PASSAGE OF THE DAY: "Subsequently, a process was instituted in which the Travis County District Attorney’s Office Conviction Integrity Unit (CIU) and The Forensic Project of the Capital Area Private Defender Service began to review non-capital, adult convictions involving DNA evidence from the lab. In cases where DNA evidence was found to be material to the conviction, DNA expert Dr. Bruce Budowle conducted a scientific review of the evidence. Dr. Budowle found that Morris’s CPI calculation relating to the unstained portion of the rock was performed incorrectly. He said that the correct interpretation of the mixture on the unstained portion of the rock should have been “inconclusive.” Budowle said that Morris likely employed “suspect-driven bias.” Dr. Budowle said that the mixture evidence on the cigarette package also should have been “inconclusive.” He said that Morris’s CPI calculations relating to the cigarette pack “cannot be supported.” In July 2022, Jane Eggers, an attorney in The Forensic Project of the Capital Area Private Defender Service, filed a state law petition for a writ of habeas corpus on behalf of Faircloth seeking to vacate his conviction. The writ application cited four grounds as a basis for vacating Faircloth’s conviction: new evidence undermined the DNA evidence presented at Faircloth’s trial, the failure of the prosecution to disclose exculpatory evidence to the defense, the prosecution relied upon false testimony, and the failure of Faircloth’s defense attorney to seek expert witnesses. The writ application cited Dr. Budowle’s conclusions and also outlined evidence that the prosecution had not disclosed to the defense prior to Faircloth’s trial. That evidence included records showing that Morris had performed poorly in educational classes critical to her ability to perform DNA analysis and statistical computations. In addition, she had more documented contamination issues than any other Austin police department laboratory analyst. She had been disciplined in 2007 and 2008 for making an excessive and “unacceptable number” of mistakes. "
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ENTRY: Billy Faircloth: Texas: By Maurice Possley; Posted by The National Registry of Exonerations, on May 4, 2023. Contributing Factors: False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense. (DNA evidence contributed to the exoneration;)
| GIST: At noon on February 15, 2011, 62-year-old Kathy McWilliams took a break from work at a law firm at 100 Congress Avenue in Austin, Texas, and went to her truck on the fifth and bottom level of the building’s underground parking garage, labeled P5. She had had minor surgery on her leg that morning and wanted to take a nap. After about an hour, McWilliams woke up and headed to the elevator to return to work. She told police she noticed a shadow of someone running toward her with what appeared to be a brick in hand. Before she could turn around, she was struck in the back of the head. She said she turned around and was hit on the forehead. She said the attacker’s blue eyes were “so angry. He just wanted to kill me and I didn’t know why because I hadn’t done anything to him.” She was unable to get a good look at her attacker because her glasses had been knocked off and blood was streaming down her face. She said she was struck four or five times. While she did not see the object, she said it “felt like a brick.” She said she kicked her attacker in the groin, and screamed for help. Tini Nguyen and Jerry Epps were in the garage returning from their lunch break when they heard McWilliams screaming. Nguyen told police she saw the attacker. Nguyen took the elevator up to the lobby to summon security. She told security supervisor Norman Oliver about the attack and said the attacker was wearing a yellow shirt and jeans. She said the attacker was still in the garage. Oliver radioed other security guards a description and called 911. Nguyen and another guard, Aaron Luther, then took the elevator down to P5. There, McWilliams pointed in the direction that she said the attacker had fled. Luther said he saw a man poke his head out. When Luther told him to halt, the man began running away. Luther said the man had a goatee, was middle-aged, and was wearing a yellow shirt and dark pants. The man ran up a ramp to the fourth level where Charles DeCarlo, one of the building’s engineers, gave chase. Meanwhile, another building engineer, Carl Smith, was on his way to the building to check out a fire alarm, when he received the radio call about the attack. He decided to walk down the ramps. Smith said he saw a man running up the ramp, and heard DeCarlo yell that that was the man they were looking for. Smith said the man, who he said had dark hair, ran into a stairwell. Smith was not able to catch him. However, he later said that he saw a rock in the stairwell that looked out of place. DeCarlo also said he saw the rock. He picked it up and later turned it over to police. Austin police officers soon arrived. Oliver went with them to the parking garage to try