Areli Escobar: Texas: "The U.S. Supreme Court should once again consider the case of this Texas death row inmate whose conviction was based on DNA evidence tested by a lab that “consistently and egregiously mishandled DNA evidence,” the ABA (American Bar Association)has said in an amicus brief, The ABA Law Journal (Author Debra Cassens Weiss) reports...“The DNA errors go to the heart of the reliability of the evidence in this case and cast a pall over [Escobar’s] conviction and sentence,” the new ABA brief said. DNA evidence found to be false and unreliable “ran afoul” of at least four parts of the ABA Standards for Criminal Justice: DNA Evidence, according to the new amicus brief. Those standards say labs should maintain accreditation through “scrupulous adherence to scientific best practices,” should collect and keep evidence in a manner that prevents contamination, should implement scientifically valid protocols, and should take steps to minimize bias in the interpretation of DNA test results. In Escobar’s case, the brief said, lab employees provided misleading testimony that gave the impression they had a system of checks and balances. In addition, the lab had multiple instances of evidence contamination, employed unqualified staff members who used “indefensible” protocols, and failed to minimize bias in interpreting test results. Lab contamination affected samples from Escobar’s shoe and his sister’s Mazda vehicle, the new ABA brief said. “It ought to be uncontroversial that when critical evidence in a capital murder trial was based on scientifically unreliable methods and processes of dubious validity, the resulting conviction cannot stand,” the ABA brief said."

PASSAGE OF THE DAY: "The lab’s mishandling of DNA evidence was so egregious that it was shut down by the state, the first ABA brief said."

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STORY: "DNA issues 'cast a pall' over murder conviction, warranting SCOTUS review, ABA (American Bar Association)  amicus brief says," by Debra Cassens Weiss, published by The American Bar Review, on March 28, 2024. (Debra Cassens Weiss, a senior writer for the web, joined the ABA Journal staff in 1986. She was previously the managing editor, an assistant managing editor and news editor. She had worked as a news researcher for WMAQ-TV in Chicago, as a reporter and editor at the City News Bureau of Chicago, and as a newscaster at WMRO and WAUR radio (Aurora, Ill.). Weiss has a JD from DePaul University College of Law and a BA in English from the University of Illinois.)

PHOTO CAPTION: "The U.S. Supreme Court should once again consider the case of a Texas death row inmate whose conviction was based on DNA evidence tested by a lab that “consistently and egregiously mishandled DNA evidence,” the ABA has said in an amicus brief."

GIST: "The U.S. Supreme Court should once again consider the case of a Texas death row inmate whose conviction was based on DNA evidence tested by a lab that “consistently and egregiously mishandled DNA evidence,” the ABA has said in an amicus brief.

The ABA filed the March 27 brief in the case of Areli Escobar, according to an ABA press release. It is the second time that the ABA has urged the Supreme Court to hear the case.

The ABA filed its first amicus brief in August 2022, arguing that Escobar’s conviction “ought not stand as a matter of fundamental fairness.” The brief cited findings by a state habeas court, which found that DNA evidence in Escobar’s case was “false, misleading and unreliable.”

The lab’s mishandling of DNA evidence was so egregious that it was shut down by the state, the first ABA brief said.

According to SCOTUSblog, in January 2023, Supreme Court vacated a Texas Court of Criminal Appeals decision that upheld Escobar’s conviction and remanded. The Supreme Court said the Texas court should consider the state’s position supporting Escobar and confessing error in the case.

The Texas Court of Criminal Appeals, the top criminal court in Texas, once again upheld the conviction in September 2023.

The Texas Court of Criminal Appeals said it was aware that the state was no longer defending Escobar’s conviction when it originally ruled against Escobar, and nothing presented to the court since then changes its conclusion that there was no due process violation. There was no showing that lab deficiencies affected Escobar’s DNA evidence, the court said.

Evidence shown to be false—statistical errors in DNA probability estimates—isn’t material because Escobar would have been convicted anyway, the court had concluded.

