11 a.m. on January 30, 2007, he gave a recorded statement that said he drove Crawford, Dement, and the Barnett brothers to Hickory Ridge. Black said he stayed in the car while the others got out. Only Phillip and Nathaniel Barnett returned, and Black left with them.
The police did not detain Black, and he returned a week later to recant his statement, stating it was coerced and that he had no knowledge of the crime. The recantation was unsigned and not recorded.
As part of the investigation, police compared the DNA profiles of the four men with samples recovered from the crime scene. They were excluded as contributors.
Police arrested Black on May 16, 2007, charging him with murder. Phillip Barnett, then 27 years old, and Nathaniel Barnett, then 24 years old, were arrested on May 18, 2007, and also charged with murder in Crawford’s death.
On October 23, 2007, Dement pled guilty to second-degree murder. As part of his agreement with prosecutors, Dement agreed to testify against Black and the Barnetts.
Two days later, Dement spoke to a private investigator working on behalf of Nathaniel Barnett and recanted his statement to the police. He said he learned the details of the crime from his uncle, who had already been questioned by the police. He also said that “We are all innocent,” and that neither he nor any of the others had taken part in Crawford’s death and that the four men were not together on the night Crawford disappeared.
Black’s first trial in Cabell County Circuit Court began February 21, 2008, but Judge John Cummings declared a mistrial on the second day after a witness for the state mentioned that Black had been willing to take a polygraph test. Cummings had earlier excluded any mention of polygraph tests.
Black’s retrial began on April 15, 2008. Dement was the state’s key witness, and he testified that he hit Crawford once, and dragged her down a hill by her neck. He said he left when the attack became too violent and hid in some woods while he heard Crawford beg for her life. He said that he checked on Crawford after Black and the Barnetts left, and that she was already dead. He said he walked to the market and called a cab to take him to his uncle’s house.
Black’s attorney attempted to show jurors the inconsistencies in Dement’s numerous statements. Dement insisted he was now telling the truth. He said he minimized his role in his initial statements to police, and that he recanted his statements to the investigator for Nathaniel Barnett after getting into fights for being labelled a “snitch.”
Black’s attorneys wanted to further undermine Dement’s testimony by presenting evidence that the cab company didn’t service this section of Cabell County. But they failed to provide proper notice for testimony from the owner of the cab company, and the judge did not allow the jury to hear this evidence.
In addition, Black’s attorneys presented evidence suggesting that Crawford’s lifestyle might have put her in contact with dangerous persons. Sherrie Faulkner, who lived on Hickory Ridge, testified that a few days before August 8, 2002, she saw a young woman wearing a black top on the road that ran through Hickory Ridge, and a male in a red pickup truck urging her to get in his vehicle.
Black also testified. He said he made the inculpatory statement to police because he feared getting his parole revoked. He said the officers gave him sufficient information to piece together a narrative, but that his later recantation was the truth; he did not know Crawford, and he did not know who killed her.
The jury convicted Black of second-degree murder on April 21, 2008. Black said at the time, “I had nothing to do with it. An innocent man was sent to prison.”
On April 25, 2008, Dement was sentenced to 30 years in prison.
At Black’s sentencing hearing on April 30, 2008, his attorneys argued that the evidence was insufficient to support the guilty verdict. Shortly after the verdict was announced, the attorney noted at the hearing, Dement had passed a note in the county jail to Black that said in part, “I wasn’t going to do it, but they telled [me] if I didn’t I would get 50 years.” Black was sentenced to 40 years in prison.
Phillip and Nathaniel Barnett were tried together in Cabell County Circuit Court. Their trial began August 25, 2008. Dement again testified, describing for jurors about going to a party at the home of Justin Black’s mother along Hickory Ridge Road. At some point, he testified, Black and Phillip Barnett asked Dement if he wanted to go for a ride. He, the three other men, and Crawford piled into a car. Black drove, and Crawford was in the front seat. They drove along Route 10, smoking marijuana and talking. Suddenly, Dement said, Phillip Barnett hit Crawford, and Black stopped the car near an abandoned farm. Dement said he knew the place as a party spot, not far from where he lived with his stepfather.
