JURYGATE; ONTARIO; MURDER VERDICT UNDER ATTACK ON BASIS OF CROWN AND POLICE JURY VETTING PRACTICES; APPEAL TO BE HEARD IN JUNE; NATIONAL POST;

"THE CASE, SET TO BE HEARD BY THE ONTARIO COURT OF APPEAL NEXT MONTH, CHALLENGES THE CROWN'S SYSTEM OF ENLISTING POLICE AGENCIES TO VET JURIES, A PRACTICE BANNED BY THE PROVINCE OF ONTARIO AFTER A SERIES OF NATIONAL POST REPORTS. JURY VETTING IS AT THE HEART OF DOCUMENTS FILED IN THE APPEAL COURT THIS WEEK BY LAWYERS REPRESENTING DAVEY, WHO IS SERVING A LIFE SENTENCE. "THE CROWN ILLEGALLY OBTAINED INFORMATION ABOUT PROSPECTIVE JURORS, DID NOT DISCLOSE THAT INFORMATION TO THE DEFENCE AND THEN USED THAT INFORMATION IN SELECTING THE JURY," WRITE LAWYERS CATRIONA VERNER AND CHRISTOPHER HICKS. THE PRACTICE VIOLATED THE JURIES ACT, SEVEN SECTIONS OF PROVINCIAL PRIVACY LEGISLATION AND INFRINGED THE RIGHT TO A FAIR TRIAL, THEY STATE."

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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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"TORONTO -- The jury deciding the fate of Troy Davey deliberated for fewer than 12 hours before finding him guilty of first-degree murder in the 2004 killing of an Ontario police officer," the National Post story by reporter Shannon Kari, published earlier today under the heading, "Cop killer appeals over jury vetting," begins.

"Davey, then 18, lay in wait for Constable Chris Garrett after placing a fake 911 call and slashed his throat," the story continues.

"More than three years after the jury in Cobourg returned with its verdict, the conviction could be overturned as a result of "illegal" probes of potential jurors by police.

The case, set to be heard by the Ontario Court of Appeal next month, challenges the Crown's system of enlisting police agencies to vet juries, a practice banned by the province of Ontario after a series of National Post reports.

Jury vetting is at the heart of documents filed in the appeal court this week by lawyers representing Davey, who is serving a life sentence.

"The Crown illegally obtained information about prospective jurors, did not disclose that information to the defence and then used that information in selecting the jury," write lawyers Catriona Verner and Christopher Hicks.

The practice violated the Juries Act, seven sections of provincial privacy legislation and infringed the right to a fair trial, they state.

Three weeks before jury selection was scheduled to begin, the list of the 400 people in the jury pool was handed over by the Crown to the Cobourg and Port Hope police and a local Ontario Provincial Police detachment. The Crown asked police for their "opinions" on the "suitability" of the potential jurors, according to documents filed in the Davey appeal. The "suitability" was whether or not someone was considered to be "partial" to the Crown.

The jury lists were returned with notations such as "good" or "ok" or "no" next to the names of prospective jurors and the information was not disclosed to the defence.

At least five potential jurors, with "good" next to their names, had ties to the police.

The conduct was described as "shocking" by Sanjeev Anand, a criminal law professor at the University of Alberta and former prosecutor.

"If the allegations are true, they were trying to get a stacked jury. The fact that police were directed in this way is so contrary to the role of the Crown prosecutor. It strikes at the core of our justice system, the right to an impartial jury," said Mr. Anand.

Given that it was a high-profile case in the community there was even more reason "to ensure that everything was above board," he added.

The Davey case marks the first time that the Crown has admitted that it vetted potential jurors to help in obtaining a pro prosecution jury.

In other cases the Crown insisted the probes were to ensure citizens were eligible as jurors.

The province has since put a halt to the practice and amended the Juries Act to strengthen privacy protections, following an investigation by the Ontario Privacy Commissioner.

In a landmark case about jury selection in 1991, the Supreme Court of Canada outlined the core principles. "The modern jury was not meant to be a tool in the hands of either the Crown or the accused," said the court. "It was envisioned as a representative cross-section of society, honestly and fairly chosen."

Police in Cobourg were routinely asked to use their "personal knowledge" to help the Crown. They have denied using confidential police databases to find information.

The Davey appeal is scheduled to be heard late next month. The Crown is expected to file its written arguments within the next week. About a dozen cases before the Ontario Court of Appeal involve improper jury checks by police."

The story can be found at:

http://www.nationalpost.com/news/story.html?id=3075171

Harold Levy...hlevy15@gmail.com;

DALLAS COUNTY; TWENTY EXONERATIONS AND NOW THE FOCUS IS TURNING TO DNA CASES. THE DALLAS MORNING NEWS;

"THE EMPHASIS OF THE CONVICTION INTEGRITY UNIT ESTABLISHED BY DISTRICT ATTORNEY CRAIG WATKINS IN 2007 IS SHIFTING TOWARD CHALLENGING CASES WHERE THERE IS NO DNA TO TEST, BUT WHERE QUESTIONS REMAIN ABOUT AN INMATE'S GUILT OR INNOCENCE. WITHOUT DNA EVIDENCE, THESE CASES REQUIRE MORE TIME AND CAN MEAN INVESTIGATING A CRIME THAT OCCURRED YEARS AGO AS THOUGH IT JUST HAPPENED: TRACKING DOWN WITNESSES, COMPARING FINGERPRINTS TO SEE IF THERE IS A MATCH WHEN ONE DIDN'T EXIST BEFORE, SEEKING NEW EVIDENCE......WITH SO MANY DNA EXONEREES IN DALLAS COUNTY – CURRENTLY HOLDING AT 20 – THE UNIT'S WORK HAS BEEN FEATURED ON TELEVISION SHOWS SUCH AS THE VIEW, 60 MINUTES AND THE COLBERT REPORT. WATKINS, THE FIRST ELECTED BLACK DISTRICT ATTORNEY IN TEXAS HISTORY, WAS PROFILED IN THE WASHINGTON POST, THE WALL STREET JOURNAL AND THE NEW YORK TIMES. INVESTIGATION DISCOVERY ALSO CREATED A SHOW ABOUT THE CONVICTION INTEGRITY UNIT AND THE EXONEREES CALLED DALLAS DNA."

