MASARU OKUNISHI: ASSOCIATED PRESS REVEALS ANOTHER JAPANESE CASE IN WHICH FLAWED FORENSICS AND FALSE CONFESSION ALLEGED; ON DEATH ROW SINCE 1972;

"THE 1961 CASE INVOLVES THE POISONING OF 17 WOMEN IN MARCH 1961 AT A LOCAL COMMUNITY MEETING IN NABARI, MIE PREFECTURE. FIVE OF THE WOMEN, INCLUDING OKUNISHI'S WIFE, DIED AND 12 FELL SICK. OKUNISHI WAS ARRESTED IN APRIL THAT YEAR. HE ALLEGEDLY CONFESSED TO INVESTIGATORS THAT HE HAD LACED THE WINE WITH AN AGRICULTURAL CHEMICAL. HOWEVER, OKUNISHI RETRACTED HIS CONFESSION SHORTLY BEFORE BEING INDICTED. IN 1964, THE TSU DISTRICT COURT ACQUITTED OKUNISHI WHO HAD PLEADED INNOCENT, CITING A LACK OF EVIDENCE. BUT THE NAGOYA HIGH COURT REVOKED THE LOWER COURT DECISION AND SENTENCED HIM TO DEATH IN 1969 -- A DECISION UPHELD BY THE SUPREME COURT IN 1972. OKUNISHI HAS SINCE APPLIED A TOTAL OF SEVEN TIMES FOR A RETRIAL. THE FIRST SIX APPLICATIONS FOR A RETRIAL WERE ALL REJECTED. "ON OKUNISHI'S SEVENTH ATTEMPT, THE NAGOYA HIGH COURT DECIDED IN APRIL 2005 TO REOPEN THE TRIAL, CITING NEW EVIDENCE THAT COULD PROVE HIS INNOCENCE. IT ALSO ISSUED AN ORDER TO SUSPEND HIS EXECUTION. BUT PROSECUTORS FILED AN OBJECTION WITH THE HIGH COURT. IN DECEMBER 2006, A SEPARATE THREE-JUDGE PANEL AT THE HIGH COURT REPEALED THE PREVIOUS DECISION. THE DEFENSE TEAM HAD ARGUED THE TYPE OF PESTICIDE THAT OKUNISHI ALLEGEDLY CONFESSED TO USING IN THE WINE WAS NOT ACTUALLY USED IN THE MURDERS, BECAUSE ITS CHARACTERISTIC COMPONENT WAS NOT DETECTED IN THE WINE. BUT THE HIGH COURT REJECTED THAT ARGUMENT. THE DEFENSE FILED AN APPEAL WITH THE SUPREME COURT IN JANUARY 2007. JUDICIAL EXPERTS SAID REEXAMINATION OF THE WINE AND THE CREDIBILITY OF OKUNISHI'S CONFESSION WOULD BE THE FOCUS OF DELIBERATIONS AT THE UPCOMING HIGH COURT TRIAL.".............LAST MONTH, A 63-YEAR-OLD MAN WHO WAS FORCED TO MAKE A FALSE CONFESSION TO INVESTIGATORS WAS ACQUITTED. TOSHIKAZU SUGAYA SPENT 17 YEARS IN PRISON AFTER BEING SENTENCED TO LIFE IMPRISONMENT FOR KILLING A KINDERGARTENER IN 1990.""

THE ASSOCIATED PRESS;

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"TOKYO, April 6 (Kyodo)-The Supreme Court has revived the possibility of a retrial for an 84-year-old death row inmate convicted of killing five women and injuring 12 others with poisoned wine in Mie Prefecture in 1961, court officials said Tuesday," the Associated Press story, published earlier today, begins, under the heading, "Top court revives retrial chance for man on death row for 1961 murders."

"The top court's third petty bench ruled Monday to repeal the Nagoya High Court's decision in 2006 to revoke its previous decision to reopen the trial of Masaru Okunishi, who has been on death row since 1972," the story continues.

"After hearing that the five-justice panel had revoked the 2006 high court decision and sent it back to the appellate court for the case to be reconsidered, Okunishi told his lawyers he hopes "a retrial will be held as soon as possible to overturn my wrongful conviction," according to lawyers who visited the man at the Nagoya Detention House.

Justice Yukio Horigome, the presiding judge of the case, said in the decision that further deliberations should take place, noting that the high court failed to fully look into the case from a scientific point of view and needs to reevaluate the results of tests on the wine used in the crime.

On Tuesday, Okunishi's defense team welcomed the highest court's decision, saying the signs were good that the high court will decide to reopen the case. But defense team leader Izumi Suzuki said in a press conference in Nagoya that the Supreme Court should have decided by itself to reopen the trial.

It was the first decision by the highest court in 34 years to revoke a lower court decision involving a retrial application by a death row inmate. In 1976, the Supreme Court revoked a district court decision in a 1950 murder case, paving the way for the person convicted to be acquitted and freed.

