JURYGATE; BARRIE, ONTARIO; DEFENCE ARGUES SECRET JURY VETTING TAINTED FIRST-DEGREE MURDER CONVICTION IN YOUNG OFFENDER CASE;

"COURT DOCUMENTS, FILED BY FEDUNCHAK (DEFENCE LAWYER), STATE HE'S ASKING THAT THE VERDICT BE THROWN OUT, OR FOR AT LEAST A MISTRIAL, ON TWO GROUNDS: THAT THE JURY WAS VETTED AND, SECONDLY, THERE WAS JURY MISCONDUCT. FEDUNCHAK DID NOT ELABORATE ON WHAT THE MISCONDUCT ENTAILED."

TRACY MCLAUGHLIN: SUN MEDIA;
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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

TRACY MCLAUGHLIN; SUN MEDIA;

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The Sun Media Sun Story, by Tracy McLaughlin, ran earlier today under the heading, "Lawyer demands murder conviction be tossed."

"BARRIE -- A defence lawyer wants the murder verdict for a young offender convicted in a brutal stabbing tossed out of court because of secret jury vetting, the Toronto Sun has learned," the story begins;

"Lawyer Ben Fedunchak argues the jury was secretly vetted by the Crown before jury selection in a trial that led to a first-degree murder conviction against his client, who can't be identified," it continues;

"Last February following a two-month trial, a jury spent two days deliberating before it decided that the teen, who was 16 at the time, was guilty of repeatedly stabbing 14-year-old Brayton Bullock in the head, back and chest in Lackie's Bush in Barrie on March 9, 2006.

Court documents, filed by Fedunchak, state he's asking that the verdict be thrown out, or for at least a mistrial, on two grounds: that the jury was vetted and, secondly, there was jury misconduct. Fedunchak did not elaborate on what the misconduct entailed.

Fedunchak also complained that the Crown hasn't given him full disclosure regarding both allegations, while some of the disclosure he did receive "has been edited," court documents state.

A three-day hearing was set to begin yesterday to determine whether the teen should be sentenced as an adult, but that was put on hold. A date for possible arguments over a stay of proceedings or mistrial was set for Aug. 25.

Outside court, the mother and family members of the murdered teen were visibly upset.

"We are sick -- just sick about this," said aunt Cheryl Bullock. "A new trial would put this family through the trauma all over again ... We need this to end."

This is the third or fourth time allegations that the Crown has been vetting its juries has arisen at the Barrie courthouse in recent weeks.

Last month, three jury panels were dismissed in Barrie after defence lawyers claimed the Crown obtained lists of prospective jurors with private information written beside their names that included such things as drinking problems, depression, mental health problems, minor criminal convictions, highway traffic offences and drunk driving offences that dated back more than 30 years.

Defence lawyers involved insisted they were shocked and knew nothing about the jury vetting."

Harold Levy...hlevy15@gmail.com;

THE MELENDEZ-DIAZ CASE: CRITICAL COMMENT; HOUSTON CHRONICAL CASE WELCOMES THE DECISION IN EDITORIAL HEADED "ACCOUNTABILITY";

"LAST DECEMBER, RICARDO RACHELL WAS RELEASED FROM PRISON AFTER SERVING SIX YEARS FOR SEXUALLY ASSAULTING A CHILD, CLEARED BY DNA THAT HAD BEEN AVAILABLE ALL ALONG — A VICTIM OF SHODDY POLICE WORK AND INADEQUATE REPRESENTATION.

JUST LAST WEEK, ANOTHER HOUSTONIAN, GEORGE RODRIGUEZ, WAS AWARDED $5 MILLION BY A FEDERAL GRAND JURY FOR THE “DELIBERATE INDIFFERENCE” OF THE CITY TO DISCREDITED EVIDENCE FROM THE CRIME LAB WHICH LED TO HIS CONVICTION. HE SPENT 17 YEARS IN PRISON FOR A KIDNAPPING AND RAPE HE DID NOT COMMIT."

HOUSTON CHRONICLE EDITORIAL;

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

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"Last week, the U.S. Supreme Court issued a significant ruling, one that upholds the right of a criminal defendant, during trial, to confront the analyst who prepared a forensic report if the prosecution plans to use that report as evidence," the Houston Chronicle editorial begins;

"The ruling, in the case of Melendez-Diaz v. Massachusetts, confirmed the confrontation clause of the Sixth Amendment, which provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him," the editorial continues;

"It was no surprise that Justice Antonin Scalia wrote the majority opinion. He was the author of the court’s 2004 decision, in Crawford v. Washington, which unanimously upheld that same principle.

Melendez-Diaz was a narrowly won decision (5–4), and one that will be revisited and clarified. But it was the right decision, one in which the Supreme Court reaffirmed its concern for the rights of criminal defendants, who are often left without adequate resources to defend themselves.

Nowhere has that lack been more obvious in recent years than in Houston, as evidenced by the Houston Police Department’s scandal-ridden crime lab, whose egregious mistakes, omissions and sloppy procedures have led to horrendous miscarriages of justice.

Last December, Ricardo Rachell was released from prison after serving six years for sexually assaulting a child, cleared by DNA that had been available all along — a victim of shoddy police work and inadequate representation.

Just last week, another Houstonian, George Rodriguez, was awarded $5 million by a federal grand jury for the “deliberate indifference” of the city to discredited evidence from the crime lab which led to his conviction. He spent 17 years in prison for a kidnapping and rape he did not commit.