REPORTER JENNIFER EMILY; THE DALLAS MORNING NEWS;

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"It's been almost a year since the last DNA exoneree walked out of a Dallas County courtroom and into the world as a free man," the Dallas Morning News story by reporter Jennifer Emily, published on May 23, 2010, under the heading, "Dallas County office that's exonerated 20 turns focus to non-DNA cases," begins.

"The flood of exonerations in Dallas County, where since 2001 more wrongfully convicted people have been freed through DNA testing than anywhere else in the nation, is slowing to a trickle," the story continues.

"There are only so many cases where genetic evidence is available to test.

But the work is far from over.

The emphasis of the conviction integrity unit established by District Attorney Craig Watkins in 2007 is shifting toward challenging cases where there is no DNA to test, but where questions remain about an inmate's guilt or innocence.

Without DNA evidence, these cases require more time and can mean investigating a crime that occurred years ago as though it just happened: tracking down witnesses, comparing fingerprints to see if there is a match when one didn't exist before, seeking new evidence.

Watkins says he hopes his office can use lessons learned during years of DNA testing to improve police work. Bad witness identification, for example, has been a factor in most of Dallas' DNA exonerations. There are also several cases where prosecutors or police withheld evidence that could have prevented a conviction.

Watkins said his perspective has changed since the unit began. He's realized that it can do much more than free the innocent.

"At the time, I started out looking at legitimate claims of innocence, and obviously we still do," said Watkins. "But now, it's how can we improve prosecutor and police techniques. It's about the ability to argue for changes in the law."

This is the future of overturning wrongful convictions in Dallas County.

National attention

The work of the conviction integrity unit captured the national spotlight because of the unusual nature of its existence and its agreement to look at previously denied DNA testing requests in tandem with the Innocence Project of Texas.

With so many DNA exonerees in Dallas County – currently holding at 20 – the unit's work has been featured on television shows such as The View, 60 Minutes and The Colbert Report. Watkins, the first elected black district attorney in Texas history, was profiled in The Washington Post, The Wall Street Journal and The New York Times.

Investigation Discovery also created a show about the conviction integrity unit and the exonerees called Dallas DNA.

Christo Doyle, executive producer of the show, said he was drawn to the work at the district attorney's office because of the unusual nature of the work and because he found Watkins and those who work for him to be "great characters."

"What they're doing down there is pioneering. It's not being done in other parts of the country," Doyle said. "Craig Watkins is a pioneer."

Watkins, Mike Ware, who oversees the conviction integrity unit, and others from the DA's office have been invited to speak to prosecutors, law schools and law enforcement nationwide about their work.

Examining evidence

Of the 502 cases the Dallas County DA's office decided to examine for potential DNA testing, prosecutors tested and have the results for 50 cases. Many of those requests had been denied by the previous district attorney, Bill Hill.

So far, seven men have been exonerated through those tests and guilt has been confirmed for 28 inmates, Ware said. The remaining tests were inconclusive. Some could end up being investigated further, but others do not have other evidence to pursue.

Six cases are in testing and the conviction integrity unit is gathering DNA swabs for another half dozen.

The more than 400 cases the DA's office didn't test either had no genetic evidence or the DNA would not have proved guilt or innocence.

DNA could also be tested in a couple of cases where the inmate died. "They're not at the front of the list," Ware said. "But we're not going to rule it out."

Earlier this year, Gov. Rick Perry posthumously pardoned a Fort Worth man, Timothy Cole, after DNA showed he was wrongly convicted of a rape in Lubbock.

Dallas County public defender Michelle Moore, a former board president for the Innocence Project of Texas, said she believes Dallas County will see more DNA exonerations.

"I think when it's all said and done ... there could be another DNA exoneration," said Moore, who worked on the cases of seven men freed by DNA in Dallas County.

She also said new DNA cases could pop up because those on parole could request postconviction testing. Moore said she doesn't think most people on parole realize they can request the testing.

While there's been no formal in-house training about the problems that lead to wrongful convictions, lessons are passed down from supervisors to lower-level prosecutors on a daily basis, said Terri Moore, the top assistant to Watkins.

"Communicating it is passed from the super chiefs and working it on down the line," Moore said. "Everybody comes for the exonerations; they see and we talk."

The idea of conviction integrity offices is spreading.

The New York County district attorney, Cyrus R. Vance Jr., created a conviction integrity program in March. There, 10 of the office's 500 prosecutors are looking into cases with and without DNA.

Setting the standard

Even as others study the Dallas integrity unit's DNA work, prosecutors in the office have worked to free four men from prison by reinvestigating cases without any genetic testing.

Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University's law school in Chicago, said Dallas County continues to set the standard for how to handle wrongful convictions, especially as it investigates non-DNA cases.

"It should serve as a national model as it has in the DNA cases," Warden said. "As prosecutors' offices are concerned, I'm not sure too many are moving in that direction."

One of the freed men, Richard Miles, said he's grateful the district attorney's office is considering cases such as his, and not just ones with preserved DNA evidence.

"The fact that the integrity unit and Craig Watkins have keyed in on non-DNA cases is good," said Miles, who spent nearly 15 years behind bars for murder and attempted murder before being freed in October.

But he does have concerns.

"I think society is not ready for non-DNA cases and seeing people go free without that definite answer."

Danny Clancy, Watkins' Republican challenger in the November election, still sees a future for non-DNA cases if he is elected – although with a more reined-in approach.

"We just have to be very careful, especially in the non-DNA cases," said Clancy, who said it is a prosecutor's "oath" to seek justice, even if it's delayed.

