GRAHAM STAFFORD CASE NEW FORENSIC EVIDENCE MOVES AUSTRALIA'S COURT OF APPEAL TO QUASH MURDER CONVICTION AFTER 18 YEAR ORDEAL;

"AT LAST MONTH'S HEARING, HIS BARRISTER DOUGLAS SAVAGE SC ARGUED SEVERAL POINTS NOT PRESENTED AT THE 1992 TRIAL.

AMONG THEM WAS THAT THERE HAD BEEN SIGHTINGS OF LEANNE AFTER THE TIME MR STAFFORD WOULD HAVE HAD HIS ONLY OPPORTUNITY TO KILL HER.

MR SAVAGE ALSO SAID THERE WAS EVIDENCE THAT SUGGESTED A MAGGOT FOUND BY POLICE IN MR STAFFORD'S BOOT WAS NOT THE SAME GENUS AS THOSE FOUND ON LEANNE'S BODY AND THAT THIS ERROR MAY HAVE AFFECTED THE RELIABILITY OF THE DETERMINED TIME OF DEATH.

FURTHERMORE, HE SAID A TYRE EXPERT HAD SINCE CAST DOUBT ON THE RELIABILITY OF A POLICE OFFICER'S EVIDENCE THAT TYRE TRACKS FOUND AT THE SCENE MATCHED THOSE OF MR STAFFORD'S CAR.

THE DIRECTOR OF PUBLIC PROSECUTIONS, TONY MOYNIHAN SC, SAID A DECISION HAD NOT YET BEEN MADE ON WHETHER ANOTHER TRIAL WOULD GO AHEAD."

AAP: THE COURRIER MAIL;
----------------------------------------------------------------------------------

BACKGROUND: (WIKIPEDIA): Graham Stuart Stafford was a sheet metal worker from Goodna, near Ipswich, Queensland who was convicted in 1992 of the murder of twelve-year-old Leanne Sarah Holland. Leanne Holland, the younger sister of Stafford's former partner, Melissa Holland, was murdered in September 1991. Her viciously mutilated body was found three days after she was reported missing in nearby Redbank Plains. It is possible she was also sexually interfered with and tortured with a cigarette lighter. Stafford appealed to the Queensland Court of Appeal, but this appeal was rejected on 25 August 1992. In 1997, the Queensland Court of Appeal re-examined the case after Stafford lodged an application for pardon with the State Governor on the basis of evidence gathered by private detective, Graeme Crowley. The Court of Appeal dismissed the appeal again by a two-to-one majority on the grounds that there was still enough evidence to convict. Two applications for special leave to the High Court of Australia subsequently failed. Stafford was released in June 2006 after serving over 14 years in prison. Stafford, who was born in England and does not have Australian citizenship despite having migrated to Australia in 1969, faced deportation in November 2006. Some people, including Professor Paul Wilson of Bond University believe that Stafford is a victim of a miscarriage of justice. The Queensland Attorney-General, Kerry Shine, has agreed to closely consider any request on Stafford's behalf concerning a petition to clear him of the murder conviction. In April 2008, the Queensland Attorney-General referred the case to the Court of Appeal for a very rare second appeal for pardon. On December 24, 2009 the Court of Appeal overturned Graham Stafford's conviction and ordered a retrial by a 2-1 majority. The dissenting judge wanted an immediate acquittal.

----------------------------------------------------------------------------------

"A MAN who served 15 years' jail for the murder of a 13-year-old schoolgirl described his ordeal as a nightmare after his conviction was quashed," the story, published in the Courrier Mail on December 24, 2009, under the heading "Graham Stafford murder conviction quashed; to face retrial begins."

"Graham Stuart Stafford was jailed for life in 1992 after being found guilty in the Queensland Supreme Court of murdering schoolgirl Leanne Holland," the story continues.

"He was convicted on circumstantial evidence of using a blunt object to bash to death the sister of his then-fiancee at a home in Goodna on September 23, 1991.

It was alleged he put her body in his car boot and drove around with it for two days before dumping it.

But in a decision delivered on Thursday, the Court of Appeal ruled that the conviction be quashed and ordered a retrial.

On hearing the decision, Mr Stafford embraced friends and family in court.

Outside, he made an emotional statement in which he thanked supporters who kept him going in his quest to clear his name when he felt like giving up.

"I'd just like to thank everyone who has supported me throughout all this, this nightmare," he told reporters while fighting back tears.

He said he hoped to now settle down and move on with his life.

When asked about the prospect of a new trial, he replied: "We'll see."

"I'd just like to wish everyone a merry Christmas," he said as he rushed to a nearby pub where his mother was waiting to receive the news.

"It's going to be a good one this year."

Mr Stafford, who was 28 at the time of Leanne's death, was released from jail in 2006 after serving almost 15 years.

The Court of Appeal judgment referred to Mr Stafford's "limited" opportunity to kill Leanne, a lack of motive and his good character.

It said he had not had a fair trial, and that the Crown case as put at trial had since been "fundamentally undermined" by further evidence.

Mr Stafford has made multiple attempts to clear his name, with the latest starting in November.

At last month's hearing, his barrister Douglas Savage SC argued several points not presented at the 1992 trial.

Among them was that there had been sightings of Leanne after the time Mr Stafford would have had his only opportunity to kill her.

Mr Savage also said there was evidence that suggested a maggot found by police in Mr Stafford's boot was not the same genus as those found on Leanne's body and that this error may have affected the reliability of the determined time of death.

