PASSAGE OF THE DAY: "One man caught in Harlan's wake is Wayne Burgess, convicted of killing his girlfriend's young child almost three decades ago, years after Harlan's errors began to be uncovered. In a new push to overturn his Giles County conviction, Burgess, represented by the Tennessee Innocence Project, argues Harlan’s medical evidence was pivotal to his conviction. It was also wrong, experts say. The case is eerily similar to the recent exoneration of a Nashville couple imprisoned for decades in the death of a young relative. Their case hinged on an autopsy Harlan oversaw, which contained errors in diagnosis and timing. Burgess’ case is a personal tragedy — and an example of how nearly impossible it is to overturn a conviction. "It's not that it's not working. It's that it's designed not to succeed," prominent Nashville defense attorney Daniel Horwitz told The Tennessean, part of the USA Today Network. He and other experts said Burgess' story illustrates how the justice system is not set up to correct certain mistakes, even under the weight of decades of well-known misconduct."
---------------------------------------------------------------------
STORY: ‘Disgraced doc’s evidence sent man to prison. No one knows how many others are like him’ by Reporter Justice Reporter Mariah Timms, published by USA Today, on December 3, 2022. (Thanks to Networked Knowledge for drawing this story too our attention. HL);
GIST: "Charles Harlan confirmed a patient’s death to her family by fax: “She is green and has maggots crawling on her.”
He once misidentified the bodies of two inmates killed in a car crash and sent their remains, still shackled, to the wrong families.
Once, a Tennessee man was pulled over, alive, two years after Harlan incorrectly identified a burned corpse and declared him dead.
The litany of mistakes and oversights is staggering in retrospect for the former Nashville-area medical examiner.
Decades of significant concerns about Harlan, a key witness in several murder prosecutions that sent Tennesseans to prison for most of their lives, have prompted little remedy.
It's impossible to estimate how many of his cases contained grievous flaws because no one has checked.
Harlan was suspended without pay as an assistant Davidson County medical examiner in 1994. His contract as State Medical Examiner was terminated by 1995. And by 2005, his medical license was permanently stripped. Harlan died in 2013.
Even after losing his position in Nashville, he performed autopsies across much of Tennessee and was trusted by prosecutors to help build cases in the pursuit of justice.
After evaluating Harlan's medical opinions in one 1995 case, Dr. George Nichols, then Kentucky's chief medical examiner, wrote to the Tennessee Bureau of Investigation: "If this line of irrational thinking has been applied to other cases in the state of Tennessee, then God help you and the rest of the citizens of Tennessee."
One man caught in Harlan's wake is Wayne Burgess, convicted of killing his girlfriend's young child almost three decades ago, years after Harlan's errors began to be uncovered.
In a new push to overturn his Giles County conviction, Burgess, represented by the Tennessee Innocence Project, argues Harlan’s medical evidence was pivotal to his conviction. It was also wrong, experts say.
The case is eerily similar to the recent exoneration of a Nashville couple imprisoned for decades in the death of a young relative. Their case hinged on an autopsy Harlan oversaw, which contained errors in diagnosis and timing.
Burgess’ case is a personal tragedy — and an example of how nearly impossible it is to overturn a conviction. "It's not that it's not working. It's that it's designed not to succeed," prominent Nashville defense attorney Daniel Horwitz told The Tennessean, part of the USA Today Network.
He and other experts said Burgess' story illustrates how the justice system is not set up to correct certain mistakes, even under the weight of decades of well-known misconduct.
Affected cases may be scattered across different jurisdictions with a maze of deadlines and funding limits. Courts can't just toss every case an unreliable witness touched — in some he may have been accurate or his testimony wasn't central to the conviction. And it's difficult to find detailed case files to begin with.
"Those records just simply don't exist. You'd think they would, but they just don't," said Marissa Bluestine, a former Innocence Project defense attorney turned conviction review expert. "We didn't have databases. We didn't have centralized information intake. Maybe even now, frankly."
Prosecutors have a duty under Tennessee law to serve justice when new evidence shows errors in the original conviction, but the rule lacks teeth and reviews aren't standardized. Even if a defendant like Burgess can find someone to listen, there's no guarantee that the case will return to court or that a judge will agree to overturn the conviction. Harlan's evidence was not a small part of Burgess' case.
On the basis of Harlan's findings, police did not significantly investigate other adults in the child’s life who were around her in the days and weeks before her death, Burgess argues.
The death of a child
Nakeavia Rivers, age 1, died Aug. 8, 1997, after being rushed to the hospital in critical condition. An autopsy revealed her liver was injured before death. She died after significant internal bleeding.
In the original trial, prosecutors argued Burgess struck the child hard enough to cause the injury, immediate medical crisis and death just hours later. But only one medical opinion supported that theory: Harlan’s.
Emergency room staff in both Tennessee and Alabama who treated Rivers disagreed with that assessment. Two new reviews of the medical evidence by experts often used as state’s witnesses also dispute Harlan’s conclusion.
Rivers' mother had stepped out of the room, leaving the young child with Burgess, testimony shows. She heard the child whine and found the toddler lethargic and unable to sit or stand on her own. She rushed her to a nearby emergency room within a matter of minutes. By the time they arrived, the child was in critical condition.
Dr. Adele M. Lewis, Tennessee's current chief medical examiner, strongly disagreed with Harlan’s original report. “Instead, it is more likely that the child sustained the lethal injury hours or even days before presentation to the hospital,” she wrote after her recent review, court documents show. Her assessment matches those at the time of Rivers' admittance.
Emergency room physician Dr. Dusan Teodorovic testified he believed the child showed signs of extreme dehydration when she was admitted to the Columbia, Tenn., hospital where he worked in 1997, original trial transcripts show. The dehydration was a sign of extended blood loss from what could have begun as a minor injury that was not treated, he testified.