"It becomes a slippery slope when we start second-guessing jury verdicts, but we have to be prepared to do that when new, credible evidence is presented that points to an individual's innocence."

Unlike the other men, Miles isn't completely free. Although he's out of jail, prosecutors are still looking into his convictions for murder and attempted murder, where evidence was withheld, and a witness may have been coerced by a prosecutor to identify Miles as the shooter. They also are investigating whether another man may have committed the crimes.

Ware, prosecutor Cynthia R. Garza, investigator James Hammond and paralegal Jena Parker – the four members of the conviction integrity unit – say they are using the lessons learned from the certainty of the wrongful convictions in the DNA cases to guide them.

They question the reliability of eyewitness identification, and while it's not always incorrect, Ware says it is not the "gold standard" that prosecutors and juries once believed it to be.

An investigation by The Dallas Morning News in 2008 showed that all but one of the DNA exonerations involved faulty eyewitness identification.

They also look for the possibility of false convictions and withheld evidence.

"You look at the record and you wonder, 'How could these guys have been convicted?' " said Ware, sitting in his office, surrounded by boxes of case files. "A lot of the DNA cases are like that. But some aren't. You look at some of these [DNA exonerations] cases and you wonder how this guy could have been innocent."

DA'S SCORECARD

502

Cases the district attorney's office reviewed to determine if DNA testing should be granted

20

DNA exonerees in Dallas County since 2001

28

Inmates whose guilt was confirmed by DNA testing

12

Months since there was a DNA exoneration in Dallas County

12

Minimum number of DNA cases where results of testing are pending

4

Wrongfully convicted men released from prison without DNA evidence

NOTE: The more than 400 cases the district attorney's office didn't test either had no genetic evidence or the DNA would not have proved guilt or innocence."

The story can be found at:

http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/052310dnmetdnaexonerees.18683dd3.html

Harold Levy...hlevy15@gmail.com;

JOHN EDWARD GREEN JR. JUDGE KEVIN FINE TO REMAIN ON CASE; PROSECUTOR'S EFFORTS TO HAVE HIM RECUSED ARE REBUFFED; HOUSTON CHRONICLE;

"“IT IS THE FINDING OF THIS COURT THAT THE TOTALITY OF EVIDENCE DOES NOT SUPPORT THE STATE'S MOTION TO RECUSE JUDGE FINE NOR THAT HIS IMPARTIALITY MIGHT BE REASONABLY QUESTIONED,” GIST WROTE."

REPORTER BRIAN ROGERS; THE HOUSTON CHRONICLE;

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

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"A Houston judge who declared the procedures surrounding the death penalty unconstitutional in March, then rescinded his ruling to hear more information, will stay on the case, a special judge has ruled," reporter Brian Roger's story, published earlier today in the Houston Chronicle begins, under the heading, "DA's effort to recuse judge in murder case rejected."

"State District Judge L.J. Gist denied the district attorney's motion to recuse Kevin Fine, who presides over the 177th state District Court," the story continues.

"“It is the finding of this court that the totality of evidence does not support the state's motion to recuse Judge Fine nor that his impartiality might be reasonably questioned,” Gist wrote.

Gist said he filed the denial Tuesday, but clerks said they had not received it until Wednesday.

On April 1, Harris County's District Attorney Pat Lykos asked that Fine be recused after he ruled that the Texas capital murder statute violates due process provisions of the U.S. Constitution.

“A reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of Judge Fine,” according to court documents filed by prosecutors.

If Fine rules the same way after hearing arguments on the issue and his ruling survives appellate review, it will take the death penalty off the table for John Edward Green. The 25-year-old Green is accused in the robbery and fatal shooting of Huong Thien Nguyen, 34, on June 16, 2008.

Fine's original ruling drew swift rebukes from Lykos, Texas Attorney General Greg Abbott and Gov. Rick Perry."

The story can be found at:

http://www.chron.com/disp/story.mpl/metropolitan/7023883.html

Harold Levy...hlevy15@gmail.com;

ERNEST SONNIER; (TEXAS); 23 YEARS BEHIND BARS; EXONERATED AFTER DNA TESTS RELEASED IN COURT; WRONGLY CONVICTED OF A 1986 RAPE;

"IN ADDITION TO THE VICTIM’S IDENTIFICATION THE JURY WAS GIVEN FAULTY FORENSIC TESTIMONY SKEWED TO BOLSTER THE PROSECUTION’S CASE. A HOUSTON CRIME LAB ANALYST TESTIFIED NARROWLY ABOUT THE RAPE KIT SLIDES, WHICH EVIDENCE DID NOT MATCH SONNIER’S BLOOD TYPE, AND AFFIRMED A PROSECUTION EFFORT TO EXPLAIN AWAY THE LACK OF A MATCH BY SUGGESTING THAT THE VICTIM’S BLOOD TYPE COULD HAVE MASKED THE PERPETRATOR’S. IN FACT, LAB RECORDS CONTAIN NO INDICATION OF SCIENTIFIC TESTING OR RESULTS TO SUPPORT THIS THEORY. THE ANALYST ALSO FAILED TO DISCLOSE THAT ADDITIONAL SEMEN EVIDENCE FROM THE VICTIM’S CLOTHING WAS TESTED, AND THAT ALL OF IT FAILED TO MATCH SONNIER’S BLOOD TYPE JURORS WERE LEFT WITH AN INCOMPLETE AND MISLEADING PICTURE OF THE AVAILABLE EVIDENCE. MOREOVER, SONNIER’S ATTORNEY DID NOT CALL A SINGLE WITNESS IN HIS DEFENSE."

THE DEFENCE RESTS: PAUL B. KENNEDY; (The Defence Rests contains "the musings, ramblings, rantings and observations of Houston DWI Attorney Paul B. Kennedy on DWI defense, general criminal defense, philosophy and whatever else tickles his fancy.")

