HANK SKINNER: GAMSO FOR THE DEFENCE SAYS NEVER LIFT YOUR GUARD WHEN IT COMES TO DNA - NO MATTER HOW OVERWHELMING THE EVIDENCE SEEMS.

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"Next time you're on a bus or a plane or a train or in a restaurant or movie theater or anywhere where there are a bunch of people, look around.
You never know when your not-twin, the one whose DNA profile is the same as yours, might be in the crowd. Despite the odds of 1 in 6.17 quadrillion. Hell, it might be one of the jurors."

GAMSO FOR THE DEFENCE;

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"Jeff Gamso tells us: 6.17 quadrillion to 1. He also tells us why they don't mean what they say. Despite the numbers crunching, the certainty of experts and the desire for judges and juries to have the hard decisions lifted off their shoulders by the experts who assure them that there is no way, none, that the defendant isn't the bad guy, Jeff also explains why criminal defense lawyers need to go old school and listen to our clients.

SCOTT H. GREENFIELD: SIMPLE JUSTICE: A NEW YORK CRIMINAL DEFENCE BLOG;

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BACKGROUND: The editor of the Texas Tribune says in a note that "Hank Skinner is set to be executed for a 1993 murder he's always maintained he didn't commit. He wants the state to test whether his DNA matches evidence found at the crime scene, but prosecutors say the time to contest his conviction has come and gone......We told the story of the murders and his conviction and sentencing in the first part of this story." Reporter Brandi Grissom, author of the Tribune series on Hank Skinner, writes: "I interviewed Henry "Hank" Watkins Skinner, 47, at the Polunsky Unit of the Texas Department of Criminal Justice — death row — on January 20, 2010. Skinner was convicted in 1995 of murdering his girlfriends and her two sons; the state has scheduled his execution for February 24. Skinner has always maintained that he's innocent and for 15 years has asked the state to release DNA evidence that he says will prove he was not the killer."

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"If you do felony criminal law (from either side of the aisle) and I tell you the number is 6.17 quadrillion, you probably assume that I'm talking about DNA," Jeff Gamso's post, published on June 10, 2010, under the heading "testing the odds, begins.

"The number will reflect just how unlikely it is that the DNA in the whatever left at the scene could have come from anyone other than the defendant.* There are four things you need to know about that number," the post continues.

"1. It's from a profile. That is, they didn't sequence the billions or whatever bits of stuff make up the DNA. They sample and test particular spots on the DNA sequence. That results in a profile. And a profile is not a complete person.

2. It's meaningful only if the sample wasn't contaminated, the testing was done right, the demographic base was properly established and the test results properly measured against that demographic base.

3. None of those things is as simple and free from mistake as the people in the lab coats would like you to believe. Test results, for instance, may include bits of noise (think static on your car radio), but exactly what's noise and what's real is often subject to varied interpretation, which can lead to dramatically different results.

4. While it's true that there aren't anywhere near 6.17 quadrillion people in the world, that doesn't mean that there can't be another person whose DNA profile is the same. Really unlikely? Sure. Impossible? No. Goes back to the idea that the number comes from a profile.

I'm not saying that when the guy in the lab coat is probably wrong when he says the tests were run and there's just a 1 in 6.17 quadrillion chance that it's not from your guy. He's probably right. And when the prosecutor tells the jury that they should think about those odds and the fact that there are just about 7 (or is it 8 now) billion people in the world and conclude that the defendant did it, she's likely to be not just persuasive but frankly correct.

Of course, DNA doesn't just convict. It also exonerates. There have now been over 250 people in this country freed after DNA testing revealed that they didn't commit the offenses of which they were convicted. The Supreme Court, though, says that there's no constitutional right to post-conviction DNA testing. And prosecutors routinely resist the effort. (See here, for instance.)

The highest profile case out there right now is Hank Skinner's. He's on death row, been trying for some years to get sophisticated testing done. The state (Texas, of course) did some, and when it didn't implicate him, decided not to do any more. Even though it could be done at no cost to the state. Skinner's in the Supreme Court now (decision next year) on the question of what procedural avenue he has to pursue in order to try and get testing.

But if prosecutors often not always, maybe not most of the time (it's hard to tell), but often fight efforts at post-conviction DNA testing (even though it sometimes proves they had the right guy), defense counsel aren't always enthusiastic about it pre-trial. Radley Balko of The Agitator, this time writing at Slate.com and using Skinner's case as paradigm, says just cut to the chase and test everything.

There are times when neither the prosecution nor the defense is particularly interested in discovering the truth. That's where policy makers need to step in. In cases like Skinner's, they should establish a common-sense rule: When there is biological evidence at the crime scene, all of that evidence should be sent for DNA testing. No exceptions.
. . .

In District Attorney's Office for the 3rd Judicial District v. Osborne, last year's case, Justice Alito argued in a concurring opinion that guilty people could refuse to request DNA testing at trial, then prolong the appeal process (and stave off execution) by requesting DNA testing afterward. To find a right to post-conviction testing in the Constitution's protection of due process, Justice Samuel Alito wrote in his concurrence, "would allow prisoners to play games with the criminal justice system."

That's precisely why the testing should be done before trial. Arguing over which evidence gets tested shouldn't be part of either side's strategy. The prosecution and the defense should begin knowing that all of the evidence has been tested or will be. For old cases like Skinner's, if there's significant doubt about the defendant's guilt that testing could resolve, legislators shouldn't wait for the courts—they should make sure themselves that testing is done. A typical DNA sample costs about $1,000 to analyze, with a usual turn-around time of about 30 days. Innocence Project spokesman Eric Ferrero told me that his organization on average pays about $8,500 per case for DNA testing, since most cases have multiple samples of evidence.

As a criminal defense lawyer, I'd rather have some control. As a citizen, I think he's right.