Furthermore, he said a tyre expert had since cast doubt on the reliability of a police officer's evidence that tyre tracks found at the scene matched those of Mr Stafford's car.

The Director of Public Prosecutions, Tony Moynihan SC, said a decision had not yet been made on whether another trial would go ahead.

"I will carefully consider the judgments of each of the three judges of the Court of Appeal, and all other relevant considerations including the available evidence, the lapse of time since the first trial, and that Mr Stafford has served the custodial element of his sentence, before determining in due course whether to prosecute another trial," he said in statement."

The story can be found at:

http://www.news.com.au/couriermail/story/0,23739,26523521-952,00.html

Harold Levy...hlevy15@gmail.com;

THE SALEHA KHATUN CASE; DAILY TELEGRAPH REPORT OF ACQUITTAL; NOT A SINGLE MARK OF INJURY ON BABY; EXPERTS DID NOT BELIEVE HER EXPLANATION;

"MOHAMMED DIED IN JUNE 2008 AFTER SUSTAINING BRAIN INJURIES IN WHAT HIS MOTHER INSISTED HAD BEEN A FALL FROM HIS BED AT THEIR HOME IN WHITECHAPEL, EAST LONDON.

HE WAS INITIALLY RUSHED TO GREAT ORMOND STREET HOSPITAL IN LONDON WHERE HE UNDERWENT TWO OPERATIONS ON HIS SKULL, BUT DIED LATER.

DESPITE ACCEPTING THAT THERE WAS "NOT A SINGLE MARK OF INJURY" ON THE BABY, SOME MEDICAL EXPERTS DID NOT BELIEVE MRS KHATUN'S EXPLANATION FOR HIS INJURIES AND A POLICE INVESTIGATION WAS LAUNCHED.

THE COURT HEARD THAT HALF-A-DOZEN PROSECUTION EXPERTS DISAGREED ON WHAT HAD CAUSED THE INJURY WHICH HAD LED TO BLEEDING AND SWELLING OF THE BRAIN."

REPORTER MARTIN EVANS; THE DAILY TELEGRAPH;

----------------------------------------------------------------------------------

PUBLISHER'S NOTE: Saleha Khatun was freed at the Old Bailey earlier this week after being wrongly accused of murdering her ten-month-old son Mohammed on June 10, 2008. Prosecutors claimed that the 22-year-old, who is originally from Bangladesh, had caused his death by shaking him or by inflicting head injuries. But she was freed at the Old Bailey yesterday after medical experts were unable to agree on how he came about his injuries. She is the latest of innocent, loving, bereaved parents and caregivers in Great Britain who have been wrongfully charged with killing babies on the basis of often conflicting "expert" testimony, including: Sally Clark, Lorraine Harris, Angela Cannings, Donna Anthony, Linda Wise Keran Henderson, Suzanne Holdsworth, and Fatima Miah - and cases elsewhere in the world.

----------------------------------------------------------------------------------

"A judge has called for a review into cases involving infant brain injuries after a mother was kept waiting 18-months before murder charges against her were finally dropped," reporter Martin Evan's December 23, 2009 Daily Telegraph story begins, under the heading "Judge calls for review into infant brain injury prosecutions."

"Saleha Khatun, 22, who was due to stand trial for the murder of 10-month-old Mohammed, was dramatically freed at the Old Bailey after the prosecution offered no evidence against her," the story continues.

"But Judge Richard Hone and her legal team criticised delays in the case, which they said had robbed her of the chance to grieve properly for her son, whom she always maintained had died after falling out of bed and hitting his head.

Entering a formal plea of not guilty, Judge Hone said more needed to be done to speed up legal cases where youngsters died as a result of brain injuries.

Conflicting opinions among medical experts as to the cause of the injuries, meant prosecutions were notoriously difficult and lengthy to prepare.

Judge Hone said he would review other cases going through the system to see if there was anything that could be done to speed up the process.

He said: "There is nothing I can usefully do except to express a regret that Mrs Khatun has been kept in a state of misery for this period."

Richard Whittam, QC, prosecuting, told the court that the decision to drop the case had come after expert evidence was reviewed and it was deemed there was no real prospect of a conviction.

Mohammed died in June 2008 after sustaining brain injuries in what his mother insisted had been a fall from his bed at their home in Whitechapel, east London.

He was initially rushed to Great Ormond Street hospital in London where he underwent two operations on his skull, but died later.

Despite accepting that there was "not a single mark of injury" on the baby, some medical experts did not believe Mrs Khatun's explanation for his injuries and a police investigation was launched.

The court heard that half-a-dozen prosecution experts disagreed on what had caused the injury which had led to bleeding and swelling of the brain.

Mrs Khatun was eventually charged with murder in June this year and given bail, until her trial which was due to begin in April next year.

Michael Turner, QC, defending, said the case had moved swiftly through the court but the delay had been caused by preparing the case.

He said Mrs Khatun had faced 18-months of unnecessary torture after the death of her baby while experts argued over whether the case should go ahead.

He added: "I very much hope that a lesson will be learned from this case."

In other parts of the country a woman of impeccable character would have been allowed to grieve properly, he told the court.

"In this jurisdiction, she was charged with murder. Her life has been on hold," he added.

Mr Turner QC went on: "Where the only evidence is one of experts, and they do not agree, they should not be prosecuted.""