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(SEE HOUSTON CHRONICLE STORY FOLLOWING THIS POST)

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"Ernest Sonnier who was released from prison last August when evidence surfaced that he had been wrongly convicted of a 1985 rape was exonerated when DNA tests results were released in court today," Paul Kennedy's post, published on May 25, 2010, under the heading, "Convicted rapist exonerated by DNA," begins.

"The tests results excluded Mr. Sonnier from being involved in a second rape that resulted in a murder. Mr. Sonnier had been a suspect in that case," the post continues.

"For all the talk in law school and the media about how a trial acts as a crucible of truth, Mr. Sonnier's case is a terrifying tale of just what happens when the police are allowed to run the crime "lab" that tests physical evidence in criminal cases. The following excerpt is from The Justice Project's report of the Sonnier case:

Sonnier’s conviction was based largely on misleading forensic testimony and a mistaken eyewitness identification. The victim picked Sonnier out of a photo lineup almost six months after the crime occurred and later identified him in a live lineup. At trial, the victim again identified Sonnier as her attacker, but conceded that the photo of Sonnier looked more like her assailant than did the man in the courtroom.

In addition to the victim’s identification the jury was given faulty forensic testimony skewed to bolster the prosecution’s case. A Houston Crime Lab analyst testified narrowly about the rape kit slides, which evidence did not match Sonnier’s blood type, and affirmed a prosecution effort to explain away the lack of a match by suggesting that the victim’s blood type could have masked the perpetrator’s. In fact, lab records contain no indication of scientific testing or results to support this theory. The analyst also failed to disclose that additional semen evidence from the victim’s clothing was tested, and that all of it failed to match Sonnier’s blood type Jurors were left with an incomplete and misleading picture of the available evidence. Moreover, Sonnier’s attorney did not call a single witness in his defense.

Unfortunately with Williamson County District Attorney John Bradley presiding over the Texas Forensic Science Commission you have the equivalent of the fox guarding the hen house. Mr. Bradley has a vested interest in preserving the status quo and not looking into "old cases" for the more we find out about the shoddy "science" used to deprive people of their freedom (and lives, in the case of Cameron Willingham), the more the public will question the win at all costs mentality that infects too many prosecutors across this state and this country."

The post can be found at:

http://kennedy-law.blogspot.com/2010/05/convicted-rapist-exonerated-by-dna.html

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DNA tests clear Houston man of 1986 rape
By BRIAN ROGERS
HOUSTON CHRONICLE
May 25, 2010, 7:12PM

HOUSTON CHRONICLE STORY;

A Houston man freed last year after spending 23 years in prison for a rape he did not commit cleared another hurdle Tuesday in his quest to be declared “actually innocent.”

DNA test results released in court Tuesday show that Ernest Sonnier, 47, was not involved in a second rape, which ended in a murder for which he was a suspect in 1985, said Alba Morales, the Innocence Project staff attorney handling the case. She said the test excluded Sonnier from being involved.

In the rape for which he was convicted, DNA testing over the past two years implicated two convicted felons as the perpetrators of the 1985 crime, Morales said.

Sonnier was released last Aug. 6 on a personal recognizance bond that included travel restrictions, including wearing an ankle monitor. State District Judge Michael McSpadden ruled Tuesday that Sonnier can travel freely and no longer must wear the monitor.

He continues to wait for a final ruling on his innocence, as prosecutors continue to investigate the case. He is scheduled to return to court for a hearing in September.

The rape for which he was convicted occurred Christmas Eve 1985, when two men approached a woman at an Alief gas station, forced her into her car by threatening to kill her and drove toward San Antonio. During a seven-hour drive, the men took turns raping the woman. The victim escaped the next morning after the men stopped the car.

Although two men committed the crime, Sonnier was the only person charged. He was convicted a year later and sentenced to life in prison and a $10,000 fine.

Harold Levy...hlevy15@gmail.com;

CHARLES SMITH BLOG AWARD GOES TO JOURNALIST STEWART COCKBURN AND SCIENTIST TOM MANN FOR THEIR ROLES IN THE EXONERATION OF TED SPLATT;

"I AM PLEASED TO AWARD THE CHARLES SMITH BLOG AWARD" TO AUSTRALIAN JOURNALIST STEWART COCKBURN FOR HIS GROUND-BREAKING WORK IN "THE ADVERTISER" WHICH EXPOSED THE MISCARRIAGE OF JUSTICE SUFFERED BY TED SPLATT AND TRIGGERED THE ROYAL COMMISSION WHICH LED TO SPLATT'S EXONERATION. I AM ALSO PLEASED TO NOMINATE AUSTRALIAN SCIENTIST TOM MANN FOR HIS STERLING EFFORTS TO PUBLICIZE THE INJUSTICE PERPETRATED ON TED SPLATT IN THE COURTS INCLUDING THE PUBLICATION OF "FLAWED FORENSICS: THE TED SPLATT CASE AND STEWART COCKBURN", A MONUMENTAL BOOK WHICH DEMONSTRATES THE TRAGIC CONSEQUENCES WHICH CAN UNFOLD WHEN SCIENCE GETS TWISTED OUT OF PROPORTION IN THE COURTS AND THOSE ENTRUSTED WITH THE TASK OF PROTECTING OUR CRIMINAL JUSTICE SYSTEM ABDICATE THEIR RESPONSIBILITIES."

HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG;

PHOTO: TED SPLATT (LEFT); STEWART COCKBURN (RIGHT);

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BACKGROUND: While preparing a recent post on Dr. Ross James' court challenge to the Medical Board of South Australia's finding of professional misconduct in connection with his evidence in the Henry Keogh case, I was intrigued by the reference to a Royal Commission called into the conviction of a man named Edward Charles Splatt and decided to learn more about him. For a start, I learned that Mr. Splatt was set free after the Shannon Royal Commission heard additional scientific evidence which cast doubt on the validity of the Supreme Court verdict against Splatt - and Justice Carl Shannon ruled that, "it would be unjust and dangerous for the verdict of guilty to stand." But it was clear to me that Mr. Splatt was only exonerated because of the intervention of a phenomenal investigative reporter named Stewart Cockburn who burrowed into the case and drew public attention to it - and because of dedicated lawyers who had the ability to tackle the scientific evidence in the case - virtually the only evidence to incriminate him. We learn from the Networked Knowledge Web-Site, that Rosa Amelia Simper died on 3 December 1977. Don Spurling, her son in law who lived next door found her on her bed, strangled with her bra, mutilated about the vagina and rectum, with a chisel like instrument, her nose broken, clothing torn, house ransacked. A few possessions and about $200 were taken. The clock in the bedroom had stopped at 2.48am after the plug was removed. A pathologist said she had died between 3am and 4am, allowing for 2 hours either way. An iron had been turned on and left on the bed beside the body for the apparent purpose of starting a fire. But the heat was on too low and it only resulted in scorching. The government offered a reward. Traces of paint and metal were found on the windowsill, where the window had been jemmied open by an intruder. The traces were also found on the bed sheet. Attention was focused on the Wilson factory only 40 metres away. Of the 8 or 9 men who worked there, Ted Splatt was determined to be the prime suspect. He was arrested 3 March 1978, and found guilty 24 November. Justice Roma Mitchell sentenced him to life. His appeal was dismissed on 28 February 1979. The High Court refused him leave to appeal on 12 September 1979. Stuart Cockburn took up his case and a movement started. A Royal Commission was set up, and Judge Carl Shannon QC on 1 August 1984 recommended he be pardoned. In the soul searching that followed, it was decided that a reform of the South Australian forensic science system was necessary, and in fact it was carried out. Today the Forensic Science Centre in South Australia is independent of the police force. For administrative purposes only, it is under the Department of Services and Supply. It has all disciplines housed under one roof and has a highly qualified director. The investigation of the case has become a model and an inspiration for those confronted by apparently unshakable court decisions. Splatt was not well educated and was a spray painter at Wilson’s. He had some petty convictions. He had not been in trouble during the previous 8 years. It is said he had a bit of a temper. There was no evidence that he knew Mrs Simper. Some youths playing around nearby said they saw someone near her gate, but could not identify Splatt. Sergeant Frank Barry Cocks was a policeman specialising in forensic science, and describing himself as a technician concluded that the traces must have been left by the murderer. With trace elements smaller on the window sill than on the bed, Cocks theorised that those on the bed must have fallen out of the turn-ups of the trousers of the murderer. There were paint flecks, birdseed, hairs and metal traces. It is said the search narrowed too quickly. It should have looked at other factories, and the preponderance of the elements in the environment. Splatt’s clothing was found to include trace elements at the scene including those not at the factory. Splatt said that he had been out at an office party that night. At 2am he had gone to his mother in law’s room to get some tablets. His wife said that he was with her all night. Mrs Condon swore an affidavit, but died some 2 weeks before the trial. Bette Rogers, the JP who was present at the signing of the affidavit said that Mrs Condon seemed reluctant to sign it, and unwilling to touch the bible when she swore on it. There was no primary evidence to implicate Splatt. Cocks found 3 fibres from the bed sheet, which were like those on Splatt’s trousers. Anna Parabyk was a forensic chemist involved with the case. There was some confusion over whether she had been sent grey fibres which were in the trousers too. The trousers were also found to contain paint, metal and birdseed traces similar to those found at the scene. A shirt of his also had fibres similar to those found at the scene. His car coat had similar foam particles to those found at the scene. Rex Kuchel, a botanical expert, identified wood from the windowsill as being jarrah, like a particle found on Splatt’s car coat. Both fragments looked as thought they had been painted. Dr Colin Jenner, from the Waite Institute said that the seed particles had not been heated or cooked, so they were unlikely to have come from a biscuit. Splatt had a birdcage at his home with similar seeds being used. Splatt had said he had not worn the trousers since 1975, and had put on 14 kilos so they no longer fitted him. The case focused on the theory of proportionate transfer – paint to metal (75/25) on the trousers matched the proportions at the scene. The Locard principle of transfer backed this up. The proportions on other employees were more the other way around. Cocks had a dominant role in the case. Splatt was convicted, and the Court of Criminal Appeal said that there were too many coincidences. Cockburn said he found the scientific evidence almost impossible to follow, and some jurors had told him the same thing. Trevor Griffin as the Attorney-General ordered 2 reviews of the case by Bishop and Bollen. Moran eventually recommended a Royal Commission. Mr R.L. Fish from the Home office was critical of the State’s forensic science system. Cocks had been at the crime scene, done the initial scientific evaluation, and instructed the scientists. Possibly some particles had been deposited at the crime scene by the investigators. It was said there were fibres on the bed sheet which could have matched every shirt in Splatt’s wardrobe. Parabyk could not judge the significance of her sample, because she did not know anything about the wider selection which was available. There were 30,000 suits similar to Splatt’s. With the hair found on Ms Simper’s breast, Dr Harry Harding did not receive it until 7 months after the investigation began. What objective measurements had been made to confirm the proportions referred to? Many of Cock’s assumptions had been converted to facts. The Shannon Commission began on 5 April 1983 – and said that when the evidence was examined in detail, it lost its superficial plausibility. The foam spicules were covered in 5 minutes at the trial, but covered 3 weeks of the Commission. Shannon concluded the evidence should not have been admitted.
The zinc particles on the window sill were found to be quite different to those of the alleged nail which was found. The fibres sent to Parabyk were found to be not representative of the trousers at all. There was doubt as to whether there had been any grey fibres at all – which were evident in the trousers. It seemed that the wood particles could have been jarrah – or some other hardwood. The oil in the wood which was thought to be evidence of paint turned out to be the sap in the wood. The ‘seeds’ too had probably been wrongly identified. The fragments could have come from a biscuit after all. It seemed that Kuchel had been told what to expect before he examined it. It seemed that the particles involved could have been airborne. One does not have to prove that, he said, it only has to be a possibility. Even the trace elements on the windowsills had not been compared to other windowsills at the house. Dr Robertson from Strathclyde said that the jury were seldom given appropriate context to enable them to weigh the evidence. Michael Abbott and Stewart Cockburn were told that another man had committed the crime. But the investigation was now 7 years old and really it was impossible to say. The case demonstrated how apparently solid scientific evidence can come undone.