The 1961 case involves the poisoning of 17 women in March 1961 at a local community meeting in Nabari, Mie Prefecture. Five of the women, including Okunishi's wife, died and 12 fell sick.

Okunishi was arrested in April that year. He allegedly confessed to investigators that he had laced the wine with an agricultural chemical.

However, Okunishi retracted his confession shortly before being indicted.

In 1964, the Tsu District Court acquitted Okunishi who had pleaded innocent, citing a lack of evidence. But the Nagoya High Court revoked the lower court decision and sentenced him to death in 1969 -- a decision upheld by the Supreme Court in 1972.

Okunishi has since applied a total of seven times for a retrial. The first six applications for a retrial were all rejected.

On Okunishi's seventh attempt, the Nagoya High Court decided in April 2005 to reopen the trial, citing new evidence that could prove his innocence. It also issued an order to suspend his execution.

But prosecutors filed an objection with the high court. In December 2006, a separate three-judge panel at the high court repealed the previous decision.

The defense team had argued the type of pesticide that Okunishi allegedly confessed to using in the wine was not actually used in the murders, because its characteristic component was not detected in the wine. But the high court rejected that argument.

The defense filed an appeal with the Supreme Court in January 2007.

Judicial experts said reexamination of the wine and the credibility of Okunishi's confession would be the focus of deliberations at the upcoming high court trial.

Last month, a 63-year-old man who was forced to make a false confession to investigators was acquitted. Toshikazu Sugaya spent 17 years in prison after being sentenced to life imprisonment for killing a kindergartener in 1990."

The story can be found at:

http://www.oregonlive.com/newsflash/index.ssf?/base/international-28/1270550303128670.xml&storylist=international

Harold Levy...hlevy15@gmail.com;

TOSHIKAZU SUGAYA: DNA TESTING COMES UNDER SCATHING ATTACK IN REVIEW OF POLICE HANDLING OF THE CASE;

"IN A REPORT ON THE SO-CALLED ASHIKAGA CASE, THE NPA SAID OVERCONFIDENCE IN THE ACCURACY OF THE DNA TEST FUELED THE TOCHIGI PREFECTURAL POLICE'S BELIEF THAT TOSHIKAZU SUGAYA HAD MURDERED A 4-YEAR-OLD GIRL IN THE PREFECTURE IN 1990, AND DROVE THEM TO FORCE A CONFESSION OUT OF HIM. SUGAYA, 63, HAD HIS NAME OFFICIALLY CLEARED LAST FRIDAY IN A RETRIAL AT THE UTSUNOMIYA DISTRICT COURT AFTER SERVING 17-1/2 YEARS IN PRISON. THE 60-PAGE REPORT SAID THE DNA TEST HAD A DEGREE OF ACCURACY OF ONLY 1.2 PER 1,000 PEOPLE, BUT THE POLICE PLACED TOO MUCH FAITH IN IT. THIS GAVE INVESTIGATORS THE FALSE PRECONCEPTION THAT SUGAYA WAS THE OFFENDER, ACCORDING TO THE NPA REPORT. FURTHERMORE, A VETERAN "ACE" POLICE INSPECTOR WHO TOOK COMMAND OF THE INVESTIGATION ALSO HELPED INTERROGATE SUGAYA. BECAUSE OF THIS, THE POLICE HAD INSUFFICIENT CHECKS AND BALANCES TO CAREFULLY EXAMINE THE CREDIBILITY--AND TRUTHFULNESS--OF SUGAYA'S "CONFESSION," THE REPORT CONCLUDED."

THE DAILY YOMIURI;


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BACKGROUND: Toshikazu Sugaya, 63, is a Japanese man who spent 17 years in jail for the murder of a four-year-old girl who was acquitted in March, 2010, at a retrial. He was released last year after fresh tests showed that evidence found at the murder scene did not match his DNA. Mr. Sugaya had admitted to the crime but later retracted his statement, saying it was made under duress. Judge Masanobu Sato said that Mr Sugaya had made a false confession after being subject to harsh police interrogation. The judge said that Mr Sugaya had not been told that he could consult with a lawyer or that he had the right to remain silent; "'I feel sorry as a judge that we did not listen to Mr Sugaya's truthful voice, and as a result, took away his freedom for 17 and a half years,'' he said.

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"The police's blind faith in an initial DNA test and an "ace" senior investigator's involvement in the interrogation of a suspect were major factors that led to the wrongful imprisonment of an innocent man, the National Police Agency said Thursday," the Daily Yomiuri story, published on April 2, 2010, begins, under the heading, "Faith in DNA test sank Sugaya: NPA report admits overconfidence in analysis led to forced confession

"In a report on the so-called Ashikaga case, the NPA said overconfidence in the accuracy of the DNA test fueled the Tochigi prefectural police's belief that Toshikazu Sugaya had murdered a 4-year-old girl in the prefecture in 1990, and drove them to force a confession out of him," the story continues.