The victim in the case, 17-year-old Bianca Maldonado Hernandez, had 46 stab wounds. She lived in the same apartment building as Escobar. Escobar’s girlfriend testified at trial that she called him in the early-morning hours on the date in question, and she could hear moaning and screaming in the background. The girlfriend had concluded that Escobar was having sex with someone and had complained to her friends about it.

The Texas Court of Criminal Appeals cited the girlfriend’s testimony, along with shoe-print evidence, Escobar’s appearance after the offense, and Escobar’s fingerprint on a lotion bottle near the victim’s body,

According to the ABA’s new brief, the Texas Court of Criminal Appeals “improperly downplayed the inculpatory effect of the false DNA evidence, and retroactively attempted to rehabilitate certain pieces of evidence” to support the conviction.

“The DNA errors go to the heart of the reliability of the evidence in this case and cast a pall over [Escobar’s] conviction and sentence,” the new ABA brief said.

DNA evidence found to be false and unreliable “ran afoul” of at least four parts of the ABA Standards for Criminal Justice: DNA Evidence, according to the new amicus brief.

Those standards say labs should maintain accreditation through “scrupulous adherence to scientific best practices,” should collect and keep evidence in a manner that prevents contamination, should implement scientifically valid protocols, and should take steps to minimize bias in the interpretation of DNA test results.

In Escobar’s case, the brief said, lab employees provided misleading testimony that gave the impression they had a system of checks and balances. In addition, the lab had multiple instances of evidence contamination, employed unqualified staff members who used “indefensible” protocols, and failed to minimize bias in interpreting test results.

Lab contamination affected samples from Escobar’s shoe and his sister’s Mazda vehicle, the new ABA brief said.

“It ought to be uncontroversial that when critical evidence in a capital murder trial was based on scientifically unreliable methods and processes of dubious validity, the resulting conviction cannot stand,” the ABA brief said."

The entire story can be read at: 

https://www.abajournal.com/news/article/dna-issues-cast-a-pall-over-murder-conviction-warranting-us-supreme-court-review-aba-amicus-brief-says

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

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

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

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

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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

Christina Swarns: Executive Director: The Innocence Project;

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YET ANOTHER FINAL WORD:

David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.

https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801

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MORE VALUABLE WORDS: "As a former public defender, Texas' refusal to delay Ivan Cantu's execution to evaluate new evidence is deeply worrying for the state of our legal system. There should be no room for doubt in a death penalty case. The facts surrounding Cantu's execution should haunt all of us."

Congresswoman Jasmine Crockett; X March 1, 2024.

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Samuel Grasty, Derrick Chappell and Morton Johnson: Pennsylvania: Major (Welcome) Development - but there is still a long way to go in this case which attorney's have compared to the infamous wrongful conviction of five young men of color in the rape of a jogger in New York City’s Central Park in 1989. The Washington Post story by Reporter Justin Jouvenal is headed, "Judge vacates murder convictions of 3 Pa. (Pennsylvania) men following new DNA tests.".."The three men petitioned a Delaware County court to throw out their convictions last year, arguing a new round of DNA tests pointed to their innocence and strongly suggested an unknown person actually committed the crime. The tests for the first time showed another person’s genetic material was mixed with Nickens’s on her bed, where a violent struggle occurred. It was also found on a green jacket left in her apartment and a chewed straw in a jacket pocket. The same profile had previously been found in semen on Nickens’s body. Court of Common Pleas Judge Mary Alice Brennan did not offer an opinion with her order vacating the murder convictions, but in Pennsylvania a conviction can only be overturned if a judge finds that new evidence would be enough to change the verdict of the original trial."

PASSAGE OF THE DAY: "The men were convicted during trials in 2000 and 2001 largely on the testimony of a teenage friend, Richard McElwee, who said he served as a lookout while the trio broke into Nickens’s apartment, robbed her of $30 and beat her. A medical examiner found Nickens’s injuries aggravated existing heart and lung issues, leading to her death. The innocence group attorneys argued McElwee was prone to manipulation because he was 15, was mildly intellectually disabled and had an IQ of 69. He was facing the possibility of a lengthy prison sentence."

