David Fowler: Maryland: Probe into the former Chief Medical Officer's cases intensifies, with Attorney-General Brian Frosh ordering a detailed review of 100 autopsies of people who died in law enforcement custody, after a team of experts determined that further scrutiny is warranted, The Washington Post, (Reporters Ovetta Wiggins and Steve Thompson) reports..."The panel began with 1,300 in-custody cases, referring to those, state officials say, “in which an agent of government was involved in any way.” The cases included, but were not limited to, pedestrians struck during vehicle chases, people who took their own lives in jail and people who died of overdoses while in jail. It focused on 100 deaths that “occurred during or shortly after the decedent was physically restrained, and for which no obvious medical cause of death, such as a knife wound, was discerned during the autopsy.” In a 12-page report made public Wednesday, the experts recommended that an independent panel continue the work. Raquel Coombs, a spokeswoman for Frosh’s office, said the specific cases that will be reviewed will not be publicly identified. “This review will determine whether independent experts agree or disagree with the [Office of the Chief Medical Examiner’s] determination of cause and manner of death, whether such experts believe the OCME’s determinations were based on adequate investigations, and more broadly whether changes are needed to improve the OCME’s practices so that they better serve the public interest,” the report states."

PASSAGE OF THE DAY: "Roger Mitchell Jr., the former chief medical examiner in the District, who was among the health professionals who pushed for an inquiry of Fowler’s cases, welcomed the review. “I think this is amazing for the country that an audit of a medical examiner system is happening in this way surrounding deaths in custody,” Mitchell said. “This can act as an objective model for this type of audit of other medical examiner systems as we attempt to understand death in custody and the role of the medical-legal death investigation system in death-in-custody cause and manner-of- death designation.”

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PASSAGE TWO OF THE DAY: "“It’s really important to just acknowledge the family members over the years who, again and again, were telling public officials, telling their lawyers, and telling anyone who would listen that [a medical examiner’s] report got it wrong,” said Sonia Kumar, a senior staff attorney for the American Civil Liberties Union of Maryland, which has pushed for more accountability and transparency in policing. “From our perspective and the perspective of a lot of family members, so much of this undertaking, this questioning, is about making sure that we’re actually trying to prevent deaths that could be preventable,” she said. “We can’t do that if we’re not telling the truth about how people die."

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STORY: "Md. attorney general orders detailed review of 100 in-custody deaths," by Reporters Ovetta Wiggins and Steve Thompson, published on October 19, 2022. ( Ovetta Wiggins covers Maryland state politics in Annapolis. She came to The Washington Post in 2003 and previously worked at the Philadelphia Inquirer and the Bergen Record in New Jersey. Steve Thompson writes about government and politics in Maryland, D.C. and Virginia. Before joining The Washington Post in 2018, he was an investigative reporter for the Dallas Morning News. He started in journalism as a police reporter at the St. Petersburg Times.

PHOTO CAPTION: "David Fowler, a retired forensic pathologist and former chief medical examiner for the state of Maryland testifies April 14, 2021, in the trial of former Minneapolis police officer Derek Chauvin at the Hennepin County Courthouse in Minneapolis.)

GIST: "Attorney General Brian Frosh has ordered a detailed review of 100 autopsies of people who died in law enforcement custody after a team of experts determined that further scrutiny is warranted."

The announcement comes more than a year after Frosh launched a one-of-a-kind probe of 1,300 autopsies handled by former Maryland medical examiner David Fowler, who testified for the defense in the trial of Derek Chauvin, the Minneapolis police officer who was convicted of murdering George Floyd.

An independent panel of experts from around the world was tasked with deciding the scope and scale of the audit of Fowler’s work.

“We embarked on this process with the goal of overseeing a professional and independent audit that adheres to the highest standards of impartiality and integrity,” Frosh said in a statement about the panel’s work.

Fowler wrote in an email that he has not read the panel’s recommendations, but “I look forward to doing so." He said he has offered his full cooperation in the audit.

“As I have said since this effort was announced in May of 2021, I am proud of my seventeen years of service as Maryland’s Chief Medical Examiner, and I am confident that any fair review will confirm that the Office met or exceeded all applicable professional standards,” he said in an email.

Frosh’s office, in consultation with Gov. Larry Hogan’s office of legal counsel, ordered an audit of cases handled by the state during Fowler’s tenure after receiving an open letter signed by more than 400 medical experts who questioned Fowler’s testimony in Chauvin’s trial and called for an investigation to determine whether the practices of the examiner’s office for investigating in-custody deaths under Fowler were inappropriate.

Roger Mitchell Jr., the former chief medical examiner in the District, who was among the health professionals who pushed for an inquiry of Fowler’s cases, welcomed the review.