"Sugaya, 63, had his name officially cleared last Friday in a retrial at the Utsunomiya District Court after serving 17-1/2 years in prison.

The 60-page report said the DNA test had a degree of accuracy of only 1.2 per 1,000 people, but the police placed too much faith in it. This gave investigators the false preconception that Sugaya was the offender, according to the NPA report.

Furthermore, a veteran "ace" police inspector who took command of the investigation also helped interrogate Sugaya. Because of this, the police had insufficient checks and balances to carefully examine the credibility--and truthfulness--of Sugaya's "confession," the report concluded.

In compiling the report, the NPA asked about 20 people, including then investigators at the prefectural police, about the investigation of the case that occurred in May 1990 and reexamined investigation records.

The opening pages of the report include a candid admission from one investigator involved in the case.

"We arrested Mr. Sugaya, who wasn't the perpetrator, and he suffered and struggled as a prisoner for 17-1/2 years," the investigator admits. "This shouldn't have happened."

The probability that two people would have a complete DNA match with that of body fluids found on the girl's shirt was 1.2-in-1,000. However, the investigators jumped to the conclusion that Sugaya must be the culprit before interrogating him, which eventually led to his forced confession.

The report also pointed to problems with having the "ace" inspector take on both roles of investigation chief and interrogator.

Sugaya's confession did not match pieces of objective evidence. This led the investigators to conclude that Sugaya "must have forgotten" some of the details. Consequently, the investigators did not think it was important that Sugaya did not reveal any "secrets" that only the real perpetrator could know during questioning.

The Utsunomiya District Court last Friday said Sugaya's personality did not allow him to counterargue when someone strongly insisted on something. The NPA report concluded the prefectural police were ignorant of the possibility that Sugaya might go along with what the investigators were telling him.

Although Sugaya did not confess to some important details during interrogations, investigators repeatedly questioned him on these points until they managed to coax from him the statements they were seeking, according to the report. This eventually led to the false confession, it said.

The NPA also announced Thursday measures to prevent similar false accusations.

The steps include revisions of the Criminal Investigation Code in the National Public Safety Commission Rules to arrange specially assigned officials at each investigation headquarters to be set up for serious cases to check the credibility of suspects' confessions, and making better use of the NPA's DNA database.

===

DNA analysis much improved

DNA testing, which came under scathing attack in the NPA report, has improved remarkably in recent years.

Using the latest mainstream technology, the chances of two people having a complete DNA match is less than 1 per 4.7 trillion. This development has greatly contributed to police investigations.

DNA found at the scene of a rape in Omitama, Ibaraki Prefecture, in 2003, was found to match that of a man arrested in a separate case. The man was indicted on suspicion of raping a woman before the statute of limitations ran out.

As of the end of February, the NPA's DNA database held information on 80,209 suspects and samples from 21,808 people taken at crime scenes.

The NPA plans to upgrade the database in the wake of the Ashikaga case. The agency issued a notice to prefectural police headquarters throughout the country, including the Metropolitan Police Department, dated Thursday, to make good use of the database."

The story can be found at:

http://www.yomiuri.co.jp/dy/national/20100402TDY03T04.htm

Harold Levy...hlevy15@gmail.com;

TOSHIKAZU SUGAYA: INTERNAL REVIEW FINDS THAT PROSECUTORS FAILED TO APPLY BASIC RULES; TOO MUCH RELIANCE ON DNA;

"IN HINDSIGHT, ALTHOUGH THERE WAS THE DNA TEST, WE SHOULD HAVE LOOKED INTO THE (SUPPOSED) EVIDENCE THAT CONTRADICTED THE FACTS," SAID KAZUHIRO SUZUKI, HEAD OF THE CRIMINAL DIVISION OF THE SUPREME PUBLIC PROSECUTOR'S OFFICE. "IT IS NECESSARY TO (REALIZE) THAT EVEN SOMEONE WHO IS NOT INNOCENT (MIGHT) CONFESS TO A CRIME HE DIDN'T COMMIT, AND (TO EXAMINE) THE MECHANISM OF WHY THAT HAPPENS." THE SENIOR OFFICIAL ALSO SAID THE PROSECUTORS SHOULD NOT HAVE TOLD SUGAYA DURING INTERROGATIONS THAT DNA TESTS ON HIS SPERM MATCHED WHAT WAS FOUND ON THE VICTIM'S UNDERWEAR. THE REPORT GOES INTO GREAT LENGTH ANALYZING HOW THE PROSECUTORS MISUSED THE FORENSIC EVIDENCE. ACCORDING TO THE REPORT, ALTHOUGH THE LEAD PROSECUTOR, UNNAMED, IN THE FIRST TRIAL WAS TOLD BY THE POLICE AND THE NATIONAL RESEARCH INSTITUTE OF POLICE SCIENCE ABOUT THE NATURE OF DNA TESTS, HE DID NOT HAVE A FULL UNDERSTANDING THAT THIS WAS ONLY A MATTER OF PROBABILITY AND THUS SHOULD ONLY HAVE BEEN CONSIDERED ONLY AS A REFERENCE POINT. "ALTHOUGH A DNA TEST SAMPLE IS EVIDENCE THAT SHOULD BE USED COMPREHENSIVELY WITH OTHER EVIDENCE, INCLUDING CONFESSIONS, BECAUSE MR. SUGAYA HAD CONFESSED TO A CRIME THAT WAS SUBJECT TO A HARSH PENALTY, WE MUST ADMIT THAT THE PROSECUTOR OVERRATED THE RESULT OF THE DNA TEST AND EVALUATED THIS AS EVIDENCE THAT CONFIRMED (GUILT)," THE REPORT SAYS."