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PUBLISHER'S NOTE: I am pleased to award The Charles Smith Blog Award" to Australian journalist Stewart Cockburn for his ground-breaking work in "The Advertiser" which exposed the miscarriage of justice suffered by Ted Splatt and triggered the Royal Commission which led to Splatt's exoneration.

I am also pleased to nominate Australian scientist Tom Mann for his sterling efforts to publicize the injustice perpetrated on Ted Splatt in the courts including the publication of "Flawed Forensics: The Ted Splatt case and Stewart Cockburn", a monumental book which demonstrates the tragic consequences which can unfold when science gets twisted out of proportion in the courts and those entrusted with the task of protecting our criminal justice system abdicate their responsibilities.

I established this award in 2009 to honour an author who has done outstanding work in exposing a miscarriage of justice anywhere in the world involving flawed pathology, flawed pathologists, or a combination of both.

Previous honourees are:

0: Kevin Morgan (AUSTRALIA): author of "Gun Alley: Murder, Lies and Failure of Justice, who single-handedly fought for and obtained the forensic materials which led to Colin Ross's pardon almost ninety years after he was executed.

0: Michael Hall (U.S.A.): For his excellent work in Texas Monthly exposing the miscarriages of justice that have occurred as a result of scent-lineups and the "experts" who conduct them, and

0: Sun-Sentinel reporter Paula McMahon (U.S.A.) for her ground-breaking reporting over a nine year period which led to the freeing and exoneration of Anthony Caravella.

I welcome suggestions as to other writers who deserve to be nominated for this award for their work in exposing miscarriages of justice flawed pathology, flawed pathologists, or a combination of both at hlevy15@gmail.com;

Harold Levy...Publisher; hlevy15@gmail.com;

WILLIAM AVERY: SWEEPING REVIEW OF 2100 HOMICIDE CASES WHERE DNA TESTING COULD CONFIRM OR CAST DOUBT ON GUILT ORDERED IN MILWAUKEE; JOURNAL SENTINEL;

"THE SWEEPING REVIEW, WHICH CHISHOLM HOPES TO COMPLETE WITHIN THREE TO FOUR MONTHS, IS IN RESPONSE TO AT LEAST THREE CASES IN WHICH MEN WHO WERE CONVICTED OF HOMICIDE WERE RELEASED RECENTLY BASED UPON NEW DNA TESTS THAT IDENTIFIED A DIFFERENT SUSPECT IN THE KILLINGS. THE LATEST SUCH DEVELOPMENT OCCURRED MONDAY, WHEN A JUDGE ORDERED THAT WILLIAM D. AVERY, WHO WAS CONVICTED IN THE 1998 STRANGULATION OF A MILWAUKEE PROSTITUTE, BE RELEASED FROM PRISON BASED UPON A NEW DNA TEST THAT LINKS THE MURDER TO A SUSPECTED SERIAL KILLER."

REPORTER RYAN HAGGERTY; THE JOURNAL SENTINEL; Wikipedia informs us that: "The Milwaukee Journal Sentinel is a daily morning broadsheet printed in Milwaukee, Wisconsin, USA. It is the primary newspaper in Milwaukee, the largest newspaper in Wisconsin and is distributed widely throughout the state."

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"Milwaukee County prosecutors and national experts will review the roughly 2,100 homicide prosecutions filed in the county since 1992 in an effort to identity cases in which further DNA testing could either confirm or cast doubt upon the defendant's guilt, District Attorney John Chisholm said Monday," the Journal Sentinel story by reporter Ryan Haggerty published 24 May, 2010, begins, under the heading, "Milwaukee to review 2100 homicide cases," and the sub-heading, "Prosecutors seek cases where further DNA testing could confirm or cast doubt on defendants' guilt.

"The sweeping review, which Chisholm hopes to complete within three to four months, is in response to at least three cases in which men who were convicted of homicide were released recently based upon new DNA tests that identified a different suspect in the killings," the story continues.

"The latest such development occurred Monday, when a judge ordered that William D. Avery, who was convicted in the 1998 strangulation of a Milwaukee prostitute, be released from prison based upon a new DNA test that links the murder to a suspected serial killer.

Avery, 38, was convicted in 2005 of first-degree reckless homicide in the killing of Maryetta Griffin, 39, and sentenced to 40 years' imprisonment.

In April, however, Avery wrote a letter to Chisholm asking that a DNA sample taken from Griffin's body be sent to the State Crime Laboratory for testing.

The analysis excluded Avery and revealed that the DNA sample matched the profile of accused serial killer Walter E. Ellis.

Ellis was charged in September with killing seven prostitutes in Milwaukee over a 21-year period after investigators matched DNA found at all seven murder scenes to him. His trial is scheduled to begin in October.

Authorities have said Ellis' DNA also was found on an eighth murdered prostitute, Carron D. Kilpatrick, and a teenage runaway, Jessica Payne, but Ellis has not been charged with those killings.

As in Griffin's homicide, men other than Ellis were charged in the killings of both Kilpatrick and Payne before DNA linked Ellis to the crimes.

In the Kilpatrick homicide, Curtis McCoy was acquitted. In the Payne case, Chaunte Ott was convicted but was freed last year after Ellis' DNA was found on Payne.