to find the attacker. Oliver went to P2, while the officers went to P3. Oliver began looking between parked cars, and later said he saw a man wearing a yellow shirt and jeans hiding behind a car. When the man saw Oliver, he tried to run, but Oliver tackled him. Police then took the man, who was sweating profusely, into custody. He was identified as 44-year-old Billy Faircloth. One of Faircloth’s boots was seized because it appeared to have blood on it. The rock also appeared to have blood on it. Police officer Roosevelt Stinson gathered up McWilliams’s purse and various contents that had spilled out. Among the items was a cigarette package. The purse was taken to the hospital where police determined that McWilliams did not smoke, and deduced that the cigarette package, which was bloodstained, had been dropped by her attacker. Five days later, McWilliams gave a statement. Her description of the attacker was inconsistent with Faircloth. She said her attacker was “clean cut” and “shaven.” Faircloth had a beard and mustache when arrested. Faircloth was charged with assault with a deadly weapon. He rejected a prosecution offer to plead guilty in return for a 25-year sentence. Shortly before Faircloth went to trial, the prosecution gave the defense an audio recording of an interview with DeCarlo during which he said he helped McWilliams to get to the lobby and that her blood got on him. He also said he picked up the rock after he helped McWilliams. Asked if he saw blood on the rock before he picked it up, DeCarlo said, “No, I didn’t see anything. It just seemed out of place.” In February 2012, Faircloth went to trial in Travis County Criminal District Court. During DeCarlo’s testimony, he was not asked by the prosecution or the defense if he saw any blood on the rock before he picked it up. No witnesses testified that they saw Faircloth attack McWilliams. Epps and Nguyen testified to seeing a man on P5 after the attack, but their descriptions did not include a beard or mustache. Nguyen said the man was wearing an off-white double-breasted “chef-type” of jacket with a mandarin collar and dark pants. Epps said the man was wearing a long-sleeved “dirty smock or a darker…brownish kind of smock. Faircloth was wearing a yellow shirt and jeans when arrested. The prosecution linked him to the crime with forensic testimony. Austin police crime lab analyst Sapana Prajapati testified that testing on the boot, the cigarette package, and the stained area of the rock were positive for the presence of blood. In her report, she documented that the rock arrived inside Faircloth’s boot, not in an evidence bag. DNA analyst Elizabeth Morris testified that she had performed DNA testing on the items. She said that McWilliams’s DNA profile was excluded from a mixture of DNA profiles obtained from the non-stained areas of the rock. She said Faircloth’s profile could not be excluded from the un-stained portion. The prosecution relied upon this testimony to argue that Faircloth was the “handler” of the rock. Morris said that McWilliams’s DNA was present in the blood-stained portion of the rock. Morris testified that McWilliams’s profile could not be excluded as the major contributor to a DNA mixture found on the cigarette package and that Faircloth’s profile could not be excluded as a minor contributor to the mixture. Faircloth’s profile could not be excluded from the DNA extracted from a swab of the stain on his boot, but McWilliams’s profile was excluded. Morris gave combined probability of inclusion (CPI) statistics to back up her testimony. The CPI refers to the proportion of a given population that would be expected to be included as a potential contributor to an observed DNA mixture. She said she was being “conservative” in her statistical calculations. McWilliams testified that she was struck first on the back of the head. When she turned around, she was struck four five more times. She did not identify Faircloth. The prosecution did not present any medical records or any testimony by any emergency medical technician or treating physician. The prosecution presented some video footage from parking garage security cameras. The footage did not show the attack or anyone carrying a rock or entering the stairwell where the rock was found. Officer Stinson revealed during his testimony that he saw McWilliams’s purse and the items scattered about. No photographs were taken. Instead, he collected the items, including the cigarette package, and put them in her purse. He was not wearing gloves. Stinson also handled the arrest and handcuffing of Faircloth without gloves as well as recovering Faircloth’s boot also ungloved. Stinson denied putting the rock in Faircloth’s boot and claimed he had put it on top of an evidence bag. However, a photograph showed the rock sitting on the front seat of his squad car. On February 15, 2012, the jury convicted Faircloth. He was sentenced to 60 years in prison. In June 2013, the Third District Court of Appeals affirmed the conviction. In 2016, the Texas Forensic Science Commission (TFSC) audited