The story can be found at:

http://www.telegraph.co.uk/news/uknews/crime/6872975/Judge-calls-for-review-into-infant-brain-injury-prosecutions.html

Harold Levy...hlevy15@gmail.com;

THE SALEHA KHATUN CASE: LESSONS STILL NOT LEARNED ABOUT THE DANGER OF PASSING THE BUCK OVER TO THE "EXPERTS;"

"PROSECUTORS CLAIMED THAT THE 22-YEAR-OLD, WHO IS ORIGINALLY FROM BANGLADESH, HAD CAUSED HIS DEATH BY SHAKING HIM OR BY INFLICTING HEAD INJURIES.

BUT SHE WAS DRAMATICALLY FREED AT THE OLD BAILEY YESTERDAY AFTER MEDICAL EXPERTS WERE UNABLE TO AGREE ON HOW HE CAME ABOUT HIS INJURIES.

JUDGE RICHARD HONE, WHO ENTERED A FORMAL NOT GUILTY VERDICT FOR MRS KHATUN AFTER PROSECUTORS OFFERED NO EVIDENCE AGAINST HER, TOLD THE COURT YESTERDAY:

'THERE IS NOTHING I CAN USEFULLY DO EXCEPT TO EXPRESS A REGRET THAT MRS KHATUN HAS BEEN KEPT IN A STATE OF MISERY FOR THIS PERIOD."... ...

ANOTHER MOTHER, FATIMA MIAH, 27, WAS ACQUITTED AT THE OLD BAILEY IN JULY AFTER A JUDGE SAID THAT THE OPINIONS OF MEDICAL EXPERTS WERE NOT ENOUGH TO CONVICT HER OF KILLING HER BABY ANAS."

REPORTERS TOM KELLY AND KATE LOVEYS; THE DAILY MAIL;

----------------------------------------------------------------------------------

PUBLISHER'S NOTE: Defence lawyer Michael says he very much hopes that a lesson will be learned from Saleha Khatun's ordeal because: 'In parts of the country a woman of impeccable character and mothering skills would have been comforted and allowed to grieve properly. 'In this jurisdiction, she was charged with murder. Her life has been on hold. Where the only evidence is one of experts, and they do not agree, they should not be prosecuted.'" However, I find it hard to understand why the British criminal justice system has not already learned this lesson from the all too many "expert-based" wrongful prosecutions, convictions and imprisonments of innocent, loving, bereaved parents and caregivers, many of which have been reported on this Blog, including Sally Clark, Lorraine Harris, Angela Cannings, Donna Anthony, Linda Wise, Keran Henderson, Suzanne Holdsworth, and Fatima Miah - and cases elsewhere in the world.

----------------------------------------------------------------------------------

"An 'impeccable' mother has finally been allowed to bury her baby son after spending 18 months wrongly accused of his murder," the December 23, 2009, Daily Mail story by reporters Tom Kelly and Kate Loveys begins, under the heading "Freed, the mother wrongly accused of killing her baby."

"A judge yesterday called for a review into cases involving infant brain injuries after hearing how Saleha Khatun was robbed of the chance to grieve for ten-month-old Mohammed after his death last June," the story continues.

"Mrs Khatun, who has always maintained her son died after falling out of bed and hitting his head, was due to stand trial for his murder next month.

Saleha Khatun was freed at the Old Bailey after being wrongly accused of murdering her ten-month-old son Mohammed

Prosecutors claimed that the 22-year-old, who is originally from Bangladesh, had caused his death by shaking him or by inflicting head injuries.

But she was dramatically freed at the Old Bailey yesterday after medical experts were unable to agree on how he came about his injuries.

Judge Richard Hone, who entered a formal not guilty verdict for Mrs Khatun after prosecutors offered no evidence against her, told the court yesterday:

'There is nothing I can usefully do except to express a regret that Mrs Khatun has been kept in a state of misery for this period.

'I would also like to know how many other cases of this nature there are and suggest they are managed more swiftly.

'These cases are very concerning to everyone. I don't like this business of delays. There must be a better way of progressing the investigations.'

Mrs Khatun, from Whitechapel, East London, was charged with murder in June following a year-long investigation.

But the case was dropped after six prosecution experts were unable to agree on what had caused the baby's injury, which led to bleeding and swelling of the brain.

Defence QC Michael Turner said: 'I very much hope a lesson will be learned from this case.

'In parts of the country a woman of impeccable character and mothering skills would have been comforted and allowed to grieve properly.

'In this jurisdiction, she was charged with murder. Her life has been on hold. Where the only evidence is one of experts, and they do not agree, they should not be prosecuted.'

He said he knew of or had been involved with six similar prosecutions over the past 12 months.

Richard Whittam, QC, prosecuting, told the court the decision to drop the case came after it was decided there was no realistic prospect of conviction.

Another mother, Fatima Miah, 27, was acquitted at the Old Bailey in July after a judge said that the opinions of medical experts were not enough to convict her of killing her baby Anas."

http://www.dailymail.co.uk/news/article-1238153/Freed-mother-wrongly-accused-killing-baby.html

Harold Levy...hlevy15@gmail.com;

FARAH JAMA CASE: THIRD CASE IN SIX YEARS IN VICTORIA INVOLVING DNA CONTAMINATION; ANSWERS NEEDED. INCISIVE AUSTRALIAN BROADCASTING CORP. INTERVIEW;

"GEARIN: (REPORTER); THERE WILL BE AN INVESTIGATION, BUT SO FAR NO-ONE CAN SAY HOW THE WOMAN'S DNA SAMPLE WAS CONTAMINATED BY FARAH JAMA'S DNA GATHERED IN THE UNRELATED CASE. PROSECUTORS DO SAY IT HAPPENED AT THE POINT OF COLLECTION, NOT THE POINT OF ANALYSIS.

