PASSAGE OF THE DAY: "GMP also failed to disclose a photograph that supported the victim’s memory of causing such a “deep scratch” to her attacker’s cheek that she broke a nail. Malkinson was seen by police the next day with no marks on his face, and at his trial, the judge invited the jury to consider that the victim might have been mistaken in her memory of the scratch. But it now emerges that the court was not given photographs taken on the night of the attack, which showed one nail on her left hand significantly shorter than the others. The failures of disclosure were identified only 15 years after Malkinson’s conviction, when his case was taken on by the legal charity Appeal."
STORY: "Appeal court overturns Manchester rape conviction of man who spent 17 years in jail," by Emily Dugan, published by The Guardian on July 26, 2023.
SUB-HEADING: "Andrew Malkinson convicted in 2004 of raping woman left for dead on Salford motorway embankment."
GIST: A man who spent 17 years in prison for rape has had his conviction overturned by the court of appeal.
Andrew Malkinson was convicted in 2004 of raping a 33-year-old woman who was left for dead on a motorway embankment in Salford, Greater Manchester.
After enduring two decades of being labelled a sex offender, Malkinson, 57, had his conviction quashed on Wednesday after a DNA breakthrough.
Justice Holroyde, vice-president of the appeal court, said the appeal was allowed on the basis of the DNA evidence and reserved judgment on whether it would be allowed on other issues, including police disclosure.
There was never any DNA linking Malkinson to the crime and he always insisted he was innocent, spending more than double the time in prison as a result.
His case was referred to the court of appeal in January after another man’s DNA was found on fragments of the victim’s clothing.
Following the decision, Greater Manchester Police apologised to Malkinson, saying he had been a victim of a “a grave miscarriage of justice”.
Assistant Chief Constable Sarah Jackson said: “Whilst we hope this outcome gives him a long overdue sense of justice, we acknowledge that it does not return the years he has lost. I have offered to meet with him to personally deliver this apology.
“We are also profoundly sorry to the victim of this crime, who not only suffered an horrific trauma 20 years ago, but also relived the experience during a criminal trial, and now may endure additional harm caused by learning that the true offender has not yet been brought to justice. We are absolutely committed to following all new lines of inquiry to ensure the right person is held accountable for harming her.”
At Malkinson’s original trial, the court was not told that a key witness was a “long-term heroin addict” with multiple criminal convictions – or that he came forward as a witness only on the night that he was arrested for another crime.
The disclosure failure came despite explicit requests for witnesses’ criminal records.
Michael Seward had claimed to be driving in the middle of the night with a woman who was also a witness in the case and whose criminal convictions were also not disclosed to the court.
They claimed to have been witnesses to the moments leading up to the rape.
Seward, who has since died, was arrested on both the date he came forward as a witness and the date he identified Malkinson in a video lineup six months later.
Malkinson’s lawyers say Seward received arguably lenient penalties in relation to the criminal charges he faced, raising questions over his motivation.
At the time he came forward, Seward had been stopped by police for driving without a licence, insurance or a valid MOT. He also had charges for two driving offences pending and was facing potential charges of drug possession.
While he was helping GMP with Malkinson’s case, Seward faced 14 criminal charges, including for drug possession, driving and failure to surrender.
These charges – some of which could have resulted in imprisonment and substantial fines – ultimately resulted in no custodial sentence, two cautions and just £145 in fines.
GMP also failed to disclose a photograph that supported the victim’s memory of causing such a “deep scratch” to her attacker’s cheek that she broke a nail.
Malkinson was seen by police the next day with no marks on his face, and at his trial, the judge invited the jury to consider that the victim might have been mistaken in her memory of the scratch.
But it now emerges that the court was not given photographs taken on the night of the attack, which showed one nail on her left hand significantly shorter than the others.
The failures of disclosure were identified only 15 years after Malkinson’s conviction, when his case was taken on by the legal charity Appeal.
The DNA breakthrough in the case was also nearly rendered impossible because of the destruction of key exhibits by GMP.
The victim’s vest top, bra, knickers and other clothing were destroyed by GMP, while a preservation order was still in place.
Retesting was possible only because small samples from her clothes were found in a national archive by Malkinson’s representatives at appeal.
Jackson insisted that such cases were “thankfully very rare”. “The force has and will continue to fully cooperate with any further reviews of this case, and action will be taken if it is found that anything could have been done differently,” she said.
“Due to new forensic evidence, following developments in forensic technologies, there is a live criminal investigation in which a suspect remains on bail. We cannot comment further on that matter at this time.”
The entire story 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/120008354894645705/47049136857587929
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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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.”
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/
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