What got me started on this, though, wasn't Balko's piece at Slate. It was Walter Reaves of Texas and his discussion of what happened in Ohio last week.
It's about Stephen Myers. That's the factually innocent Stephen Myers.
Ten years ago, there was a home invasion in Licking County. Some DNA testing was done, but there was nobody to match it against. Until last year when someone ran the cold case DNA and up popped Myers. Oh, he didn't match the physical description of the guy, and he said he was innocent, but the numbers were good. Only 1 in 1.6 million people would have the same DNA profile. That's not the quadrillions we're used to seeing (though I once had a case with a client - convicted largely on other evidence - where the number came back 1 in 4), but it's still pretty good odds. Enough, certainly, for an indictment.

Trial was scheduled to begin in May, and Myers' lawyer was intending to attack the sampling and testing and numbers. But then something interesting happened.
The prosecutors got the trial delayed because they decided to do more testing. You know, DNA testing is a whole lot more sophisticated now than it was 10 years ago. A whole lot more. And it turns out that Myers is excluded. He cannot - as in not possible - have been the person whose DNA was profiled. 1 in 1.6 million be damned.
It's a fluke, an oddity, that the prosecutors decided to retest. Reaves sees in this story not just a prosecutor who did the right thing, but a lesson for defense lawyers. When your client insists on his innocence, and after you've had a heart-to-heart about what testing might prove still wants it done, you should have it done.
Don't trust the prosecutor to do your homework for you - or, sadly, to give you the good news if she does. Maybe. But maybe not. Regardless, defense counsel have a duty to investigate, not merely to trust that the prosecutor got it right.
But there's another lesson in this, too.

Next time you're on a bus or a plane or a train or in a restaurant or movie theater or anywhere where there are a bunch of people, look around. You never know when your not-twin, the one whose DNA profile is the same as yours, might be in the crowd. Despite the odds of 1 in 6.17 quadrillion. Hell, it might be one of the jurors."


The post can be found at:

http://gamso-forthedefense.blogspot.com/2010/06/beating-odds.html

Harold Levy...hlevy15@gmail.com'

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Scott Greenfield commented on Gamso's post on his own blog: "Simple Justice: A New York Criminal Defence Blog, under the heading, "What Are The Odds?"

"Jeff Gamso tells us: 6.17 quadrillion to 1," the post begins.

"He also tells us why they don't mean what they say," it continues.


"Despite the numbers crunching, the certainty of experts and the desire for judges and juries to have the hard decisions lifted off their shoulders by the experts who assure them that there is no way, none, that the defendant isn't the bad guy, Jeff also explains why criminal defense lawyers need to go old school and listen to our clients.

What got me started on this, though, wasn't Balko's piece at Slate. It was Walter Reaves of Texas and his discussion of what happened in Ohio last week.

It's about Stephen Myers. That's the factually innocent Stephen Myers.

In Myers' case, prosecutors decided to retest the DNA, even though it had already proven conclusively that Myers was the guy in tests 10 years earlier. The retest turned out differently. Myers suddenly wasn't the guy who committed the home invasion. Up to then, there were only two people who were sure about the outcome, Myers and the guilty person.

It's a fluke, an oddity, that the prosecutors decided to retest. Reaves sees in this story not just a prosecutor who did the right thing, but a lesson for defense lawyers. When your client insists on his innocence, and after you've had a heart-to-heart about what testing might prove still wants it done, you should have it done.

Don't trust the prosecutor to do your homework for you - or, sadly, to give you the good news if she does. Maybe. But maybe not. Regardless, defense counsel have a duty to investigate, not merely to trust that the prosecutor got it right.

After a while, we begin to feel that we're just a cog in the wheel of justice, part of the system that populates courthouses on a daily basis. We feel more aligned with the system than our clients. We see the trends, the norms, the way things usually go, and it can save us a lot of time and effort to just go with it. After all, what are the chances that anything could go wrong?

Whether the chances of a DNA mismatch are 6.17 quadrillion to 1 or less, the protestations of our clients count. Sure, there's a good chance that their demands will sink them, although it's never clear that they can be sunk more than they already are. It's just that we're never an arm of the prosecutor or the court, even if that means we have to turn down the opportunity to be one of the gang at court.

Sure, the odds are against us. Very much so. Chances are that the retest will be a waste of money and just more evidence to nail the lid even tighter on our client. But when the client insists he's not the guy. When the client squeezes your arm and says, "please, you gotta do this," there's no choice in the matter. In all likelihood, the test will reaffirm the defendant's guilt. But what if your client is Stephen Myers? You can't take that chance, no matter how easy it is to do nothing."

The post can be found at:

http://blog.simplejustice.us/2010/06/12/what-are-the-odds.aspx

Harold Levy...hlevy15@gmail.com'

DR. PAUL SHRODE; MICHAEL PERRY CASE; SET TO DIE JULY 1. LAWYER CLAIMS FORMER EXAMINERS FAULTY TESTIMONY HELPED CONVICT HIM; EL PASO TIMES;

"Perry's attorneys, of the firm of Vinson & Elkins, hired their own medical examiner to review Shrode's findings. They say Shrode's testimony was imprecise in a way that helped prosecutors in Perry's murder trial.

Perry said he was in jail when the woman he was charged with killing died. But, his attorneys claim, Shrode's testimony allowed prosecutors to argue that the woman died before Perry was incarcerated.

REPORTER MARTY SCHLADEN: THE EL PASO TIMES;"

PHOTO: DR. PAUL SHRODE;

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BACKGROUND: Several cases have came under scrutiny following developments relating to Richard Nields which center around Dr. Paul Shrode. Richard Nields was on death row having been convicted of killing his girlfriend Patricia Newsome in Springfield Township (just outside Cincinnati). The Supreme Court of Ohio had scheduled his murder for June 10. The Ohio Parole Board hearing was held May 10. The Parole Board issued its report and recommendation on May 18, 2010. By a 4-3 vote, it recommended that Nield's sentence be commuted to life without parole, partly because it found the opinion of medical examiner Paul Shrode was unsupported by the forensic evidence. Ohio Governor Ted Strickland commuted the death sentence to life without parole.