KIMANI BODEN: (DEFENCE LAWYER)BOTH SAMPLES CAME TO THE SAME MEDICAL OFFICER WITHIN A SPAN OF 24 HOURS. I BELIEVE PERSONALLY THAT THE MIX UP MAY HAVE HAPPENED THERE. BUT AS TO PRECISELY WHEN IT OCCURRED, WE DON'T KNOW.""

REPORTER MARY GEARIN: AUSTRALIAN BROADCASTING CORPORATION;

-------------------------------------------------------------------------------

BACKGROUND: According to the Australian, Farah Jama was found guilty of raping a 40-year-old woman at a nightclub in Melbourne's outer-eastern suburbs after the victim was found unconscious. She had no memory of the crime but Mr Jama's DNA was later found on the victim. The then 20-year-old denied ever being near the nightclub on that night, saying he was reading the Koran to his critically ill father at his bedside in their home in the northern suburbs. The only evidence police had was the DNA sample of Mr Jama, which was coincidentally taken 24 hours before the alleged crime after he was investigated over another unrelated matter but not charged. Prosecutors told the Victoria Court of Appeal earlier this week that it had since been discovered that the same forensic medical officer who took the first DNA sample of Mr Jama had coincidently taken the DNA sample from the 40-year-old rape complainant 24 hours later. They said it had emerged that the officer had not adhered to strict procedure when taking the sample and therefore they could not “exclude the possibility” of contamination. Therefore they argued the guilty verdict was unsafe and satisfactory and should be quashed. His lawyer Kimani Adil Boden hailed a “momentous” day for Mr Jama, whose case he described as “tragic”. “He's been in custody for close to one-and-a-half years on charges he didn't commit. “Justice has finally been done, however, at a price.” Victoria's police chief responded to Mr. Jama's release by banning all forensic officers from submitting DNA evidence or providing statements to the courts until further notice.

---------------------------------------------------------------------------------

The Australian Broadcasting Corporation interview with Ferah Jama, his lawyer and others, is preceded by the following introduction: " It's been a week to test the public's faith in the science of DNA and the procedures of police. A bungle that led to a wrongful conviction of a Melbourne teenager has led to a freeze on the use of DNA evidence."

Transcript:

KERRY O'BRIEN, PRESENTER: It's been a week to test the public's faith in the science of DNA and police procedures.

A retired judge has been asked to investigate how DNA evidence gathered by Victoria's police led to the wrongful conviction and gaoling of a young man on a rape charge.

The contaminated DNA was the only evidence against him, yet that didn't seem to raise alarm bells for police or prosecutors. It's cast a shadow over future use of DNA evidence.

To add to the police problems, the Victorian Ombudsman has raised serious doubts about the handling of evidence in drug cases as well.

Mary Gearin reports from Melbourne.

JEREMY GANS, MELBOURNE UNIVERSITY LAW SCHOOL: This is a complete tragedy. This is the big fear, this is what everyone worried about, that eventually this potential error in DNA would lead to someone wrongly going to prison.

KIMANI BODEN, DEFENCE LAWYER: My trust has been shaken. It's pretty difficult to sort of imagine that such an error of such magnitude can occur in a sophisticated state, sophisticated society such as Victoria and Australia.

MARY GEARIN, REPORTER: At 22, Farah Jama is trying to get his life back on track, after 16 months in prison for a rape he did not commit. He's become a textbook case for the disastrous consequences of blind belief in DNA evidence.

FARAH JAMA, : My reaction was I couldn't talk, I couldn't breathe, what they accused me of and what find me guilty of, and I remained innocent and now I'm out, so ...

KIMANI BODEN: He's a great guy and what's happened to him was a tragedy.

MARY GEARIN: On 15th July, 2006 a woman fell unconscious in a nightclub in Melbourne's east. She had no memory of being sexually assaulted. In any case, police forensics took vaginal swabs. Farah Jama, who'd just finished his Year 12 exams was tried and convicted for this presumed rape.

FARAH JAMA: I feel really depressed and that's not the guy of me, like, doing those kind of things, and I feel really, really bad, depressed, and my family, especially my family, embarrassed of what they accuse me of.

MARY GEARIN: Farah Jama had always maintained on the night in question he was at home with his ill father. It just so happens that 24 hours before that samples of his DNA were gathered in a completely separate and unrelated investigation in which he was not charged. The DNA came from a semen sample as well as a mouth swab he agreed to give police.

FARAH JAMA: I let them take my DNA to prove then that I haven't done anything wrong, so - and then this matter happens and then they said, "We have your DNA," and I was like, "I haven't done this."

MARY GEARIN: When the Crown dropped its case against him this week, it admitted that putting the DNA evidence aside, all other material indicated it was highly improbable that Farah Jama was guilty of the crime.

KIMANI BODEN: The venue was for people over 28 years of age. Mr Jama was 19 at the time. He gave an explanation as to where he was on the evening. That was corroborated by members of his family.

JEREMY GANS: In this case good evidence to suggest that Mr Jama was innocent, his complete denial, his denial of having even heard of the suburb where the incident happened, his alibi, including three family members - all of that was brushed aside purely because of the DNA.

MARY GEARIN: There will be an investigation, but so far no-one can say how the woman's DNA sample was contaminated by Farah Jama's DNA gathered in the unrelated case. Prosecutors do say it happened at the point of collection, not the point of analysis.