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STORY: "Judge vacates murder convictions of 3 Pa. men following new DNA tests - The Washington Post," by Reporter Justin Jouvenal, published by The Washington Post,  on March 28, 2024. (Reporter Jouvenal covers courts, policing and technology);

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GIST: "A Pennsylvania judge on Thursday vacated the murder convictions of three Philadelphia-area men in a 1997 slaying after new tests concluded none of their DNA had been found at the crime scene, according to a court order.

Samuel Grasty, Derrick Chappell and Morton Johnson have always maintained their innocence in the killing and possible sexual assault of 70-year-old Henrietta Nickens. Attorneys compared the case to the infamous wrongful conviction of five young men of color in the rape of a jogger in New York City’s Central Park in 1989.

The three men petitioned a Delaware County court to throw out their convictions last year, arguing a new round of DNA tests pointed to their innocence and strongly suggested an unknown person actually committed the crime.

The tests for the first time showed another person’s genetic material was mixed with Nickens’s on her bed, where a violent struggle occurred. It was also found on a green jacket left in her apartment and a chewed straw in a jacket pocket. The same profile had previously been found in semen on Nickens’s body.

Court of Common Pleas Judge Mary Alice Brennan did not offer an opinion with her order vacating the murder convictions, but in Pennsylvania a conviction can only be overturned if a judge finds that new evidence would be enough to change the verdict of the original trial.

The men were represented by the national Innocence Project, the Pennsylvania Innocence Project and Centurion, a group that works on innocence cases. Attorneys for the groups said Thursday morning they were still trying to reach their clients, who remain imprisoned.

“These guys have been fighting for 25 years now,” said Paul Casteleiro, an attorney for Centurion who represented Grasty. “To be finally vindicated is just an overwhelming thing. We’ve been saying and saying it and saying it.”

Delaware County District Attorney Jack Stollsteimer, who opposed the motion to vacate the convictions, now has 30 days to decide whether to appeal. If Stollsteimer does not, he could choose to stage new trials for the men or drop legal proceedings. Stollsteimer’s office did not immediately respond to a request for comment.

Attorneys said there were no immediate plans to release the three men. Brennan set a bail hearing for the men on May 23, but attorneys for the men said they could be released sooner if Stollsteimer chooses not to stage new trials.

Nickens lived alone and was found dead by her family in her apartment in the Philadelphia suburbs on Oct. 10, 1997. Her apartment was in disarray, and blood was spattered on her bed and a wall. Her underwear had been removed. Her relatives could not be reached for comment Thursday.

Johnson, Chappell and Grasty, who are all Black, were in their teens or early adulthood when they were arrested in Nickens’s slaying.

The men were convicted during trials in 2000 and 2001 largely on the testimony of a teenage friend, Richard McElwee, who said he served as a lookout while the trio broke into Nickens’s apartment, robbed her of $30 and beat her. A medical examiner found Nickens’s injuries aggravated existing heart and lung issues, leading to her death.

The innocence group attorneys argued McElwee was prone to manipulation because he was 15, was mildly intellectually disabled and had an IQ of 69. He was facing the possibility of a lengthy prison sentence."

The entire story can be read at:

https://www.washingtonpost.com/dc-md-va/2024/03/28/pennsylvania-henrietta-nickens-murder-case/

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

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

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

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

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;

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

YET ANOTHER FINAL WORD:

David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.

https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801

————————————————————————————————

MORE VALUABLE WORDS: "As a former public defender, Texas' refusal to delay Ivan Cantu's execution to evaluate new evidence is deeply worrying for the state of our legal system. There should be no room for doubt in a death penalty case. The facts surrounding Cantu's execution should haunt all of us."

Congresswoman Jasmine Crockett; X March 1, 2024.