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UP-DATE: The El Paso times reports that, "The Texas Court of Criminal Appeals has denied the appeal of a Houston-area man to delay his execution, a spokesman said today. Michael James Perry is scheduled to die by injection Thursday. But he and his attorneys are arguing that if Dr. Paul Shrode had drawn the correct conclusions from an autopsy, investigators would have known Perry could not have committed the murder he was convicted of. Shrode was fired last month as El Paso County medical examiner amid questions about his competence and credibility."

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"EL PASO -- A Houston-area man who is to be executed next week says he is innocent, and in court papers filed Thursday he alleges that faulty testimony by Dr. Paul Shrode helped convict him," the El Paso Times story by reporter Marty Schladen, published earlier today under the heading, "Man set to die faults ex-medical examiner," begins.

"The El Paso County Commissioners Court fired Shrode last month as chief medical examiner amid questions about his credibility and competence," the story continues.

"El Paso officials say they were reviewing cases in which Shrode was involved to see whether they were handled properly. Unclear is the nature of those reviews or when they will be completed.

Inmate Michael James Perry, now 28, claims that what Shrode did not say could put him in the Texas death chamber Thursday.

Perry's attorneys, of the firm of Vinson & Elkins, hired their own medical examiner to review Shrode's findings. They say Shrode's testimony was imprecise in a way that helped prosecutors in Perry's murder trial.

Perry said he was in jail when the woman he was charged with killing died. But, his attorneys claim, Shrode's testimony allowed prosecutors to argue that the woman died before Perry was incarcerated.

"As shown by Dr. (Glenn) Larkin, Dr. Shrode's incompetence directly prejudiced Mr. Perry's case in two crucial ways," states a motion filed Thursday with the Texas Court of Criminal Appeals.

Shrode could not be reached Thursday. Montgomery County prosecutors have said Perry received a fair trial and was convicted on the evidence.

A second defendant was convicted and is serving a life sentence for two other murders related to Perry's case.

Larkin, formerly a medical examiner in Pittsburgh, said the body of Perry's alleged victim, Sandra Stotler, was not decomposed enough to have died on Oct. 24, 2001. He said she could not have died until two days later, when Perry was already in jail.

Moreover, the other two victims could not have been killed until days after the first victim died, Perry's motion stated. Shrode performed all three autopsies.

Perry was 20 when implicated in Stotler's murder. After being injured in a police chase, he confessed but later recanted. His lawyers say that after his confession prosecutors ignored evidence indicating that Perry might be innocent.

The lawyers also contend that Perry's trial attorney was incompetent. They referred to several news stories, including one in the New York Times, criticizing the attorney, Stephen Taylor.

Perry has exhausted his appeals but is asking the Texas Board of Pardons and Paroles to delay his execution. The Court of Criminal Appeals could also step in.

"We're down to days," said David P. Blanke, one of Perry's lawyers.

In his court filings, Perry asked for a delay because of new developments.

One was Ohio Gov. Ted Strickland's decision last month to spare a death-row inmate's life, in part because of flawed testimony Shrode gave at his murder trial. Another was Shrode's firing in El Paso County.

Lawyers for Perry, in seeking help from the Texas Court of Criminal Appeals, stated that Shrode's dismissal was "both for his ability to perform his job and for lying about his qualifications."

The El Paso County Commissioners Court kept Shrode on the job more than two years after learning in 2007 that he had falsely claimed credentials on his résumé. Commissioner Veronica Escobar has said that what to do about Shrode was complicated by a shortage of medical examiners.

Dolph Quijano is one of several El Paso defense attorneys who have challenged Shrode's findings in court. He said Thursday that the claims in the Perry case mean El Paso County should hire a medical examiner to review findings in all criminal cases involving Shrode -- regardless of cost.

District Attorney Jaime Esparza has said his staff was reviewing cases involving Shrode, and his spokeswoman on Thurs day said the process was continuing.

Public defender Clara Hernandez, an appointed county employee, has not publicly identified a case in which attorneys in her office challenged Shrode in court. She is refusing to turn over a list of cases involving Shrode to county Judge Anthony Cobos, one of her bosses. She said her duty is to clients.

Hernandez and her spokes man did not return calls Thursday. Hernandez has said she would not answer questions unless they were submitted in writing.

Cobos said he did not think the county needed to look at every case involving Shrode, but he said Hernandez should assist the Commissioners Court in conducting an investigation.

"This matter is growing in severity and it's not going away," Cobos said. "We cannot sweep it under the carpet.""

The story can be found at:

http://www.elpasotimes.com/ci_15373196

Harold Levy...hlevy15@gmail.com;

JOHN EDWARD GREEN JR; JUDGE KEVIN FINE SETS NOV. 8, 2010 HEARING ON TEXAS DEATH PENALTY LAW: INNOCENT PEOPLE AT RISK? THE ASSOCIATED PRESS.

"The hearing was granted by State District Judge Kevin Fine, who in March ruled in a capital murder case that the Texas death penalty statute is unconstitutional. Fine later rescinded his ruling, but said he intended to hold a hearing on the issue.

Prosecutors say they are not opposed to a hearing the looks at the constitutionality of the death penalty law, but object to any hearing that would look at whether Texas has executed an innocent person."