KIMANI BODEN: Both samples came to the same medical officer within a span of 24 hours. I believe personally that the mix up may have happened there. But as to precisely when it occurred, we don't know.

MARY GEARIN: Farah Jama's case is the third in six years in Victoria involving DNA contamination.

JEREMY GANS: It's a complete disaster. I'm not aware of any other jurisdiction in Australia or even mostly outside some of the worst labs in the US that have had this record of error, and it shows that the lessons of the past are not being learnt in Victoria. And that's a much graver danger, because it shows a culture that is refusing to accept that there's a genuine, serious problem in these cases.

MARY GEARIN: Police have maintained that the contamination in Farah Jama's case was an unfortunate one-off event not linked to its lab procedures.

SIMON OVERLAND, VICTORIA CHIEF POLICE COMMISSIONER: We have very rigorous procedures to guard against contamination, but there will be an independent review. I welcome that independent review to come and look and make sure that the problem is not with us. I'm confident it's not. But it's important that there's, again, independent oversight of that so that we maintain confidence in the processes that we have.

MARY GEARIN: But in that same press conference Victoria's Police Commissioner announced no DNA evidence will be presented to courts until further notice, not because of contamination issues, he says, but how it is interpreted.

SIMON OVERLAND: Up until very recently there was a limit to what we can see. With the advance in the science, we can see more at smaller amounts. And the statistical models that we have are not able to cope with that advance.

ANGELA VAN DAAL, FORENSIC SCIENCES, BOND UNIVERSITY: I'm struggling to understand what they're talking about because there is not really anything new that's new technology that's come into the DNA field for some time now.

MARY GEARIN: Forensic science expert Angela van Daal said she tried and failed to find out the exact nature of Victoria Police's new problems. But she does know the tendency to try to glean more and more information from less and less DNA is becoming highly contentious. Victoria's prosecutors announced a review of such cases a few months ago.

ANGELA VAN DAAL: I think the fact is that people in laboratories around the world are doing it without realising that that's what they're doing. As soon as they use very low levels of DNA, they are working in that range where there are potential problems in generating a true and accurate profile reflective of the person or persons that it came from.

MARY GEARIN: DNA is not just a problem in Victoria. Just this week, NSW defence lawyer John Sutton was debating the merits of asking one of his clients to supply police with a DNA sample.

JOHN SUTTON, AUST. DEFENCE LAWYERS ALLIANCE: DNA evidence is presented to juries, to members in the street as something that is infallible. It is not. It is a statistical argument.

JEREMY GANS: Well, everyone in the DNA world complains about what's known as the 'CSI' effect. No-one knows if it's true or not. But it's the idea that these shows push that lab workers can see the truth.

MICHAEL MCNAMARA, LAW INSTITUTE OF VICTORIA: Very hard to convince a jury when a scientist stands up and says, "Look, this is the case." And they see television shows and the television shows fix everything in an hour, and they say that DNA's the be all and end all of the case.

MARY GEARIN: The mistake that put Farah Jama behind bars was not revealed by the review into 6,000 cases the Victoria Police announced last year. It all came down to his appeal lawyer's pursuit of a DNA retest. Now he and other defence lawyers are advising their clients not to give police their DNA even to prove their innocence.

MICHAEL MCNAMARA: Well, look at today's example: this man was convicted and gaoled because he did exactly that. He provided a sample which got messed up and was then used to convict him. So I'd have to say no, I wouldn't encourage it at all.

MARY GEARIN: So now defence lawyers, forensic and legal experts are calling for a much wider, more independent review than the one planned into Farah Jamas' case. Meanwhile Farah Jama still has nightmares about prison. His family, originally refugees from Somalia, are trying to return to normality as his case enters the legal annals.

JEREMY GANS: If anyone goes on the record as saying that in the light of this case we can trust DNA without a proper independent review, then we'll have learnt nothing from this miscarriage of justice and there will be more down the track.

KERRY O'BRIEN: Mary Gearin reporting from Melbourne.

Harold Levy...hlevy15@gmail.com;

UPDATE: DONALD GATES CASE; D.C. JUDGE ORDERS INVESTIGATION OF FBI ANALYST'S WORK; INNOCENCE PROJECT PRESSES FEDERAL GOVERNMENT TO TAKE ACTION;

"GATES WAS CONVICTED BASED IN PART ON IMPROPER TESTIMONY FROM AN FBI FORENSIC ANALYST WHOSE WORK HAS SINCE BEEN WIDELY DISCREDITED. ANALYST MICHAEL MALONE TESTIFIED AT GATES’ TRIAL THAT HAIRS FROM THE CRIME SCENE WERE "MICROSCOPICALLY INDISTINGUISHABLE" FROM GATES’ HAIRS. THIS STATEMENT VASTLY OVERSTATED THE CONCLUSIONS THAT CAN BE DRAWN FROM HAIR COMPARISON.

ALTHOUGH A 1997 REPORT FROM THE U.S. DEPARTMENT OF JUSTICE FOUND SIGNIFICANT ERRORS IN MALONE’S WORK, NO THOROUGH REVIEW OF CONVICTIONS RELYING ON HIS ANALYSIS HAS BEEN CONDUCTED. IN OVERTURNING GATES’ CONVICTION LAST WEEK, A D.C. JUDGE ORDERED THE U.S. ATTORNEY’S OFFICE TO OPEN A SWEEPING INVESTIGATION OF MALONE’S WORK."