Taken together, Burgess argues the assessments show not a sudden, brutal attack on a young child but an injury left untreated for days or weeks.
'Devastating' testimony
Burgess had a romantic relationship with Rivers’ mother at the time. He was not the child's father. But Burgess hadn’t seen the child in several weeks and was only alone with her in his girlfriend's apartment for a matter of minutes after a day spent together running errands, court records show.
Harlan said there was only a small window of time when Rivers could have been fatally injured. On the day he was set to testify, he narrowed it further, suddenly claiming a time frame so small only Burgess could have done it.
Harlan's testimony was crucial to Burgess’ conviction, then-defense attorney, now Maury County General Sessions Judge Bobby Sands told the state parole board. “To this day, Judge Sands believes that Dr. Harlan's testimony on timing was ‘devastating to the defense,’” the new court documents show.
Rivers’ autopsy showed multiple healed injuries including several circular marks resembling cigarette burns. Hospital scans also showed a healed, weeks-old rib fracture, the radiologist testified. Her mother’s story about the injuries changed, court records show. First, she said she’d never seen the marks. Later, she claimed they’d occurred at a daycare facility. She said she removed the child from the center soon after.
The Innocence Project found no evidence the injuries, which could point to a pattern of abuse, were ever investigated.
A complicated confession
Burgess signed a confession to the crime. Its reliability is rocky. In it, Burgess indicated the child began crying and he struck her once in an attempt to quiet her. Not only does that not square with the new medical evidence, Burgess' attorneys argue, it doesn’t match the facts known at the time of the case.
“The entire statement drafted by Investigator (Joel) Robison assumes a theory not presented at trial,” Burgess' attorneys now argue. Rivers' mother testified she did not hear her child crying in the few minutes she was out of the living room where Burgess sat with the child. She was near enough to hear the child moan quietly, likely as she began to slip from consciousness.
She "testified that Mr. Burgess was good to her daughter and loved her," court documents indicate. And police admitted in court they threatened Burgess with violence if he didn’t sign the confession. Pulaski Police Chief John Dickey, then an investigator with the department, threatened to “put his shoe up his (Burgess’) ass” while pointing at his own footwear. Dickey admitted to the comment in previous testimony.
“Mr. Burgess was not only at risk to falsely confess, but he is also exactly the type of person who would sign a document in police custody without reading it,” his attorneys argue.
Prosecutors argued Burgess, a high school graduate who took community college classes, was perfectly capable of understanding what was in front of him. His attorneys disagree.
Burgess took five years to graduate high school after failing almost all classes his junior and senior years. He then failed almost half his college classes, they said. His most recent IQ test scored a low 69.
No simple solution
This isn't the first time Burgess has tried to make his case. But most of the appeals process isn't about proving innocence, experts told The Tennessean. It's about protecting the original conviction.
Appeals processes overall are relatively new, said Horwitz, who handles wrongful conviction cases as part of a varied caseload. "The American legal system did not initially contemplate we may have multiple levels of appeal," he said. "The method to cure wrongful convictions was almost exclusively clemency from a governor."
Governors retain clemency and exoneration powers but by and large do not exercise them liberally, Bluestine said. Bluestine is the assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, a leading organization in setting standards for conviction review units in prosecutors' offices.
A direct appeal, the first step in the process, can take years and focuses on whether the original trial was conducted properly — not whether evidence of innocence was missed.
After direct appeals settle, a defendant can file a post-conviction petition, when a claim of ineffective counsel would come up, said Jessica Van Dyke, executive director and lead counsel at the Tennessee Innocence Project. That can be a back door into an innocence claim if the trial attorney didn't follow up on important evidence or present a clear medical picture.
But there's no constitutional mandate that an attorney be appointed at the post-conviction level, Van Dyke explained. Many defendants are left to file the complicated petitions by themselves within a one-year time limit without access to funding for medical experts, investigators or other resources needed to effectively re-try their cases.
"Judges are very protective of convictions, particularly if that was reached by a jury," Bluestine said. "And they should be, but we don't have to make it so draconian to be able to get into court." No one wants to intentionally keep innocent people in prison, the experts agreed. But fixes are few.
"The resources that are dedicated to this are so minimal, the procedural bars are so high and the commitment to finality over accuracy is so unshakable," Horwitz said.
Other states and jurisdictions are trying different approaches, Bluestine said. In Maryland, cases linked to deaths in custody are all likely to be under review soon. Public support for conviction review is growing as it pops up and evolves in prosecutors' offices across the country, including in Nashville.
States can pass legislation or create gubernatorial commissions to review systemic errors. But most of this work is painfully new, and the political will to change is minimal. "There's probably nothing on earth that is less popular than devoting scarce public resources to the defense of people accused of heinous crimes," Horwitz said.
Two victims
Burgess' case remains in limbo. Local prosecutors had not replied to his initial motion as of mid-November, although the judge set a status hearing to lay out a schedule for replies and hearings. Until the state replies, it's impossible to know whether they'll support his push or not, or what amount of resources they have to investigate his claim.
In Nashville, the Davidson County District Attorney's conviction review unit has supported some innocence pushes. But even that is not always enough to guarantee a win. A judge still must find there is enough of a legal basis to justify reopening the case.
And the facts of the case itself are significant, experts say. "There are two victims," Horwitz said. "Whenever there is a wrongful conviction, there is the person who is wrongfully convicted and imprisoned, but then there was also the literal victim of the crime, who did not get justice because the wrong person got put away for it."
The entire story can be read at:
http://netk.net.au/Forensic/Forensic104.pdf
--------------------------------------------------------------
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;
—————————————————————————————————
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;
-----------------------------------------------------------