SETSUKO KAMAYA: JAPAN TIMES;

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BACKGROUND: Toshikazu Sugaya, 63, is a Japanese man who spent 17 years in jail for the murder of a four-year-old girl who was acquitted in March, 2010, at a retrial. He was released last year after fresh tests showed that evidence found at the murder scene did not match his DNA. Mr. Sugaya had admitted to the crime but later retracted his statement, saying it was made under duress. Judge Masanobu Sato said that Mr Sugaya had made a false confession after being subject to harsh police interrogation. The judge said that Mr Sugaya had not been told that he could consult with a lawyer or that he had the right to remain silent; "'I feel sorry as a judge that we did not listen to Mr Sugaya's truthful voice, and as a result, took away his freedom for 17 and a half years,'' he said.

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"The wrongful conviction of Toshikazu Sugaya for the 1990 murder of a 4-year-old girl in Tochigi Prefecture was the result of prosecutors' failure to follow the basic rules of an investigation, the Supreme Public Prosecutor's Office admitted Thursday," the Japan Times report by staff writer Setsuko Kamiya, published on April 2, 2010, under the heading, "Sugaya case truly flubbed: prosecutors; Report: Rules ignored in rush to judgment."

"Despite the lack of sufficient understanding or analysis of the initial DNA test, the prosecutors placed too much confidence in the scientific evidence, on top of failing to realize that Sugaya's confession, including later updates, was false, the top prosecutor's office said in a 25-page report," the report continues.

""Needless to say, the mission of prosecutors is to conduct investigations and trials that are faithful to the basics, and gather evidence and testimony that is necessary to investigate the truth of a crime, indict a person who must be indicted and demand a just punishment," the report states. "We must never punish an innocent person, thus it is very regrettable that we have invited this grave incident."

Sugaya, 63, was acquitted March 26 by the Utsunomiya District Court in a retrial that struck down his life sentence over the murder of Mami Matsuda in the city of Ashikaga. Sugaya spent more than 17 years behind bars before he was released June 4. No other arrest was made in the slaying.

The office said it formed an eight-member in-house review team for Sugaya's case the day he was released. The team went through all the related documents and interviewed the prosecutors who were involved in the case to compile the report.

To prevent similar mistakes, the office said prosecutors, through retraining sessions, must improve their interrogation skills and their ability to assess the personality traits of suspects.

The office added it will establish a system that will put a greater burden on senior district prosecutors to take the lead in serious cases and improve communications among prosecutors and between prosecutors and police.

The report reveals how prosecutors brushed aside the lack of evidence to support Sugaya's confession, which past reports said came after marathon interrogations. Previous reports alleged Sugaya was pressured to confess.

According to the report, the lead prosecutor, who wasn't identified, didn't talk to two witnesses who saw a man walking with the victim, despite Sugaya confessing that he rode his bicycle with her as a passenger. The girl's fingerprints were not found on his bike.

In addition, the prosecutor found no evidence proving Sugaya was a pedophile. The footprints along the riverbank where the corpse was found did not match any of Sugaya's shoes, but Sugaya said in one version of his confession that his mother threw away the pair he had been wearing. In a further sign of inconsistency in this admission, his mother said she had never thrown away any of his shoes, the report says.

Despite the lack of corroborating evidence, the prosecutor concluded that Sugaya's confession, in its entirity, contained information that could only come from the culprit, the report says.

"In hindsight, although there was the DNA test, we should have looked into the (supposed) evidence that contradicted the facts," said Kazuhiro Suzuki, head of the criminal division of the Supreme Public Prosecutor's Office. "It is necessary to (realize) that even someone who is not innocent (might) confess to a crime he didn't commit, and (to examine) the mechanism of why that happens."

The senior official also said the prosecutors should not have told Sugaya during interrogations that DNA tests on his sperm matched what was found on the victim's underwear.

The report goes into great length analyzing how the prosecutors misused the forensic evidence.

According to the report, although the lead prosecutor, unnamed, in the first trial was told by the police and the National Research Institute of Police Science about the nature of DNA tests, he did not have a full understanding that this was only a matter of probability and thus should only have been considered only as a reference point.