“I think this is amazing for the country that an audit of a medical examiner system is happening in this way surrounding deaths in custody,” Mitchell said. “This can act as an objective model for this type of audit of other medical examiner systems as we attempt to understand death in custody and the role of the medical-legal death investigation system in death-in-custody cause and manner-of- death designation.”

In his testimony, Fowler linked Floyd’s death to heart disease and drug use rather than his oxygen being cut off while pinned beneath Chauvin’s knee for more than nine minutes.

The panel’s report said that medical examiners should distinguish natural deaths from nonnatural deaths by applying the “but-for” principle. If a death would not have happened “but for” an unnatural factor, it should be classified as unnatural, the report said, relying on a 2002 guide by the National Association of Medical Examiners.

Under the “but-for” principle, a death is unnatural regardless of whether the nonnatural factor unequivocally precipitated the death, exacerbated an underlying condition or “contributed to the death of a person with natural disease typically survivable in a non-hostile environment,” the report said.

In sum, the report said, “the manner of death is unnatural when injury hastened the death of one already vulnerable to significant or even life-threatening disease.”

The report, while acknowledging there is often no right or wrong answer to manner-of-death classifications, said experts recruited for the audit will be on the lookout for similar cases being classified differently in a way that reflects bias.

“While there may be debate about how much certainty is required to reach a finding of homicide in a restraint death case,” the report said, “there can be no debate that the threshold should be the same regardless of the race of the decedent or the identity of the person or persons applying the restraint.”

To guard against bias in their own observations, the reviewers will not initially know the Maryland medical examiner’s determination or certain other details, such as the race, identity or law enforcement affiliation of people involved in the death, the report said.

“It’s really important to just acknowledge the family members over the years who, again and again, were telling public officials, telling their lawyers, and telling anyone who would listen that [a medical examiner’s] report got it wrong,” said Sonia Kumar, a senior staff attorney for the American Civil Liberties Union of Maryland, which has pushed for more accountability and transparency in policing.

“From our perspective and the perspective of a lot of family members, so much of this undertaking, this questioning, is about making sure that we’re actually trying to prevent deaths that could be preventable,” she said. “We can’t do that if we’re not telling the truth about how people die.""

The entire story can be read at:

https://www.washingtonpost.com/dc-md-va/2022/10/19/maryland-autopsy-medical-examiner-fowler/

PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

—————————————————————————————————

FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project;

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

Frank Gable: Oregon: Michael Francke case: False testimony coupled with significant investigative misconduct which the State does not dispute)..."The facts on appeal are extraordinary," Circuit Court Judge Jacqueline Nguyen wrote in the opinion. "Since trial, nearly all the witnesses who directly implicated Gable have recanted. Many explain they intended to frame Gable after hearing he was a police informant. They attribute their false testimony to significant investigative misconduct, which the State — remarkably — does not dispute. "As Gable's expert explained, the investigators used widely discredited polygraph and interrogation techniques as a 'psychological club' to elicit the statements against Gable. The prosecution then built their entire case on that tainted foundation."

QUOTE OF THE DAY: "I am incredibly happy for my client," said Gable's attorney Nell Brown, who represented Gable alongside fellow public defenders Mark Ahlemeyer and Roscoe Brown. "Although he will never get back the three decades of his life that he lost, this decision vindicates his steadfast claim of innocence and powerfully exposes the systemic flaws that led to his wrongful conviction." 

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PASSAGE OF THE DAY: "Both before and after Gable's conviction, rumors circulated that Francke was actually killed by a conspiracy of corrupt state officials that he was about to expose.  The conspiracy theory was embraced by Francke's brothers Kevin and Patrick, who became the strongest supporters of Gable's innocence. The conspiracy theory was the subject of a recent {obj:66104:12-part iHeart radio podcast called "Murder in Oregon."} It was co-written by and featured former Oregonian and Portland Tribune columnist Phil Stanford, who was the first to report on it. KOIN 6 News also did an extensive special report on the case.

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PASSAGE TWO OF THE DAY: "As Gable's expert explained, the investigators used widely discredited polygraph and interrogation techniques as a 'psychological club' to elicit the statements against Gable. The prosecution then built their entire case on that tainted foundation."

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STORY: "Gable innocence not to be appealed to the full U.S. Ninth Circuit," by Reporter  Jim Redden, published by The Portland Tribune, on October 12, 2022.

SUB-HEADING: "Wrongly convicted murderer Frank Gable is closer to full freedom in Michael Francke case."

