Sunday, December 31, 2023

Andrew Royer, Indiana: Charged jointly with Lana Canen: 'Flawed latent fingerprint testimony by an unqualified police 'expert, 'false confessions' and much more; Burdened by developmental disabilities, he spent more than 16 years in prison after being wrongfully convicted of murder has spent, Crime and Justice News' reports…"Elkhart police asked Dennis Chapman, a detective with the Elkhart County Sheriff’s Department, to conduct a comparison of a latent print found on a plastic tub containing pill bottles in Sailor’s apartment with Canen’s fingerprints. Although Chapman had some training in fingerprint classification and the examination of rolled fingerprints, he had no training in conducting latent fingerprint comparisons. After conducting his examination, he reported, "Based on my experience as a fingerprint examiner with the Federal Bureau of Investigation from 1976 to 1978 and my continued examination of fingerprints with the Elkhart County Sheriff's Department, the latent print from the med tub is the left little finger of Lana Canen." Canen was then charged with murder."…"Meanwhile, in 2010, Canen filed a pro se post-conviction petition and attorney Cara Schaefer Wieneke was appointed to represent her. Wieneke requested that the prosecution provide access to the fingerprint evidence so that a private expert could evaluate it, but the prosecution objected and her motion was denied. When Wieneke discovered that the detective hired by Canen’s lawyer was not qualified to do fingerprint analysis and that Canen’s lawyer had not investigated Chapman’s credentials, she again asked for the evidence a second time, but was again rebuffed. So Wieneke then sent the high-resolution photographs of the fingerprints that had been used as evidence at the trial to an independent fingerprint examiner, Kathleen Bright-Birnbaum, who concluded that Canen’s finger was not the source of the print on the plastic tub. Wieneke then filed an amended post-conviction motion for a new trial on behalf of Canen, contending that Canen’s lawyer had provided an inadequate legal defense and that Canen was innocent. Wieneke tracked down Canen’s former neighbor, Porter, who recanted her testimony that Canen had made incriminating statements. At a deposition prior to the hearing, Porter claimed she couldn’t recall whether Canen made the statements or not. During a deposition of Chapman in September 2011, in preparation for a hearing on the motion, Chapman said he had performed more than 100 fingerprint comparisons and that he had never been wrong. In the summer of 2012, as the hearing date neared, Wieneke sent the prosecution a PowerPoint presentation prepared by her expert. After prosecutors showed the presentation to Chapman, he became concerned and asked to review the original evidence. After reviewing the fingerprints, Chapman concluded that he had made a mistake—the fingerprint was not Canen’s after all. At the August 16, 2012 hearing, Chapman said he had changed his opinion because of additional training he had received since he testified against Canen. He admitted he had overstated his fingerprint examination experience during the trial. Under questioning by the prosecutor, Chapman stated: Q: Did it ever occur to you that you weren't qualified to do this comparison? A: Yes. Q: Did you tell anyone? A: No. Q: Why did you do it? Chapman stated that he had wanted to help the Elkhart police department solve the crime. The prosecution—which previously had objected to Wieneke’s request that the Indiana State Police Crime Lab examine the evidence—decided to send the evidence to the lab. Analysts at the lab confirmed the latent fingerprint was not Canen’s. Wieneke moved for Canen’s immediate release from prison and the prosecution offered to negotiate a plea agreement for time served. On September 28, 2012, after Canen refused to negotiate, the Elkhart County District Attorney’s Office joined in the motion for Canen’s release. On November 2, 2012, the conviction was vacated, the charge was dismissed, and Canen was released from prison."


PASSAGE OF THE DAY: "Detective Conway testified at the hearing and admitted that he fed Royer details during the non-recorded interrogation session, and that he suggested during his interrogation of Royer that Royer had struck Sailor, that a substance had been poured on her, and that towels had been thrown away. Conway also admitted that he knew that some of the details Royer gave did not match the physical evidence. Detective Daggy testified that he watched portions of Conway’s initial interrogation of Royer through a closed-circuit video monitor. He said that Conway’s interrogation was “super leading” and “[p]robably one of the most difficult” interrogations he had ever watched. Daggy also acknowledged that he had a conversation with a retired Elkhart police officer back at the time. The defense team claimed in a filing that the conversation had been recorded and that Daggy said the interrogation was one of “the worst interrogations” he had ever seen. Daggy said he was so concerned about Conway’s leading questions that he thought others would conclude the interrogation was coercive."

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PASSAGE TWO OF THE DAY: "On March 31, 2020, Kosciusko Circuit Court Judge Joe Sutton issued a 55-page ruling granting Royer a new trial. Judge Sutton ruled that the prosecution had failed to disclose both that Conway had been removed from the homicide squad and that Porter had been promised and then paid a $2,000 reward for her testimony. Judge Sutton said that Porter’s recantation of her trial testimony was credible.

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STORY: "Disabled Man Settles For $11.7M In Indiana Wrongful Conviction Case," published by 'Crime and Justice News' on December 25, 2023. (Crime and Justice News its a  daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association.)


GIST: Andrew Royer, a man with developmental disabilities who spent more than 16 years in prison after being wrongfully convicted of murder,  reached a settlement of $11,725,000 with the city of Elkhart, Ind. Royer, 48, said that that when he learned of the settlement he “went numb.” “I’m a brand-new person,” he told the New York Times. “I’m ecstatic.”


 A jury convicted Royer in the 2002 killing of Helen Sailor, 94, who was found strangled in a high-rise apartment.  Royer was sentenced to 55 years in prison. 