——————————————————————

Tonia Miller: Michigan: Shaken Baby Syndrome: Major (Welcome) Development: This wrongfully convicted mother is suing 'Battle Creek' (the city) and doctors, 21 years after her baby’s death, mlive.com (Reporter Audrey Whitaker) reports…"In 2003, Miller was convicted by a Calhoun County jury of second-degree murder in the death of her 11-week-old child, Alicia Duff. The prosecution argued Miller caused the infant’s death by violently shaking her. Judge Vicky Alspaugh granted Miller a retrial in January 2021, as new evidence from medical experts suggested Alicia died of fulminant pneumonia. Miller was released from the Women’s Huron Valley Correctional Facility in Ypsilanti on April 22, 2021, after serving 18 years in prison. Charges against her have since been dropped. In 2003, three medical experts testified Alicia suffered subdural bleeding, a cerebral edema and retinal hemorrhages that met the diagnostic criteria for shaken baby syndrome. These three symptoms can be present in infants who have been violently shaken, however, it is now understood they can also occur for reasons that have nothing to do with traumatic abuse, according to the National Registry of Exonerations. Prior to Alicia’s death, Miller had sought medical treatment for the 11-week-old, who “had trouble keeping her formula down,” vomited frequently and had spontaneously stopped breathing for as long as 45 seconds “a number of times,” according to court documents. Then-Kalamazoo County Medical Examiner Dr. Brian Hunter and Bronson Medical Center pediatric intensivist Dr. Robert Beck “ignored the open and obvious death from pneumonia in favor of the criminal charge of child abuse,” court documents state."

PASSAGE ONE  OF THE DAY: "Alicia bore no external injuries or broken bones and no one saw Miller shake her. Miller testified in her trial that she had been feeding her daughter formula from a bottle when the infant began gasping for air and stopped breathing. The baby “arched backward” and formula came out of her nose, Miller testified. In addition to suffering the loss of her infant, Miller was separated from family, including her then 2-year-old daughter. Miller was 18 when Alicia died, and went to prison two years later.

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PASSAGE TWO OF THE DAY: "In addition to suffering the loss of her infant, Miller was separated from family, including her then 2-year-old daughter. Miller was 18 when Alicia died, and went to prison two years later. "(Miller) was taken from her family, losing the opportunity to watch, guide and support her child through her childhood, adolescence and young adulthood,” court documents state. “She missed the ability to share holidays, birthdays, weddings and other life events with her loved ones. Finally, (Miller) must now attempt to make a life for herself outside of prison without the benefit of almost two decades of life or work experiences.”

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STORY: "Wrongfully convicted mom sues city, doctors 21 years after her baby's death," by Reporter Audrey Whitaker, published by mlive.com, on March 26,  2024.

GIST: A wrongfully convicted Battle Creek woman is suing after spending 18 years in prison for the death of her infant daughter.

Tonia Miller is seeking compensation for injuries, including loss of liberty, wages, reputational harm and emotional trauma in a federal civil rights lawsuit filed against the city of Battle Creek, Kalamazoo County and several individuals on March 19.

In 2003, Miller was convicted by a Calhoun County jury of second-degree murder in the death of her 11-week-old child, Alicia Duff. The prosecution argued Miller caused the infant’s death by violently shaking her.

Judge Vicky Alspaugh granted Miller a retrial in January 2021, as new evidence from medical experts suggested Alicia died of fulminant pneumonia.

Miller was released from the Women’s Huron Valley Correctional Facility in Ypsilanti on April 22, 2021, after serving 18 years in prison. Charges against her have since been dropped.

In 2003, three medical experts testified Alicia suffered subdural bleeding, a cerebral edema and retinal hemorrhages that met the diagnostic criteria for shaken baby syndrome. 

These three symptoms can be present in infants who have been violently shaken, however, it is now understood they can also occur for reasons that have nothing to do with traumatic abuse, according to the National Registry of Exonerations.

Prior to Alicia’s death, Miller had sought medical treatment for the 11-week-old, who “had trouble keeping her formula down,” vomited frequently and had spontaneously stopped breathing for as long as 45 seconds “a number of times,” according to court documents.

Then-Kalamazoo County Medical Examiner Dr. Brian Hunter and Bronson Medical Center pediatric intensivist Dr. Robert Beck “ignored the open and obvious death from pneumonia in favor of the criminal charge of child abuse,” court documents state.