THE ASSOCIATED PRESS;

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BACKGROUND: Texas State District Judge Kevin Fine ruled that the way the death penalty is currently administered is unconstitutional. Critics are screaming judicial activism, seen as a judicial faux paus and usually a pejorative term; supporters say Fine is a "brave jurist" who has called out death penalty administration on its current merits, or apparent lack thereof. The defendant in this case, John Edward Green, Jr, is charged with capital murder in the 2008 slaying of one of two sisters he allegedly shot during a robbery. Witnessed by the victim's two children, Huong Nguyen, 34, was killed in her own driveway. The case has victims' right advocates calling for justice. In Texas generally, and in Harris County in particular, justice for a capital murder charge is exactly what the law allows for: the death penalty.

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"HOUSTON (AP) - A judge in Houston has scheduled a hearing to listen to evidence on whether there's a substantial risk that the state's death penalty law allows for the possible execution of an innocent person," the Associated Press reported earlier today, under the heading, "Houston judge to hold hearing on death penalty law.

"Prosecutors and defense attorneys said Friday that the hearing has been set for Nov. 8 and could last at least two weeks," the story continues.

"The hearing was granted by State District Judge Kevin Fine, who in March ruled in a capital murder case that the Texas death penalty statute is unconstitutional. Fine later rescinded his ruling, but said he intended to hold a hearing on the issue.

Prosecutors say they are not opposed to a hearing the looks at the constitutionality of the death penalty law, but object to any hearing that would look at whether Texas has executed an innocent person."

The story can be found at:

http://www.newswest9.com/Global/story.asp?S=12710159

Harold Levy...hlevy15@gmail.com;

FERAH JAMA; AUSTRALIA; NEW RESEARCH SHOWS "CSI EFFECT"; JURORS ALL TOO WILLING TO SWALLOW UP DNA EVIDENCE - WITHOUT SUFFICIENT SCRUTINY;

"Recent questions about the accuracy of genetic material used as evidence has forced authorities in the country’s most populous states, New South Wales and Victoria, to investigate possible shortcomings in the way that new equipment interprets forensic data.

“There are a couple places where human error can occur: when it is collected and when it is being tested. In Victoria, we’ve got real problems with how robust the DNA evidence is in the first place. They closed the lab here for a while. We have our concerns that the methodology is perhaps still wrong,” Mr McNamara said.

Such concerns have raised the likelihood that innocent men and women have been locked up for crimes they did not commit.

In December, Farah Jama, 22, a Somali migrant, was freed after 15 months in prison when a rape conviction was overturned because a DNA sample had somehow been contaminated in a laboratory."

PHIL MERCER: FOREIGN CORRESPONDENT; THE NATIONAL:

PHOTO: FARAH JAMA: LEFT'

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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.

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"SYDNEY: New research has revealed that Australian juries are often overwhelmed by DNA evidence presented in criminal cases and rarely question its reliability," the story by foreign correspondent Phil Mercer, published on June 16, 2010, under the heading, "The CSI effect: juries are ‘too ready to believe’ DNA evidence," begins.

"The Australian Institute of Criminology also found that the less jurors understood about the complexities of genetic science, the more likely they were to find a defendant guilty because of a naive acceptance of its validity," the story continues.

“One of the problems is that it seems jurors have some difficulty understanding the significance of the evidence that is introduced by forensic scientists. They seem to have been blinded by science or seem to be susceptible to what others have called the ‘white coat effect’. They are not scrutinising the content of the evidence adequately to give it appropriate weight,” said Jane Goodman-Delahunty, a professor in the Australian Graduate School of Policing at Charles Sturt University, who carried out the research.

“This can mean that the conviction rate is very high in cases where oftentimes very circumstantial DNA evidence is introduced and that is the only link between the defendant and the crime scene.”

Four hundred Australians took part in the study and participated in a mock murder trial to establish how the judges responded to the DNA evidence. Those with a poor grasp of the methodology were almost twice as likely to reach a guilty verdict than those with a greater awareness of the process.

“We were able to show that along with the increase in DNA knowledge, the conviction rate decreased significantly as well. That was a demonstration that the more people understood in terms of the content of the science the less likely they were to simply accept without criticism the expert evidence,” Ms Goodman-Delahunty said.

Some lawyers believe that the popularity of television dramas such as CSI: Crime Scene Investigation and Law and Order can distort jurors’ views on the dependability of genetic samples.

Michael McNamara, a solicitor in Melbourne, said neatly packaged stories that simplify complicated procedures could well persuade viewers to believe that DNA testing is an infallible tool.

“Unfortunately a lot of television has even the grandest murder fixed in an hour and they see the scientist say ‘this is how we prove it and this is what we do’. It is all believable and the guy in the white coat is the expert and perhaps dazzles them,” Mr McNamara explained.

Recent questions about the accuracy of genetic material used as evidence has forced authorities in the country’s most populous states, New South Wales and Victoria, to investigate possible shortcomings in the way that new equipment interprets forensic data.

“There are a couple places where human error can occur: when it is collected and when it is being tested. In Victoria, we’ve got real problems with how robust the DNA evidence is in the first place. They closed the lab here for a while. We have our concerns that the methodology is perhaps still wrong,” Mr McNamara said.

Such concerns have raised the likelihood that innocent men and women have been locked up for crimes they did not commit.

In December, Farah Jama, 22, a Somali migrant, was freed after 15 months in prison when a rape conviction was overturned because a DNA sample had somehow been contaminated in a laboratory.

“I feel really depressed and cannot imagine … what happened,” Mr Jama said when he was released outside the Victorian Court of Appeal. He had insisted that he had been reciting the Quran to his seriously ill father at their Melbourne home when the alleged assault took place.

Loane Skene, a law professor at the University of Melbourne, said that although the underlying science was essentially sound, there were clearly problems with DNA testing.

“The positives do outweigh the negatives, but I do think we have to be cautious in the way that we use DNA evidence,” Mr Skene said. “It doesn’t necessarily prove that a person committed a crime. Somebody else could have put the DNA there, for example. One of the concerns is the accuracy of tests based on a very small amount of DNA from a crime scene and if it has been contaminated in the course of being collected that obviously undermines the significance of the DNA.”