"Although a DNA test sample is evidence that should be used comprehensively with other evidence, including confessions, because Mr. Sugaya had confessed to a crime that was subject to a harsh penalty, we must admit that the prosecutor overrated the result of the DNA test and evaluated this as evidence that confirmed (guilt)," the report says.

The DNA test, which used a method called MCT118, was performed by a specialist at the National Research Institute of Police Science. But because the negatives of the scanned sample used for analyzing the accuracy of the performed test were lost by the time of the retrial, it is impossible to determine if the DNA test was accurate, the report says.

The reason for the loss of the negatives and data is unknown, the prosecutor's office said, but prosecutors were also at fault for failing to demand that the institute keep the negatives and data from the test sample, the report says. It adds the lead prosecutor failed to closely analyze Sugaya's confession, including updated versions after further interrogations.

Sugaya had signed a confession for the police during a 13-hour interrogation, but when the prosecutor brought him to the court for a preliminary arraignment, he told the judge he "did not want to answer the question" when asked if he had committed the crime.

The report says the prosecutor missed the opportunity to look into why Sugaya did not plead guilty at this time after telling police during the interrogation he killed the girl.

At the retrial that began in October after fresh DNA analysis failed to match the sperm sample, thus proving Sugaya's innocence, the court ruled he was unable to withstand the pressure of the harsh interrogations and made the false confession after he was confronted by the initial DNA result.

The court admitted the confession lacked credibility and was false, noting the initial DNA test was not conducted in a scientifically reliable manner and should not have been admissible as evidence.

The court also said the questioning was illegal as the prosecutor did not tell Sugaya he had the right to remain silent."

The story can be found at:

http://search.japantimes.co.jp/cgi-bin/nn20100402a1.html

Harold Levy...hlevy15@gmail.com;

JOHN EDWARD GREEN JR: DEVELOPMENT'; PROSECUTOR WANTS TO "RECUSE" (DUMP) JUDGE FINE. JEFF GAMSO (GAMSO FOR THE DEFENCE) HAS SOME THOUGHTS ABOUT THAT;

"A COUPLE OF YEARS AGO, A TRIAL JUDGE IN OHIO WAS PLANNING TO HOLD PRE-TRIAL HEARINGS IN A COUPLE OF DEATH PENALTY CASES REGARDING THE CONSTITUTIONALITY OF OHIO'S SYSTEM OF LETHAL INJECTION. HE APPOINTED ME TO LITIGATE THE QUESTION. HE ORDERED THE STATE TO TURN OVER MATERIALS DESCRIBING HOW IT WENT ABOUT MURDERING PEOPLE. THE STATE FILED A COMPLAINT WITH THE OHIO SUPREME COURT ARGUING THAT THE JUDGE

1. HAD NO RIGHT TO ORDER DISCOVERY REGARDING OHIO'S APPROACH TO LETHAL INJECTION;
2. HAD NO RIGHT TO APPOINT ME TO LITIGATE THE CONSTITUTIONALITY OF OHIO'S APPROACH TO LETHAL INJECTION;
3. HAD NO RIGHT TO HOLD A HEARING ON THE CONSTITUTIONALITY OF OHIO'S APPROACH TO LETHAL INJECTION; AND
4. HAD NO RIGHT TO ISSUE A RULING ON THE CONSTITUTIONALITY OF OHIO'S APPROACH TO LETHAL INJECTION.

THE JUDGE FOUGHT THE STATE AND THE COURT DENIED THE STATE'S REQUEST (WITHOUT WRITTEN OPINION, SO WE DON'T ACTUALLY KNOW WHY). THE HEARING WAS QUITE A SHOW. AND THE JUDGE CONCLUDED, ULTIMATELY, THAT OHIO'S APPROACH TO LETHAL INJECTION WAS UNCONSTITUTIONAL (A RULING THE STATE PROMPTLY DETERMINED TO IGNORE)."

JEFF GAMSO: "COMMENTARY BY AN OHIO CRIMINAL DEFENCE LAWYER".

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BACKGROUND; John Edward Green, Jr, is charged with capital murder in the 2008 slaying of one of two sisters he allegedly shot during a robbery. Witnessed by the victim's two children, Huong Nguyen, 34, was killed in her own driveway. Judge Kevin Fine brought the case considerable attention after he said that the procedures for imposing the death penalty in Texas are unconstitutional, clarified that decision, then rescinded it but scheduled a hearing on actual innocence for April 27."

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"They want him off the case," Jeff Gamso's April 2, 2010 post begins, under the heading, "The Last Best Hope."

"That's Kevin Fine, Judge of the 177th District Court in Harris County, Texas, presiding over the capital murder trial State of Texas v. John Edward Green, Jr. The one who said that the procedures for imposing the death penalty in Texas are unconstitutional, clarified that decision, then rescinded it but scheduled a hearing on actual innocence for April 27," the post continues.

