PASSAGE OF THE DAY: "Cogan appealed to the Superior Court. On April 6, 2020, the Superior Court reversed Hopkins’s conviction and ordered a new trial. The court ruled that Hopkins’s trial defense attorney should have sought a Frye hearing. “We hold that this claim has merit because Dr. Wecht's methodology, ‘topographical distribution,’ was ‘novel’ science not generally accepted in the field of forensic pathology,” the court declared. “The record is clear that Dr. Wecht failed to use scientific methodology but instead resorted to offering his opinions based upon what he surmised from the physical evidence,” the court said. Nevertheless, a Frye hearing should have been held because “he purported to present a novel scientific opinion to the jury.” “There were no standards, empirical data or studies undergirding Dr. Wecht's statement,” the court said. “It was simply his own personal opinion based upon his review of the physical evidence.” The court concluded, “In our opinion, [defense] trial counsel's failure to lodge a Frye objection to Dr. Wecht's testimony deprived [Hopkins] of a fair trial.” On June 5, 2020, Hopkins was released on bond. On January 21, 2022, following a motion by Cogan, the charge was dismissed." ---------------------------------------------------------------------- GIST: "On September 1, 1979, the body of 23-year-old Catherine Janet Walsh was found in her bed in her apartment in Monaca, Pennsylvania. She was face down and a bandanna was knotted tightly around her neck. Her hands were tied behind her back with the belt from a bathrobe. The cause of death was determined to be ligature strangulation. Based on an analysis of her stomach contents, the time of death was estimated to be around 5 a.m. Her body was discovered by her father, Pete Caltury, after Walsh’s employer phoned him because she had not come to work. Caltury let himself in with a key he had—the apartment was in a house owned by Caltury’s mother. There were no signs of forced entry. The bedding, the restraints as well as Walsh’s nightgown were taken as evidence. Police said they could not see any visible stains, and the materials were not wet in any areas. Fingerprints were lifted from her car, which was parked out in front, as well as from a drinking glass. There were prints from the passenger side window that were not linked to anyone. At the time, Walsh had separated from her husband, Scott, and their marriage was ending. Scott Walsh was interviewed numerous times, and police cleared him as a suspect. On the night before the murder, Scott had gone to a football game with a friend. Afterward, when they stopped to get something to eat, his friend experienced severe stomach distress. Scott had driven the friend to a hospital and stayed with him until about 2 a.m. when Scott went home. Evidence showed that after Scott got home, he got a call from a 17-year-old girl, with whom he was having an affair. Scott did not reveal this immediately. However, the girl said she called him, came to his house, they engaged in sex, and then she left around 3:30 a.m. Scott said that on that Saturday morning, he cashed his paycheck and wrote a $75 support check to Janet. He said he went to her apartment with the check as well as a ring of keys that he had found in the yard of their home and thought the keys might be hers. When she did not answer the door, he pushed the check and the keys through the mail slot—where police found them hours later. Friends of Janet said they had gone out with her the night before. It was the Friday of Labor Day weekend, and, although Janet had to work the next day, they wound up in a bar until it closed about 2 a.m. While at the bar, Janet had danced with Robert McGrail. McGrail also came under suspicion because he followed Janet and her friends to a Perkins restaurant where they got food after the bar closed. His checkbook was later found in a gutter a half a block from Janet’s apartment. McGrail said that he walked home, climbing a steep hill, through mud and over rocks and boulders to get to his apartment. According to Janet’s friends, McGrail sat at their table at the restaurant until Janet told him to leave and that she would not give him a ride home. Janet left the restaurant alone, her friends said. Scott Gregory Hopkins became a suspect after police learned that he was having an affair with Janet. Hopkins was a house builder—he had built the house that Janet and Scott Walsh were living in when they decided to separate. Hopkins said he and Janet had engaged in sex on her bed two or three times, with the last time at least a month prior to her murder. He denied involvement in the crime. He said that on that Friday night, he was preparing for a pig roast for company employees. He said he was up at 5 a.m. to get the fire going and the pig in the pit. Two employees, one of whom spent the night at Hopkins’s house to help him get ready, confirmed Hopkins’s account. The murder, which was being investigated by Pennsylvania State Police and assisted by Monaca police, went unsolved. In 2010, a cold case unit reopened the case and