PASSAGE OF THE DAY: "Acosta also ruled Gable did not receive a fair trial because jurors were not allowed to learn that a petty criminal named Johnny Crouse had confessed to the murder, with details that had not been publicly released months before Gable was arrested and charged with the crime. The three-judge panel cited Crouse's confession in their ruling. "As discussed, Crouse's confessions have strong indicator of reliability. He confessed within months of the murder, multiple times, in several forms, to nearly unimpeachable witnesses and his family, with no apparent ulterior motive, and clearly against his penal interest," the new ruling said. Francke's murder is one of the most high-profile killings in Oregon's history. He was stabbed in the heart and bled to death outside his office in the department headquarters known as the Dome Building on Jan. 17, 1989. Despite Crouse's confession, no suspect was charged with the crime until Gable, 15 months after the killing. Gable was convicted in 1991. Crouse said he accidentally killed Francke during a scuffle when the corrections director caught him burglarizing his car. The confession was taken by Oregon Department of Justice criminal investigator Randy Martinek, who still believes Crouse was telling the truth. Crouse has since died. They also noted nearly all witnesses against Gable have since recanted their testimony. As a result, the judges ruled, no reasonable juror would vote to convict Gable if the trial were held today."

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GIST:  "Frank Gable is one step closer to complete freedom.

The Oregon Department of Justice will not appeal the ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals that he did not murder Michael Francke to the full court.

The deadline for such an appeal was Thursday, Oct. 13. The justice department still has until Dec. 29 to decide whether to appeal the panel's ruling to the U.S. Supreme Court.

"We do NOT plan to seek rehearing by the Ninth Circuit. We are still considering whether to file a cert petition with the U.S. Supreme Court and likely won't decide that for at least a few more weeks," Oregon Assistant Attorney General told Michael Francke's lawyer in an Oct. 12 email.

Kevin and Patrick Francke have long believed Gable is innocent. After the deadline passed, they issued the following statement:

"We are more than pleased by the announcement from Assistant Attorney General Ben Gutman that the State would not pursue any further appeals to the Federal 9th District Court of Appeals.

"Our recent conversation with Mr. Gutman was open and productive. He has stated that his office is reviewing their position and considering an appeal to the US Supreme Court. This decision, as we remember from our conversation, should be made by the end of October.

"We strongly recommend that the Attorney General end this prosecution, which we consider a persecution of an innocent man, Frank Gable. He has suffered immeasurable physical and mental harm.

"We respectfully ask that they let him get on with his remaining years after almost 30 years in prison for a crime he did not commit. Please!"

The Marion County District Attorney must also decide whether to retry Gable for the 1989 murder of the Oregon corrections director by Dec. 29.

"We also pray that the Marion County DA will follow suit and that the terrible wrong that has made Frank Gable's life a hell for these many years will be righted," the Francke brothers said.

"It is way past time for the Sate of Oregon on behalf of the citizens of Oregon to declare Frank Gable not guilty, innocent of the crime, and make apologies to the man and his family."

Gable had been sentenced to life in prison without the possibility of parole for the 1989 murder of Oregon corrections director Michael Francke. But a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld Gable's successful appeal of his conviction on Thursday, Sept. 29.

In a 30-page ruling, the panel upheld Oregon U.S. Magistrate Judge John Acosta's 2018 decision that Gable likely was innocent and that no reasonable jury would convict him given new evidence presented in his appeal.

"The facts on appeal are extraordinary," Circuit Court Judge Jacqueline Nguyen wrote in the opinion. "Since trial, nearly all the witnesses who directly implicated Gable have recanted. Many explain they intended to frame Gable after hearing he was a police informant. They attribute their false testimony to significant investigative misconduct, which the State — remarkably — does not dispute.

"As Gable's expert explained, the investigators used widely discredited polygraph and interrogation techniques as a 'psychological club' to elicit the statements against Gable. The prosecution then built their entire case on that tainted foundation."

Acosta also ruled Gable did not receive a fair trial because jurors were not allowed to learn that a petty criminal named Johnny Crouse had confessed to the murder, with details that had not been publicly released months before Gable was arrested and charged with the crime. The three-judge panel cited Crouse's confession in their ruling.

"As discussed, Crouse's confessions have strong indicator of reliability. He confessed within months of the murder, multiple times, in several forms, to nearly unimpeachable witnesses and his family, with no apparent ulterior motive, and clearly against his penal interest," the new ruling said.

Francke's murder is one of the most high-profile killings in Oregon's history. He was stabbed in the heart and bled to death outside his office in the department headquarters known as the Dome Building on Jan. 17, 1989. Despite Crouse's confession, no suspect was charged with the crime until Gable, 15 months after the killing. Gable was convicted in 1991.

Crouse said he accidentally killed Francke during a scuffle when the corrections director caught him burglarizing his car. The confession was taken by Oregon Department of Justice criminal investigator Randy Martinek, who still believes Crouse was telling the truth. Crouse has since died.