Hunter, Beck and investigators Tim Hurtt, Robert Peck and Russell Bell are all named as defendants in the lawsuit, in addition to Battle Creek and Kalamazoo County.

Miller said she shook Alicia “just enough to where she straightened (her) back out” in an attempt to get the child to react. She denied having shaken Alicia violently or with intent to injure her.

Alicia bore no external injuries or broken bones and no one saw Miller shake her. Miller testified in her trial that she had been feeding her daughter formula from a bottle when the infant began gasping for air and stopped breathing. The baby “arched backward” and formula came out of her nose, Miller testified.

In addition to suffering the loss of her infant, Miller was separated from family, including her then 2-year-old daughter. Miller was 18 when Alicia died, and went to prison two years later.

“(Miller) was taken from her family, losing the opportunity to watch, guide and support her child through her childhood, adolescence and young adulthood,” court documents state. “She missed the ability to share holidays, birthdays, weddings and other life events with her loved ones. Finally, (Miller) must now attempt to make a life for herself outside of prison without the benefit of almost two decades of life or work experiences.”

Miller’s legal team, Erickson & Oppenheimer, Ltd, could not be reached to say how much money Miller is seeking in the lawsuit. Kalamazoo County declined to comment on pending litigation.

“We have not yet been served in the matter, but have taken the initial steps of reviewing the Court of Appeals opinions from 2020 and 2021,” the city of Battle Creek attorney’s office said in a statement. “Beyond that, we do not comment on pending litigation.”

The state of Michigan awarded Miller $897,148 in September 2022 as compensation for her wrongful conviction."

The entire story can be read at:

https://www.mlive.com/news/kalamazoo/2024/03/wrongfully-convicted-mom-sues-city-doctors-21-years-after-her-babys-death.html

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PASSAGE OF THE DAY: National Registry of Exonerations: "Without holding an evidentiary hearing, Judge Sarah Lincoln denied Miller’s motion on July 2, 2018. She wrote: “Defendant claims that she is entitled to a new trial in the instant case because of newly discovered scientific evidence that now provides an ‘alternative diagnosis’ of death by natural causes. However, the evidence in the case remains the same. The alternative diagnosis put forth by defendant’s new experts is based upon the exact same medical and autopsy records relied upon by the trial experts presented by both the People and the defense. It is simply a different interpretation of those records.” Miller appealed, and on August 6, 2020, the Michigan Court of Appeals, remanded the case back to Calhoun County and ordered an evidentiary hearing before a different judge. The appellate court said Judge Lincoln had used facts not in the record to support her ruling and that the credibility of Miller’s experts required an evidentiary hearing. In addition, the opinion said that Judge Lincoln had erred by saying there was no new evidence simply because Miller’s experts used the same records available at trial. “A shift in scientific consensus undermining the evidence presented at trial would indeed constitute newly discovered evidence,” the appellate court wrote. "

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National Registry of Exonerations entry by Ken Otterbourg: (Originally entered on September 20, 2021): Contributing factor: False or misleading forensic evidence.