As at Black’s trial, Dement said he grabbed Crawford and dragged her into the woods, and again he said he left and hid when the events turned too violent for him.
Attorneys for the Barnetts wanted to play the full recording of Dement’s recantation to the private investigator, but Judge Cummings excluded this evidence. He said that because Dement admitted he had lied, there was no need to elaborate. Neither brother testified. The jury convicted them of second-degree murder on August 27, 2008. Nathaniel was sentenced to 36 years in prison; Phillip Barnett received 40 years.
Black and the Barnetts began separate appeals. Black argued, among other things, that Cummings ruled improperly in allowing the introduction of his statement to the state police, which he said was coerced, and in excluding the introduction of expert testimony on false confessions.
The West Virginia Supreme Court denied him relief on March 4, 2010. It said that officers with the state police had testified at a suppression hearing that there was no coercion. Mentioning a suspect’s parole status during an interview was routine and ordinary, the decision stated. In addition, the court noted that Black admitted he had been told he was free to leave at any time during the interview but had not exercised that right.
The Supreme Court said Cummings was correct in excluding the expert testimony on false confessions because the statement that Black made to police wasn’t actually a confession. “Mr. Black gave both an oral and a written statement, wherein he stated that he drove a car containing the victim and three other individuals to an abandoned farm,” the court wrote. “He further stated that he stayed by the car while the other passengers went down a path. In the sense that there was never an acknowledgment of guilt or an admittance of participation in a crime, it was not a confession. Rather, it was a statement against his interests.”
The Barnetts also appealed, asserting that Cummings erred in refusing to let jurors hear the recorded recantation Dement made to the private investigator.
The West Virginia Supreme Court agreed and vacated their convictions on July 13, 2010. The court wrote that Cummings abused his discretion, and that the evidence he excluded would have helped jurors weigh Dement’s credibility.
On January 18, 2011, Phillip and Nathaniel each entered Alford pleas to voluntary manslaughter in Crawford’s death. Phillip Barnett also entered an Alford plea for malicious wounding. Under an Alford plea, a defendant doesn’t admit guilt but acknowledges the state has sufficient evidence to convict. Phillip Barnett received seven to 25 years in prison; Nathaniel Barnett received 15 years. At sentencing, Nathaniel Barnett said: “We maintain our innocence. We’re sorry for what happened, but we didn’t have anything to do with it. We wasn’t even there.”
Black continued to pursue his claims of innocence, filing several petitions for writs of habeas corpus in state and federal court. Separately, in 2011, Black filed a pro se motion for post-conviction DNA testing and sought appointed counsel to assist him. There is no indication from the court docket that the motion was initially acted upon, but four years later, in November 2015, the motion was resubmitted after Josh Tepfer of the Exoneration Project, with the University of Chicago School of Law, began representing Black
The new motion sought new DNA testing of the evidence collected from Crawford’s body or near where her body was found, including fingernail scrapings, her pants, the beer can and mug, and the cigarette butts. In addition, it also sought to retest the sexual-assault kit. The motion noted that technological advancements enabled the detection of DNA in samples that would have previously been unusable, either because of degradation or the size of the sample.
The state pushed back against the petition, arguing that the testing would not prove Black’s innocence. It said in a court filing that there was no testimony that any of the men had sex with Crawford, and the area where the loggers found Crawford’s body was a known party spot; someone other than the killer or killers could have left the beer can and cigarette butts.
After the state’s response, the Barnett brothers joined Black’s motion for DNA testing. They were now represented by the West Virginia Innocence Project of the West Virginia University School of Law and the New York-based Innocence Project.
The motion for DNA testing was granted on September 29, 2016, with the court ordering the testing to be done by Bode Cellmark Forensics and for any profiles developed from the testing to be uploaded to the FBI’s Combined DNA Index System, known as CODIS, and the National DNA Index System, known as NDIS.
In 2017, the CODIS database reported that a DNA sample from the crotch of Crawford’s pants had been found to be consistent with a profile of man, known as T.S., who was then in prison in Ohio. He had lived in Huntington in 2002. He also had pled guilty in 2011 to a sex crime involving a 13-year-old girl.