They also noted nearly all witnesses against Gable have since recanted their testimony. As a result, the judges ruled, no reasonable juror would vote to convict Gable if the trial were held today.

Citing the same facts, Acosta ruled in 2018 that Gable should either be released from prison or receive a new trial. The Oregon Department of Justice appealed Acosta's ruling. Gable was released in 2019, but would have gone back to prison if he lost the state's appeal.

"I am incredibly happy for my client," said Gable's attorney Nell Brown, who represented Gable alongside fellow public defenders Mark Ahlemeyer and Roscoe Brown. "Although he will never get back the three decades of his life that he lost, this decision vindicates his steadfast claim of innocence and powerfully exposes the systemic flaws that led to his wrongful conviction. 

The Ninth Circuit decision makes clear that, with the full story told, no reasonable jury would convict him. I'm proud of our exceptional and dedicated Federal Public Defender team for doing the work to tell that story. I hope my client will finally be able to enjoy the life he has created for himself in the community without this case hanging over him," said Brown.

Both before and after Gable's conviction, rumors circulated that Francke was actually killed by a conspiracy of corrupt state officials that he was about to expose. 

The conspiracy theory was embraced by Francke's brothers Kevin and Patrick, who became the strongest supporters of Gable's innocence.

The conspiracy theory was the subject of a recent {obj:66104:12-part iHeart radio podcast called "Murder in Oregon."} It was co-written by and featured former Oregonian and Portland Tribune columnist Phil Stanford, who was the first to report on it. KOIN 6 News also did an extensive special report on the case.

"This has been too long coming," Patrick Francke said. after the ruling was released. "I believe Mike Francke is pleased, because of his personal history as a deputy attorney general and district court judge and secretary of corrections, that no one should be wrongly convicted. The state of Oregon and Marion County DA have ignored the facts on favor of pursuing an agenda. It has cost Frank Gable over 30 years of his life. We're happy and excited for him and his family, but their lives will be forever scarred."

The Francke's have set up a GoFund Me campaign to raise money for Gable."

The entire story can be read at:

https://pamplinmedia.com/pt/9-news/560370-448672-gable-innocence-ruling-will-not-be-appealed-to-full-us-9th-circuit?wallit_nosession=1

PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

—————————————————————————————————

FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project;

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

Child abuse paediatricians: "Stephanie Clifford's well-researched story, headed "When the Misdiagnosis is Child Abuse," published by The Marshall Project, in partnership with 'The Atlantic', illustrates the power of child abuse pediatric specialists and parents' unequal journey toward justice." A major opus, it's worth reading every word. (I have just carved out a short passage. HL);

PUBLISHER'S NOTE: I am delighted to have been invited by The International Wrongful Conviction Day Committee, to participate in a 'Zoom' interview conducted by Charlotte Taylor-Baer - to be held onTuesday October 25, at 6.00 PM EST, in which we will be discussing, 'Wrongful Convictions and The Goudge Inquiry," with reference to some of the cases of disgraced pathologist, Charles Smith."

Charlotte graduated from Simon Fraser University with a BA (Hons) in Criminology and Archaeology and is currently enrolled in the BCL/JD Program at McGill's Faculty of Law. She is a Lead Caseworker at Innocence McGill, the Fundraising Project Manager for the International Wrongful Conviction Day Committee, and the Co-Founder and Outreach Director for the Wrongful Convictions Collective. Her research interests include criminal procedure and evidence, judicial gatekeeping, wrongful convictions, and forensic science. 

I am particularly gratified to have the opportunity to vent my wrath and draw attention to the fact that there are several outstanding cases (mainly shaken baby syndrome cases - in which some of Charles Smith's all-too-many innocent victims - are still seeking exoneration, some 14 years after Justice Stephen Goudge released his report on his public inquiry into many of Smith's cases, on October 1, 2008.

Moreover, this interview will allow me to question why the media has largely moved away from the Charles Smith story, leaving the public in the dark on the important question as to whether Justice Goudge's many thoughtful recommendations have been heeded - or whether all the promises which flooded out from the individuals and institutions who empowered Charles Smith were little more than words.

This will also be an opportunity for me to share with viewers the story of how Charles Smith came into my life as a Toronto Star reporter - and some of the intriguing twists and turns that the story took.

I hope you will join us.

Harold Levy:

Publisher: The Charles Smith Blog.