His lawyers argued on appeal that he was interrogated for two days and was coerced into giving a false confession without a lawyer In the confession, he seemed unsure of many details. 


There was no physical evidence tying him to the crime. Lana Canen, a co-defendant and a friend of Royer, had her conviction overturned in 2012


 An Elkhart County detective had provided evidence that a fingerprint of Canen that was found at the crime scene.


 When an appellate lawyer had the fingerprint re-examined, it didn’t match. 


A witness who placed Canen and Royer in the victim’s apartment recanted her testimony and said she was coerced by the police. In 2020, Royer was granted a new trial after a judge ruled that the statements obtained from him were “unreliable” and “involuntary.” 


The next month, Royer was released from prison. 


The state appealed the ruling, and in  2021 the Indiana Court of Appeals issued a blistering decision that upheld the lower court ruling for a new trial. 


The appellate court said Detective Carlton Conway gave false testimony at the initial trial when he said he did not lead Royer into repeating crime scene details and that Royer had offered them up on his own, without prompting by the police."


The entire story can be read at: 


https://www.ncja.org/crimeandjusticenews/disabled-man-settles-for-11-7m-in-indiana-wrongful-conviction-case

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PASSAGE OF THE DAY: National Registry of Exonerations:


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NATIONAL REGISTRY OF EXONERATIONS: Andrew Royer: By Maurice Possley: Updated on December 22, 2023. Contributing Factors: "False Confession, False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense."

GIST: "On November 28, 2002, 94-year-old Helen Sailor spent Thanksgiving with relatives and then got a ride back to her home at an apartment complex for the elderly, disabled, and handicapped in Elkhart, Indiana. The following day, a health care provider and two relatives found Sailor strangled to death in her apartment. The premises had been ransacked.

Because there was no forced entry, Elkhart police believed the victim knew her assailant. They began interviewing residents, but they were stymied and the investigation went cold. 

In August 2003, police revived the investigation. The following month, on September 2, 2003, an officer stopped a car containing Nina Porter and 44-year-old Lana Canen. Porter was given a traffic ticket and left. Canen was arrested on an outstanding warrant. Detective Carl Conway learned that Porter and Canen lived in the same building as Sailor and first questioned Porter. Conway said Porter claimed that Canen had made statements that suggested Canen was involved in the murder. Conway said Porter also said that Canen spent a lot of time with 28-year-old Andrew Royer, who also lived in the same building, and they took drugs together. Police then interviewed Canen. She denied any involvement in the crime and was released.

On September 3, 2003, detectives brought in Royer, a mentally-handicapped resident of the building where Sailor was killed. Conway said that during the interrogation, Royer gave two different statements over the course of two days of interrogation. In the first version, he said that he and Canen went to Sailor’s apartment to ask Sailor for money and that they killed her when she refused. In the second version, Royer said he and Canen went to the apartment, Sailor gave Canen some money, and they left. He said he returned to the apartment alone that evening, asked for more money, and killed Sailor when she refused.

About three and a half hours into the interrogation, Conway noted that Royer was becoming “mentally fatigued” and having “a very hard time maintaining his concentration.” As a result, Conway decided to turn on a tape recorder. Royer said he visited Canen on the day of the crime and went nowhere else. Conway said that Royer had said during the prior “interview” that he went to visit Sailor. Conway then asked a series of leading questions.

Conway: “And was it Lana’s suggestion that you guys go to Helen’s?”

Royer: “Yes.”

Conway: “So, you and Lana went to Helen’s, did you guys see Helen?”

Royer: “Yes, we seen her.”

Conway: “And did you guys go inside the apartment?”

Royer: “Yes, we went into the apartment.”

Conway: “Did Lana ask Helen for money?”

After a few moments of silence, Royer said: “Uh. Lana. Yah. Lana asked Helen for money.”

The interrogation continued and not long after, Royer was arrested. Conway interviewed Royer again the following day, September 4, 2003. He gave yet another version—that he visited Sailor alone and killed her because she started “preaching” at him. Royer gave a second recorded statement during which he said he sold Sailor’s jewelry at a pawn shop. The pawn shop, however, had no record of such a transaction.

While some residents of the building expressed relief, others were skeptical that Royer was the killer because of his usually placid demeanor.

In June 2004, while Royer’s case was pending, his trial was delayed for three separate mental competency examinations. His mother said that he had the mind of a 12-year-old. During that time, Royer also gave a statement to Detective Mark Daggy. Accompanied by his defense lawyer, Royer denied involvement in the crime. He said that on Thanksgiving Day he attended a Thanksgiving meal and returned to his apartment. He left to buy beer at Martin’s Super Market. Daggy discounted the statement after he subsequently learned that the market was closed on Thanksgiving.

Not long after, police renewed their focus on Canen. One of the investigating officers believed that Canen had previously burglarized apartments in the building, although there was no proof. Police interviewed Porter, who said that Canen had made incriminating statements, such as “No one was supposed to get hurt.”

Canen was arrested on September 3, 2004—almost a year to the day after Royer was charged—and her fingerprints were compared to fingerprints found in the victim’s apartment. 

Elkhart police asked Dennis Chapman, a detective with the Elkhart County Sheriff’s Department, to conduct a comparison of a latent print found on a plastic tub containing pill bottles in Sailor’s apartment with Canen’s fingerprints. Although Chapman had some training in fingerprint classification and the examination of rolled fingerprints, he had no training in conducting latent fingerprint comparisons. After conducting his examination, he reported, "Based on my experience as a fingerprint examiner with the Federal Bureau of Investigation from 1976 to 1978 and my continued examination of fingerprints with the Elkhart County Sheriff's Department, the latent print from the med tub is the left little finger of Lana Canen."