Investigators working on behalf of the defendants visited T.S. in prison on February 4, 2018. The man denied knowing Crawford or anything about her death. T.S. also said that two West Virginia police officers had visited him two days earlier and told him to “keep his mouth shut.”
The investigators also interviewed one of the man’s ex-wives. She said she remembered a night in the summer of 2002 when T.S. came home with money, as well as blood on his hands and clothes. He said he had gotten into a fight but didn’t say where he obtained the money. The ex-wife also said T.S. had once said that he had “killed someone at one point” and that a friend of T.S. had once threatened to report what T.S. “did to that girl.”
On February 26, 2018, the Barnetts and Black filed separate petitions to overturn their convictions based on the new DNA evidence. By then Nathaniel Barnett was out of prison. He had been paroled on July 10, 2016. (His brother would be released on August 9, 2018. Black was released June 4, 2018.)
On March 12, 2018, Martin Yant, an investigator working on behalf of the three defendants, interviewed Dement, who was in prison in Moundsville. Dement was under order not to communicate with the other defendants and had not heard about the court pleadings or the DNA results. Dement said he falsely confessed to his participation in the crime and falsely implicated his co-defendants. At the time of his interrogation by police, Dement said he was vulnerable to manipulation because he was drunk and on Xanax. He also had a history of psychological issues compounded by the recent death of his mother. Dement said his uncle fed him some facts of the case in an attempt to get him to confess on tape and that the police also provided him with details.
Dement filed his own petition to vacate his conviction on August 31, 2018.
Both the state and the legal teams for the Barnetts and Black continued to investigate T.S.’s past. His two other ex-wives also said that he had a history of violence; one said he had confessed to killing a sex worker.
T.S. had told the West Virginia State Police in February 2018 that he didn’t know Crawford. When the officers said his DNA had been found on her pants, he admitted to frequenting sex workers but said he would not have taken women up to Hickory Ridge. He said he didn’t even know where it was. But the police later talked to two women who lived in the nearby community of Salt Rock, and they said T.S. was a frequent visitor.
In addition, T.S. had no clear answer to explain how his DNA was found on one of the cigarette butts found near Crawford’s body.
After months of negotiations, an evidentiary hearing was scheduled for May 1, 2019. Instead of holding a hearing, Judge Alfred Ferguson of Cabell County Circuit Court vacated the convictions of Black and the Barnetts. But Ferguson denied Dement’s motion for a new trial. He said his case was different than the other defendants because Dement had not maintained his innocence.
"This court is not going to give him a new trial. I don't think he is entitled to it," Ferguson said. "If the Supreme Court grants him a new trial, then so be it. I've seen nothing for me to grant him relief on his habeas corpus."
Dement appealed Ferguson’s order to the West Virginia Supreme Court, claiming the judge erred by rejecting his motion for a new trial without holding an evidentiary hearing.
Initially, the state moved to retry Black and the Barnetts, setting a trial date for April 2020. That trial date was continuously delayed, as it was contingent on a resolution of Dement’s appeal.
On June 15, 2021, the West Virginia Supreme Court reversed Ferguson’s order and sent Dement’s motion back to Cabell County for an evidentiary hearing on his claims of innocence, including testimony about the factors that can lead to false confessions.
That hearing never took place. On October 5, 2021, the state dismissed the charges against Black and the Barnetts. Dement accepted a sentence modification for time served on his conviction of second-degree murder and was released from prison.
Special Prosecutor Thomas Plymale said the state would not pursue charges against T.S., who has been released from prison. He told the Huntington Herald-Dispatch, “Given the fact that each of these defendants made detailed confessions of their involvement in the case to the parole board, it would be impossible to secure a conviction against anyone else … No one really puts [him] in the area. His link is the DNA evidence, but the fact they’ve all given statements would all come in.”
Phillip Barnett said, “We have missed out on so many things and we have had this hanging over us, but not anymore. Today, we are truly free.”
In April 2022, the Barnett brothers filed a federal lawsuit seeking compensation for their wrongful conviction.
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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;