"Bennett is first out of the box with the news that on Thursday, Pat Lykos, the District Attorney for Harris County, filed a motion to recuse. She said the judge can't be fair because he believes innocent people have been executed and wants to hold a hearing on whether that's so. She said the judge can't be fair because he expresses dismay at the thought of executing someone who might be innocent but that the possibility, even the likelihood, is irrelevant as to whether the death penalty is constitutional. She said the judge can't be fair because higher courts have denied similar motions without hearings. She said the judge can't be fair because he's lying when he says that he believes the death penalty is constitutional. She said the judge can't be fair because he thinks Green is innocent or is presumed innocent or something. She said the judge can't be fair because he said he's the only judge in the state with the guts to actually declare the statute unconstitutional if he decides it is. And she said the judge can't be fair because some of his off-the-top-of-his-head statements misstate facts.

Mostly, she said that the judge can't be fair because that's the only way she can stop Judge Fine from holding a hearing on whether Texas has executed innocent people. And we know that Texas can't hold a hearing like that. Just ask Rick Perry.

The technical legal question is whether any of this, or all of it, is enough to lead a reasonable person to believe the judge is biased. The answer to that, pretty clearly, is no. But a clear answer to the technical legal question may not be of much moment in so contentious and politically charged an issue.

A couple of years ago, a trial judge in Ohio was planning to hold pre-trial hearings in a couple of death penalty cases regarding the constitutionality of Ohio's system of lethal injection. He appointed me to litigate the question. He ordered the state to turn over materials describing how it went about murdering people. The state filed a complaint with the Ohio Supreme Court arguing that the judge

1. Had no right to order discovery regarding Ohio's approach to lethal injection;
2. Had no right to appoint me to litigate the constitutionality of Ohio's approach to lethal injection;
3. Had no right to hold a hearing on the constitutionality of Ohio's approach to lethal injection; and
4. Had no right to issue a ruling on the constitutionality of Ohio's approach to lethal injection.

The judge fought the state and the court denied the state's request (without written opinion, so we don't actually know why). The hearing was quite a show. And the judge concluded, ultimately, that Ohio's approach to lethal injection was unconstitutional (a ruling the state promptly determined to ignore).

The thing is, you never know."

The post can be found at:

http://gamso-forthedefense.blogspot.com/2010/04/last-best-hope.html

Harold Levy...hlevy15@gmail.com;

POPULAR FORENSIC INTELLIGENCE EXPERT CITES FEAR OVER CONVICTIONS BASED JUST ON DNA, IN INTERVIEW WITH TORONTO STAR;

"Q: THERE WAS A NEWS REPORT RECENTLY THAT DNA EVIDENCE ISN’T AS FOOLPROOF AS MANY HAD THOUGHT. WILL THIS CHANGE EVIDENCE GATHERING AND PRESENTATION PROCEDURES?

A: YES, IT COULD. THE SCARY THING ABOUT IT, OF COURSE, IS WHEN YOU THINK OF ALL THE CASES THAT HAVE BEEN CONVICTED ON JUST DNA EVIDENCE. THINK OF THE RAMIFICATIONS OF THAT. I KNOW IF I HAD SOMEONE WHO WAS CONVICTED ON DNA EVIDENCE, I’D TRY TO OVERTURN THAT ON APPEAL, BASED ON QUESTIONABLE EVIDENCE. THERE ARE ALL SORTS OF RAMIFICATIONS THERE."

MOVIES COLUMNIST PETER HOWELL: THE TORONTO STAR;

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PUBLISHER'S NOTE: These comments are particularly relevant to the Toshikazu Sugaya case in Japan, and the Ferah Jama case in Australia, which have been the subject of numerous posts on this Blog.

Harold Levy.

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Dr. Robert Ing's web-site tells us that he is: (A) forensic intelligence specialist, technology crime commentator and vertical market media personality. He works as a forensic intelligence specialist at large, bringing an understanding and awareness of the impact of technology on privacy, terrorism and crime in a practical, easy to understand format for non-technical audiences. Dr. Robert Ing has hosted educational documentaries, instructional videos, has appeared on major North American television and radio networks, is regularly cited in mainstream news publications throughout the world, and in syndicated Internet news services. From 2005 to 2007, Dr. Ing appeared as a guest on North American broadcast news and talk networks at an average of one segment every 10 days.

Toronto Star Movies Columnist Peter Howell tells us in his introduction to an interview with Dr. Ing:

"Toronto’s Dr. Robert Ing is a regular Sherlock Holmes.

Like the famous fictional sleuth of Baker St., he looks for clues that aren’t obvious to untrained eyes. The difference is that Ing works in a computerized world that Holmes could only have imagined in his steam-engine era of the late 19th and early 20th centuries.

Ing, 53, is a specialist in technology crime and forensic intelligence. He uses everything from fingerprints to pixels to track and stop evil doers. He’s also a prolific lecturer, author and broadcaster. His hobby is collecting antique occult items and other curios, something else that would appeal to Holmes.

Ing’s accomplishments include developing electronic counter-surveillance training methods, alerting authorities to destructive computer viruses and creating an anti-terrorism program that has become part of federal law enforcement procedures.