Defense attorneys applauded the decision: Noted Houston attorney Stanley Schneider called the decision “outstanding. An individual’s right to freedom is the most precious thing we have, and the right to cross-examination is the backbone of our system of justice.”

But many prosecutors, and the court minority, complained that it would place an undue strain on forensic analysts and prosecutors. Scott Burns, executive director of the National District Attorneys Association, called it “a train wreck,” reported the New York Times.

But Harris County District Attorney Pat Lykos welcomed the decision, noting that since taking office last January, she has made good on her pledge to pass on all offense reports to defense attorneys and has proposed the creation, she told the Chronicle, of a “regional, independent crime lab, staffed by qualified scientists to meet the forensic demands of our justice system.”

Scalia pointed out that many states have already adopted the confrontation clause, saying “Perhaps the best indication the sky will not fall after today’s decision is that it has not done so already.”

As forensic science expands, so do the ranks of experts who interpret it. It’s reassuring to know they’ll be held accountable."

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ CASE; ANALYSIS OF THE RULING; LYLE DENNISTON; SCOTUS BLOG;

"PUTTING THE CHEMIST OR LAB TECHNICIAN ON THE STAND TO BE TESTED BY CROSS-EXAMINATION, THE MAJORITY SAID, WILL HELP “WEED OUT NOT ONLY THE FRAUDULENT ANALYST, BUT THE INCOMPETENT ONE AS WELL.”

STILL, SCALIA SAID, THE DECISION TO COMPEL THE REPORTS’ EXPERT AUTHORS TO TESTIFY IS BASED ULTIMATELY ON THE RIGHT OF CONFRONTATION, NOT THE QUALITY OF THE REPORTS OR THE CREDIBILITY OF THE CHEMIST. “WE WOULD REACH THE SAME CONCLUSION,” HE WROTE IN A FOOTNOTE, “IF ALL ANALYSTS POSSESSED THE SCIENTIFIC ACUMEN OF MME. CURIE AND THE VERACITY OF MOTHER THERESA.”

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

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"Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analyses," the analysis of the Melendez-Diaz decision on the Scotus Blog begins;

"The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution," it continues;

"Justice Antonin Scalia, the Confrontation Clause’s most devoted defender on the Court, wrote for the majority: “There is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts.”

The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.

Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst. It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated.

The opinion recited a good deal of information from published reports about how defective crime labs and their results are, and said that claims that lab reports are the product of “neutral scientific testing” are open to challenge because such reports are not “as neutral or as reliable” as advertised. “Forensic evidence,” Scalia wrote, “is not uniquely immune from the risk of manipulation.”

He cited one report, for example, that said “there is wide variabiility across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.”

Putting the chemist or lab technician on the stand to be tested by cross-examination, the majority said, will help “weed out not only the fraudulent analyst, but the incompetent one as well.”

Still, Scalia said, the decision to compel the reports’ expert authors to testify is based ultimately on the right of confrontation, not the quality of the reports or the credibility of the chemist. “We would reach the same conclusion,” he wrote in a footnote, “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”


To the complaints of prosecutors (and the dissenting Justices) that the decision is going to lay a heavy new burden on the preparation and analysis of criminal evidence, Justice Scalia opined that “the sky will not fall.”

The best evidence of that, he wrote, is that the sky had not fallen even without the new ruling, because “many states have already adopted the constitutional rule that we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Right after receiving notice of the prosecution’s intent to use a forensic analyst’s report…There is no evidence that the criminal justice system has ground to a halt…”

Moreover, Scalia said, defense lawyers may often opt not to insist on confronting a crime lab analyst, because they may conclude for strategic reasons that this might highlight rather than cast doubt on the report’s results as evidence.

Scalia’s opinion was supported by three of the Court’s more liberal members — Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — and by another conservative like Scalia: Justice Clarence Thomas. Thomas filed a separate concurrence, putting some limits on what he understood the sweep of the ruling might be.

Justice Anthony M. Kennedy, joined by two conservatives, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., and a member of the liberal bloc, Justice Stephen G. Breyer. Kennedy began his dissent with a sweeping challenge: “The Court sweeps away an acceped rule governing the admission of scientific evidence. Until today, scientific evidence could be introduced into evidencde without testimony from the ‘analyst’ who produced it. This rule has been established for at least 90 years.”"

Harold Levy...hlevy15@gmail.com;

THE MELENDEZ-DIAZ CASE: SUPREME COURT JUSTICE SCALIA TELLS AMERICANS HOW VULNERABLE THEY ARE TO AMERICAN FORENSIC SCIENCE AS IT IS PRACTICED TODAY;

"CONFRONTATION IS DESIGNED TO WEED OUT NOT ONLY THE FRAUDULENT ANALYST, BUT THE INCOMPETENT ONE AS WELL. SERIOUS DEFICIENCIES HAVE BEEN FOUND IN THE FORENSIC EVIDENCE USED IN CRIMINAL TRIALS. ONE COMMENTATOR ASSERTS THAT “(T)HE LEGAL COMMUNITY NOW CONCEDES, WITH VARYING DEGREES OF URGENCY, THAT OUR SYSTEM PRODUCES ERRONEOUS CONVICTIONS BASED ON DISCREDITED FORENSICS."

JUSTICE ANTONIN SCALIA; MELENDEZ-DIAZ v. MASSACHUSETTS.

