PASSAGE OF THE DAY: "Mark Hornung, a senior vice president with ALK Technologies, which developed the PC*Miler software testified (at a post-conviction evidentiary hearing) that West’s report contained numerous errors and used a version of the software that was released in 1997. To generate a travel time consistent with West’s testimony, Hornung said he had to reduce the average speed to 55 mph. Hornung testified that when he ran the program with the actual highway speeds in place in 2002, the travel time came out to nine hours and 38 minutes. Hornung said that the travel times introduced at trial were “out of the range” of the results obtained not just from PC*Miler but also its competitors. West testified at the evidentiary hearing that he did not generate the report. A colleague did, West said, and he had no way to know if the settings had been changed. On July 27, 2011, Judge Hansen issued his findings of facts, stating that Shapiro had failed to properly investigate or challenge West’s trial testimony and his ability to testify as an expert witness. These findings and the records from the hearing were sent to the Utah Court of Appeals. The appellate court vacated Thompson’s conviction on January 16, 2014. It said that Shapiro was ineffective for failing to challenge West as an expert witness and the introduction of the travel report. “Trial counsel did nothing to inquire into [West’s] qualifications or the foundation of the PC*Miler report, despite the fact that the State admitted at trial that it had hurriedly located a witness ‘who may or may not be an expert and may or may not be able to explain how these logs work.’ The entire inquiry into the foundation for the report consisted of a single question asked by the prosecutor: ‘What does that program do?’” The court said that West was not qualified to offer an opinion about the PC*Miler report."
| GIST: "On April 14, 2004, a 16-year-old girl known as A.T. told police in Salt Lake City, Utah, that her stepbrother, 32-year-old Michael Thompson, had taken advantage of her during a visit to her home. Thompson lived in Wisconsin and worked as a long-haul trucker. He and A.T. shared the same father, and Thompson occasionally used A.T.’s home in Utah, where he grew up, as a stopover during runs to the West Coast. Later that April, A.T. gave a second statement to investigators and said that she and Thompson had engaged in oral sex on a morning either in August or early September 2002. On May 27, 2004, A.T. gave a statement to the FBI. She said Thompson kissed her but nothing else happened. (The FBI became involved because Thompson was an interstate trucker and A.T. had accompanied him on trips.) A.T. gave another statement to local law enforcement in December 2004. As with her statement to the FBI, A.T. made no specific mention of having sex with Thompson but said she had been in a sexual relationship with a 36-year-old man known as P.B., who was married to the best friend of A.T.’s mother. (P.B. pled guilty in 2005 to two counts of forcible sex abuse with A.T. that court records said also took place in August 2002.) Prosecutors filed an arrest warrant for Thompson on June 10, 2005, and he was arrested on August 8, 2005 and charged with two counts of forcible sodomy. His trial in Utah’s Third Judicial District Court began on March 5, 2008. A.T. testified that Thompson and a friend, David Haas, had stayed in Salt Lake City for two consecutive nights in late August 2002 and that on August 25, the morning after the second night, she and Thompson had engaged in two acts of oral sex in her bedroom at around 9:30. She said that Thompson then left her bedroom and that Haas woke up a few minutes later. She testified that she knew the time because she heard a radio show playing that ended at 10 a.m. Thompson’s younger brother, Travis Thompson, lived in Salt Lake City and spent more time with A.T. than Michael. He testified that A.T. had a history of being untruthful and was “known to make up stories.” He said she once told him that she was having sex with an officer investigating Thompson’s case as part of an effort to make P.B. jealous. In November 2002, after A.T.’s mother had become very ill, A.T. went to live in Wisconsin with Thompson and his family. Thompson testified that the arrangement did not last. First, he testified, he and his wife discovered A.T.’s journal entries recounting her relationship with P.B., which continued while she was in Wisconsin. In addition, Thompson said that A.T. began acting out, skipping school, and abusing Thompson’s nine-year-old daughter. Thompson testified that in October 2003, his wife found more journal entries about P.B. and confronted A.T. The girl first said they were dreams, but then, according to Thompson's wife, she said the entries were really about Thompson. A.T. was put on a plane and sent back to Utah. Thompson testified that he never committed any sexual misconduct with A.T. He also said that during the time that A.T. said the abuse took place, he was not in Salt Lake City for two consecutive nights and that on the morning of August 25, 2002 he and Haas had left at 6:30 a.m., Mountain Time, because he was hauling a load of perishable produce to the Midwest. Thompson’s attorney, David Shapiro, moved to introduce Thompson’s trucking logs into evidence. The prosecutor objected because the logs had not been turned over in earlier discovery. Judge Pat Brian allowed Sharpiro’s use of the evidence, but also gave the state time to find a rebuttal witness. Thompson testified that he kept accurate logs, which supported his testimony about when he was in Utah and when he left, contradicting A.T.’s timetable of when the alleged sexual misconduct occurred. After Thompson’s testimony, during the recess, the state found a rebuttal witness, Randy West, who was a transportation specialist with the Utah Highway Patrol. West testified that Thompson’s logs were inaccurate and that he had “cooked the books” to avoid documenting his lack of compliance with trucking regulations. West based his findings on a report generated by a software program called PC*Miler, which estimates travel times and is often used by commercial trucking companies to plan routes and manage stops. The report analyzed Thompson’s movements on August 20, 2022, when Thompson said he had taken 10 hours to drive from Rapid City, South Dakota, to Salt Lake City. West said that the trip was between 667 and 727 miles, depending on the route taken, and would have taken Thompson about 14 hours regardless of how he went. Ten hours, he said, was “not physically possible.” Shapiro cross-examined West, who admitted he did not know the route Thompson took or the speed he might have driven. But Shapiro did not ask him about the preparation of the report, including the inputs used to generate the conclusions. During closing arguments, prosecutor Paul Amann told jurors that West’s testimony about Thompson falsifying his driving records undermined Thompson’s credibility. Thompson, Amann said, “was lying, lying about that, and he has everything to gain by lying.” Amann also asked the jury to pay attention to Thompson’s body language during the trial. “It was very negative,” Amann said. “[Thompson] had his hands out before him like this, blocking. I think that’s a classic sign of someone who’s hiding. And if you noticed, when I would ask him a question of particular significance about the acts he performed on [A.T.], he would shut his eyes and shake his head ‘no.’ To me that’s a classic sign of his dishonesty. He couldn’t look me in the eyes and tell me the answer to the question.” Amann also discounted Haas’s testimony. “I don’t think [he] was credible. I think he was being dishonest with you.” Amann also asked the jury to deliver a guilty verdict, “because it sends a message to [Thompson] that what he did was wrong, that you know that what he did was wrong, and that you’re not going to stand for it. That the people of Utah won’t stand for that kind of crime.” The jury convicted Thompson on two counts of forcible sodomy on March 7, 2008. He later received two concurrent sentences of five years to life in prison. Thompson appealed his conviction on January 5, 2009, moving for a new trial based on ineffective assistance of counsel. The motion said that Shapiro had failed to adequately investigate and challenge West’s report and his qualifications to testify as an expert witness and had not presented rebuttal witnesses who could have contradicted West’s conclusions. The Utah Court of Appeals remanded the case to the Third District Court for an evidentiary hearing. Judge Brian had retired, and Judge Royal Hansen presided over the evidentiary hearing, which took place on December 10, 2010. Shapiro testified that he had dragged his feet on giving the trucking logs to the state; it was his practice to not disclose material until ordered by the trial judge. Shapiro said he didn’t expect the state to find a rebuttal witness, and that he decided against asking for a continuance to find his own witness because he thought a delay would impose a hardship on Thompson’s family, who had traveled from Wisconsin for the trial, and because he believed Judge Brian disliked delays. Shapiro admitted that in hindsight, “he might try this case differently today.” Mark Hornung, a senior vice president with ALK Technologies, which developed the PC*Miler software, testified that West’s report contained numerous errors and used a version of the software that was released in 1997. To generate a travel time consistent with West’s testimony, Hornung said he had to reduce the average speed to 55 mph. Hornung testified that when he ran the program with the actual highway speeds in place in 2002, the travel time came out to nine hours and 38 minutes. Hornung said that the travel times introduced at trial were “out of the range” of the results obtained not just from PC*Miler but also its competitors. West testified at the evidentiary hearing that he did not generate the report. A colleague did, West said, and he had no way to know if the settings had been changed. On July 27, 2011, Judge Hansen issued his findings of facts, stating that Shapiro had failed to properly investigate or challenge West’s trial testimony and his ability to testify as an expert witness. These findings and the records from the hearing were sent to the Utah Court of Appeals. The appellate court vacated Thompson’s conviction on January 16, 2014. It said that Shapiro was ineffective for failing to challenge West as an expert witness and the introduction of the travel report. “Trial counsel did nothing to inquire into [West’s] qualifications or the foundation of the PC*Miler report, despite the fact that the State admitted at trial that it had hurriedly located a witness ‘who may or may not be an expert and may or may not be able to explain how these logs work.’ The entire inquiry into the foundation for the report consisted of a single question asked by the prosecutor: ‘What does that program do?’” The court said that West was not qualified to offer an opinion about the PC*Miler report. The order for a new trial also said that Shapiro should have objected to West’s testimony as being hearsay because he did not generate the report but was only told of its contents by his colleague. In addition, the appellate court said Amann had made improper closing arguments when he impermissibly vouched for West and against Hass; told jurors to send a message by finding Thompson guilty; and said that Thompson’s body language indicated he was lying. “Thompson’s trial counsel performed deficiently by failing to object to or otherwise challenge the repeated instances of prosecutorial misconduct,” the court said. “The prosecutor’s unchecked testimony about Thompson’s body language was particularly egregious and should have drawn some response. Because the critical issue before the jury was whether Thompson or A.T. was telling the truth, we can conceive of no reasonable trial strategy that would include failing to object to this misconduct.” Upon a motion by prosecutors, Judge Hansen dismissed the charges against Thompson on April 1, 2014, and he was released from prison. On March 13, 2017, Thompson, now represented by the Rocky Mountain Innocence Center, petitioned the court to be declared factually innocent, which would expunge his record and allow him to receive compensation for his wrongful conviction. The petition said that Hornung’s testimony was a “game-changer. It goes directly to the issue of Michael’s alibi (and his credibility) and, therefore, is significant evidence of Michael’s factual innocence. And because Hornung’s testimony was discovered in the course of Michael’s direct appeal and served in part as the basis for the Court of Appeals’ reversal of his convictions, it undoubtedly meets the Innocence Statute’s definition of newly discovered material evidence.” At an evidentiary hearing before Judge Su Chon in January 2022, A.T. and Thompson testified, as did Haas, and each largely repeated their testimony either at trial or at the previous evidentiary hearing. Thompson said that he kept meticulous records ever since he had received a citation and heavy fine in the early 1990s for faulty record-keeping. P.B. testified and said that A.T. had told him in 2002 that nothing had happened with Thompson. Hornung did not testify at this hearing, but Judge Chon said this testimony, which was instrumental in overturning Thompson’s conviction, was also central to his claims of innocence. The judge granted Thompson’s petition of factual innocence on August 30, 2022.' |
The entire story can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6408
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. 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:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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