He works closely with the police: Ing was the 2001 recipient of the American Police Hall of Fame Award.

But like Holmes, his presence is sometimes more tolerated by the cops than welcomed, even though he’s a pretty genial guy.

“I’m not complaining, because I understand where it’s coming from,” he said in an interview.

“I’d probably be the same way if I had a first-class constable over my shoulder and I was made to work with him.”

Ing was the guest speaker recently at a Warner Bros. press luncheon unveiling the DVD for Sherlock Holmes, the Guy Ritchie movie about the famous sleuth, who is played by Robert Downey Jr. Ing spoke to The Star afterwards:" (See the link below for the entire interview);

DNA-RELATED QUESTIONS:

Q: There was a news report recently that DNA evidence isn’t as foolproof as many had thought. Will this change evidence gathering and presentation procedures?

A: Yes, it could. The scary thing about it, of course, is when you think of all the cases that have been convicted on just DNA evidence. Think of the ramifications of that. I know if I had someone who was convicted on DNA evidence, I’d try to overturn that on appeal, based on questionable evidence. There are all sorts of ramifications there.

I don’t think it’s a deal breaker for DNA, but being in the business, I’m always suspect of the science. Scientific procedure requires repeatable things: if you can repeat it, you don’t have a problem. But how many repetitions do you really need to say that this is 100 per cent foolproof? I’m quite the skeptic, even though I work with the science. I say, “Geez, we’ll use it, but we’ll use it very cautiously.” You don’t look at it as the be-all and end-all.

Q: It sounds like there’s a great potential movie there, about faulty DNA evidence.

A: I believe that they’re probably doing it even as we speak!

The story can be found at:

http://www.thestar.com/entertainment/movies/article/789185--elementary-my-dear-dr-ing

Harold Levy...hlevy15@gmail.com;

HANK SKINNER; ANTHONY CARAVELLA: DAYTONA PAPER CALLS FOR MANDATORY POST-CONVICTION DNA TESTING - IF AVAILABLE - IN DEATH PENALTY OR LIFE CASES;

"THE ARGUMENT IS NOT THAT SKINNER IS INNOCENT. THE ARGUMENT IS THAT TECHNOLOGY IS NOW AVAILABLE TO PROVE WHETHER OR NOT HE COMMITTED THE CRIMES. IF IT TAKES A LITTLE MORE TIME TO DO THE TESTING AND REMOVE DOUBT, SHOULDN'T THAT BE THE GOAL OF A TRUE JUSTICE SYSTEM?

OBVIOUSLY, DNA TESTING CANNOT BE USED FOR EVERY CRIMINAL SIMPLY TRYING TO SLOW DOWN THE JUSTICE SYSTEM. BUT IN DEATH PENALTY OR LIFE IMPRISONMENT CASES, POST-CONVICTION DNA TESTING — IF AVAILABLE — SHOULD BE MANDATORY.


EDITORIAL: THE SUN-SENTINEL;

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"WE LIVE IN AN AGE WHEN TECHNOLOGY CAN TAKE SOME OF THE GUESSWORK OUT OF CONVICTIONS, AND HELP IN THE PURSUIT OF JUSTICE. JUST LOOK AT ANTHONY CARAVELLA."

EDITORIAL: THE SUN-SENTINEL;

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

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BACKGROUND: ANTHONY CARAVELLA: Anthony Caravella, 41, spent 26 years in prison - more than half of his life - for a rape and slaying. He was 15 and had an IQ of 67, well below normal, when he was charged with the Nov. 5, 1983, murder of Ada Cox Jankowski, 58, in Miramar, Fla. Mr. Caravella exoneration was due to the perseverance of his lawyers, the attention given to the case by the Sun Sentinel, and the willingness of prosecutors to conduct DNA tests to investigate his guilt or innocence. The attitude of the Florida prosecutors contrasts significantly with the prosecutors in the State of Texas who have fought so hard against allowing the DNA tests which could show that Hank Skinner is innocent - even though he faces execution.

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"For someone who spent 26 years in prison for a crime he did not commit, Anthony Caravella may actually be one of the lucky ones," the March 31, 2010 Sun-Sentinel editorial begins, under the heading, "Caravella case proves worth of DNA testing."

"The Miramar man saw his life sentences and convictions for rape and murder thrown out last week, at the request of prosecutors and defense attorneys, after DNA testing — and dogged work by Sun Sentinel reporter Paula McMahon — exonerated him." the editorial continues.

"The same DNA testing that was not available when the crimes were committed in 1983, but is available now. And which should be used whenever possible — particularly in capital and life sentence cases — to both confirm or exonerate those imprisoned for specific crimes.

According to the Innocence Project of Florida, Caravella is the 252nd person in the nation to be exonerated by post-conviction DNA testing, and the 12th in Florida. DNA is a major tool to ensure justice, but unfortunately, there are still some resisters.