Canen was then charged with murder.

Royer and Canen were tried jointly in Elkhart County Circuit Court. The primary evidence against Royer was his confession. The principal evidence against Canen was the fingerprint and the testimony of Porter. The prosecution used the same evidence against both Royer and Canen to obtain their convictions.

Porter testified that she and Canen were visiting each other and drinking together on July 3, 2003. During the course of the evening, Canen stated, “No one was supposed to get hurt.” Porter also testified that Canen said, “Thanksgiving, thanks for giving death.” Porter told the jury that she met Royer through Canen and that Royer was easily influenced by Canen. As an example, Porter said that when Canen asked Royer to stand outside in the rain without an umbrella for a half-hour, Royer followed her instructions without question. 

Conway testified about the interrogation of Royer and how Porter had implicated Canen. Conway said that Royer acted out how he strangled Sailor and “openly admitted he committed the homicide.” Conway said that during the questioning before the recorder was turned on, Royer said, “I know if I tell you what I did, I am going to get in a lot of trouble.” Conway also said Royer knew details about the crime that had not been made public. Conway denied feeding any information to Royer.

Chapman testified that “the latent print from the med tub is the left little finger of Lana Canen.” 

Canen testified and denied any involvement in the crime. “I’ve never been in that apartment,” she told the jury. The defense had hired a retired detective to analyze Chapman’s finding, but did not call the detective as a witness after the detective concurred with Chapman’s conclusion. Dr. John Courtney, a psychologist who examined Royer for the defense, suggested prior to trial that Royer’s defense attorney consider consulting an expert on false confessions. However, he did not.

On August 10, 2005, the jury convicted Royer and Canen of murder. They were each sentenced to 55 years in prison.

Their convictions were upheld by the Court of Appeals of Indiana.

In 2007, Royer filed a post-conviction petition seeking a new trial, claiming that his trial attorney provided an inadequate legal defense, primarily because he did not obtain a false confession expert. During a hearing held in 2011, Dr. Richard Leo, a false confession expert, testified that Royer's interrogation shared a number of characteristics with interrogations resulting in false confessions, including factual inconsistencies between the confession and facts presented at trial, as well as the duration and environment of Royer's interrogations. 

Royer’s trial defense attorney said that although he received names of false confession experts from Dr. Courtney, he did not consult with them. Instead, he said he focused on whether Royer was given his antipsychotic medication prior to the interrogation, as well as how Royer came across in the recordings of his confession. In addition, since the prosecution’s theory was that Canen influenced Royer to commit the crime, it was important for the defense not to portray Royer as someone easily susceptible to influence, including by police. The defense lawyer also said that juries in that county were generally skeptical of expert witnesses. 

On May 17, 2011, the post-conviction motion was denied. The judge ruled the defense lawyer made a “reasonable, informed, and strategic choice to forego consulting with and offering testimony from false confession experts.” The denial was upheld on appeal.

Meanwhile, in 2010, Canen filed a pro se post-conviction petition and attorney Cara Schaefer Wieneke was appointed to represent her. Wieneke requested that the prosecution provide access to the fingerprint evidence so that a private expert could evaluate it, but the prosecution objected and her motion was denied. 

When Wieneke discovered that the detective hired by Canen’s lawyer was not qualified to do fingerprint analysis and that Canen’s lawyer had not investigated Chapman’s credentials, she again asked for the evidence a second time, but was again rebuffed.

So Wieneke then sent the high-resolution photographs of the fingerprints that had been used as evidence at the trial to an independent fingerprint examiner, Kathleen Bright-Birnbaum, who concluded that Canen’s finger was not the source of the print on the plastic tub. 

Wieneke then filed an amended post-conviction motion for a new trial on behalf of Canen, contending that Canen’s lawyer had provided an inadequate legal defense and that Canen was innocent. 

Wieneke tracked down Canen’s former neighbor, Porter, who recanted her testimony that Canen had made incriminating statements. At a deposition prior to the hearing, Porter claimed she couldn’t recall whether Canen made the statements or not.

During a deposition of Chapman in September 2011, in preparation for a hearing on the motion, Chapman said he had performed more than 100 fingerprint comparisons and that he had never been wrong.

In the summer of 2012, as the hearing date neared, Wieneke sent the prosecution a PowerPoint presentation prepared by her expert. After prosecutors showed the presentation to Chapman, he became concerned and asked to review the original evidence.

After reviewing the fingerprints, Chapman concluded that he had made a mistake—the fingerprint was not Canen’s after all.

At the August 16, 2012 hearing, Chapman said he had changed his opinion because of additional training he had received since he testified against Canen. He admitted he had overstated his fingerprint examination experience during the trial. Under questioning by the prosecutor, Chapman stated:

Q: Did it ever occur to you that you weren't qualified to do this comparison?

A: Yes.

Q: Did you tell anyone?

A: No.

Q: Why did you do it?

Chapman stated that he had wanted to help the Elkhart police department solve the crime.

The prosecution—which previously had objected to Wieneke’s request that the Indiana State Police Crime Lab examine the evidence—decided to send the evidence to the lab. Analysts at the lab confirmed the latent fingerprint was not Canen’s.