The criminology institute has suggested that jurors be given a short scientific multimedia tutorial before any trial at which genetic evidence will be used, a proposal that has the support of the Law Society of New South Wales."

The story can be found at:

http://www.thenational.ae/apps/pbcs.dll/article?AID=/20100617/FOREIGN/706169950/1002/NEWS

Harold Levy...hlevy15@gmail.com'

GREGORY CARTER: NEW CRIMINAL CHARGES LAID IN AFTERMATH OF HIS GUILTY PLEA TO PROFESSIONAL MISCONDUCT;

"He was frequently called upon to testify in child custody cases, and advised the CAS on the apprehension of children, according to complainants.

One of those complainants was at the Oshawa courthouse Thursday. She said Mr. Carter was involved in a decision by the CAS to apprehend her children. Mr. Carter offered an opinion about her mental state without interviewing her, she said.

"I've never met the man," the woman said.

Mr. Carter is registered with the College of Psychologists as a psychological associate. He is authorized to work with children and families, but is prohibited from independently diagnosing symptoms or disorders, and is required to perform duties under the supervision of a qualified psychologist."

REPORTER JEFF MITCHELL; DURHAMREGION.COM;

PHOTO TONY BOCK; TORONTO STAR;

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BACKGROUND: Gregory Carter, 63, was charged Jan. 25 with fraud, obstructing justice and perjury. Durham police allege Mr. Carter falsely identified himself as a psychologist in family court proceedings, identifying himself as a doctor. Some of those hearings resulted in parents losing bids for custody of their children, police said. On June 22, 2010, he pleaded guilty to professional misconduct for holding himself out as a "doctor" and was suspended for three months. Local papers have reported that the possibility of a class action is being explored.

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"OSHAWA -- More than 20 new charges have been laid against Gregory Carter, the Whitby man accused of committing perjury and obstruction of justice by portraying himself as a doctor of psychology in Durham family court cases," the story by reporter Jeff Mitchell published in durhamregion.com begins, under the heading, "More charges against Whitby man who influenced custody cases."
"The 21 new charges -- the total Mr. Carter now faces is 28 -- were filed with the courts in Oshawa Thursday. They include fraud under $5,000, perjury and obstruction of justice," the story continues.

"Durham police Detective Paul Vibert said the new charges arose from complaints filed since news of Mr. Carter's initial arrest in January. A total of 15 complainants have now come forward, he said.

"It's an ongoing investigation," Det. Vibert said Thursday at the Oshawa courthouse.

Mr. Carter presented himself as a psychologist and dubbed himself a doctor while testifying about the suitability of people to care for children, police allege. Mr. Carter has a long-standing practice in Whitby and associations with agencies including the Durham Children's Aid Society.

He was frequently called upon to testify in child custody cases, and advised the CAS on the apprehension of children, according to complainants.

One of those complainants was at the Oshawa courthouse Thursday. She said Mr. Carter was involved in a decision by the CAS to apprehend her children. Mr. Carter offered an opinion about her mental state without interviewing her, she said.

"I've never met the man," the woman said.

Mr. Carter is registered with the College of Psychologists as a psychological associate. He is authorized to work with children and families, but is prohibited from independently diagnosing symptoms or disorders, and is required to perform duties under the supervision of a qualified psychologist.

On Tuesday Mr. Carter admitted to breaching those restrictions, pleading guilty to professional misconduct before a disciplinary panel of the College of Psychologists. He was reprimanded and suspended from practising for three months. The disciplinary panel also ordered that when he resumes practice, his work be supervised.

The panel heard Mr. Carter claimed to have a PhD related to psychology, but that was not the case. The college refused to recognize the doctorate, obtained from a university targeted by U.S. lawmakers as a diploma mill.

The allegations levelled against Mr. Carter have prompted a review of files by the CAS. Lawyer George Callahan confirmed Tuesday that work continues on a potential class action lawsuit in the matter.

Mr. Carter's case is due back in Oshawa court in September."

The story can be found at:

http://newsdurhamregion.com/news/crime/article/156987

Harold Levy...hlevy15@gmail.com;

TIMOTHY COLE: LUBBOCK AVALANCHE-JOURNAL EXPLORES RELATIONSHIP BETWEEN DNA EXONERATIONS AND FALSE IDENTIFICATIONS; POLICE RESIST REFORM;

"More than 75 percent of the cases overturned through DNA testing across the country trace their convictions to poor eyewitness evidence, according to research by The Innocence Project.

Lighting, stress and the difficulty of correctly identifying members of a race other than a witness's own have contributed to incorrect identifications, according to the project, which pursues DNA testing to prove wrongful convictions."

REPORTER ELLIOT BLACKBURN; LIBBOCK AVALANCHE-JOURNAL; Wikipedia informs us that, "(the) Lubbock Avalanche-Journal is a newspaper based in Lubbock, Texas, U.S. It is owned by the Morris Communications Company."

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BACKGROUND: Timothy Cole, whose cause has been championed by state lawmakers and others, was found guilty in the 1985 rape of a Texas Tech student and was sentenced to 25 years in prison. His conviction was based in part on the victim's identification of him as her attacker and what a judge later called faulty police work and a questionable suspect lineup. The victim later fought to help clear Cole's name. Cole died in prison in 1999, at age 39, after an asthma attack caused him to go into cardiac arrest. Following repeated confessions by another man, Cole was cleared by DNA evidence in 2008, and a state judge exonerated him in 2009. His family pursued a pardon, but Perry had said he did not have the authority to grant one posthumously. That changed after Perry announced that he had received legal advice to the contrary.

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"Lubbock police have moved away from relying on eyewitness evidence to prove cases, but experts say it's not far enough," the June 20. 2010 Lubbock Avelanche-Journal story by reporter Elliot Blackburn begins, under the heading, "Eye-dentification ... are we sure?"