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

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Here is the portion of Justice Scalia's decision for the majority of the Court which certainly caught my attention and should be required reading for anyone concerned about the fairness and accuracy of America's criminal justice system. I find it hard to believe that prior to this decision, scientific analysis could be introduced into evidence without testimony from the 'analyst' who produced it. I have omitted references in order to facilitate facilitate the flow of his comments. (I have provided a link to the complete decision - with references - at the end of this post);

“Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted by the National Academy of Sciences, “(t)he majority of laboratories producing forensic evidence are administered by law enforcement agencies such as police departments where the laboratory administrator reports to the head of the agency.” And (b)ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency. A forensic analyst responding to a request from a law enforcement official may feel pressure – or have an incentive – to alter the evidence in a manner favourable to the prosecution.

Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, the same cannot be said of the fraudulent analyst. See brief for National Innocence Network as Amicus Curiae (discussing cases of documented “drylabbing” where forensic analysts report results of tests that were never performed. National Academy Report (discussing documented cases of fraud and error involving the use of forensic evidence.) Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. And, of course, the prospect of confrontation will deter fraudulent analysis in the first place;

Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “(t)he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics. One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. And the National Academy Report concluded:

“The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.”

Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination.

After noting that the Melendez-Diaz case is illustrative of the reality that ”Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination," Justice Scalia goes on to conclude that:

“Contrary to respondent’s and the dissent’s suggestion, there is little reason to believe that confrontation will be useless in testing analyst’s honesty, proficiency, and methodology – the features that are commonly the focus in the cross-examination of experts;"

The Melendez-Diaz decision can be found at:

http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf

Harold Levy...hlevy 15@gmail.com;

UP-DATE; JURYGATE; LAW TIMES REVEALS ATTORNEY GENERAL HAS JOINED PROBE INTO IMPROPER AND POSSIBLY ILLEGAL JUROR BACKGROUND CHECKS;

"LAW TIMES HAS LEARNED THE CRIMINAL LAWYERS’ ASSOCIATION RECENTLY WROTE TO JOHN AYRE, BENTLEY’S ASSISTANT DEPUTY ATTORNEY GENERAL IN THE MINISTRY’S CRIMINAL LAW DIVISION, TO MAKE AN UNPRECEDENTED DEMAND THAT COULD HAVE SWEEPING IMPLICATIONS FOR PAST CONVICTIONS ACROSS THE PROVINCE.

THE ASSOCIATION IS SEEKING A WRITTEN RECORD OF ALL THE RELEVANT INFORMATION AVAILABLE FROM POLICE AND CROWN ATTORNEYS.

“IN VIEW OF THE HIGHLY UNUSUAL CIRCUMSTANCES THAT THIS ISSUE PRESENTS, I AM GOING TO MAKE A NOVEL REQUEST,” CLA PRESIDENT FRANK ADDARIO WROTE IN THE LETTER TO AYRE. “I ASK THAT YOU PREPARE FULL DISCLOSURE OF ALL INFORMATION IN THE MINISTRY’S POSSESSION RELATING TO ANY PRIOR JURY TRIALS IN THIS PROVINCE IN WHICH THIS PRACTICE IS KNOWN TO HAVE OCCURRED,” THE LETTER GOES ON.

“THE REQUEST FOR DISCLOSURE INCLUDES THE NAMES OF THE CRIMINAL TRIALS IN WHICH THIS PRACTICE IS KNOWN TO HAVE OCCURRED, THE NAMES AND RELEVANT NOTES OF THE POLICE OFFICERS AND CROWN OFFICIALS WHO WERE DIRECTLY INVOLVED IN OR WHO HAD KNOWLEDGE OF THE PRACTICE IN THOSE CASES, AND THE NATURE OF THE INFORMATION TRANSMITTED BY CROWN COUNSEL IN THOSE CASES.”"

REPORTER TIM NAUMETZ; THE LAW TIMES;

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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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The law Times story ran earlier today under the heading "AG joins probe into juror background checks."

"OTTAWA — Ontario Attorney General Chris Bentley has joined an inquiry into the extent Crown prosecutors have improperly — and possibly illegally — used police sources to screen prospective jurors," the story, by reporter Tim Naumetz, begins;

"Bentley jointly wrote a letter with Privacy Commissioner Ann Cavoukian containing detailed questionnaires to all 54 Crown prosecution offices in the province “to determine the nature and extent of this practice,” a spokesman for Bentley confirms to Law Times," the story continues;

"The letter went out in mid-June, just two weeks after Bentley said only that his ministry was “calling around” to Crown attorney offices and that the inquiries showed the practice of jury vetting did not seem widespread, according to media coverage of his comments at the time.

Cavoukian’s office issued an update on her investigation into jury vetting on June 15, mentioning Bentley’s assistance in the statement’s second paragraph.
But there is no record of Bentley’s office issuing an announcement of his role, and defence lawyers were unaware last week that the attorney general was taking part in the inquiry.

The move could mean a shift in focus from privacy rights of jurors and the Crown’s failure to share information with defence counsel to the legal consequences of prosecutors using information from police computer databases to select jurors they might believe would be more likely to convict.

“The priorities in all cases are a fair trial process and the protection of privacy,” Brendan Crawley, a spokesman for Bentley, tells Law Times. “We take the privacy interest of jurors seriously and will be working with the privacy commissioner to ensure respect for privacy protections in the context of fair trial rights.”