decided to send the physical evidence to the state police crime laboratory. When a serologist discovered sperm on the nightgown, the bedsheets, and the rope used to bind Janet’s hands, DNA tests were performed. Hopkins’s DNA was identified on the items. On January 29, 2012, police arrested Hopkins, saying that “science caught up with us.” Hopkins was 65 years old and was a councilman in the nearby borough of Bridgewater, Pennsylvania. After a male DNA profile had been identified during the testing, police arranged for a secretary to call them if Hopkins came to the borough offices and got a cup of water from the Polar water container and discarded his cup. That was how police covertly obtained Hopkins’s DNA to compare it to the profile obtained through the testing. "Technology has increased by leaps and bounds over the years," Beaver County District Attorney Anthony Berosh said. "Science caught up [to evidence] we already had, and we were able to analyze it." Prior to trial, the prosecution provided a report to Hopkins’s defense lawyer from Dr. Cyril Wecht, a forensic pathologist in Pittsburgh, Pennsylvania. Dr. Wecht’s report said that the placement of Hopkins's seminal fluid on the back of Janet's nightgown, the cloth belt tied around her wrists, and the bed sheet "place him on the bed on top of the decedent's back at/around the time of her demise." The report said that it was “extremely unlikely that [Hopkins's] seminal fluid was deposited in those locations during the two or three previous sexual encounters [Hopkins] admitted to have engaged in during the summer three weeks to a month prior to the victim's death.” Wecht also said that “the location of the seminal fluid in both areas where the fluid was identified is further consistent with the [Janet’s] position when found.” Dr. Wecht concluded that Janet died due to strangulation during sexual activity hours before the discovery of her body and that “the DNA of [Hopkins’s] seminal fluid would have been deposited around the time of her death based on the locations where it was identified.” Wecht said that, given the DNA analysis, there was no evidence a third person was present. “[T]he absence of any signs of struggle or forced entry into her apartment,” he contended, “is a strong, logical argument that [Janet’s] assailant was someone she knew, and who would have been allowed entry into her apartment.” Hopkins’s attorney filed a pretrial motion seeking to bar Dr. Wecht's expert testimony and report. “The proffered expert testimony does not distinctly relate to a science, skill, occupation beyond the knowledge or experience of the average layman and is submitted only to buttress the Commonwealth's argument on its theory of the case,” the motion said. In addition, the motion said Dr. Wecht failed to express his opinion with the requisite degree of certainty by stating the semen was "likely" deposited around the time of Walsh's death, and that it was unlikely the semen was deposited on previous occasions. The defense, however, did not file a separate motion requesting a hearing pursuant to Frye v. United States, a 1923 federal court ruling that set out a standard for admitting expert testimony. In such a hearing, a court hears evidence and determines whether the manner in which the evidence in question was obtained is generally accepted by experts in the field. Such a hearing, if granted, would have required that the judge determine whether Dr. Wecht's methodology for ascertaining the date of the DNA deposits from their locations at the crime scene was generally accepted in the forensic community. During oral argument on the pretrial motion, Hopkins’s attorney criticized Dr. Wecht's report as "conjecture and speculation.” He did not argue that Dr. Wecht's testimony was inadmissible under the Frye standard. On November 5, 2012, the trial court granted the defense motion to bar Wecht’s report, concluding that the “report does not set forth any scientific manner upon which [Wecht] bases his conclusion that [Hopkins] was on top of…[Walsh’s] back around the time of her demise. Further, the report does not set forth the scientific method or means by which Dr. Wecht reaches the conclusion that because the DNA was found only on the bed sheet, the rope tie, and the nightgown, it is unlikely that [Hopkins’s] seminal fluid was placed there during sexual relations that occurred three weeks to a month earlier. As such, Dr. Wecht does not state a precise scientific basis for his conclusions, and Dr. Wecht's assertions are not set forth or posited in a sufficiently specific manner.” The court also concluded that Dr. Wecht’s statement that "it is extremely unlikely" that the seminal fluid was placed in certain locations several weeks earlier, given the locations where the fluid was found, was too vague and imprecise to meet the standard for competent expert medical testimony in accordance with Pennsylvania law. “Therefore, the opinions set forth in his report are speculative in nature and are thus not admissible,” the court said. The prosecution appealed, and, in a 2-to-1 ruling issued in