"And at least one recent case shows the weak evidence may still anchor lengthy prison sentences in local cases," the story continues.

"Departments, including Lubbock, have steadily edged away from using witness or victim memories of a crime as linchpin of major cases in the wake of hundreds of overturned convictions nationwide rooted in faulty identifications.

The department resisted what a spokesman called "knee-jerk reactions" to exonerations and new research that changed laws in three states and eyewitness procedures in at least five major departments including Dallas.

Capt. Greg Stevens said in a recent interview current procedures would make impossible a repeat of the series of errors that produced cases such as that of Tim Cole, Texas' first posthumous pardon recipient, who died innocent in prison serving a Lubbock sentence based heavily on the misidentification of a rape victim.

Lubbock police officials would not discuss the 1985 case, citing an effort by Cole's survivors to continue to explore possible litigation against the city.

Stevens spoke to The Avalanche-Journal about current eyewitness procedure at the department, which he defended as an appropriate balance of finding suspects and supporting investigations with other evidence.

"Not ever would that one piece of evidence be used to even, even substantiate a case against somebody," Stevens said. "It would have to be corroborated with more evidence, more information."

But a life sentence reversed by the Seventh Court of Appeals of Texas in 2008 - more than 20 years after the Cole investigation and several years after changes Stevens described - indicated eyewitness

identification could make up the bulk of a case.

'Very, very closely'

Billy Ivey Jr. was no saint.

A Lubbock jury convicted him in 1988 for the stabbing death of a biker. A few months later, another jury convicted Ivey of felony injury to a child for hitting a friend's daughter with a belt.

He plead guilty to buying more than $200 in cigarettes with checks under other people's names during the fall of 2006. But on the night of April 25, 2007, Ivey claimed - even as he was pressured to plead guilty or face a life sentence - he was not a burglar.

"I Didn't Get to go very far in school, But Common Sense tell's me that if I 'NEVER' was a certain place, then there will not be any physical evidence of me being at that Certain place, RIGHT??????" Ivey wrote in a letter from prison to Judge Brad Underwood. "So I am thinking to myself, what would make Mr. Hall think that 'I' Burglarized his house???? I HAVE NO IDEA!!!!"

Lubbock jurors in 2008 sentenced Ivey to life in prison based on testimony that the wiry man with brown hair fit a burglar's description "very, very closely."

Clinton Hall and his girlfriend were getting ready for bed in a North Lubbock home when they heard their dogs barking and saw the knob of their bedroom door begin to turn. Hall opened the door and saw a shirtless man in jeans with his back to Hall in the dark.

Hall chased the man outside. The intruder ran through some brush and jumped a fence. Hall went to his car and searched for the man, but couldn't find him. He returned home and called police.

Some time later - police reports and court testimony differed on whether it was minutes or an hour - a white truck slowly cruised past Hall's home as he stood outside talking to an officer.

The officer noticed the truck did not have its headlights turned on. He rushed to his car to stop the truck, but the driver fled, ultimately ditching the vehicle after a short chase.

Information inside the truck led police to its owner, who pointed them to Ivey.

Ivey answered the door in boxers and said he had been "dead asleep," though the officer noted he quickly answered the door. A pair of jeans lay draped over a nearby chair.

Ivey lived not far from the burglarized home. He drove past the crime scene up to an hour after the crime.

Police drove Hall and his girlfriend to the house where Ivey stood outside in his boxers and in handcuffs.

"They asked us if that was the gentleman," Hall later testified, according to a court transcript. "And I said that he fits our description very, very closely. I said I never saw his face. I can't give you a for sure description."

Jury foreman Mark Caffey had hoped for more tying Ivey to the scene, he said, looking back on the case two years later.

He and another juror took more convincing than their peers, he said.

Still, Caffey left the trial confident in his decision, he said.

It bothered him that Ivey never testified in his own defense if he insisted he was innocent - a point jurors are specifically instructed not to consider.

When they later learned of his criminal history, Caffey was even more certain that the man should be off the streets, he said.

"'We don't have anything else to go on beyond this, but yet when you put it all together, you don't have any doubt that this is the guy,' " Caffey remembered telling his fellow juror. "I don't think there was any doubt amongst us that he was the right guy."

Because of his previous felony convictions, Ivey was sentenced to life in prison.

The sentence stunned Artie Aguilar, his defense attorney. His client had pleaded guilty to a lot of things, but Aguilar didn't think Ivey had done this, he said.

"I remember telling him he really needed to appeal because I just didn't think they got him," Aguilar said. "I was just bewildered by their verdict."

The Criminal Court of Appeals agreed months later.

Lubbock attorney Richard Wardroup successfully argued a jury couldn't have convicted Ivey on such scant evidence.

When told of the decision, Caffey said he was sickened to learn Ivey was released on appeal.

"To think that the justice system had failed us on this," Caffey said.

Police and prosecutors proved Ivey looked like the man Hall saw, Justice James Campbell wrote in an opinion reversing the jury's verdict and acquitting Ivey.

That wasn't enough to make Ivey a burglar, Campbell wrote.

"If the State's burden was only to prove that appellant matched Hall's description of the burglar, we would have no difficulty finding the evidence sufficient," Campbell wrote. "But many people would closely fit such a general description, and the State's burden was greater."

Guess who

Problems with eyewitness testimony can defy our most basic assumptions about ourselves. What could be more simple than recognizing a face?

But decades of research suggest it's much harder to remember even simple details when witnessing - much less becoming the victim of - a crime.

More than 75 percent of the cases overturned through DNA testing across the country trace their convictions to poor eyewitness evidence, according to research by The Innocence Project.

Lighting, stress and the difficulty of correctly identifying members of a race other than a witness's own have contributed to incorrect identifications, according to the project, which pursues DNA testing to prove wrongful convictions.