The failure of Crown attorneys to disclose the information to defence counsel in at least two instances — one that resulted in a mistrial for a murder case in Windsor — has been central to a windstorm of defence counsel objections.

Law Times has learned the Criminal Lawyers’ Association recently wrote to John Ayre, Bentley’s assistant deputy attorney general in the ministry’s criminal law division, to make an unprecedented demand that could have sweeping implications for past convictions across the province.

The association is seeking a written record of all the relevant information available from police and Crown attorneys.

“In view of the highly unusual circumstances that this issue presents, I am going to make a novel request,” CLA president Frank Addario wrote in the letter to Ayre. “I ask that you prepare full disclosure of all information in the ministry’s possession relating to any prior jury trials in this province in which this practice is known to have occurred,” the letter goes on.

“The request for disclosure includes the names of the criminal trials in which this practice is known to have occurred, the names and relevant notes of the police officers and Crown officials who were directly involved in or who had knowledge of the practice in those cases, and the nature of the information transmitted by Crown counsel in those cases.”

Toronto defence lawyer Adam Boni, a director of the association who is also leading the information-gathering initiative, says determining the extent of jury vetting is only the first step.

“In terms of properly unpeeling this onion, we have a long process to go through.” Locations where it has been revealed that Crown attorneys obtained information about prospective jurors from police now also include Toronto and Thunder Bay.

Two lawyers in Windsor representing the two accused in the murder trial that was suspended after the discovery of undisclosed Crown jury vetting have asked for a stay of the charges, primarily because of the interference with jury selection.

One of the lawyers, Kirk Munroe, tells Law Times efforts to obtain more information about the extent of vetting jurors through the Windsor police department have failed.
Superior Court Justice Bruce Thomas quashed subpoenas that would have forced Kingston police chief Gary Smith to explain statements he made to the Windsor Star about previous instances of co-operation with prosecutors.

Thomas also shot down an attempt to discover whether two different Crown prosecutors appointed for the new trial in the case had taken part in secret jury vetting in the past.
“These are public servants; how come they’re not telling us what they’re doing?” Munroe says. “If their people have engaged in misconduct, you don’t think the public has the right to know what misconduct they’ve engaged in.

“It’s been found by every court that’s dealt with it, that’s misconduct. So why don’t you tell us, has your office been engaged in it, was it systematic, was it just a few bad apples? Tell us about it.”

The other defence counsel in the case, Greg Goulin, says neither defence nor prosecution lawyers should have access to some of the information Kingston police provided — including references to a young offender record. “It’s information, in and of itself, that no one should possess except for specific purposes,” says Goulin. “It’s like radioactive material.”

Harold Levy...hlevy15@gmail.com

RECENT EDITORIAL COMMENT ON "SHAKEN BABY SYNDROME" IN AFTERMATH OF AUDREY MEADOW'S ORDEAL; THE INNOCENCE PROJECT OF FLORIDA;

"AS SCIENCE CHANGES, THE CRIMINAL JUSTICE SYSTEM OFTEN STRUGGLES TO KEEP UP. SBS IS ONE SUCH EXAMPLE, AND BECAUSE OF THE “SHIFT IN MAINSTREAM MEDICAL OPINION,” THESE CASES OUGHT TO COME UNDER HEIGHTENED SCRUTINY AND INTENSE REVIEW."

FROM PLAIN ERROR; OFFICIAL BLOG OF THE INNOCENCE PROJECT OF FLORIDA;

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"Pullitzer Price-winner Maurice Possley has a lengthy article on Shaken Baby Syndrome today on TheCrimeReport.org.," a commentary published on June 23, 2009, in the Innocence Project of Florida Bulletin under the heading "Shaken baby convictions come under scrutiny," begins;

"At the time the case was unremarkable—one of thousands of successful prosecutions during the past 30 years of parents and other care-givers who have been found guilty of charges ranging from manslaughter to murder, based on findings of what is known as the triad—retinal hemorrhage, bleeding in the brain and brain swelling. Shaken Baby Syndrome (SBS) is one of the few instances in the criminal justice system where the diagnosis is the basis for prosecution," the commentary continues.

"That last sentence is the most remarkable: the diagnosis itself is the basis for prosecution. It is remarkable because, as we know, scientists are fundamentally like any other human being: they are fallible. Oftentimes, like in fingerprint cases, or serology cases, a scientist will provide testimony that is corroborated by other circumstantial or physical factors, and the holism of the evidence against a defendant will lead to a conviction. Oftentimes the scientist’s evidence is, as it were, the last straw, but the prosecution would maintain a fairly strong case without their testimony.

On the other hand, these SBS cases are remarkable because it seems like a scientist’s testimony was enough by itself to prosecute, and even win a conviction.

The article opens by telling the story of Audrey Edmunds, a Wisconsin woman who had her SBS conviction overturned last year.

Edmunds was granted a new trial by a judge who ruled that the testimony “shows that there has been a shift in mainstream medical opinion.” In effect, the scientific foundation of the syndrome had been undermined to the extent that a new jury would probably have a reasonable doubt about Edmunds’ guilt…

A soon-to-be-published analysis of shaken baby cases and recent developments in the medical community by University of Maine School of Law professor Deborah Tuerkheimer presents persuasive evidence and raises troubling questions about whether many of these convictions were of innocent people who were found guilty on the basis of faulty science. The analysis is scheduled to be published in September by Washington University Law Review.

As science changes, the criminal justice system often struggles to keep up. SBS is one such example, and because of the “shift in mainstream medical opinion,” these cases ought to come under heightened scrutiny and intense review.