In an unrelated homicide case, Robert Lee Stinson spent 23 years in prison before he was freed in 2009, after the Wisconsin Innocence Project produced evidence showing that DNA and bite marks found on the victim could not have come from Stinson.
Missing profiles

The decision to review all homicide cases filed in Milwaukee County since 1992 stems largely from the discovery last year that 17,698 DNA profiles were missing from Wisconsin's databank of felons' DNA.

As of May 20, the state Department of Corrections said it had collected 7,130 of the missing profiles.

The gap in the databank was discovered during the investigation that led to Ellis being charged in the seven homicides.

Ellis' DNA should have been in the databank, but authorities have said that in 2001 Ellis got a fellow inmate who already was convicted of a sex crime to submit a DNA sample in Ellis' name. State officials caught the disparity but never fixed the problem.

Because samples from Ellis and other inmates were missing from the databank, some DNA samples found at crime scenes could not be matched to suspects.

Such was the case in Griffin's killing.

DNA found on her body was tested after the murder, but no match was found at the time for the sample that was recently linked to Ellis.

If Ellis' DNA profile had been in the state databank at the time of Griffin's killing, "that would have changed everything," Chisholm said. "(Prosecutors) would have reviewed it in a totally different way. If that profile had shown up in any of these cases earlier on, we would have proceeded in a different manner, there's no question about that."

Without DNA evidence identifying other suspects, authorities investigating Griffin's killing focused their inquiry on Avery from the start.

But prosecutors initially didn't have enough evidence to charge Avery with killing Griffin. Instead, Avery was convicted of drug-dealing charges in 1998 and sentenced to 10 years' imprisonment.

Six years later, Avery was charged with first-degree reckless homicide in Griffin's killing after inmates with whom Avery was serving time told authorities he had confessed to the murder while in prison. Avery was convicted and sentenced to 40 years in prison.

Avery denies confessing to fellow inmates and believes the inmates lied in an attempt to reduce their own sentences, said Avery's lawyer, James Rebholz.

Avery was ordered released on a $50,000 signature bond Monday and is due back in court in September. Despite the order that Avery be released, he remained in custody Monday evening while his lawyers prepared to dispute the state's contention that Avery is still on parole from his 1998 drug conviction, Rebholz said.

Rebholz also said he is prepared to defend Avery if the state decides to seek a new trial in Griffin's homicide, but Chisholm said he expects Avery will be exonerated after investigators re-examine the case.

Rebholz, like Chisholm, said the gap in the state's DNA databank is largely responsible for Avery's homicide conviction.

"If the DNA situation had been settled years ago, if all the DNA that needed to be in the database were in the database, the oral swab that was not linked to anyone at the time of the crime would have established that it was not Mr. Avery, and in fact a specific person, that was probably responsible for this crime," Rebholz said."

The story can be found at:

http://www.jsonline.com/news/milwaukee/94736259.html

Harold Levy...hlevy15@gmail.com;

HANK SKINNER: REPORTER BRANDI GRISSOM LOOKS AT THE IMPLICATIONS OF THE SUPREME COURT DECISION TO TAKE ON THE SKINNER CASE: TEXAS TRIBUNE;

"SKINNER IS ASKING THE HIGH COURT TO ADDRESS A PROCEDURAL QUESTION ON WHICH COURTS ACROSS THE COUNTRY HAVE SPLIT: WHETHER HE SHOULD BE ALLOWED TO PRESS A FEDERAL CIVIL RIGHTS LAWSUIT SEEKING TO HAVE ADDITIONAL DNA EVIDENCE IN HIS CASE TESTED INSTEAD OF PURSUING A WRIT OF HABEAS CORPUS. THE ANSWER TO WHAT MIGHT SEEM TO BE A SIMPLE PROCEDURAL QUESTION COULD HAVE FAR-REACHING IMPLICATIONS FOR OTHERS LIKE SKINNER WHO CLAIM INNOCENCE AFTER THEY'VE BEEN CONVICTED. A HABEAS CORPUS CLAIM REQUIRES A DEFENDANT TO PROVE HE WAS WRONGLY IMPRISONED. SKINNER'S ARGUMENT IS DIFFERENT: HE'S ASSERTING A CONSTITUTIONAL RIGHT TO PROVE HE'S INNOCENT DESPITE A JURY'S DECISION OTHERWISE IN A TRIAL CONDUCTED WITHOUT LEGAL ERROR. THE SUPREME COURT HAS FOR YEARS AVOIDED RULING THAT SUCH A RIGHT EXISTS, AND IT WON'T TAKE UP THAT CORE QUESTION NOW. A DECISION IN SKINNER'S FAVOR, RATHER, WOULD MERELY ALLOW HIM TO RAISE THAT QUESTION IN LOWER COURTS UNDER A CIVIL RIGHTS CLAIM. “WHAT’S BEING OBSCURED IS THE BIGGER DISCUSSION ABOUT WHETHER KNOWING THE TRUTH IS A RIGHT THAT PEOPLE REALLY OUGHT TO HAVE,” SAID JEFF BLACKBURN, THE GENERAL COUNSEL FOR THE TEXAS INNOCENCE PROJECT. "DNA HAS OPENED SORT OF A SCIENTIFIC DOOR FOR A COMPLETE RE-EXAMINATION OF THE CRIMINAL JUSTICE SYSTEM."

REPORTER BRANDI GRISSOM: THE TEXAS TRIBUNE;

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

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"Death row inmate Hank Skinner bought himself some time Monday when the U.S. Supreme Court agreed to take up a technical issue in his case, but legal experts say he's unlikely to escape his ultimate punishment," the Texas Tribune story by reporter Brandi Grissom, published earlier today under the heading, "Justice Delayed," begins.

"Skinner is asking the High Court to address a procedural question on which courts across the country have split: whether he should be allowed to press a federal civil rights lawsuit seeking to have additional DNA evidence in his case tested instead of pursuing a writ of habeas corpus," the story continues.