"At 9:09 a.m. On October 19, 2001, 18-year-old Tonia Miller of Battle Creek, Michigan, called 911 and said her infant daughter, Alicia Duff, wasn’t breathing. Paramedics arrived a few minutes later and found Alicia unresponsive and motionless on the floor. They then saw her cough and vomit formula. On the way to Battle Creek Hospital, paramedics tried to intubate Alicia. When that didn’t work, they used a face mask to help her breathe. At the hospital, Alicia was intubated. A chest X-ray showed part of her left lung was unusually dark and “opacified.”  Alicia remained unable to breathe on her own and was transferred that day to the pediatric unit at Bronson Methodist Hospital in Kalamazoo. Dr. Glenn Libby ordered a CT scan, which showed mild swelling in the girl’s brain, as well as bleeding in and around the brain. At about 3:00 p.m., Libby discussed Alicia’s case with Miller, the girl’s father, Alan Duff, and another family member. Libby said there was a likelihood that Alicia had abusive-head trauma, also known as Shaken Baby Syndrome (SBS). According to Libby’s notes, Duff was silent, and Miller denied any possibility of abuse. Libby told Duff and Miller that the medical staff would also be looking for other possible causes of Alicia’s injuries. Also that day, Dr. Jonathan Rowe performed an ophthalmological examination of Alicia and found retinal hemorrhaging, which he said was “consistent with Shaken Baby Syndrome.” Two doctors examined Alicia that night and found no evidence of bone fractures or bruising. Her condition didn’t improve, and Alicia was taken off life support on October 20 and died at 7:27 that evening. She was 11 weeks old. Even before Alicia’s death, Detective Tim Hurtt of the Battle Creek Police Department had begun investigating whether the infant’s injuries were due to child abuse. In his report, Hurtt said that as he drove to the Kalamazoo Hospital on October 20, he spoke with a child welfare worker named Robert Peck who said a pediatric physician told him that Alicia’s injuries were the result of abuse. Peck told Hurtt that he and another social worker, Robert Bell, wanted to interview Miller, and Hurtt said that was okay. According to Hurtt’s notes, Peck said Miller told him that Alicia “arched her back,” threw up, and then stopped breathing as Miller attempted to feed her. Peck said Miller told him that she shook Alicia three to five times and then called 911.  Peck said that Miller hadn’t mentioned the shaking the first time he talked with her, so he asked her again about what happened. This time, he said, Miller only said that “maybe” she shook Alicia. He would ask her two other times about the shaking. Miller gave two different answers, one where she shook Alicia two to three times, and another involving four to five shakes.  Peck told Hurtt that he had talked with Duff, the child’s father, and Duff said that Miller suffered from “a little depression,” and that he wasn’t very involved in raising his daughter. In addition, Peck noted that Miller had been in foster care as a child and that she and Duff were both unemployed and living with his parents. Miller also had a two-year-old daughter. Hurtt also spoke with Dr. Robert Beck, the pediatric physician. He said the injuries were “inflicted abuse and not accidental trauma.” After Alicia’s death, an autopsy was performed at Sparrow Hospital in Lansing by Dr. Brian Hunter. He ruled the death a homicide, noting the presence of brain swelling, brain hemorrhaging, and retinal hemorrhaging, which according to his training gave a clear indication of Shaken Baby Syndrome.  He wrote: “In my opinion, this child died as a result of the head injuries inflicted by another person, making them abusive in nature.” He said blunt force trauma couldn’t be excluded, but there were no bruises or fractures.  Hunter told Hurtt of his findings on October 22, 2001, and Hurtt arrested Miller and brought her in for questioning. She declined to answer questions, asked for an attorney, and was released. She was later arrested on August 6, 2002, and charged with second-degree murder. Miller’s trial in Calhoun County Circuit Court began April 8, 2003. Prosecutors called Drs. Beck and Hunter as expert witnesses.  Beck said that Alicia died from abusive head trauma. He explained to jurors how shaking a baby can cause the brain to rapidly accelerate and decelerate, leading to extensive injuries as the brain impacts the skull. He said that after Alicia’s eye examination showed retinal hemorrhaging, he and others at the hospital had been “forced” to investigate for possible brain injuries. A CT scan revealed the brain bleeding, and Beck also noticed that Alicia’s fontanelle, the still unformed part of a newborn’s skull, was swollen and bulging. Together, these three symptoms met the criteria for abusive head trauma. “There’s really no other explanation typically found,” Beck said.  During Beck’s testimony, the prosecutor used a small doll to demonstrate various intensities of shaking until Beck indicated a level that would cause Alicia’s injuries.  