This commentary can be found at:

http://floridainnocence.org/content/?p=930

Publisher's note: About 200 shaken baby syndrome cases are currently being reviewed in Ontario, Canada, as a result of evidence of demonstrably flawed "expert" opinions and dramatically shifting medical views on the so-called syndrome called at the Goudge Inquiry.

Harold Levy...hlevy15@gmail.com;

OUTSTANDING ARTICLE ON AUDREY EDMUNDS AND ROLE PLAYED BY WISCONSIN INNOCENCE PROJECT IN SECURING HER EXONERATION; MADISON MAGAZINE;

""WHEN I TOOK ON THE CASE, I COULDN'T FIND ANY EXPERTS WHO THOUGHT [NATALIE] WASN'T SHAKEN," HURLEY SAYS. FURTHER COMPLICATING MATTERS, THE DEATH OF A YOUNG CHILD CAUSES INTENSE EMOTIONS. PROSECUTORS FEEL DRIVEN TO GIVE VOICE TO THE INNOCENT LAMB, WHILE THE PUBLIC IS HELL-BENT ON FINDING WHO'S TO BLAME."

MELANIE RADZICKI MCMANUS; MADISON MAGAZINE;

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Madison Magazine has published an excellent article on heart-rending story of Audrey Edmunds and the role played by the Wisconsin Innocence project in securing her exoneration under the caption: "Oh, Baby: Audrey Edmunds is rebuilding her life after her murder conviction was overturned."

"It was the fall of 1995, and Edmunds had the world at her feet," the article, by Melanie Radzicki McManus, a contributing writer to Madison Magazine, begins.

"The striking blonde and her husband, Dave, were the proud parents of two little girls, Carrie and Allison, and were thrilled to be expecting their third in February," the article continues.

"Edmunds felt fortunate she could stay home and care for her children in the family's new ranch home in Waunakee. During the week, the three went to the library for story hour, played in the park or frequented Waunakee's newest attraction, a McDonald's PlayPlace. Weekends often meant cookouts with the neighbors; Sunday mornings were reserved for services at Crossroads United Methodist Church.

Because she loved kids and wanted to help other neighborhood families, Edmunds started watching a few tots during the week. One of her new charges was six-month-old Natalie Beard, daughter of Waunakee residents Tom and Cindy Beard. From the start, Natalie was a difficult baby. "She fussed or cried all the time," recalls Edmunds' neighbor and friend, Patti Larson, who also babysat. "We'd go for walks together, and any time the stroller went over a sidewalk bump Natalie would cry. If there were any kind of noise, she'd startle. Audrey was constantly holding her and trying to soothe her and make her happy. But she never got frustrated with Natalie. In fact, it was the opposite. She'd say, 'Oh, this poor baby. I feel so bad for her.'"

Early in the morning of October 16, Edmunds and her girls got up and ate breakfast; they'd soon be walking Carrie to preschool with some of the neighbors. At 7:35 Cindy Beard dropped off Natalie, telling Edmunds the baby was irritable, that she'd been up twice the night before and had taken less than half her morning bottle. Natalie continued to fuss after Beard left, so Edmunds placed the baby in the master bedroom and propped the bottle of formula in her mouth, hoping the quiet room and bottle would calm her while she got the other kids ready.

During the next half hour Edmunds checked on Natalie once, and all was fine. But when she went to dress Natalie for the walk to preschool at 8:35, she quickly realized something was amiss. Natalie made some funny noises, says Edmunds, and was limp when she picked her up. Formula dribbled out of her nose and mouth, and then she became unresponsive. Fearing Natalie was choking, Edmunds sped out of the house and called to her neighbor for help. And that's when the nightmare began.


* * *


Coined in 1972, the term "Whiplash Shaken-Baby Syndrome" described children, typically under three years of age, who were violently shaken but often showed no visible signs of harm. Because their brains and neck muscles weren't fully developed, their internal injuries were severe--the typical "triad" included brain swelling and brain and retinal hemorrhaging, much like being in a serious car accident or falling several stories. The one positive, the theory went, was that a victim immediately becomes unresponsive, making it a snap to figure out who's guilty: the last person with the child. This was still the view held by most medical experts in October 1995, when Audrey Edmunds ran outside her house screaming, clutching an unresponsive infant.


* * *


After the ambulance and police arrived, Med Flight whisked away Natalie. Dave Edmunds, who had just arrived at his new job in the Twin Cities, turned around and drove back home. That afternoon the couple raced to UW Hospital to see how Natalie was doing. "I was so distraught, thinking about what had happened," recalls Edmunds, still assuming Natalie was a choking victim. "I kept thinking, 'Why did I leave her with a bottle?'" She had no idea of the storm clouds quietly gathering around her.

The physicians examining Natalie found a severe presentation of the classic Shaken Baby Syndrome symptoms. So when Natalie died that evening, Edmunds was immediately presumed guilty. The fact that Edmunds hadn't watched Natalie for the past four days and Natalie had only been in her care a mere hour before her tiny body shut down was irrelevant. Nor did it matter that Natalie had no outward signs of abuse, such as the rib fractures or bruised arms sometimes found on SBS victims. Or that much older hemorrhages were found inside her brain. Or that everyone who knew Edmunds loved her. Or that no one ever saw her abuse a child. All that mattered was Natalie had the classic SBS symptoms, and when she became unresponsive, Edmunds had her.