"The answer to what might seem to be a simple procedural question could have far-reaching implications for others like Skinner who claim innocence after they've been convicted. A habeas corpus claim requires a defendant to prove he was wrongly imprisoned. Skinner's argument is different: He's asserting a constitutional right to prove he's innocent despite a jury's decision otherwise in a trial conducted without legal error.

The Supreme Court has for years avoided ruling that such a right exists, and it won't take up that core question now. A decision in Skinner's favor, rather, would merely allow him to raise that question in lower courts under a civil rights claim.

“What’s being obscured is the bigger discussion about whether knowing the truth is a right that people really ought to have,” said Jeff Blackburn, the general counsel for the Texas Innocence Project. "DNA has opened sort of a scientific door for a complete re-examination of the criminal justice system."

Skinner argues that DNA evidence that police gathered at the scene of the 1993 triple murder — a knife, a rape kit, a man’s windbreaker and other biological material — could show he is innocent. The material was never tested because other DNA evidence that was tested had helped to implicate Skinner, and his original trial attorney did not want to take the chance that more testing would do the same. An earlier appeal of Skinner's based on claims his original lawyer was ineffective failed. And Texas courts have denied Skinner's requests under habeas corpus laws to test the evidence. But in March — about an hour before he was set to walk into the death chamber — the Supreme Court issued a stay, and now it will decide whether to allow him to proceed under federal civil rights law.

Skinner’s lawyers filed the civil rights lawsuit — alleging that his constitutional rights were violated by the state’s unwillingness to allow him access to the untested DNA evidence — as his options under habeas corpus were running out. The Fifth Circuit Court rejected his case. The court said Skinner’s pursuit of DNA evidence is aimed at getting his sentence overturned and so it must be a habeas case, not a civil rights case. Skinner’s lawyers argue that he should be allowed to bring the case under civil rights laws because the DNA testing wouldn’t necessarily lead to a reversal of his conviction. There’s no guarantee that he would be granted testing by the lower federal courts. Even if lower courts were to order testing — and the results showed he was innocent — that doesn’t mean automatically Skinner would be taken off death row, his attorneys argue.

Gray County District Attorney Lynn Switzer, who is named in the lawsuit and is the most recent prosecutor to deal with Skinner's case, released a statement Monday expressing frustration with the case, which has dragged on for more than 15 years. In the statement, published online by KVII in Amarillo, Switzer said that she remains in contact with the victims' family and friends, and they oppose allowing additional DNA testing. Skinner had a fair trial, she said, and the jury's decision should be respected. "If defendants are allowed to 'game the system' then we will never be able to rely on the finality of the judgments entered in their cases," Switzer said.

Habeas corpus claims typically are ones that could lead to a defendant's sentence being overturned after proving that he was wrongfully imprisoned. Civil rights claims, on the other hand, usually allow a defendant to prove his constitutional rights were violated in some way during or after trial and don't always seek to reverse his sentence. Five circuit courts allow defendants to bring DNA testing requests under federal civil rights law, but two circuit courts — including the Fifth Circuit Court of Appeal, which has jurisdiction over Texas and Skinner's case — require such claims to be filed under habeas corpus laws.

“The courts are very resistant to habeas claims,” said Christopher Slobogin, a professor at Vanderbilt University Law School in Nashville. “To put it bluntly, they get tired of these claims.” The Supreme Court has ruled in the past that convicts seeking to have their sentences overturned must file habeas claims. But those cases are some of the hardest to win, because they have a much higher standard of proof.

"Not likely to win"

Though getting the Court to take up Skinner’s question was a win for him and his team of lawyers, legal experts said the victory — probably his last chance to get the DNA testing done before he is executed — might be fleeting. “In the end, Skinner’s not likely to win here,” said Joseph Hoffmann, a death penalty expert and law professor at Indiana University’s Maurer School of Law.

Slobogin said he expected the High Court to rule against Skinner and decide that his DNA request cannot be a civil rights issue. “The Supreme Court has said that when attacking the validity of a sentence, habeas is the appropriate venue,” he said. If the court agrees with Skinner that inmates can request DNA testing under civil rights laws, he said, there could be a rush by others to file similar requests. “I think it’s fair to say there’ll be an increase in DNA-type challenges to convictions if the court holds” Skinner can seek testing under civil rights law, Slobogin said.

Even if the Court agreed that Skinner can request DNA testing under federal civil rights law, Hoffmann said it’s unlikely the courts would rule that he has a constitutional right to prove he was actually innocent. The Supreme Court has never ruled that the Constitution spells out such a right. It’s likely that Skinner’s case or a similar one would make its way back to the Supreme Court and eventually force the court to face that question. If the Court were to answer it affirmatively, Hoffmann said, it could start a flood of litigation from inmates claiming innocence. That, in turn, could raise a myriad questions about how the justice system operates and really “gum up the works,” he said. “They really don’t want to kind of bite the bullet and recognize this as a federal constitutional right.”

Allowing DNA requests under federal civil rights law would also bring the Supreme Court closer to a larger question that Blackburn and Hoffmann said the elite jurists have carefully avoided: whether inmates have a constitutional right to prove they are actually innocent. With the rise of DNA science, the question looms large in cases such as Skinner's, where testable evidence exists that the jury never heard. Currently, federal innocence claims are primarily based on deprivation of an inmates’ constitutional right to due process — things like shoddy representation or biased juries. There is no legal remedy for convicted criminals who claim the jury just got it wrong, even though their rights were properly protected at trial, Hoffmann said.

"Whether they’re actually innocent or not is kind of a legal irrelevancy once the jury has spoken its version of the truth,” Hoffmann said. “Basically, our legal system is constructed in such a way that that’s the end of it.”"

The story can be found at:

http://www.texastribune.org/stories/2010/may/25/legal-sideshow/#

Harold Levy...hlevy15@gmail.com;