THE INNOCENCE PROJECT ONLINE: DECEMBER 2009;

----------------------------------------------------------------------------------

PUBLISHERS NOTE: I have followed this post with a replay of a post which ran on this Blog on March 17, 2009, under the heading "Why is it so important to review wrongful convictions? The Kyle Unger case; Manitoba. It explains how Kyle Unger was exonerated by tests performed in conjunction with a review of old murder cases ordered by the Manitoba government after DNA results discredited hair evidence that led to the wrongful conviction of another Manitoba man, James Driskell, in 1991.

----------------------------------------------------------------------------------

"Donald Eugene Gates served 27 years in federal prisons for a 1981 murder in Washington, D.C., before DNA tests proved his innocence and led to his release last week. He could be officially cleared at a hearing this morning," the article published in the December edition of Innocence Project Online begins, under the heading "D.C. Exoneration Uncovers Serious Forensic Problems."

"Gates was convicted based in part on improper testimony from an FBI forensic analyst whose work has since been widely discredited," the article continues.

"Analyst Michael Malone testified at Gates’ trial that hairs from the crime scene were "microscopically indistinguishable" from Gates’ hairs. This statement vastly overstated the conclusions that can be drawn from hair comparison.

Although a 1997 report from the U.S. Department of Justice found significant errors in Malone’s work, no thorough review of convictions relying on his analysis has been conducted. In overturning Gates’ conviction last week, a D.C. judge ordered the U.S. Attorney’s Office to open a sweeping investigation of Malone’s work.

Inconsistencies are widespread in forensic labs across the country, however, and the problem isn’t limited to a few "bad apples." A report released last week by the New York Inspector General found that a major state crime lab had covered up errors and misconduct for more than a decade.

The Innocence Project is moving forward to create a federal government entity in 2010 to make forensic science more accurate and reliable. The new federal office would direct and fund research in forensic sciences, set standards and enforce those standards. Take action today. Urge Congress to enact forensic reform that can strengthen our criminal justice system."


The story can be found at:

http://www.innocenceproject.org/docs/IPonline/Dec2009.php

----------------------------------------------------------------------------------
THE CHARLES SMITH BLOG: MARCH 17, 2009: "WHY IS IT SO IMPORTANT TO REVIEW WRONGFUL CONVICTIONS? THE KYLE UNGER CASE; MANITOBA.

"FOURTEEN YEARS AFTER UNGER WAS SENT TO PENITENTIARY, DNA TESTS PROVED A HAIR FOUND ON A SWEATSHIRT WORN BY GRENIER THE NIGHT SHE DIED DID NOT COME FROM UNGER, CONTRADICTING TESTIMONY FROM AN RCMP HAIR ANALYST WHO TOLD THE JURY IT WAS "CONSISTENT" WITH THE CONVICTED MAN'S HAIR.

THE TESTS WERE PERFORMED IN CONJUNCTION WITH A REVIEW OF OLD MURDER CASES ORDERED BY THE MANITOBA GOVERNMENT AFTER DNA RESULTS DISCREDITED HAIR EVIDENCE THAT LED TO THE WRONGFUL CONVICTION OF ANOTHER MANITOBA MAN, JAMES DRISKELL, IN 1991."

TRACEY TYLER: TORONTO STAR;

"The importance of thoroughly reviewing wrongful convictions - to point towards other possible miscarriages of justice - is illustrated in Toronto Star Legal Affairs reporter Tracey Tyler's report on the new trial ordered in the Kyle Unger case, which ran on March 12,2009, under the heading, "New trial ordered in 1990 slaying."

The story runs under the sub-heading: "Federal minister says wrongful conviction 'likely occurred' in Manitoba murder case."

"Nearly 20 years after the shocking murder of a teenage girl at a rock concert in rural Manitoba, Canada's justice minister has all but admitted the victim's former high school acquaintance was wrongly convicted of the crime," the story begins;

""I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred," Justice Minister Rob Nicholson said yesterday in ordering a new trial for Kyle Unger," it continues;

"Unger was convicted of first-degree murder in 1992 in the death of Brigitte Grenier, 16, who was sexually assaulted, beaten, strangled, bitten and impaled with sticks after attending a concert at a ski resort near Roseisle, a hamlet in south central Manitoba, on June 23, 1990. Her body was found the next day in a creek.

The case against Unger, 38, involved the classic ingredients of wrongful convictions. They included suspect hair comparison evidence, a jailhouse informant, a prosecutor with a history of convicting the wrong people and a controversial police technique known as a "Mr. Big sting."

Fourteen years after Unger was sent to penitentiary, DNA tests proved a hair found on a sweatshirt worn by Grenier the night she died did not come from Unger, contradicting testimony from an RCMP hair analyst who told the jury it was "consistent" with the convicted man's hair.

The tests were performed in conjunction with a review of old murder cases ordered by the Manitoba government after DNA results discredited hair evidence that led to the wrongful conviction of another Manitoba man, James Driskell, in 1991.

James Driskell was found guilty in 1991 of the 1990 murder of Perry Harder in Winnipeg. He was sentenced to life imprisonment.

The RCMP said three hair samples found in Driskell's van were Harder's, and that evidence convicted him. Later test results from Forensic Science Services in the U.K. found none of the hairs belonged to Harder.

Driskell was granted bail in November 2003 while the Justice Department investigated the case.

The inquiry's final report, released Feb. 15, says the jury in Driskell's trial was "seriously misled" on issues including the reliability of a key Crown witness. The report also said the failure of the Crown to disclose information to the defence was "careless indifference.": CBC News files;

When DNA cast doubt on Unger's case, Manitoba's attorney general asked the federal government to quash the conviction. That was nearly five years ago.