The suspect could have been in the dark and difficult to see, as Hall's burglar was. Victims or witnesses may pay more attention to a knife or a gun, if one is present, than the face of the person holding it.

More than half of the wrongful cases determined by the Innocence Project to be caused by eyewitness misidentification involved a witness who was a different race than the perpetrator.

That doesn't render eyewitness testimony useless or mean every description of a suspect turns out to be wrong. Police commonly ask the public to review images from video surveillance or other photos to generate tips to the identity of a suspect.

"I think when you bring emphasis to the fact that it's not a perfect science, then you bring emphasis more to the other investigative techniques that are associated with it," said Tim Braaten, a police chief for 25 years in Michigan, Wisconsin and Texas.

"In the past, it may have been if I said you did it, then that was it, that was good enough," Braaten said. "I was a person of honor and you were not, and so you went to jail and I identified the wrong guy."

So it means today, much more than in the past, police must have other supporting evidence beyond a simple eyewitness identification, said Stevens, the Lubbock police spokesman.

"We don't rely so much on the eyewitness testimony and on the photo lineup identification, because it's only used as one small part of the overall investigation," Stevens said. "Nothing hinges so much on that, and this is law enforcement-wide, not just our department. Used to, a photo lineup was a much bigger piece of the pie in terms of an investigation. That's simply not the case anymore."

Reforming the process

Major departments across the country began to shift their eyewitness techniques as researchers published papers and exonerations piled up.

The Dallas police force, stung with a nation-leading 38 DNA exonerations in their area, began reviewing lineup procedures in 2008 for the first time in 30 years, Dallas Police Lt. David Pughes said.

Dallas adopted changes now mirrored in the Boston and Denver police departments, among others, and required under state law in Ohio, North Carolina and New Jersey.

The department launched a "lineup team" in April 2009, made up of civilians who know nothing about the circumstances or suspects of the cases whose lineups they present.

Witnesses or victims who view the lineups are instructed that the suspect may not be in the lineup - an instruction used to reduce a person's pressure to pick someone even if they do not recognize anyone.

By keeping the investigator away from the lineup, the process tried to remove any cues, even unintentional ones, from prompting the witness or victim to pick a certain person.

Detectives resisted the change at first, he said. Many worried about cases done under the old system still waiting for trial. Changes in the process could imply some weakness or fault with the system for a defense attorney to pounce on.

It took more work, too.

"They felt like our identification rate was going to drop and it was going to make it more difficult for them to put suspects in jail," Pughes said.

More than 3,000 lineups later, detectives' worst fears had not come to pass, he said.

The number of identifications made by witnesses and victims held up and, because of the new procedures, they also held up in trial, he said.

"I think they're saying that it's a stronger piece of evidence to bring to court," Pughes said. "Those challenges are erased with the new procedure."

Administrators of the Texas Commission on Law Enforcement Officers Standards and Education introduced similar changes to training offered to all Texas police departments eight months ago, said Braaten, the group's executive director.

Braaten had learned as a street cop that a poorly constructed photo lineup could cost you a case.

"I think that eyewitness is a critical part of solving crimes, except one has to recognize the fallibility that comes along," Braaten said. "It's not something that should be thrown out, but should definitely be scrutinized and the technique improved."

Lubbock Police Chief Dale Holton said he did not see overwhelming evidence that policies needed to change.

He would continue to read new research and learn about what other departments adopted, and said it was always possible to change in the future.

Federal rulings on eyewitness testimony could also require changes, he said.

But Lubbock wasn't there yet, he said.

A piece of the puzzle

Ivey seemed unlikely to have gone to trial under procedures police spokesman Stevens described as in place years before his arrest. It may have not made it to the courthouse had a detective worked the case hours or days later, rather than the patrol officer on scene, Holton said.

Patrol work still relied heavily on suspect identification, Holton said. Ultimately, the evidence needed to convince more than just the officer, he said.

"One of the constants in all these comparisons is that they were all reviewed by prosecutors, and a jury and a grand jury," Holton said.

Stevens said detectives rarely use "field identifications" - in-person identifications similar to what officers used in Ivey's case.

Investigators instead use a database of Texas driver's license photos and civilian department staff to compile paper lineups for witnesses and victims.

A technician finds the driver's license photo of their suspect in a state database. The department will use booking photos if they are more recent and available to give a more current picture of a suspect, Stevens said.

Using the database keeps one particular picture from sticking out. Old lineups, including photo lineups done in the Cole era, involved actual photographs cut or taped to fit in a folder with windows. Backgrounds, clothing and other factors could vary from photo to photo, giving subtle and unintentional cues for a witness to pick a suspect.

"It saves time and it's logistically easy, and it creates an ostensibly better photo lineup spread," Stevens said. "There's no scissors involved."

Then the investigator or technician searches through randomly chosen photos within about three years of the suspect's age.

They look for similar clothing, facial hair and hair coloring, and other characteristics that would make the rest of the lineup a close match for their suspect, Stevens said.

The investigator might hand it off to another officer to present the line-up, but policy does not require it. Ideally, officers would record the identification - officers in the Ivey case did this - but policy does not require that either.

Other states and individual departments also now require a detective or technician tell the witness the suspect may not be in the lineup. Witnesses might otherwise feel pressure to pick a photo even if unsure it is the person he or she saw.

Those were critical, glaring omissions, wrote Gary Wells, an Iowa State University professor and expert on eyewitness identification who assisted Dallas police and other states.

"My point is that LPD's procedures are woefully out of date and do not at all look like those of a police department that has taken this problem seriously," Wells wrote in an e-mailed response to questions. "They have seemingly ignored the science on this as well as the recommendations of the Department of Justice and virtually every task force in the country that has delved into this issue."

It made no sense to craft a restrictive policy allowing only one way of doing things, Stevens said.