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

Stay tune at this spot for ZOOM sign-in information;

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PASSAGE OF THE DAY: "A review of dozens of cases, including thousands of pages of medical records, child-welfare agencies’ records, and testimony, along with court decisions, contracts, and emails from child-abuse pediatricians, shows that these doctors can have near-unilateral power in labeling abuse—even though their conclusions are sometimes at odds with the opinions of specialists like orthopedists and hematologists. Their judgments are echoed, amplified, and often unblinkingly accepted by investigators. Indeed, instances in which medical professionals make reports to child-welfare agencies are 40 percent more likely to be substantiated—meaning the agencies found that abuse occurred—than reports by nonmedical professionals, according to a Marshall Project analysis of the National Data Archive on Child Abuse and Neglect."

STORY: "Two families, two fates when the misdiagnosis is child abuse," by Stephanie Clifford published by The Marshall Project in partnership with the Atlantic, on October 20, 2020.

SUB-HEADING: "The power of child abuse pediatric specialists and parents' unequal journey toward justice."

GIST: "Child abuse is a pervasive and complex problem: Few children or abusers report harm themselves, so it’s up to other authorities, such as medical personnel and teachers, or bystanders, such as neighbors, to report suspected abuse. Some 3.5 million children in America were reported as being suspected victims of child abuse in 2018, the most recent year for which data are available; about 680,000 were ultimately determined by authorities to have been abused or neglected. When suspected abuse has a medical component, like an injury or a bruise, child-abuse pediatricians step in to examine injuries, rule out causes other than abuse, such as a disease, and consider the family’s explanations. They are trained in what types of fractures generally stem from abuse, and what bleeding patterns in the brain can be caused by shaking. With an abuse expert on staff, the thinking goes, regular pediatricians don’t need to worry about overreacting to an innocent bruise, or missing warning signs because parents are convincing liars. Child-welfare workers also rely on this expertise as they consider removing children from their homes. The American Board of Pediatrics certified the first group of child-abuse pediatricians in 2009; there are now 344 such specialists nationally, stationed in all but three states. A review of dozens of cases, including thousands of pages of medical records, child-welfare agencies’ records, and testimony, along with court decisions, contracts, and emails from child-abuse pediatricians, shows that these doctors can have near-unilateral power in labeling abuse—even though their conclusions are sometimes at odds with the opinions of specialists like orthopedists and hematologists. Their judgments are echoed, amplified, and often unblinkingly accepted by investigators. Indeed, instances in which medical professionals make reports to child-welfare agencies are 40 percent more likely to be substantiated—meaning the agencies found that abuse occurred—than reports by nonmedical professionals, according to a Marshall Project analysis of the National Data Archive on Child Abuse and Neglect. But child-abuse pediatricians may have a conflicted perspective. Many are paid in part by child-welfare departments and work directly with state lawyers in cases where the state is removing children from homes, and end up shaping arguments against parents, testifying in court, and working within a system that parents don’t understand is stacked against them. This is particularly problematic because child-removal cases play out in family court, where the state’s burden of proof is low and parents have limited legal rights. “The first time I started to hear what parents are going through, I was shocked,” Maxine Eichner, a family-law professor at the University of North Carolina School of Law, told me. “There should be a role for child-abuse pediatricians,” she said, but many are “going well beyond their medical expertise and wielding the power of the diagnosis in ways that are really harmful for children and families.”

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

The entire story can be read at:

https://www.themarshallproject.org/2020/08/20/two-families-two-fates-when-the-misdiagnosis-is-child-abuse

PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

—————————————————————————————————

FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project;

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

STORY: Flawed forensics. From our 'Did I read that right? ' Department: Reuter's (Reporter Hassan Kuno) reports that, flawed forensics in criminal trials are being over-looked in a push to reform expert witnesses..."The National Academy of Sciences conducted the most comprehensive review to date of forensics in the United States. It concluded in a 2009 report that many methods are routinely “introduced in criminal trials without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline.” The study also found that “prosecutors usually have an advantage over most defendants in offering expert testimony in criminal cases,” while both sides have about equal access to experts in civil cases. “The research shows a clear divide between how courts treat scientific evidence in toxic tort cases, for example, and how they treat it in criminal cases,” said Edward Cheng, a professor at Vanderbilt Law School who served as a commentator on panels designed to aid the judiciary’s efforts to amend the expert witness rule. “Basically, they tend to be very lax about letting in forensic stuff in the criminal context, whereas they’re defendant-friendly on the tort side.” A review by the President’s Council of Advisors on Science and Technology in 2016 also concluded that certain forensic fields aren't grounded in science."

PUBLISHER'S NOTE: I am delighted to have been invited by The International Wrongful Conviction Day Committee, to participate in a 'Zoom' interview conducted by Charlotte Taylor-Baer - to be held onTuesday October 25, at 6.00 PM EST, in which we will be discussing, 'Wrongful Convictions and The Goudge Inquiry," with reference to some of the cases of disgraced pathologist, Charles Smith."