In ordering a new trial yesterday, Nicholson bypassed the more time-consuming route of ordering the province's appeals court to conduct a hearing into the case to determine if a new trial is warranted or if the conviction should be quashed. Such a process was used in the cases of Steven Truscott and Romeo Phillion in Ontario.

Meanwhile, the prosecutor in Unger's case is under scrutiny. In 2007, the Manitoba government asked a former Ontario judge, Roger Salhany, to review cases of former Crown attorney George Dangerfield, who prosecuted Driskell and Thomas Sophonow, wrongly convicted in the 1981 murder of a Winnipeg waitress.

In Unger's case, Dangerfield also relied on what Unger's lawyers say was a false confession provided during a "Mr. Big" operation.

The technique involves undercover police officers posing as organized crime figures and inviting a target – in this case Unger – to join them, as long as he can prove he has committed a major crime."

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ CASE: TEXAS DEFENCE LAWYER ISSUES RELEASE TO DRAW PUBLIC ATTENTION TO "SHATTERED FOUNDATION" OF STATE'S FORENSIC EVIDENCE SYSTEM;

\
"Forensic methods have been developed over time, guided more by law enforcement than by scientists. A wrongful conviction based on flawed evidence is a life thrown away, a family destroyed. The American system of justice must have the integrity that the Constitution demands by elevating the quality of forensic science to the professional level every citizen deserves."

TEXAS DEFENCE LAWYER PATRICK J. MCLAIN;
PHOTO: JUSTICE ANTON SCALIA;

----------------------------------------------------------------------------------

BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

----------------------------------------------------------------------------------

"Forensic evidence is fundamental to the foundation of much of the U.S. criminal justice system," the release from the law office of Patrick J. McLain, issued on December 11, 2009, under the heading "Forensics Evidence in Texas: A Foundation Shattered" begins.

(A sub-heading tells us, "Forensics is part of the foundation of our criminal justice system. Recent developments, though, have shaken the foundation of much of the forensic evidence used in criminal trials.")

"Scientific analysis of physical evidence of crime has produced evidence that has put many citizens behind bars, and exonerated others," the timely release continues.

"From fingerprint identification, bullet studies, blood spatter patterning, firearms analyses and autopsies, to laboratory tests that identify white powders or the causes of fires, there is no evidence that can be more damning, or vindicating. Significant recent developments, however, have shaken the foundation of forensic evidence in criminal trials.

On the national level, a blue-ribbon panel has called into question the reliability of today's forensic science. A U.S. Supreme Court case has given defendants in criminal cases the right to confront as witnesses the lab technicians and other scientists who perform forensic testing and make conclusions that can tip the balance between guilt and innocence in the courtroom. In Texas, the poor quality and inconsistent methodology of major forensic laboratories is coming to light.

National Research Council Study

In February 2009 the National Research Council, affiliated with the National Academy of Sciences, released a congressionally commissioned report entitled Strengthening Forensic Science in the United States: A Path Forward. This landmark study, a report over 300 pages long, was conducted by an impressive committee of national experts in law, medicine, science and research.

The report contains startling findings and recommendations:
-The national forensic science system is in disarray
-Forensic tests lack uniform standards
-Forensic scientists need more rigorous certification and educational programs
-Forensic methodology is not supported by careful scientific research
-Forensic laboratories are not adequately funded and managed
-The only highly reliable forensic process is DNA testing
-Labs should be independent from law enforcement and prosecutors' offices to diffuse inherent bias; those performing forensic analyses should not know details about related cases
-Forensic labs vary in methodology, funding and standards among various levels of government
-Ethical standards and quality control are inconsistent or lacking

The report recommends that Congress create an independent National Institute of Forensic Science to undertake the work to upgrade the forensic science system.

Melendez-Diaz v. Massachusetts

Four months after the ground-breaking study was published, it was cited by the U.S. Supreme Court in the landmark Melendez-Diaz case. The Constitution's Confrontation Clause requires that a criminal defendant have the right to confront witnesses against him. The Melendez-Diaz Court found that a written certificate of the weight and identity of a powdered substance constituted a testimonial statement that triggered the right to confront the certificate's author as a witness. Historically such certificates or affidavits of forensic findings had been largely admitted into evidence without the appearance in court of those involved in making the conclusions.

Citing the National Academy report, the Court emphasized that those conducting forensic tests are subject to time pressure and coercion from law enforcement and prosecution to make particular findings, sometimes sacrificing rigorous scientific methods. The Melendez-Diaz Court hoped that the specter of being cross-examined in court about their findings would make forensic personnel more careful and neutral in their work.

The Texas Problem

Texas has conducted investigations of the integrity of its crime labs, and the results were alarming. The leaky roof of the Houston Police Department Crime Laboratory contaminated DNA evidence. Labs have closed in Fort Worth, San Antonio and Austin due to serious scientific concerns. In 2005, the Texas legislature created the Forensic Science Commission to accept complaints of and investigate forensic lab misconduct and negligence. The new Commission has already been rocked with controversy; Governor Rick Perry recently replaced all four of his commission appointees, in the middle of a review of the arson testing methods that produced evidence in the conviction and 2004 execution of Cameron Todd Willingham.