October 2013, the Pennsylvania Superior Court reversed. The court concluded (without elaboration) that Dr. Wecht's report "[met] Pennsylvania's liberal standard for expert testimony," because he "assert[ed] facts not generally known but known to him because of his special training and experience." The court also held that Dr. Wecht stated his opinion "with the requisite degree of certainty." Judge Ford Elliott dissented on the ground that Dr. Wecht's conclusions appeared to be merely his own thoughts on the evidence and not based on any scientific or forensic analysis. In November 2013, Hopkins went to trial in Beaver County Court of Common Claims. The jury heard evidence regarding the discovery of the crime and the collection of evidence. Scott Walsh and Robert McGrail testified. Both denied involvement in the crime. The prosecution’s case hinged on Wecht’s claim that Hopkins’s DNA was left on Janet’s nightgown, the robe belt used to secure Janet’s hands, and the bedsheets at about the time of her death—not a month earlier as Hopkins claimed. Wecht testified, and his report was entered into evidence. Dr. Wecht testified, per his report, that the placement of Hopkins’s seminal fluid on the back of Janet’s nightgown, the cloth belt tied around her wrists, and the bed sheet “place him on the bed on top of the decedent's back around the time of her demise.” Dr. Wecht said it was “extremely unlikely” that Hopkins’s seminal fluid was deposited in those locations during the two or three previous sexual encounters that Hopkins admitted to have engaged in during the summer three weeks to a month prior to Janet’s murder. In his testimony, Wecht used the phrase “topological distribution” to describe the basis for his conclusion that Hopkins’s semen was left at the scene at the time of the crime. His report did not mention the term. Wecht said that the location of the seminal fluid in both areas where the fluid was identified was consistent with Janet’s position when found. Dr. Wecht told the jury that Janet died due to strangulation during sexual activity hours before the discovery of her body. He stated that, given the DNA analysis, there was no evidence a third person was present. The lack of evidence of forced entry suggested her killer was known to her, he said. Dr. Wecht admitted he could not date the deposit of DNA based upon the locations where it was identified. He acknowledged that no test existed for dating DNA deposits, an admission with which every other witness who gave expert testimony on the DNA findings concurred. Dr. Wecht could not explain how Hopkins could have ejaculated on Walsh without detection of his semen by police, crime lab analysts, and medical personnel who observed Walsh's body and linens within a few hours of her death. He also admitted that because DNA transfers from one object to another, it was impossible to state that the place upon which DNA was located was the exact location upon which the contributor deposited it in the first place. Michael Panella, a staff pathologist at Quest Diagnostics, testified for the defense that although Hopkins’s DNA was found on the back of Janet’s nightshirt, the bathrobe belt, and the sheet that covered her, a special light that can detect bodily fluids also found other stains. Those could include saliva and sweat, among other things, but because those areas weren't screened, Dr. Panella testified, it was possible that another person's DNA could have been present. Dr. Panella said linking Hopkins to Janet at the time she was killed "based on just these areas of DNA alone" made him "very, very worried." Dr. Mark Perlin, founder of Cybergenetics, a company that uses a computer program called TrueAllele to analyze DNA test results, testified that based on his analysis, Janet’s estranged husband’s DNA was also present in addition to an unidentified DNA profile. Dr. Perlin contradicted Dr. Wecht’s claim about when Hopkins’s DNA was left at the scene. Dr. Perlin said that there was no accurate way to be able to say when DNA was left in a specific location. During his testimony, Dr. Perlin said that Walsh, while she was being strangled, may have perspired, causing an old semen stain Hopkins left on the back of her nightshirt to dampen and transfer Hopkins' DNA to the robe tie binding her hands. “You have the exact conditions that are ideal for semen or DNA transfer," Dr. Perlin said, referring to the proximity between the belt tie and the nightshirt. Hopkins testified and denied involvement in the crime. He said he hadn’t been to the apartment for about a month prior to the murder. He said that on that Friday night, he was at home, preparing for the pig roast. He said that on Saturday, September 1, 1979, he was up and working on the preparations by 5:30 a.m. –about the time that the autopsy results said Janet was killed. Larry Musgrave and his wife, Georgeann, testified that they were asleep in the same house as Hopkins the night Janet was killed. They said they were at a model home owned by Hopkins's company the night of Aug. 31, 1979, preparing for the company party, featuring