Charlotte graduated from Simon Fraser University with a BA (Hons) in Criminology and Archaeology and is currently enrolled in the BCL/JD Program at McGill's Faculty of Law. She is a Lead Caseworker at Innocence McGill, the Fundraising Project Manager for the International Wrongful Conviction Day Committee, and the Co-Founder and Outreach Director for the Wrongful Convictions Collective. Her research interests include criminal procedure and evidence, judicial gatekeeping, wrongful convictions, and forensic science. 

I am particularly gratified to have the opportunity to vent my wrath and draw attention to the fact that there are several outstanding cases (mainly shaken baby syndrome cases - in which some of Charles Smith's all-too-many innocent victims - are still seeking exoneration, some 14 years after Justice Stephen Goudge released his report on his public inquiry into many of Smith's cases, on October 1, 2008.

Moreover, this interview will allow me to question why the media has largely moved away from the Charles Smith story, leaving the public in the dark on the important question as to whether Justice Goudge's many thoughtful recommendations have been heeded - or whether all the promises which flooded out from the individuals and institutions who empowered Charles Smith were little more than words.

This will also be an opportunity for me to share with viewers the story of how Charles Smith came into my life as a Toronto Star reporter - and some of the intriguing twists and turns that the story took.

I hope you will join us.

Harold Levy:

Publisher: The Charles Smith Blog.

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

Stay tune at this spot for ZOOM sign-in information;

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

PASSAGE OF THE DAY: "Paul Giannelli, emeritus professor at Case Western Reserve University School of Law, wrote in a 1993 law review article that “the ‘junk science’ debate has all but ignored criminal prosecutions” – including the judiciary’s considerations of amendments at that time. “This neglect of the problems of expert testimony in criminal prosecutions is deplorable, if not inexplicable,” Giannelli said. In 2018, JoAnne Epps, a professor at Temple University’s Beasley School of Law, wrote that criminal trials have taken “a backseat to tort claims in the debate over expert evidence” since the 1990s."

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STORY: "Flawed forensics in criminal trials over-looked in push to reform expert witnesses," by Reporter Hassan Kanu, published by Reuters, on January 26, 2022. (Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law."

GIST: "The federal judiciary is considering changing the rules of evidence to make it harder for “expert” witnesses to present pseudo-scientific and unreliable evidence at trials

The process has been largely centered on concerns from corporate defense lawyers about civil cases and torts – litigation against big businesses, often over injuries allegedly caused by drug and other consumer products.

But the more important reasons to change the Federal Rules of Evidence regarding expert witnesses are in the criminal law realm.

Nationwide and systemic problems in forensic sciences have been documented over several decades in various studies, and numerous public scandals related to false convictions, often enabled by state crime labs.

The Federal Bureau of Investigation’s crime lab, touted as the best in the world, stopped using bullet lead examinations in 2005 after a report concluded there was no scientific basis for matching a particular bullet at a crime scene with an unused batch of ammunition. The FBI had used compositional bullet lead analysis since the 1960s.

Since then, the country’s leading scientific advisory bodies have found that some routinely used forensics methods are wholly unsubstantiated and lack a scientific foundation.

The National Academy of Sciences conducted the most comprehensive review to date of forensics in the United States. It concluded in a 2009 report that many methods are routinely “introduced in criminal trials without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline.”

The study also found that “prosecutors usually have an advantage over most defendants in offering expert testimony in criminal cases,” while both sides have about equal access to experts in civil cases.

“The research shows a clear divide between how courts treat scientific evidence in toxic tort cases, for example, and how they treat it in criminal cases,” said Edward Cheng, a professor at Vanderbilt Law School who served as a commentator on panels designed to aid the judiciary’s efforts to amend the expert witness rule. “Basically, they tend to be very lax about letting in forensic stuff in the criminal context, whereas they’re defendant-friendly on the tort side.”

A review by the President’s Council of Advisors on Science and Technology in 2016 also concluded that certain forensic fields aren't grounded in science.

 It was that 2016 report, in part, that led the courts to appoint a subcommittee and spend four years considering possible amendments to the expert testimony rule, according to a May 2021 memo by Judge Patrick Schiltz, chair of the federal judiciary’s Advisory Committee on Evidence Rules.

So, then, why is the federal judiciary focused on civil cases in considering changes to expert testimony?

No doubt, tort cases are high-stakes, often implicating millions of dollars, and depend in large part on medicinal and other kinds of scientific and technical expertise. But they aren’t usually matters of life or death, or freedom or imprisonment – and they don’t reflect on the integrity of the justice system in quite the same way as a doubtful, or wrongful, conviction.