In Texas last week, it took the U.S. Supreme Court to stop the execution of condemned prisoner Hank Skinner about an hour before being taken to the Texas death chamber.

Important evidence in Skinner's 1993 triple murder cases has never gone through DNA analysis. The technology is available to accomplish now what couldn't be done 17 years ago. State courts and prosecutors in Texas opposed the DNA analysis. The temporary reprieve does not guarantee DNA testing will get done, but his case might get reviewed.

The argument is not that Skinner is innocent. The argument is that technology is now available to prove whether or not he committed the crimes. If it takes a little more time to do the testing and remove doubt, shouldn't that be the goal of a true justice system?

Obviously, DNA testing cannot be used for every criminal simply trying to slow down the justice system. But in death penalty or life imprisonment cases, post-conviction DNA testing — if available — should be mandatory.

We live in an age when technology can take some of the guesswork out of convictions, and help in the pursuit of justice. Just look at Anthony Caravella."

The editorial can be found at:

http://www.sun-sentinel.com/news/opinion/editorials/fl-dna-caravella-gs-editorial-20100331,0,1564743.story

Harold Levy...hlevy15@gmail.com;

DAVID WILLIAMS; MISSOURI; ARSON; A CASE TO WATCH; TRAINED DOG SMELLS FIRE ACCELERANT; LAB TESTING DOES NOT;

"THERE’S A TWIST IN THE INVESTIGATION OF A FATAL FIRE AT A HOME ON OLIVE STREET THIS MONTH. THE ATTORNEY FOR THE MAN CHARGED WITH ARSON CALLS IT A BOMBSHELL.

DAVID WILLIAMS IS CHARGED WITH ARSON FOR THE FIRE THAT KILLED HIS FIANCÉE’S THREE CHILDREN AND INJURED THEIR MATERNAL GRANDFATHER ON MARCH 15. NOW LAB RESULTS ON SAMPLES FROM THE CRIME SCENE CONTRADICT EVIDENCE CITED BY INVESTIGATORS. WHERE A TRAINED DOG SMELLED A FIRE ACCELERANT, TESTING DID NOT."

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"“IT IS NOT SHOCKING THAT THE LABORATORY DOES NOT DETECT TRACE AMOUNTS THAT A DOG HAS ALERTED TO,” SAID ASSISTANT STATE FIRE MARSHAL BILL ZIERES.

THE STATE FIRE MARSHAL'S OFFICE IS NOT INVOLVED IN THE PROSECUTION OF WILLIAMS. ZIERES SAYS SOME DOGS’ SKILLS CAN ACTUALLY BEAT THE SYSTEM."

REPORTER MARIE SAAVEDRA: KY3 NEWS;

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"SPRINGFIELD, Mo. – There’s a twist in the investigation of a fatal fire at a home on Olive Street this month. The attorney for the man charged with arson calls it a bombshell," reporter Marie Saavedra's KY3 story, published on March 30, 2010, under the heading, Arson suspect's attorney says lab results cancel out trained dog's nose," begins.

"David Williams is charged with arson for the fire that killed his fiancée’s three children and injured their maternal grandfather on March 15," the story continues.

"Now lab results on samples from the crime scene contradict evidence cited by investigators. Where a trained dog smelled a fire accelerant, testing did not.

In the probable cause statement used as the basis of the arson charge, a fire marshal said the dog alerted to an accelerant in three different spots at the fire scene: the front porch, the front door and the living room. The dog also alerted to a spot on a pant leg of jeans that Williams said he put on after he was awoken as the fire was burning.

"I was told that laboratory tests on the jeans and samples from the floor of the home did not detect any accelerant. Still, we trust the observations of an accelerant identified by fire marshals and trained dogs,” Greene County Assistant Prosecuting Attorney Dan Patterson said on Tuesday.

"Their testing is invalidated,” said Williams’ defense attorney, Andy Hosmer.

Hosmer says dogs cannot be trusted alone.

"That's a tool but you need the laboratory analysis to back that up. And, if you don't have laboratory analysis, it's not validated,” said Hosmer in an interview on Tuesday.

“It is not shocking that the laboratory does not detect trace amounts that a dog has alerted to,” said Assistant State Fire Marshal Bill Zieres.

The state fire marshal's office is not involved in the prosecution of Williams. Zieres says some dogs’ skills can actually beat the system.

"A canine alert needs to be confirmed by laboratory analysis but it (fire investigators training) also says that research has shown that canines have responded to products that are not detectable in lab analysis," said Zieres.

It's likely now the burden of proof in the dog-versus-lab will be up to a judge. Hosmer believes prosecutors should take another look at the case to see if it's worth moving forward but Patterson and his boss, Prosecuting Attorney Darrell Moore, show no sign of dropping any charges.

Williams’ preliminary hearing is scheduled for May 3. That’s when prosecutors have to convince a judge that there’s enough evidence to send the case to trial court."

The story can be found at:

http://www.ky3.com/home/video/89556402.html

Harold Levy...hlevy15@gmail.com;