Impact on Criminal Defense

Across the nation and in Texas, criminal defense attorneys are sitting up and taking notice of the important right their clients were granted in Melendez-Diaz to cross-examine those making forensic conclusions about evidence that could support criminal convictions. Coupled with the inherent doubt cast upon such evidence by the National Research Institute report and substandard conditions at forensic laboratories, real opportunities to fight for citizens accused of crimes are emerging.

The release can be found at:

http://it.einnews.com/247pr/128436

Harold Levy...hlevy15@gmail.com;

SHANE DAVIS CASE; AUSTRALIA; STATE GOVERNMENT AGREES TO RETESTING OF DNA MATERIALS: HAS ASSERTED INNOCENCE REFUSED PAROLE; GOLD COAST BULLETIN NEWS;

"DAVIS'S CASE WAS REVIEWED AND CHAMPIONED SEVERAL YEARS AGO BY THE GRIFFITH UNIVERSITY'S INNOCENCE PROJECT. INNOCENCE PROJECT DIRECTOR AND GRIFFITH UNIVERSITY LECTURER LYNNE WEATHERED SAID THE GROUP REVEALED SERIOUS QUESTIONS ABOUT THE DNA EVIDENCE USED BY THE PROSECUTION IN THE CASE AGAINST DAVIS. "WHEN SHANE DAVIS WAS CONVICTED, DNA WAS IN ITS INFANCY," SAID MS WEATHERED. "THIS IS A MAJOR BREAKTHROUGH AND A CRUCIAL PRECEDENT SETTING CASE FOR THE LEGAL COMMUNITY," SHE SAID. THE INNOCENCE PROJECT, CO-FOUNDED BY NYST LAWYERS AND GRIFFITH UNIVERSITY, IS RUN BY GRIFFITH LAW SCHOOL WITH STUDENTS CONTRIBUTING TO THE CASELOAD UNDER THE DIRECTION OF LECTURERS AND NYST LAWYERS. THE NEWS FOLLOWS THE DECISION LAST MONTH BY THE VICTORIAN DIRECTOR OF PUBLIC PROSECUTIONS JEREMY RAPKE, QC WHO ORDERED A REVIEW OF ALL DNA CASES OVER THE PAST FIVE YEARS BECAUSE OF DOUBTS ABOUT DNA TESTS......VICTORIAN MAN FARAH JAMA, 22, WAS FREED ON DECEMBER 8 AFTER BEING WRONGFULLY CONVICTED AND SPENDING 16 MONTHS IN A MAXIMUM SECURITY PRISON."

REPORTER LUCY ARDERN: GOLD COAST BULLETIN NEWS;

----------------------------------------------------------------------------------

BACKGROUND: Shane Davis was convicted by a Supreme Court jury in Brisbane in November 1991 of the murder of South African tourist Michelle Joanne Cohn at a Surfers Paradise apartment block on Boxing Day in 1990. He was sentenced to life in prison, but has always maintained his innocence and has even refused the opportunity of parole several times during the past five years.

----------------------------------------------------------------------------------

"The predictions of a psychic came flooding back to Jill Greenwood when she received news the State Government had agreed to allow DNA material, used to convict her son of a violent Gold Coast murder almost two decades ago, to be reviewed," reporter Lucy Ardern's December 23, 2009, Gold Coast Bulletin News story begins, under the heading "DNA offers new hope for Shane Davis."

"Ms Greenwood was elated yesterday after learning that Attorney General Cameron Dick had agreed to retest the material used in the prosecution case against Shane Davis, who was 19 at the time the crime was committed," the story continues.

"Davis was convicted by a Supreme Court jury in Brisbane in November 1991 of the murder of South African tourist Michelle Joanne Cohn at a Surfers Paradise apartment block on Boxing Day in 1990.

He was sentenced to life in prison, but has always maintained his innocence and has even refused the opportunity of parole several times during the past five years.
Have your say on the feedback form below


Ms Greenwood has always maintained faith in her son's innocence -- something that was backed up by a psychic's prediction soon after he was convicted.

"A psychic told me Shane was innocent and the person who did it will be found one day," she said.

"He said that Shane would be eventually released, but not because someone else was charged, but because of something to do with all the legal people around him."

All she revealed to the psychic was her son's age and the fact he was in jail -- keeping all other details of the case and their names a secret.

Ms Greenwood said Davis, who had discovered the DNA testing would go ahead yesterday morning, was 'very pleased and excited' by the news.

"He wants it all to get going as soon as possible," she said.

Ms Greenwood described the past 20 years as a 'terrible experience' and said she lacked confidence the results would be accurate when the DNA evidence was retested.

"The Government has a lot to lose and it worries me," she said.

Davis's case was reviewed and championed several years ago by the Griffith University's Innocence Project.

Innocence Project director and Griffith University lecturer Lynne Weathered said the group revealed serious questions about the DNA evidence used by the prosecution in the case against Davis.

"When Shane Davis was convicted, DNA was in its infancy," said Ms Weathered.

"This is a major breakthrough and a crucial precedent setting case for the legal community," she said.

The Innocence Project, co-founded by Nyst Lawyers and Griffith University, is run by Griffith Law School with students contributing to the caseload under the direction of lecturers and Nyst Lawyers.

The news follows the decision last month by the Victorian Director of Public Prosecutions Jeremy Rapke, QC who ordered a review of all DNA cases over the past five years because of doubts about DNA tests.

Victorian man Farah Jama, 22, was freed on December 8 after being wrongfully convicted and spending 16 months in a maximum security prison."

The story can be found at:

http://www.goldcoast.com.au/article/2009/12/23/172215_crime-and-court-news.html

Harold Levy...hlevy15@gmail.com;