Wieneke moved for Canen’s immediate release from prison and the prosecution offered to negotiate a plea agreement for time served. On September 28, 2012, after Canen refused to negotiate, the Elkhart County District Attorney’s Office joined in the motion for Canen’s release.

On November 2, 2012, the conviction was vacated, the charge was dismissed, and Canen was released from prison.

In January 2014, Canen filed a lawsuit seeking compensation from Chapman and Daggy. The lawsuit was later dismissed.

In 2019, Royer filed a successive post-conviction petition. He was represented by Elliot Slosar, of the Exoneration Project and the Notre Dame Exoneration Justice Clinic, Notre Dame law students, and Frances Watson of the Wrongful Conviction Clinic at Indiana University McKinney School of Law. 

At a hearing in October 2019, Royer's team presented evidence that the police chief had removed Conway from the homicide unit prior to Royer’s trial because the detective gave false information to an attorney in another murder case. That removal was not disclosed to the defense prior to Royer’s trial.

Porter also testified at the hearing that she did not volunteer any information about the Sailor case during the traffic stop. She said that Conway contacted her soon after the traffic stop and falsely said she had an outstanding warrant. She said that she implicated Canen in the murder after Conway threatened her with prison time and the removal of her children unless she cooperated. She also said Conway fed her information about the murder during unrecorded portions of her interview. In addition, Porter revealed that she had been told of a $2,000 reward prior to testifying and that she was paid the money after she testified—neither of which was disclosed to the defense at the time of the trial.

Detective Conway testified at the hearing and admitted that he fed Royer details during the non-recorded interrogation session, and that he suggested during his interrogation of Royer that Royer had struck Sailor, that a substance had been poured on her, and that towels had been thrown away. Conway also admitted that he knew that some of the details Royer gave did not match the physical evidence.

Detective Daggy testified that he watched portions of Conway’s initial interrogation of Royer through a closed-circuit video monitor. He said that Conway’s interrogation was “super leading” and “[p]robably one of the most difficult” interrogations he had ever watched.

Daggy also acknowledged that he had a conversation with a retired Elkhart police officer back at the time. The defense team claimed in a filing that the conversation had been recorded and that Daggy said the interrogation was one of “the worst interrogations” he had ever seen. Daggy said he was so concerned about Conway’s leading questions that he thought others would conclude the interrogation was coercive.

On March 31, 2020, Kosciusko Circuit Court Judge Joe Sutton issued a 55-page ruling granting Royer a new trial. Judge Sutton ruled that the prosecution had failed to disclose both that Conway had been removed from the homicide squad and that Porter had been promised and then paid a $2,000 reward for her testimony. Judge Sutton said that Porter’s recantation of her trial testimony was credible.

The judge ruled that Royer’s confession was unreliable and involuntary. Conway discounted Royer’s mental deficiencies and fed Royer information during the interrogation, the judge ruled. Judge Sutton said that Conway’s admissions during the hearing that he fed details to Royer “were directly contrary to the testimony he provided at the 2005 trial.” Judge Sutton ordered the confession suppressed and inadmissible at a retrial. 

The court also ruled that the false fingerprint evidence had a direct impact on Royer’s conviction. Judge Sutton ruled, “The Court finds that Chapman’s false testimony that the latent left at the scene matched Ms. Canen was material to the State’s case against Mr. Royer at trial…the state repeatedly argued to the jury that the latent print match to Canen corroborated the statements from Mr. Royer.”

On April 2, 2020, Royer was released on bond pending a retrial. The prosecution appealed Judge Sutton’s ruling. On April 8, 2021, the Court of Appeals of Indiana upheld the ruling granting Royer a new trial. “Simply put, Royer did not receive a fair criminal trial,” the appeals court declared.

The Indiana Court of Appeals also determined that Detective Conway committed perjury during the trial. The court said that “Detective Conway withheld the truth when he attempted to bolster the reliability of Royer’s confessions by saying Royer knew details about the murder which were not known to the public. Thus, we hold that Royer was entitled to post-conviction relief due to Detective Conway's misrepresentation to the jury that he did not feed information about the crime to Royer and the State's reliance on Detective Conway's denial during its closing argument to implicate Royer.”

On July 19, 2021, the prosecution dismissed Royer’s case. Royer’s exoneration culminated years-long collaboration by the Notre Dame Exoneration Justice Clinic, IU McKinney Wrongful Conviction Clinic, and the Exoneration Project.

On September 13, 2021, Elkhart Police Chief Kris Seymore submitted a letter to the city’s Police Merit Commission, requesting Conway be fired for “immoral conduct” and “conduct injurious to the public peace or welfare."

In October 2021, Conway resigned. In March 2022, Royer filed a federal civil-rights lawsuit against Conway, the city of Elkhart, and other parties, seeking compensation for his wrongful conviction. The city of Elkhart settled its portion of the lawsuit in December 2023 for $11.7 million. The lawsuit remained pending against county officials, including the prosecutor, Vicki Becker.

– Maurice Possley



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-12348801

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Saturday, December 30, 2023

Toforest Johnson: Death Row; Alabama: Kim Kardashian believes that he is an innocent man on death row - and has added her influential voice to the fight for a new trial, Al.com reports…“Who is Toforest Johnson? And why does the state of Alabama have an innocent man on death row?” read a graphic that Kardashian posted on her Instagram story. She continued posting on her story — posts that last for 24 hours, but don’t show up on a person’s profile grid — facts about the case from Johnson’s website, toforestjohnson.com. She added that the Birmingham man “spent his 26th Christmas in prison for a crime he did not commit,” and encouraged supporters to sign a petition on his website."