"There was no critical thinking about things that might have gone differently," says Stephen Hurley, her defense attorney and one of the most successful trial lawyers in Dane County. "It was complete tunnel vision."

During the investigation that followed, prosecutors would wave off information about Natalie's father, Tom, indicating he was a nervous dad who suffered from migraines and was often irritated by her incessant crying. Also dismissed was Natalie's health history, which included numerous ear infections--she was being treated for one the day she died--and dozens of calls and trips to the doctor. They even ignored the fact that Natalie's parents had taken her into the doctor for lethargy, irritability and vomiting, symptoms that can indicate brain injury, several days before her death.

Shelly Rusch, Dane County assistant district attorney, says there was no reason to consider any of those factors because the case was one of simple timing. (Rusch was not involved with the case in 1995, but worked on it recently.) "We prosecutors were lucky," she says. "Natalie's injuries were so serious, any person suffering from them would have been immediately symptomatic. It is what it is."


* * *


John Plunkett is a Minnesota pathologist who has questioned SBS for years. Initially, he was considered part of the lunatic fringe; now he's treated with growing deference. Plunkett first became interested in the subject around 1985, when a defense attorney asked him to look into the death of an eighteen-month-old girl. The girl's mom said she'd been standing on the arm of a sofa and fell, hitting her head on the floor. She was brought to the hospital with retinal hemorrhages, brain swelling and subdural hemorrhages. The State alleged the mother shook her. "I said, 'Well, couldn't this fall have caused the death?'" says Plunkett. "They said, 'We never see it, so short-distance falls don't cause serious injuries in kids.' I said, 'But how do we know that?' And they said, 'Because we never see it.' That's just a circular argument, so I started looking at Shaken Baby Syndrome and realized something was very wrong."

But back then, few people agreed. Although Plunkett and other interested experts began studying everything from shaking's biomechanical effects on an infant's head and neck to whether a baby could have a lucid interval between the time shaking occurred and the baby became unresponsive, the medical and scientific communities were still largely united ten years later, when Natalie died. So rather than prosecutors having the burden of proving Edmunds' guilt, in reality Edmunds' defense team had to prove her innocence. In 1995, that was nearly impossible.

"When I took on the case, I couldn't find any experts who thought [Natalie] wasn't shaken," Hurley says. Further complicating matters, the death of a young child causes intense emotions. Prosecutors feel driven to give voice to the innocent lamb, while the public is hell-bent on finding who's to blame.

Hurley found just one medical expert who could help. Like the prosecution's experts, Mary Dominski, a pediatric neurologist with Dean Health System, believed Natalie had been shaken. But Dominski was the only physician to consider relevant her medical history and extreme fussiness the previous day, leading her to conclude Natalie was moderately shaken before she arrived at the Edmunds home. Then, Dominski theorized, Natalie suffered a major seizure at daycare from the prior shaking, culminating in her death.

Lacking additional experts, numerous friends testified to Edmunds' stellar character: She had boatloads of patience. She loved kids. They never heard her utter an angry word. They dropped in unannounced all the time and never saw anything amiss. "Audrey has that personality people automatically gravitate toward," says good friend and former neighbor Shelley Murphy. "She'd do anything for anyone." Might Edmunds have been overwrought and momentarily lost it, shaking the ever-fussy Natalie? "I never, ever even considered she might have done it," says Murphy. "I understand she was the last person with the child, but anyone who knew her knew there was just no way."

Unfortunately for Edmunds, nearly everyone judging her had never met her.


* * *


The prosecution easily amassed eight medical experts. And while they weren't in total agreement regarding Natalie's injuries and how they combined to cause her death, all believed she was an SBS victim and Edmunds was the one who killed her.

Lead prosecutor Gretchen Hayward, now retired, pulled out all the stops during Edmunds' trial, painting her as an outwardly nice person with a violent, hidden side. "Gretchen said very dramatic things, like I slammed Natalie's head into a blunt object," recalls Edmunds, interviewed recently near her home in Minnesota. "But Natalie had no head trauma, no skull fracture. I simply found a choking baby! They also tried to implicate me by saying everyone has a dark side, that my friends didn't know the real me, that I was stressed out because I was pregnant and moving, even though I was happy about both events. They tried to create a scenario that just didn't exist."

Despite the overwhelming opinions against her, Edmunds appeared headed for acquittal, Hurley says. And then she took the stand.

"She looked like the proverbial doe caught in the headlights on cross-examination," Hurley remembers. "She kept looking at me when the jury asked a question, like I was coaching her. She fell apart."

But what average American on trial for murder wouldn't be more than a little rattled when grilled by a seasoned prosecutor, questions Dean Strang, who later served as Edmunds' appellate lawyer. Nevertheless, Edmunds' fate was sealed. On November 26, 1996, she was pronounced guilty of first-degree reckless homicide. Her children were just five, two and nine months.

"I wanted to burst into tears and scream," says Edmunds. "I couldn't imagine being put into prison. I'm still shocked about it." When Edmunds arrived home that night, her conviction was already being blared across the ten o'clock news. She curled up beside her sleeping five-year-old, Carrie, and began to sob.


* * *


In the mid to late nineties, most people prosecuted for SBS were charged with second-degree reckless homicide, says Strang. If they professed innocence and were convicted, it typically meant seven or eight years behind bars. But Edmunds' conviction meant the jury felt she treated Natalie with "utter disregard for human life." Dane County Circuit Judge Daniel Moeser handed down a shocking eighteen-year sentence, barring Edmunds from raising her own girls.