a pig roast, the next day. The couple spent the night on the living room floor at the house along with Hopkins and his then-girlfriend, Diane St. George, who slept in a bedroom. St. George, who married Hopkins in 1983 and divorced him in 1999, also testified that she was with Hopkins and the Musgraves that night. On November 22, 2013, the jury convicted Hopkins of third-degree murder. He was sentenced to eight to 16 years in prison. Attorney Adam Cogan represented Hopkins on appeal. He argued that the verdict should be overturned because of insufficiency of evidence and argued that the trial court erred by refusing to sustain an objection to the seizure of Hopkins’s discarded drinking cup. In August 2015, the Superior Court upheld the conviction and sentence. Cogan filed a Post-Conviction Relief Act (PCRA) petition in 2017. The petition argued that Hopkins’s trial had been unfair because his trial defense attorney had failed to request a Frye hearing prior to the trial to challenge Wecht’s report. Cogan attached affidavits from two forensic pathologists who, after reviewing the case, contradicted Wecht, and suggested that Wecht concocted his theory out of thin air. Dr. Kimberly Ann Collins reported, “I disagree with Dr. Wecht that Ms. Walsh died during sexual activity; this cannot be determined from the autopsy and laboratory findings. In rendering my opinion, I am not simply disagreeing with the conclusions made by Dr. Wecht. The opinions rendered by Dr. Wecht are outside the proper scope of the science of forensic pathology.” Dr. David R. Fowler averred: “These [Wecht’s] opinions are outside the bounds of the proper science of forensic pathology. The presence of the DNA or its ‘topological distribution’ simply cannot be used to date when DNA was deposited to a reasonable degree of scientific certainty. There is no generally accepted methodology in the field of forensic pathology that permits such a conclusion. Indeed, the term ‘topological distribution’ is not a term of art in the science of forensic pathology.” In December 2017, at a hearing on the petition, Dr. Fowler, asked if “topological distribution” was accepted by forensic pathologists, declared, “No, that’s not medical science.” Fowler said he had never heard of anyone using the term before. Dr. Fowler confirmed that there are no standards, no studies, no tests, and no generally accepted methodology in the field of forensic science to determine the date of a seminal DNA deposit. He concluded that Dr. Wecht's opinion was not rooted in the science of forensic pathology, and that no forensic pathologist is capable of opining the date of deposit of seminal DNA. Cogan asked Dr. Collins "[whether] the science of forensic pathology properly allow[s] for the types of conclusions that Dr. Wecht rendered in this case?” Dr. Collins answered, "None whatsoever, not only pathology, but not scientifically.” Dr. Collins testified that “not only is [topological distribution] not a methodology, I've never even heard or used that terminology in forensic pathology." Asked if there was any methodology for the dating of a DNA deposit, she replied, “None whatsoever." Asked if she ever heard of dating based upon the topological distribution of samples, she said that she had never heard of it “because it is impossible.” She said she had never heard of a single study that has evaluated whether "topographical distribution" is a valid scientific method for dating the deposit of DNA. She said that Wecht’s conclusions were “most definitely” outside the bounds of proper forensic pathology. On June 7, 2018, the trial court denied the PCRA petition on the ground that Dr. Wecht's opinion was not subject to Frye because it was not "scientific" testimony. Cogan appealed to the Superior Court. On April 6, 2020, the Superior Court reversed Hopkins’s conviction and ordered a new trial. The court ruled that Hopkins’s trial defense attorney should have sought a Frye hearing. “We hold that this claim has merit because Dr. Wecht's methodology, ‘topographical distribution,’ was ‘novel’ science not generally accepted in the field of forensic pathology,” the court declared. “The record is clear that Dr. Wecht failed to use scientific methodology but instead resorted to offering his opinions based upon what he surmised from the physical evidence,” the court said. Nevertheless, a Frye hearing should have been held because “he purported to present a novel scientific opinion to the jury.” “There were no standards, empirical data or studies undergirding Dr. Wecht's statement,” the court said. “It was simply his own personal opinion based upon his review of the physical evidence.” The court concluded, “In our opinion, [defense] trial counsel's failure to lodge a Frye objection to Dr. Wecht's testimony deprived [Hopkins] of a fair trial.” On June 5, 2020, Hopkins was released on bond. On January 21, 2022, following a motion by Cogan, the charge was dismissed. The entire entry can be read at: |
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6317
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;