the Austin DNA lab and found significant problems with its methods for interpreting DNA samples, particularly those with samples that contained more than one contributor or where there was incomplete or insufficient testing material, an issue that can lead to “allele dropout” in the genetic markers. DNA analysts can attempt to interpret these dropouts, but it must be done with care and caution. The audit said the Austin lab used a methodology that was outdated and “neither scientifically valid nor supported by the forensic DNA community.” Equally important, it was making decisions based on whether the sample being tested was from a victim or a suspect. According to a report prepared for the city by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania: “The Austin Police Department DNA technical leader refused to acknowledge that the approach was unfit for its designated purpose. The TFSC was left questioning whether the technical leader fully understood the scientific principles behind the observation that the method was flawed but refused to acknowledge the shortcoming, or whether he truly did not appreciate the insufficiency of the approach and potential repercussions in forensic casework. Either explanation was unacceptable considering the importance of accurate DNA analysis to the fair administration of justice.” On June 13, 2016, the police department suspended the DNA labortatory from active casework. The Texas Department of Public Safety took over the lab’s operation in 2017. Subsequently, a process was instituted in which the Travis County District Attorney’s Office Conviction Integrity Unit (CIU) and The Forensic Project of the Capital Area Private Defender Service began to review non-capital, adult convictions involving DNA evidence from the lab. In cases where DNA evidence was found to be material to the conviction, DNA expert Dr. Bruce Budowle conducted a scientific review of the evidence. Dr. Budowle found that Morris’s CPI calculation relating to the unstained portion of the rock was performed incorrectly. He said that the correct interpretation of the mixture on the unstained portion of the rock should have been “inconclusive.” Budowle said that Morris likely employed “suspect-driven bias.” Dr. Budowle said that the mixture evidence on the cigarette package also should have been “inconclusive.” He said that Morris’s CPI calculations relating to the cigarette pack “cannot be supported.” In July 2022, Jane Eggers, an attorney in The Forensic Project of the Capital Area Private Defender Service, filed a state law petition for a writ of habeas corpus on behalf of Faircloth seeking to vacate his conviction. The writ application cited four grounds as a basis for vacating Faircloth’s conviction: new evidence undermined the DNA evidence presented at Faircloth’s trial, the failure of the prosecution to disclose exculpatory evidence to the defense, the prosecution relied upon false testimony, and the failure of Faircloth’s defense attorney to seek expert witnesses. The writ application cited Dr. Budowle’s conclusions and also outlined evidence that the prosecution had not disclosed to the defense prior to Faircloth’s trial. That evidence included records showing that Morris had performed poorly in educational classes critical to her ability to perform DNA analysis and statistical computations. In addition, she had more documented contamination issues than any other Austin police department laboratory analyst. She had been disciplined in 2007 and 2008 for making an excessive and “unacceptable number” of mistakes. Eggers argued that the evidence had been mishandled by Officer Stinson and that DeCarlo had picked up the rock after he helped McWilliams and got her blood on him. Stephanie Biene, a DNA expert who examined the evidence on behalf of Eggers, reported that DeCarlo’s handling of the rock, which he said did not have visible blood, “provides a possible and probable method of transfer” from McWilliams’s blood to the rock. Biene said that had she received the rock in Faircloth’s shoe, “I would not have proceeded with any analysis of this item. The failure to secure and protect these items from cross-contamination should negate any results obtained.” Biene said that the cigarette package, discovered among the items from McWilliams’s purse, could have already been on the floor of the garage and then blood fell on it before it “was picked up by Officer Stinson who had just handled [Faircloth], transferring Mr. Faircloth’s DNA to the cigarette pack.” The writ noted that during the post-conviction investigation, the CIU had disclosed that on March 5, 2012, just a few weeks after Faircloth was convicted, the lead prosecutor, Amy Meredith had made several statements about the case in an email. “The case was horribly investigated, but I did not make any reports—I was planning on reporting it after the trial was over,” Meredith said. She also said that prior to trial, after meeting with Morris and Prajapati, she had concluded, “The way the evidence was submitted tainted the fact that the