"The prosecution really pushed the edges here," says Strang.

It was Dane County's most notable SBS case to date, and Judge Moeser apparently wanted to make a statement.

And so it was that in February 1997, sixteen months after the nightmare began, Edmunds found herself climbing into a van full of female convicts on its way to Taycheedah Correctional Institution, a maximum-security prison in Fond du Lac, seventy miles northeast of Madison. Sitting among seasoned criminals, dressed alike in their drab green prison garb and clanking metal shackles, Edmunds was still numb. Yet she was confident her attorneys would secure her release post haste because, well, she was innocent.

"I never dreamed I'd be in prison eleven years," she says. "I never even thought I'd be in prison one year."


* * *


Hurley turned the case over to Strang to start the appeals process, and Edmunds began her new life as a prisoner: Sleeping on an uncomfortable iron bed in a tiny cell. Urinating out in the open in a tin toilet. Signing up to use the shower or phone but not always given permission. Lacking freedom to do the tiniest things, like turn on a light or grab a snack from the fridge. Doesn't sound bad at all if you've committed a heinous crime, but if you're wrongly convicted, it suddenly appears downright inhumane.


* * *


It was right around this time the Louise Woodward case hit the news. Woodward was a nineteen-year-old British nanny working for a Massachusetts couple with two boys. After one of their sons was taken to the hospital with skull and brain injuries from which he later died, Woodward was charged with shaking him to death. Although she pled not guilty, she was convicted. The highly publicized trial caused America's medical and forensic experts to start taking a hard look at the science behind SBS.

They examined whether retinal hemorrhages can be caused by something other than shaking. They studied whether a child with SBS-type injuries can experience an extended "lucid interval," or a period of hours or days after injury where the child appears normal before becoming noticeably impaired or unconscious. They began to wonder if it was possible to violently shake a baby and cause SBS's famed triad of injuries without leaving some kind of visible neck injury. They explored similar brain injuries and death caused by lesser forces than vigorous shaking, such as short, accidental falls, or even conditions like vitamin deficiencies or immunizations. Little by little, compelling research began emerging that babies with brain swelling, retinal hemorrhages and brain hemorrhages aren't slam-dunk cases of SBS. And one by one, experts began changing their minds.

Patrick Barnes was one. A well-respected pediatric neuroradiologist at Stanford University, Barnes was the prosecution's star medical witness in the Woodward case. Today, he regrets that testimony, noting something as mundane as an ear infection can spread to the brain with dire consequences. Unless there's evidence of an impact on a baby such as a fractured skull, Barnes says SBS is more myth than science.

Minnesota's Plunkett, who has extensively studied the biomechanics of shaking, says SBS is a myth, plain and simple.

"There isn't any Shaken Baby Syndrome," he argues. "To cause subdural and retinal hemorrhages by shaking, you'd have to shake a baby twenty to twenty-five times per second to achieve the required force, or load. The most that's humanely achievable in a ten-pound model is three to four cycles per second. It's a simple mathematical equation."

Case closed.

Except it's not that simple. It never is.


* * *


At some point, Edmunds realized she was in trouble. Perhaps it was after her first appeal by Strang failed in 1999. Or when the next two petitions for her release were denied. Maybe it was after her first mandatory parole hearing in 2001. Despite being a model prisoner with no behavioral problems, plus immense community support, her parole request was summarily dismissed because she was deemed unrepentant. And in denial.

"Audrey Edmunds loved children. I believe that," says assistant D.A. Rusch. "I believe she properly cared for almost every child she took care of. But sometimes when people do something horrible, they don't want to believe they did it. And after a period of time, they convince themselves they didn't."

Meanwhile, the years ticked by. And neither side found peace. The Beards, who didn't want to comment for this story, divorced. So did Dave and Audrey. For nearly five years, Dave Edmunds fought to keep his family together, raising their daughters with help from Edmunds' parents and faithfully making the grueling five-hour drive from the Twin Cities to Taycheedah every other weekend so everyone could be together. But when Edmunds was denied parole in 2001, Dave apparently couldn't take the strain anymore, Edmunds says, and threw in the towel. Edmunds' friends and relatives began bringing the girls to visit, but now only monthly.

"There were years of tears during the girls' visits," Edmunds says. "It never, ever got easier, and I never got used to it. But hope became my religion. Without hope, you're crushed."

Then, in 2003, Edmunds finally got a break.


* * *




The University of Wisconsin Law School's Wisconsin Innocence Project was founded in 1998 to aid prisoners with plausible claims of innocence. Part of the Innocence Network, an umbrella organization of several dozen Innocence Projects worldwide, Wisconsin's has helped secure the release of twelve people. Of the five hundred requests for assistance that pour in annually from across the nation, says co-director and clinical law professor Keith Findley, the group investigates thirty to forty. Priority goes to the strongest Wisconsin-based pleas.

Although the Innocence Project hadn't handled an SBS case before, Findley was interested in Edmunds' almost immediately.

"Her trial and appellate lawyers were convinced of her innocence," he says. "But even more significantly, there was new research which had led one of the State's witnesses against Audrey at the trial to conclude his testimony was in error. Once I heard that, I knew this was something we had to look at."