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THE PETITION AND OTHER WAYS TO HELP TOFOREST JOHNSON:

https://www.toforestjohnson.com/how-you-can-help

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PASSAGE OF THE DAY: "Johnson’s lawyers appealed to the nation’s highest court in April, arguing the key witness was secretly paid a reward for her testimony. Johnson’s attorneys said in their filing to the court that the $5,000 payment to Violet Ellison was disclosed two decades later “after years of the official denials that the witness was ever paid. According to State officials, who continue to pursue Johnson’s execution, it had been ‘misfiled’ all those years.” After his 1998 conviction, Johnson’s lawyers said prosecutors suppressed evidence that Ellison knew about a $5,000 reward being offered in the case and testified hoping to get the money. That argument was litigated throughout the court system from 2003 until 2018. In 2017, the U.S. Supreme Court reviewed Johnson’s case and sent the case back to state court. There was a hearing in Jefferson County, and in 2018 the copy of the check that was paid to Ellison surfaced. Johnson’s lawyers weren’t told about the payment and didn’t conclusively know about it until seeing that check."

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STORY: "Kim Kardashian: Alabama Death Row inmate Toforest Johnson ‘in prison for a crime he did not commit,’ by Reporter Ivana Hrynkiw,  published by AL. com, on December 28, 2023. (Ivana Hrynkiw reports on the Alabama justice system which includes the Alabama Department of Corrections, state and federal courts, the Eleventh Circuit Court of Appeals, and the U.S. Supreme Court. She also covers issues affecting people incarcerated in Alabama prisons. Hrynkiw is a Birmingham native and an award-winning journalist, who also has experience reporting for both newspapers and broadcast.)

 GIST: "An Alabama Death Row inmate has a new ally in his fight for a new trial: Kim Kardashian.

Kardashian, who is studying to be a lawyer, posted on social media Thursday morning about Toforest Johnson. Johnson, 50, has been on Alabama Death Row for more than two decades for a killing he says he didn’t commit.

“Who is Toforest Johnson? And why does the state of Alabama have an innocent man on death row?” read a graphic that Kardashian posted on her Instagram story.

She continued posting on her story — posts that last for 24 hours, but don’t show up on a person’s profile grid — facts about the case from Johnson’s website, toforestjohnson.com.

 She added that the Birmingham man “spent his 26th Christmas in prison for a crime he did not commit,” and encouraged supporters to sign a petition on his website.

The case centers around the shooting death of off-duty Jefferson County Sheriff’s Deputy William Hardy in July 1995. The deputy had been working a second job as a security guard at a hotel in Birmingham when he was gunned down.

Johnson was convicted of capital murder in the case and sent to Alabama Death Row. He is currently housed at William C. Holman Correctional Facility in Atmore, where he is awaiting an execution date.

In October, the U.S. Supreme Court declined to review the case.

Johnson’s lawyers appealed to the nation’s highest court in April, arguing the key witness was secretly paid a reward for her testimony.

Johnson’s attorneys said in their filing to the court that the $5,000 payment to Violet Ellison was disclosed two decades later “after years of the official denials that the witness was ever paid. According to State officials, who continue to pursue Johnson’s execution, it had been ‘misfiled’ all those years.”

After his 1998 conviction, Johnson’s lawyers said prosecutors suppressed evidence that Ellison knew about a $5,000 reward being offered in the case and testified hoping to get the money. That argument was litigated throughout the court system from 2003 until 2018.

In 2017, the U.S. Supreme Court reviewed Johnson’s case and sent the case back to state court. There was a hearing in Jefferson County, and in 2018 the copy of the check that was paid to Ellison surfaced.

Johnson’s lawyers weren’t told about the payment and didn’t conclusively know about it until seeing that check.

The county circuit court judge ruled in favor of the state, and the case again was appealed to the Alabama Court of Criminal Appeals. That court also ruled that Johnson’s team couldn’t show Ellison knew about the reward money when she talked to police.

In 2020, Jefferson County District Attorney Danny Carr voiced his own concerns about Johnson’s case and asked for a new trial, and the original prosecutor supported Carr’s motion. That motion for a new trial is pending in Jefferson County, and was on hold until the Supreme Court issued their opinion in October.

That’s currently where the case is being litigated.

The state argued in its filing to the high court this spring that Carr’s brief “does not raise any issues of national importance or point to the existence of a conflict.”

The state said Johnson’s attorneys had not proven their assertion that the key witness in the 1998 murder conviction testified in hopes of receiving a $5,000 reward from the governor. Marshall’s office said there was no evidence that the witness, Violet Ellison, knew about or hoped to get the reward when she took the stand.

“Of course, payment of the reward could not have been mentioned at Johnson’s trial in 1998 because the prosecutor did not apply for the reward until three years after the trial,” said the state’s filing.

Kardashian also posted a link pointing followers to a new podcast about Johnson’s case called Earwitness. The podcast is from Lava for Good and Birmingham-based journalist Beth Shelburne.


Former Alabama Chief Justice Drayton Nabers and former Alabama Attorney General Bill Baxley are among numerous lawyers, former judges and prosecutors who have voiced support a new trial for Johnson. Other supporters include former U.S. Attorney Joyce White Vance, former magistrate Judge John Carroll, and three former jurors on the case."