Research such as the work suppfficer's either going to do it ethically, or he's not," Stevens said. "And it doesn't matter what TCLEOSE's policy says or what Dallas PD's policy says or what our poliorting changes in other states and departments tended to be cyclical - departments could learn of problems with the process or told to change procedures again in another 10 years, he said.

A policy couldn't prevent malicious officers from corrupting the process, anyway, Stevens said.

"The police ocy says. We can write a new policy right now, today, and enact it and send it down and, if a policeman is going to do it wrong, the policy is not going to be what makes him do it right."

No expert who discussed reforms with The Avalanche-Journal pointed to intentionally shoddy lineup procedures. Reforms targeted accidental cues and best intentions leading both witness or victim and investigator down the wrong path.

"The victim can be victimized a second time," Braaten said. "Through less than the best practices available, if they rush to ID somebody to put it behind them, then later on they find out they identified the wrong person, then they'll be victimized again.""

The story can be found at:

http://lubbockonline.com/crime-and-courts/2010-06-20/lpd-has-changed-how-it-uses-eyewitness-accounts-recent-case-experts

Harold Levy...hlevy15@gmail.com;

GREGORY CARTER; "REAL VICTIMS"; THE HUMAN COST WHEN LAWYERS AND SOCIAL AGENCIES DON'T CHECK "EXPERT'S" CREDENTIALS; MICHELE MANDEL; THE TORONTO SUN;

"The bogus psychologist tore their lives apart, made clinical reports that ripped away their kids and recommendations that cost their life savings.

The shattered collection of broken parents and grandparents came together Wednesday at the College of Psychologists of Ontario to see Gregory Carter finally admit that he doesn't have a recognized PhD in psychology and the "expert witness" wasn't really qualified to make diagnoses in child custody battles."

REPORTER MICHELE MANDEL: THE TORONTO SUN;

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BACKGROUND: Gregory Carter, 63, was charged Jan. 25 with fraud, obstructing justice and perjury. Durham police allege Mr. Carter falsely identified himself as a psychologist in family court proceedings, identifying himself as a doctor. Some of those hearings resulted in parents losing bids for custody of their children, police said. On June 22, 2010, he pleaded guilty to professional misconduct for holding himself out as a "doctor" and was suspended for three months. Local papers have reported that the possibility of a class action is being explored.

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"TORONTO - The bogus psychologist tore their lives apart, made clinical reports that ripped away their kids and recommendations that cost their life savings," Michele Mandel's Toronto Sun story published earlier today under the heading, "Fake psychologist's victims real," begins.

"The shattered collection of broken parents and grandparents came together Wednesday at the College of Psychologists of Ontario to see Gregory Carter finally admit that he doesn't have a recognized PhD in psychology and the "expert witness" wasn't really qualified to make diagnoses in child custody battles," the story continues.

"Carter, who worked under contract with the Durham Children's Aid Society, appeared before the college's discipline committee and pleaded guilty to professional misconduct after posing as a real doctor and diagnosing a Whitby dad as a narcissist without even meeting him, an assessment that cost the father sole custody of his two kids.

Carter was given a recorded reprimand, a three-month suspension from practising and prohibited from doing custody and access assessments for a year without a college-approved supervisor.

"This is a very serious act of misconduct on the part of Mr. Carter," said the college's lawyer, Jennifer McKendry. "We must send Mr. Carter a message that this can't happen again."

It was just the first stage of much trouble ahead for the disgraced psychological associate. Carter, 63, will make another court appearance Thursday on criminal charges of fraud, obstructing justice and perjury for allegedly impersonating a psychologist.

"It's just the tip of the iceberg," predicted lawyer George Callahan, who is considering a class action lawsuit. "It's tragic for the kids. The consequences are horrendous."

Carter's guilty plea to professional misconduct offered no solace to the distraught father -- he still has to share custody of his two young boys with their mother, whom a bona fide psychologist warned has a borderline personality disorder.

"It doesn't undo the harm he's done," said the father, who can only be identified as Mr. S. "They give him a time out but they don't make him clean up his mess. I still have to turn my kids over to someone with a diagnosed mental illness."

And then the father began to cry.

After administering just one test on his ex-wife, Carter completely dismissed an exhaustive, 37-page evaluation by a highly respected psychologist who diagnosed her with a borderline personality disorder.

Suspicious, Mr. S. contacted the College of Psychologists and was shocked to learn Carter wasn't a psychologist at all, but a psychological associate with a master's degree who was restricted from making an independent diagnosis without the supervision of a qualified psychologist.

Yet Carter told family court he was a doctor with a PhD from Pacific Western University, the now-defunct school branded a "diploma mill" in a report by the U.S. Senate Committee on Governmental Affairs.

Not surprisingly, it's a PhD not recognized by the College of Psychologists.

But what was even more shocking occurred when Mr. S. informed the court that Carter wasn't the psychologist he pretended to be. The judge still chose to accept the fake shrink's assessment and set aside the one by the real psychologist.

"They all knew he wasn't qualified but nobody would do anything," said the dad, who has gone through his $400,000 in savings and has no money to launch a new legal fight. "I'm not an isolated case here."

In fact, his complaint to the college was one of at least three made against Carter. While warning bells were going off everywhere, no one seemed to care.

A mom who lost sole custody of her daughter after she was also diagnosed as a narcissist complained about Carter's credentials back in July 2008. It took almost a year before the college "cautioned" him to stop using "doctor" on his letterhead.

Meanwhile, she went from being a stay-at-home mom with full custody to seeing her daughter every second weekend. It was only after exhausting all her savings that she's won back more access to her child.

So there was some satisfaction as she watched the bogus psychologist finally reprimanded by his peers over his treatment of Mr. S.

"It's a start," she sighed, "but there's many, many more of us.""

The story can be found at:

http://cnews.canoe.ca/CNEWS/Crime/2010/06/23/14484561.html

Harold Levy...hlevy15@gmail.com;