That witness was Robert Huntington III, the pathologist who performed Natalie's autopsy. Finding the classic SBS triad of injuries, he had testified it was "highly probable" Natalie was injured shortly before she became comatose at Edmunds' home. But Huntington's conviction began to fade just three years later, after he performed an autopsy on another infant with injuries similar to Natalie's. When she was brought to UW Hospital, this girl was described as fussy and clingy, but interactive and responsive, much as Natalie had been in the week before her death. Yet it took trained hospital personnel more than fifteen hours to detect signs of brain injury. To Huntington, the elapsed timeframe between the girl's initial symptoms and eventual collapse now meant it was certainly possible Natalie was injured well before she reached Edmunds' home.

The Innocence Project prepared a motion for a new trial, based on new medical evidence and the current turmoil about SBS among experts. (Physicians generally favor the old science, while forensic pathologists typically side with the new.) But after an evidentiary hearing in 2007, including testimony on Edmunds' behalf by Huntington (as well as five other doctors), Judge Moeser denied the motion. The Innocence Project appealed the decision, and in January 2008 the District 4 Court of Appeals overturned her 1996 jury conviction, ruling Edmunds was eligible for a new trial. In the meantime, she was free.

Ten years and 352 days after Edmunds was led from the City-County Building in shackles (not that she was counting), she was released into the blustery grip of an early February snowstorm and her girlfriends' embrace. The State eventually declined to retry Edmunds and, at last, it was over.


* * *


At the time of her release, Edmunds' daughters were sixteen, thirteen and eleven. Natalie would have been twelve. The Beards had both remarried, but neither had other children. Edmunds moved to Minnesota to be near her children, taking a job at a Kwik-Trip and moving in with a friend.

She longs for a place of her own to share with her daughters. But that will have to wait until her finances improve. Although the State dismissed all charges against Edmunds, she isn't eligible for any compensation for wrongful imprisonment.

"I see the struggles she's having and it just upsets me so much," says Edmunds' friend Larson. "Things are certainly better than a year or two ago--she's out of prison. But I'm frustrated she still has all these other things to deal with."

Edmunds is determined not to be bitter. She knows there's no way to reclaim her girls' childhoods, so she's focusing on the present and the future. But she hopes her case draws attention to the new SBS medical findings and helps others in her predicament.

"This was never about me," she says. "There's some bigger purpose to all of this. I just hope it hasn't scarred my girls' lives."

Defense attorney Hurley isn't quite as forgiving. For starters, he's angry with physicians. "This case is all about the arrogance of doctors," he says. "Physicians are asked their opinion, and rather than surveying the data and saying there's uncertain science, they divide into camps that say these symptoms mean X or these symptoms mean Y. They think they're correct and there's no way they can be wrong."

Hurley's also frustrated with the prosecution's blind faith in the legal process. "Half of the medical profession doesn't believe what was said in court ten years ago, yet … the prosecution is unwilling to admit a person spent eleven years behind bars because they were wrong."

Rusch isn't the happiest camper, either. Still convinced Edmunds shook Natalie to death, she says the new science merely confirms the prosecution's initial theory. "Babies just don't die and have all of this bleeding in their head," she says, noting that while the new research now shows retinal hemorrhages, brain swelling and brain hemorrhages can each occur for reasons other than shaking, there have been no documented cases of the triad occurring together unless a baby was shaken.

Wrong, says Findley. "There are indeed numerous documented cases of retinal hemorrhages, brain swelling and subdural hematomas coinciding in cases where there was no shaking. In fact, there are no adequately documented cases in which shaking alone caused that triad of signs; it is only a theory, unproven. Unfortunately, this is another one of those cases in which prosecutors cling to discredited theories of guilt, despite the new evidence."

Tit, tat.


* * *


Despite Edmunds' release, the prosecution is satisfied she served most of her term (her mandatory release was just one year away). Still, Rusch says, "All the parents wanted was for Audrey to say she was sorry."

And all Team Edmunds wants is for the prosecution to apologize. "They just did not want to admit they were wrong, especially Judge Moeser," says Larson. "There's more information now, so just admit it. But there was no apology, no nothing. It's so frustrating. And it makes me wonder how many people are in prison who shouldn't be."

Which is precisely where the focus is shifting. Courts in the United Kingdom, Australia and Canada are re-opening old SBS cases; numerous have been reversed. While U.S. courts aren't at that point yet, Findley says American juries are starting to refuse to convict SBS defendants in light of the new medical research. Even more striking, the Kentucky Supreme Court is currently reviewing whether to conduct a discretionary hearing on an SBS case where a lower court judge granted a defense motion to prevent prosecutors from informing the jury the deceased infant had bleeding on the brain and retinal hemorrhaging because there were no outer signs of abuse. As of press time, the court had not ruled.

"Things are happening slowly, but I think this new understanding will filter into the U.S., and Audrey's case was one step in that direction," says Findley, who was inundated with requests for SBS assistance following Edmunds' release.


* * *


No matter what side of the issue experts are on, all agree on one thing: The term "Shaken Baby Syndrome" should no longer be used. Inflicted Traumatic Brain Injury or Abusive Head Trauma are now favored, says Rusch, because the term SBS suggests a manner of death. "But no two babies are killed the exact same way," she says. "ITBI or AHT move away from saying you know exactly what happened, because you don't unless you witnessed it."

Exactly Audrey Edmunds' point;"

The article is located at:

http://www.madisonmagazine.com/article.php?section_id=918&xstate=view_story&story_id=236322

Harold Levy...hlevy15@gmail.com;