The entire story can be read at: 

https://www.al.com/news/birmingham/2023/12/kim-kardashian-alabama-death-row-inmate-toforest-johnson-in-prison-for-a-crime-he-did-not-commit.html


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-12348801

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Robert Mailman and Walter Gillespie; New Brunswick: Their 1984 murder convictions overturned, a date has been set (January 4, 2024) for a determine if there will be q new trial, The Victoria Times Colonist reports. (Canadian Press)…"(Innocence Canada Director) Ron Dalton said a hearing has been set for Robert Mailman and Walter Gillespie on Jan. 4, where the Crown is expected to reveal if it intends to launch a new trial. Dalton said the men will be represented at the hearing by lawyers from Innocence Canada, an organization that works with the wrongfully convicted. He said he hopes the hearing will be the final end to an agonizing ordeal for the men that has carried on for more than four decades. "Our hope is that the matter will be called on Jan 4., the charges will be read for the retrial, the two individuals will plead not guilty, the Crown will do the honorable thing, and stand up and say they have no evidence to offer, and they will join the defense in a motion to have the charges dismissed," Dalton said in an interview Saturday."


PASSAGE OF THE DAY: "The two men fought their convictions in the New Brunswick Court of Appeal, but their appeal was dismissed in 1988. They were sentenced to life imprisonment with no eligibility for parole for 18 years. Gillespie served 21 years of his life sentence in prison and is now in his 80s, and living in a halfway house in Saint John, Innocence Canada has said. Mailman served 18 years and is now 76 and living in Saint John, the group said. Mailman is terminally ill, and Dalton said he suspects the Jan. 4 hearing was scheduled so quickly because of his health. "I really don't think there is anything there for the Crown to proceed on," Dalton said in an interview. "No one anticipates them going ahead with a trial 40 years after the fact for an individual who has a terminal diagnosis." Dalton said he spoke with Mailman on Saturday and though he is in poor health, his spirits were considerably higher since Virani's announcement. "It's the first time in 40 years that he went to bed and he's not a convicted murderer," Dalton said of Mailman's night on Friday. "He's already working on comments he would like to make on the courthouse steps when this is over."

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PASSAGE TWO OF THE DAY: "Innocence Canada says Leeman’s badly beaten and partially burned body was found by a jogger in a wooded area in the Saint John neighbourhood of Rockwood Park. It says Gillespie and Mailman "both had strong alibis with multiple witnesses placing them far from the crime scene on the day of the murder."

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STORY: "Hearing set for two New Brunswick men whose murder convictions were overturned, reporter by The Canadian Press, published on December 23, 2023, by The Victoria Times Colonist

SUB-HEADING: "Two New Brunswick men whose murder convictions in 1984 were quashed Friday by the federal justice minister will appear before a court next month to see if a new trial will proceed, a director with Innocence Canada said."

GIST: "Two New Brunswick men whose murder convictions in 1984 were quashed Friday by the federal justice minister will appear before a court next month to see if a new trial will proceed, a director with Innocence Canada said.

Ron Dalton said a hearing has been set for Robert Mailman and Walter Gillespie on Jan. 4, where the Crown is expected to reveal if it intends to launch a new trial. Dalton said the men will be represented at the hearing by lawyers from Innocence Canada, an organization that works with the wrongfully convicted.

He said he hopes the hearing will be the final end to an agonizing ordeal for the men that has carried on for more than four decades.

"Our hope is that the matter will be called on Jan 4., the charges will be read for the retrial, the two individuals will plead not guilty, the Crown will do the honorable thing, and stand up and say they have no evidence to offer, and they will join the defense in a motion to have the charges dismissed," Dalton said in an interview Saturday.

Arif Virani announced Friday that he was ordering a new trial for Mailman and Gillespie, who were convicted of second-degree murder in the Nov. 30, 1983 slaying of George Gilman Leeman. The justice minister said he had found a reasonable basis to conclude a miscarriage of justice occurred in the men's convictions. 


Virani said his decision is the result of new information that was not submitted to the courts at the time of the men's initial trials and appeals and that calls into question "the overall fairness of the process."

Mailman and Gillespie issued a joint statement Friday saying they were "happy that justice is being done for us."

"Neither of us had anything to do with Mr. Leeman’s murder," they said. "We have always been innocent, and we thank the minister for what he has done."

The two men fought their convictions in the New Brunswick Court of Appeal, but their appeal was dismissed in 1988. They were sentenced to life imprisonment with no eligibility for parole for 18 years.

Gillespie served 21 years of his life sentence in prison and is now in his 80s, and living in a halfway house in Saint John, Innocence Canada has said. Mailman served 18 years and is now 76 and living in Saint John, the group said.

Mailman is terminally ill, and Dalton said he suspects the Jan. 4 hearing was scheduled so quickly because of his health.

"I really don't think there is anything there for the Crown to proceed on," Dalton said in an interview. "No one anticipates them going ahead with a trial 40 years after the fact for an individual who has a terminal diagnosis."

Dalton said he spoke with Mailman on Saturday and though he is in poor health, his spirits were considerably higher since Virani's announcement.

"It's the first time in 40 years that he went to bed and he's not a convicted murderer," Dalton said of Mailman's night on Friday. "He's already working on comments he would like to make on the courthouse steps when this is over."

Innocence Canada says Leeman’s badly beaten and partially burned body was found by a jogger in a wooded area in the Saint John neighbourhood of Rockwood Park. It says Gillespie and Mailman "both had strong alibis with multiple witnesses placing them far from the crime scene on the day of the murder."