A spokesperson for the Administrative Office of the U.S. Courts referred me to the reports and materials produced by the rules committees. The office didn't respond to my specific questions for this column.

The current proposal to amend Rule 702 of the Federal Rules of Evidence says a party must prove by a preponderance of evidence that an expert’s testimony is admissible – a requirement that wasn’t explicitly stated before. And it would emphasize that judges must ensure that experts’ opinions are actually based on a reliable application of their methodologies in a particular case.

Nearly all the public comments and support for the proposal have come from the civil defense bar.

D. Michael Risinger, emeritus professor at Seton Hall University School of Law and previous chair of the Association of American Law Schools Section on Evidence, told me the proposals are largely restatements of current law.

“I don’t know if those changes will help anybody much – other than corporate defendants” who can plausibly argue that the amendments are intended for their cases, Risinger said. 

He added that the process could be improved in the criminal context with an amendment clarifying that judges should determine the reliability of a methodology as applied to specific questions in a case (whether handwriting analysis can determine authorship of a single, allegedly forged signature, for example, rather than whether that methodology is valid for determining authorship in other contexts, like for a lengthy, personal letter).

All things considered, the judiciary’s focus on corporate defendants isn’t particularly surprising.

Paul Giannelli, emeritus professor at Case Western Reserve University School of Law, wrote in a 1993 law review article that “the ‘junk science’ debate has all but ignored criminal prosecutions” – including the judiciary’s considerations of amendments at that time. “This neglect of the problems of expert testimony in criminal prosecutions is deplorable, if not inexplicable,” Giannelli said.

In 2018, JoAnne Epps, a professor at Temple University’s Beasley School of Law, wrote that criminal trials have taken “a backseat to tort claims in the debate over expert evidence” since the 1990s.

One recent proposal in the ongoing amendment process was ostensibly aimed at criminal trials.

Cheng said a proposal to ban “overstatement” by experts – testifying that a finding is 100% certain, for example – was likely to improve safeguards in that context.

But the committee ultimately discarded that proposal: members said the rules already bar overstatement, and were concerned about the “unintended consequences” for experts outside of the forensics and criminal contexts, according to the report from Judge Schiltz.

To be sure, there are serious complications in devising and articulating a single test or set of principles to adequately deal with the vast range of expertise – scientific and otherwise – relevant to litigation. 

And, there are contributing factors to the forensic sciences problem that aren’t in the judiciary’s purview – like the lack of a well-funded, well-staffed indigent criminal defense system to challenge those proffered experts.

But the judiciary’s neglect of the glaring and more critical systemic problems around scientifically invalid forensics reflects an elevation of the interests of big businesses over average people who come before the courts. And it’s a missed opportunity to more directly address problems that undermine the administration of justice itself."

The entire story can be read at:

https://www.reuters.com/legal/government/flawed-forensics-criminal-trials-overlooked-push-reform-expert-witness-rules-2022-01-26/

PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project;

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John Galvan; Illinois; Arson 'science.'...Question of the day...How did an episode of Mythbusters help secure his release from prison twenty-one years into a life sentence?...Senior Staff Writer James Felton provided the answer in 'IFL Science'..."One problem with Galvan's statement, which would eventually help to get his conviction overturned, was that it claimed that he had lit the Molotov cocktail with a cigarette. Years later, when Galvan was 39, he watched a re-run of an episode of Mythbustersfrom his prison cell, and saw them prove that that was pretty much impossible. The show was testing Hollywood tropes, including that throwing a cigarette into a pool of gasoline would ignite it. They concluded, after several desperate attempts to light a fire with a cigarette (even rolling it around in there), that it was a myth. In fact, though we'd really recommend just rubbing it against the ground, it is possible to put a cigarette out in gasoline if you are in one hell of a pinch. An error occurred.Unable to execute JavaScript. Galvan contacted his lawyer, who by coincidence had also seen the episode, and she investigated this aspect of his case further."

PASSAGE OF THE DAY: "t turned out that in 2007, a team of researchers at America's Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) had looked into the same thing, after a group of suspected arsonists claimed that fires had been accidentally started by cigarettes. The team tried 2,000 times to start a gasoline fire using a cigarette to light it, even spraying gasoline at a lit cigarette. Not once did it ignite. "Despite what you see in action movies, dropping a lit cigarette on to a trail of gasoline won't ignite it, assuming normal oxygen levels and no unusual circumstances," the bureau told The Scotsman at the time. "That's because the gasoline has limited contact with the hottest, glowing part of the ash, and X-ray thermography has shown that this is very localised." Using arson experts to attest to the impossibility of lighting gasoline using cigarettes, and several witnesses who testified that the police officer who took the statements had used violent coercion elsewhere, Galvan's legal team were able to secure his exoneration. A few years later, at their own appeals, all three convictions were overturned."