defendant’s DNA was included on our weapon.” Meredith said she was put in touch with Stinson’s supervisor and complained that he was not responding to subpoenas and requests to meet prior to the trial. And when they did meet, Meredith brought another prosecutor to the meeting “because I did not want to meet with him alone.” In the email, Meredith said that Stinson’s testimony “was not true” regarding the collection of the rock and cigarette package, as well as the placement of the rock in his car and whether he wore gloves while handling Faircloth. The writ did not identify Meredith by name, but as “prosecutor 1.” The writ said she met with jurors after the trial and said that she “would follow up” with Stinson’s supervisor. The writ said that on February 29, 2012, two weeks after the trial, Stinson’s supervisor told Meredith that Stinson had been placed on restricted duty until the case had been investigated. Moreover, Stinson’s conduct was referred to the Travis County District Attorney’s office for a criminal investigation. The writ said that at one point, Meredith said that following her meeting with Morris and Prajapati, it was clear that “critical evidence in the case [the rock] had been compromised.” The writ said that the prosecution had failed to disclose prior to Faircloth’s trial the existence of a 911 call from parking lot security guard Oliver saying, “Someone said he ran out the main lobby, out towards Second Street.” The writ said that the prosecution failed at the time of trial to disclose parking garage floor plans which would have shown that McWilliams’s testimony that she saw her attacker go into a stairwell could not be true. In fact, McWilliams’s vision would have been blocked by a large concrete pillar, the plans showed. That was the stairwell where the rock was found. The writ noted that Meredith knew that multiple people had handled the rock and allowed Morris to testify that Faircloth was “the handler” of the rock. Meredith asked Morris at the trial whether there “is any way Ms. McWilliams’s blood could have been contaminated on that rock,” and that Morris replied, “I don’t see so.” The writ said, “This false testimony is consistent with the State’s effort to downplay the mishandling and contamination of the evidence.” The writ said that Meredith maintained – and Oliver testified – that the security video represented the entire day of the incident. Oliver testified, “There is no other person in that parking garage that is out of place but the defendant.” However, the post-conviction investigation revealed there was more surveillance video and that the complete video showed “other men who resembled the description of the suspect, men who were present in the video…but not in the clips played to the jury.” The writ declared, “All of the false testimony…epitomizes the State’s poor investigation and its attempt to give weight to its non-probative and unreliable evidence.” “Before the trial, [Meredith] represented to the Court, ‘I want to make sure the record is clear we have provided all the discovery on this case,’” the writ said. “That statement was false. From there, the trial was defined by the State’s misrepresentation of the evidence.” The writ noted that Dr. Roberto Mario Vera had reviewed McWilliams’s medical records. Dr. Vera concluded that the records showed that McWilliams injuries “are in keeping with a low energy mechanism of injury such as a fall from standing. There is very little medical evidence to suggest a more substantial mechanism.” The writ said that Faircloth’s trial defense attorney had failed to review McWilliams’s medical records or to consult with a DNA expert. In September 2022, the trial court recommended that the writ be granted on only the first ground raised by the defense – the new DNA evidence. The court noted that the prosecution and defense agreed to the writ on that basis. The court noted that the prosecution had not agreed to the other grounds and contended that further investigation was needed. Consequently, the court reserved any ruling on the other grounds and recommended that the Texas Court of Criminal Appeals remand the writ for further investigation if it were to decline to grant the writ based on the new DNA evidence. On September 30, 2022, Faircloth was released on bond. On March 29, 2023, the Texas Court of Criminal Appeals granted the writ and vacated Faircloth’s conviction. On March 30, 2023, the prosecution dismissed the case. The dismissal was the second resulting from the investigation of the Austin police laboratory. In January 2022, the case of Lamarcus Turner was dismissed." The entire entry can be read at: PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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:
————————————————————————————————— 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; ------------------------------------------------------------------ YET ANOTHER FINAL WORD: David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.” --------------------------------------------------------------------- |