The entire story can be read at:

Friday, December 29, 2023

Jimmie "Chris" Duncan: He’s on Louisiana’s death row, his attorneys say, for a crime that didn’t happen - a powerful, incisive ''Louisiana Weekly' commentary by Contributing Writer Greg LaRose - stressing the role played in the prosecution by that notorious duo - Pathologist Dr. and Dentist Dr. Michael West…"Police originally charged Duncan with negligent homicide for leaving the child unattended. Her body was sent to Jackson, Mississippi, for a pathologist’s examination, which led to Duncan’s charges being upgraded to first-degree murder. Pathologist Dr. Steven Hayne and dentist Dr. Michael West conducted the investigation. Hayne determined she was the victim of sexual assault, and West reported tooth marks on the girl’s body. Prosecutors inferred Duncan had forcibly drowned Haley to cover up his crime. A Ouachita Parish jury convicted him in 1998 and sentenced him to death."…“It is very hard to look at the evidence we have put forward and come to any conclusion other than the prosecution’s horrific story about rape and murder was based on falsified, fraudulent and unvalidated ‘scientific evidence,’” Tania Brief, a senior staff attorney with the Innocence Project, told the Illuminator in an interview earlier this month. At the heart of evidence that attorneys say vindicates Duncan is a video that shows West using a mold of Duncan’s teeth multiple times to make bite marks in the girl’s body. Prosecutors prevented the jury from seeing the video, with the judge ruling that it didn’t support the defense’s claims of Duncan’s innocence. West wasn’t called as a witness because he was serving a one-year suspension from the American Board of Forensic Odontology for repeatedly stretching the conclusion of his findings in cases that involved bite marks. One such case was featured in the 2020 Netflix documentary series “The Innocence Files.” Levon Brooks was found guilty and sentenced to life in prison for the 1990 rape and murder of a 3-year-old girl in Noxubee County, Mississippi. He would serve 16 years in prison before DNA evidence led to his exoneration. West performed bite analysis in the case, and Hayne concluded Brooks was responsible for the marks. “Usually you find in these aggressive, violent sexual attacks, that’s where you’ll find a lot of bite marks,” West said in an interview featured in “The Innocence Files. “(I) don’t really know if I am qualified to get into all of the sociology or psychology of it, but they turn animalistic.”


PASSAGE OF THE  DAY: "In the strikingly similar rape and killing of another 3-year-old girl in Noxubee County from 1992, Kennedy Brewer was sentenced to death after Hayne and West again provided corresponding dental evidence. Brewer was exonerated after 15 years on death row after Justin Jefferson confessed to killing both young girls. He told investigators he never bit either of them. For a report The New Republic published in March, journalist Lara Bazelon interviewed West and asked him about the claims Duncan’s attorneys make in the petition seeking to clear him in the death of Haley Oliveaux. “They called them injuries, honey,” West told Bazelon. “Until you match them up with someone’s dentition, they are just injuries.”

The dentist said he did not testify at Duncan’s trial because he “would have broke down and cried.” Haley “could have been my daughter’s twin,” he said."

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PASSAGE TWO OF THE DAY: "Hayne was fired as Mississippi state pathologist in 2008, after having performed 80 percent of all forensic exams in the state for more than 20 years, according to WLBT-TV. He has declined to discuss the flood of questions that surround his and West’s work. The New Republic report counts at least seven convictions vacated through exonerations for which evidence Hayne and West provided evidence. More than two dozen other people who were incarcerated in bite mark cases nationwide have since been released, with their attorneys successfully arguing against what they called “junk science.” In addition to what they consider faulty forensic evidence, Duncan’s legal team also notes the prosecution excluded Haley Oliveaux’s medical history. It includes multiple seizures and resulting head injuries. Just three weeks before she died, the girl was in Duncan’s care when a small dresser fell and caused a head wound. A state investigation after the accident found no evidence of child abuse. Haley’s mother and grandmother were told about her tendency for seizures and were advised not to leave her alone in the bathtub. Duncan’s attorneys contend the girl had a seizure and drowned. Also, the petition for exoneration notes a jailhouse informant has recanted claims that Duncan told him “it must have been the devil” that forced him to assault the young girl. Prosecutors also failed to disclose they showed leniency toward the informant for the information, in violation of the law."

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COMMENTARY: "He's on Louisiana's death row, his attorneys say, for a crime that didn't happen, by Contributing Writer Greg LaRose, published one December 26, 2023. (Greg LaRose has covered news for more than 30 years in Louisiana.)

"SUB-HEADING:  A Netflix documentary calls into question the methods of forensic examiners in the case."

(lailluminator.com) — “Definitely, the system in Louisiana is broken.”

That’s the frank assessment of Matilda Carbia with the Mwalimu Center for Justice, one of the organizations representing Jimmie “Chris” Duncan. He’s among more than 50 people incarcerated on death row for whom Gov. John Bel Edwards has used his clemency power to push for state parole board reviews in order to switch their execution sentences to life in prison.

Critics of the death penalty point out 11 people facing the electric chair or lethal injection have been exonerated or had their convictions reversed in Louisiana since it reinstated capital punishment in 1976. Over that same period, 28 people have been executed.

Attorney General Jeff Landry, who will become governor in January, opposes Edwards’ clemency efforts and filed a lawsuit to stop them ahead of his election. Since then, pardon board members have denied consideration to the handful of death row inmates who’ve appeared before them, and Landry is expected to block the rest once he becomes governor.