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PASSAGE  TWO OF THE DAY; "Mr. Galvan’s case speaks to the critical importance of establishing such mechanisms for people to get back into court when science changes or evolves, or when experts repudiate past testimony,” Rebecca Brown, Innocence Project director of policy said in a press release.  “Without these mechanisms in many instances, innocent people are prevented from presenting forensic evidence of their innocence after their wrongful conviction.” “A ‘change-in-science’ statute here would have allowed for a presentation reflecting those changes in arson science and could have likely expedited Mr. Galvan’s exoneration."

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STORY: Innocent man freed from prison after 35 years, thanks to an old episode of Mythbusters," IFL Science Senior Staff Writer) James Felton, report 0n October 10, 2022. (James Felton is a writer, journalist and author with a big interest in anything historical, medical and bizarre. He has written two pop-history books with publisher Little, Brown.)

 

SUB-HEADING: "Twenty-one years into a life sentence John Galvan happened into an episode of Mythbusters that would help secure his release 14 years later."

GIST: "In September 1986, two brothers were killed in a fire at an apartment in Southwest Chicago. Two siblings managed to escape the fire, and told authorities that they believed the fire had been started by a neighbor in retaliation for the death of her brother, allegedly at the hands of a street gang known as the Latin Kings, the Innocence Project explains. 

The neighbor was interviewed but pointed to 18-year-old John Galvan, his brother, and a third neighbor. Other neighbors also accused the three, and John, who had been asleep at his grandmother's house at the time of the fire, was arrested.

During his arrest, Galvan was interrogated and told he could go home if he implicated others in the crime, something that was also offered to another accused of the crime, Arthur Almendarez. Eventually, all three signed statements confessing to the crime, admitting to throwing a Molotov cocktail through a window of the apartment block.

 John and Arthur later said that these statements were signed following physical abuse, while the third accused man said that he had signed it drunk and without having been read his rights. All three were later convicted of first-degree murder and aggravated arson.

One problem with Galvan's statement, which would eventually help to get his conviction overturned, was that it claimed that he had lit the Molotov cocktail with a cigarette.

 Years later, when Galvan was 39, he watched a re-run of an episode of Mythbustersfrom his prison cell, and saw them prove that that was pretty much impossible.

 The show was testing Hollywood tropes, including that throwing a cigarette into a pool of gasoline would ignite it. 

They concluded, after several desperate attempts to light a fire with a cigarette (even rolling it around in there), that it was a myth.

In fact, though we'd really recommend just rubbing it against the ground, it is possible to put a cigarette out in gasoline if you are in one hell of a pinch.

<div class="player-unavailable"><h1 class="message">An error occurred.</h1><div class="submessage">Unable to execute JavaScript.</div></div>

Galvan contacted his lawyer, who by coincidence had also seen the episode, and she investigated this aspect of his case further.

It turned out that in 2007, a team of researchers at America's Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) had looked into the same thing, after a group of suspected arsonists claimed that fires had been accidentally started by cigarettes.

 The team tried 2,000 times to start a gasoline fire using a cigarette to light it, even spraying gasoline at a lit cigarette. Not once did it ignite.

"Despite what you see in action movies, dropping a lit cigarette on to a trail of gasoline won't ignite it, assuming normal oxygen levels and no unusual circumstances," the bureau told The Scotsman at the time.

"That's because the gasoline has limited contact with the hottest, glowing part of the ash, and X-ray thermography has shown that this is very localised."

Using arson experts to attest to the impossibility of lighting gasoline using cigarettes, and several witnesses who testified that the police officer who took the statements had used violent coercion elsewhere, Galvan's legal team were able to secure his exoneration. A few years later, at their own appeals, all three convictions were overturned.

“Mr. Galvan’s case speaks to the critical importance of establishing such mechanisms for people to get back into court when science changes or evolves, or when experts repudiate past testimony,” Rebecca Brown, Innocence Project director of policy said in a press release. 

“Without these mechanisms in many instances, innocent people are prevented from presenting forensic evidence of their innocence after their wrongful conviction.”

“A ‘change-in-science’ statute here would have allowed for a presentation reflecting those changes in arson science and could have likely expedited Mr. Galvan’s exoneration.""

The entire story can be read at: 

https://www.iflscience.com/innocent-man-freed-from-prison-after-35-years-thanks-to-an-old-episode-of-mythbusters-65677Ihttps://www.iflscience.com/innocent-man-freed-from-prison-after-35-years-thanks-to-an-old-episode-of-mythbusters-65677

PUBLISHER'S NOTE:  I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

—————————————————————————————————

FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project;

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