Hunter testified about the autopsy, and he said that Alicia’s injuries could only be caused by blunt force trauma or abusive head trauma. He said shaking a baby in a “whiplash fashion” causes the brain to move “independently … much like jello.” Like Beck, Hunter also said the combined presence of brain bleeding, brain swelling, and retinal hemorrhaging were clear indicators of Shaken Baby Syndrome.  Miller’s attorney, Edwin Hettinger, did not present any expert testimony to refute the state’s finding of Shaken Baby Syndrome. He said in his opening statement that “the evidence has shown that the baby has died and it was the result of abuse.” Hettinger’s expert witness, Dr. Ljubisa Dragovic, would testify: “The injury of a three-month-old baby does not happen just like that, so some trauma obviously occurred; some force had been rendered at the head of this baby. There’s no question about that.” Although conceding the presence of abuse, Dragovic testified that his examination of the medical records indicated Alicia had been injured a week before she died, suggesting that someone other than Miller hurt the baby. Hettinger would say in closing arguments, “The question the evidence left is who did it?” Miller testified in her own defense. She said Alicia frequently stopped breathing but that doctors didn't believe anything was wrong. They told her that Alicia was simply holding her breath. Miller said that on the morning of October 19, 2001, she and her two-year-old daughter were feeding Alicia when the infant began gasping for air. “She wasn't breathing and she looked straight at me and one eye had gone off to the side. I shook her enough where she started back up,” she said. Miller said the shaking was slight and she did not hurt Alicia. “I did not stand there shaking my baby.” Under cross-examination, Miller said that she had been seeing a doctor for headaches and that she felt pressure because she and Duff were unemployed. Miller also said that she had been Alicia’s sole caregiver in the week prior to the child’s death.  The jury convicted Miller of second-degree murder on April 14, 2003, and she was later sentenced to between 20 and 30 years in prison.  Miller appealed, arguing her conviction went against the weight of the evidence. The Michigan Court of Appeals affirmed the conviction, writing: “The expert witnesses agreed that Alicia’s death was the result of a trauma. Defendant’s contention that the evidence represents ‘a battle of experts’ is, therefore, irrelevant.” Miller’s conviction came just two years after the National Association of Medical Examiners published a position paper on abusive head trauma that incorporated the theory that brain swelling, brain bleeding and retinal hemorrhaging – a so-called “triad of symptoms” – indicated the violent shaking of a child.  The paper was withdrawn in 2006. Researchers now have a wider understanding of abusive head trauma. It’s not that these three symptoms aren’t present in infants who have been violently shaken, but rather that they can also occur for reasons that have nothing to do with traumatic abuse.  In 2018, Miller filed a motion for relief in Calhoun County Circuit Court. Now represented by the Michigan Innocence Clinic at the University of Michigan Law School, Miller said that new evidence supported her claim that Alicia died from pneumonia. She presented affidavits from four medical experts who had studied the child’s medical records and autopsy.  Dr. Francis Green, a pathologist at the University of Calgary, said there was clear evidence of pneumonia. A blood culture taken from Alicia upon her arrival at the hospital showed the presence of a bacteria associated with pneumonia in children. He said Alicia’s lungs already showed abscesses due to pneumonia. He also noted that Alicia’s medical records in the week before her admission to the hospital showed a viral infection. Dr. Janice Ophoven, a pediatric pathologist in St. Louis County, Minnesota, said brain bleeding wasn’t necessarily a sign of trauma, as 50 percent of newborns suffer from intracranial bleeding, which can lead to later bleeding. In addition, Ophoven said that biomechanical studies have shown that a newborn shaken violently enough to cause the injuries associated with abusive head trauma would also have injuries to the spine or neck. Alicia’s autopsy revealed no such injuries.  Dr. Roland Auer, a neuropathologist at the University of Saskatchewan, agreed with Green and Ophoven. He would write in his report: "The cardiac arrest, combined with efforts at resuscitation, caused hypoxic reperfusion hemorrhaging, meaning bleeding that occurs when resuscitation pumps blood through vessels that have been damaged by the hypoxia of the cardiac arrest." Auer also found evidence of an older brain bleed that could have been present since Alicia’s birth.  Dr. Julie Mack, a radiologist at Hershey Penn State Medical Center, said her review of Alicia’s X-rays and scans showed the presence of thrombosis, a clotting problem that can affect the delivery of oxygen to the brain and other organs. She also said the cloudiness seen in the images of Alicia’s lungs were an indicator of pneumonia. Hunter had noted the presence of pneumonia in his autopsy, but the only mention at trial was when Beck said the girl didn’t have pneumonia.  “It is now commonly understood that the triad of symptoms is not necessarily indicative of abuse, especially when unaccompanied by evidence of impact to the head or trauma to the neck or spine,” the motion said. “Such was the case in Alicia’s death. Based on this modern understanding of SBS science, Ms. Miller’s new experts now agree that there is nothing in this case to indicate abuse.” The motion said that the belief in the triad of symptoms as an indicator of SBS was so pervasive that it would have been “unreasonably difficult” for Miller’s attorney to find an expert to refute the testimony of Hunter and Beck.  Also included in the motion for a new trial were affidavits from family and friends that attested to Alicia’s poor health since birth and her persistent breathing problems prior to October 19. The affidavits said Miller was a loving and careful mother; several noted Miller’s frustration with Alicia’s pediatrician, who dismissed her concerns about Alicia’s poor health and breathing problems as those of a “paranoid parent.” None of these witnesses testified at Miller’s trial because her defense strategy was that someone else hurt Alicia. Without holding an evidentiary hearing, Judge Sarah Lincoln denied Miller’s motion on July 2, 2018. She wrote: “Defendant claims that she is entitled to a new trial in the instant case because of newly discovered scientific evidence that now provides an ‘alternative diagnosis’ of death by natural causes. However, the evidence in the case remains the same. The alternative diagnosis put forth by defendant’s new experts is based upon the exact same medical and autopsy records relied upon by the trial experts presented by both the People and the defense. It is simply a different interpretation of those records.” Miller appealed, and on August 6, 2020, the Michigan Court of Appeals, remanded the case back to Calhoun County and ordered an evidentiary hearing before a different judge. The appellate court said Judge Lincoln had used facts not in the record to support her ruling and that the credibility of Miller’s experts required an evidentiary hearing. In addition, the opinion said that Judge Lincoln had erred by saying there was no new evidence simply because Miller’s experts used the same records available at trial. “A shift in scientific consensus undermining the evidence presented at trial would indeed constitute newly discovered evidence,” the appellate court wrote.  Judge Vicky Alspaugh held three days of evidentiary hearings in the fall of 2020. During testimony at these hearings, Hunter acknowledged that the triad of symptoms was no longer considered as a conclusive indicator of shaken baby syndrome as he testified to at Miller’s trial.  On January 25, 2021, Judge Alspaugh granted Miller’s motion for a new trial. She said the review of Alicia’s record by Miller’s experts constituted new evidence that could not have been discovered at her 2003 trial. Judge Alspaugh said the jury was given no other explanation for Alicia’s death, only a different timeline. “I think a reasonable juror who is given the expert testimony of these four credible experts, giving them an alternative cause for this young baby’s death, I think a different verdict is probable,” she said in her ruling from the bench. Miller was released from prison on April 22, 2021. After the reversal, Miller was represented by Mary Chartier and Rhonda Ives, who filed discovery motions in preparation for a retrial. Prosecutors dismissed the charge on August 30, 2021.  In December 2021, Miller filed a claim against the state of Michigan, seeking compensation for her wrongful conviction. In September 2022, she was awarded $897,148 in compensation.  In March 2024, Miller filed a federal civil-rights lawsuit against Battle Creek, Kalamazoo County, and several individuals, seeking compensation for her wrongful conviction."

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6030

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

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

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

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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

Christina Swarns: Executive Director: The Innocence Project;

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YET ANOTHER FINAL WORD:

David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.

https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801

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MORE VALUABLE WORDS: "As a former public defender, Texas' refusal to delay Ivan Cantu's execution to evaluate new evidence is deeply worrying for the state of our legal system. There should be no room for doubt in a death penalty case. The facts surrounding Cantu's execution should haunt all of us."

Congresswoman Jasmine Crockett; X March 1, 2024.

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