Edwards – the grandson, son and brother of former sheriffs – has said the fallibility of police investigators and prosecutors is reason enough to curtail the death penalty in Louisiana, a punishment that conflicts with his personal pro-life beliefs.

“The death penalty is so final,” Edwards told lawmakers in March. “When you make a mistake, you can’t get it back.”

Duncan’s attorneys believe the case against their client is the victim of such a mistake. They withdrew his clemency petition Dec. 5, resigning themselves to its futility.

Duncan was convicted in the December 1993 death of 23-month-old Haley Oliveaux of West Monroe. The young girl was the daughter of his girlfriend at the time. He told investigators he left the girl alone in the bathtub for a few minutes while he washed dishes and returned to find her face down and unconscious. Duncan said he tried reviving the girl with CPR, but she would later be pronounced dead at a hospital.

Police originally charged Duncan with negligent homicide for leaving the child unattended. Her body was sent to Jackson, Mississippi, for a pathologist’s examination, which led to Duncan’s charges being upgraded to first-degree murder.

Pathologist Dr. Steven Hayne and dentist Dr. Michael West conducted the investigation. Hayne determined she was the victim of sexual assault, and West reported tooth marks on the girl’s body. Prosecutors inferred Duncan had forcibly drowned Haley to cover up his crime. A Ouachita Parish jury convicted him in 1998 and sentenced him to death.

The Louisiana Legislature approved a law in 2021 that allows the incarcerated to petition the court if new evidence clears them of a crime. Duncan’s attorneys, with the backing of the Innocence Project and the Mwalimu Center, presented that evidence a year ago and have their first court date in front of a judge on Jan. 8 — the same day Landry will be sworn in as governor.

“It is very hard to look at the evidence we have put forward and come to any conclusion other than the prosecution’s horrific story about rape and murder was based on falsified, fraudulent and unvalidated ‘scientific evidence,’” Tania Brief, a senior staff attorney with the Innocence Project, told the Illuminator in an interview earlier this month.

At the heart of evidence that attorneys say vindicates Duncan is a video that shows West using a mold of Duncan’s teeth multiple times to make bite marks in the girl’s body. Prosecutors prevented the jury from seeing the video, with the judge ruling that it didn’t support the defense’s claims of Duncan’s innocence. West wasn’t called as a witness because he was serving a one-year suspension from the American Board of Forensic Odontology for repeatedly stretching the conclusion of his findings in cases that involved bite marks.

One such case was featured in the 2020 Netflix documentary series “The Innocence Files.” Levon Brooks was found guilty and sentenced to life in prison for the 1990 rape and murder of a 3-year-old girl in Noxubee County, Mississippi. He would serve 16 years in prison before DNA evidence led to his exoneration.

West performed bite analysis in the case, and Hayne concluded Brooks was responsible for the marks.

“Usually you find in these aggressive, violent sexual attacks, that’s where you’ll find a lot of bite marks,” West said in an interview featured in “The Innocence Files. “(I) don’t really know if I am qualified to get into all of the sociology or psychology of it, but they turn animalistic.”

In the strikingly similar rape and killing of another 3-year-old girl in Noxubee County from 1992, Kennedy Brewer was sentenced to death after Hayne and West again provided corresponding dental evidence.

Brewer was exonerated after 15 years on death row after Justin Jefferson confessed to killing both young girls. He told investigators he never bit either of them.

For a report The New Republic published in March, journalist Lara Bazelon interviewed West and asked him about the claims Duncan’s attorneys make in the petition seeking to clear him in the death of Haley Oliveaux.

“They called them injuries, honey,” West told Bazelon. “Until you match them up with someone’s dentition, they are just injuries.”

The dentist said he did not testify at Duncan’s trial because he “would have broke down and cried.” Haley “could have been my daughter’s twin,” he said.

Hayne was fired as Mississippi state pathologist in 2008, after having performed 80 percent of all forensic exams in the state for more than 20 years, according to WLBT-TV. He has declined to discuss the flood of questions that surround his and West’s work.

The New Republic report counts at least seven convictions vacated through exonerations for which evidence Hayne and West provided evidence. More than two dozen other people who were incarcerated in bite mark cases nationwide have since been released, with their attorneys successfully arguing against what they called “junk science.”

In addition to what they consider faulty forensic evidence, Duncan’s legal team also notes the prosecution excluded Haley Oliveaux’s medical history. It includes multiple seizures and resulting head injuries. Just three weeks before she died, the girl was in Duncan’s care when a small dresser fell and caused a head wound.

A state investigation after the accident found no evidence of child abuse. Haley’s mother and grandmother were told about her tendency for seizures and were advised not to leave her alone in the bathtub. Duncan’s attorneys contend the girl had a seizure and drowned.

Also, the petition for exoneration notes a jailhouse informant has recanted claims that Duncan told him “it must have been the devil” that forced him to assault the young girl. Prosecutors also failed to disclose they showed leniency toward the informant for the information, in violation of the law.

Ouachita Parish District Attorney Robert Tew must respond to the petition from Duncan’s team by Dec. 25, a deadline that his lawyers consider a small victory because prosecutors aren’t compelled to answer unless a judge requires it.

Tew was elected to the post 25 years after Duncan was sentenced to death.

Tew has not responded to a message left with his office."


“We have an innocent client on death row and are eager to press his case,” said Brief, the Innocence Project attorney."

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The entire commentary can be read at:

http://www.louisianaweekly.com/hes-on-louisianas-death-row-his-attorneys-say-for-a-crime-that-didnt-happen/

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-12348801

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