"Between 2003 and late 2008 the British CCRC was headed by Professor Graham Zellick, a recent Law Foundation visiting fellow to New Zealand. On Zellick’s watch, the CCRC had to grapple with one of its thorniest problems – what happens when expert witnesses are in conflict, and when juries have to guess which expert is the more reliable? The main case in question involved Sally Clark, a solicitor wrongly convicted of murdering her children – largely on the basis of expert prosecution evidence about Sudden Infant Death Syndrome given by Sir Roy Meadow, which was later found to be fallacious. Belatedly, Clark was exonerated, but she later committed suicide.
The dodgy reliability of expert witnesses – and the reliance that juries place on them – is a worldwide problem. Cameron Todd Willingham for instance, was executed in Texas in 2004 for the arson murder of his children, on the basis of an expert analysis of the fire scene. More sophisticated forensic analysis – after Willingham [pictured left] had been put to death – has now proven that the house fire was an accident, and not an arson at all.
The Willingham case is one of the clearest examples of the US capital punishment regime executing an innocent man.
In New Zealand, expert ballistics evidence played a central part in the prosecution and eventual conviction of the recently paroled John Barlow, even though the work of the US expert concerned has since been discredited.
Charles Peters testified in 1995 that forensic testing known as comparative lead bullet analysis showed bullets found at the crime scene matched those belonging to Barlow. The tests have since been discredited worldwide for providing a high number of false matches."
GORDON CAMPBELL: "Werewolf" describes itself as an "online and email magazine featuring exclusive articles on politics, business, music and the arts." We should not be surprised to learn that this feisty alternative media publication appears on the full moon of each month.
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INTRODUCTION: Hi and welcome to the September issue of Werewolf, which highlights a practical way to restore public confidence in the justice system. Ever since the Arthur Allan Thomas case in the 1970s, there has been a rash of public disquiet over the outcome of several major criminal cases – either because the verdict seemed plainly wrong, or because it relied on highly suspect evidence. In both Britain and Scotland, an independent body has been set up to investigate convictions where new evidence (or further analysis) has raised genuine concern that the original convictions were unsafe. In this issue, Werewolf interviews Professor Graham Zellick, the former head of that body in Britain between 2003 and 2008, as to why New Zealand needs the same kind of investigative watchdog on our justice system, and how such an organization would work.
THE INTERVIEW: "Arthur Allen Thomas, David Bain, Rex Haig, David Dougherty, Scott Watson…almost every major criminal case in New Zealand seems to have left large numbers of people with the feeling that our justice system regularly gets it wrong, and can’t be relied on to either (a) convict the right person or (b) manage the proceedings of justice in a way that instills confidence that the ‘beyond reasonable doubt’ standard has been properly met," Gordon Campbell's superb article published on "Werewolf" begins, under the heading, "When Justice Fails: Like Britain, should we create an independent body to investigate miscarriages of justice? An interview with Professor Graham Zellick."
"Britain has done something about it," the article continues.
"It took several notorious cases where a miscarriage of justice – or, as some have dubbed it, ‘a carriage of misjustice’ – occurred, before it did so. Namely, the Birmingham Six and Guildford Four cases. In the mid 1990s, an independent body called the Criminal Cases Review Committee (CCRC) was set up by the British government to investigate applications from the public for the review of possibly wrongful convictions, after the appeal process has been exhausted.
Scotland has a similar system, with slightly different rules and powers. In fact, the Lockerbie bomber Ali al-Megrahi was well advanced with an appeal for wrongful conviction to the Scottish CCRC when the infamous plea bargain to release him back to Libya on compassionate grounds was struck, on condition that he dropped his appeal proceedings. If the politicians in Scotland and Britain had hoped that the al-Megrahi plea bargain would save them from the embarrassment of having jailed the wrong man, they were sadly mistaken. Gareth Peirce, the lawyer who defended the Birmingham Six, has summarised the al-Megrahi situation here.
In passing, the political machinations surrounding the Lockerbie bomber case provide some strong reasons why the New Zealand method of handling such cases – leave it to the executive, and the Justice Minister’s discretion – is a bad idea, and a violation of the proper separation of powers. Arguably, politicians should not be allowed to intervene in the work of the judiciary to fix things up, when and how they see fit.
Between 2003 and late 2008 the British CCRC was headed by Professor Graham Zellick, a recent Law Foundation visiting fellow to New Zealand. On Zellick’s watch, the CCRC had to grapple with one of its thorniest problems – what happens when expert witnesses are in conflict, and when juries have to guess which expert is the more reliable? The main case in question involved Sally Clark, a solicitor wrongly convicted of murdering her children – largely on the basis of expert prosecution evidence about Sudden Infant Death Syndrome given by Sir Roy Meadow, which was later found to be fallacious. Belatedly, Clark was exonerated, but she later committed suicide.
The dodgy reliability of expert witnesses – and the reliance that juries place on them – is a worldwide problem. Cameron Todd Willingham for instance, was executed in Texas in 2004 for the arson murder of his children, on the basis of an expert analysis of the fire scene. More sophisticated forensic analysis – after Willingham [pictured left] had been put to death – has now proven that the house fire was an accident, and not an arson at all.
The Willingham case is one of the clearest examples of the US capital punishment regime executing an innocent man.
In New Zealand, expert ballistics evidence played a central part in the prosecution and eventual conviction of the recently paroled John Barlow, even though the work of the US expert concerned has since been discredited.
Charles Peters testified in 1995 that forensic testing known as comparative lead bullet analysis showed bullets found at the crime scene matched those belonging to Barlow. The tests have since been discredited worldwide for providing a high number of false matches.
Carrying out investigations into wrongful convictions is never likely to be a widely popular process. Politicians prefer to be seen to be supporting the victims of crime, rather than the victims of the justice system. Judges, while they may privately concede they are fallible and would welcome any competent body that created more confidence in the justice system, are also likely to have misgivings. The mere existence of a permanent body like the CCRC indicates that the Police and the courts routinely get the process of justice badly wrong. Some people would prefer to perpetuate the fiction that this doesn’t happen.
A few years ago, retired judge Sir Thomas Thorp issued a self-funded report that found our provisions for dealings with miscarriage of justice to be inadequate – and he called for New Zealand to create and maintain an independent body dedicated to investigating and helping to correct wrongful convictions. As Graham Zellick explained in this 2009 speech .
the mere fact of having a respectable place where conspiracy theorists and the genuinely aggrieved alike can take their evidence for expert assessment provides a social benefit in itself. More importantly though, the CCRC is a mechanism for detecting and correcting genuine cases of injustice. Werewolf editor Gordon Campbell spoke with Professor Zellick about the CCRC and its work, during Zellick’s recent visit to Wellington.
Campbell : The CCRC (Criminal Cases Review Commission) was set up in the wake of the Birmingham Six case. New Zealand doesn’t have such an independent body to investigate whether a criminal conviction is unsound. Is there an argument in principle for having such a body, with or without the catalyst of a famous miscarriage of justice ?
Zellick : Yes, there certainly is. It is often the case that major social reform is precipitated by some crisis or scandal or disaster. But all that does is provide the momentum for government to do something. There’d been discussion in Britain for ways to do something about miscarriages of justice for years. The idea of removing it from the executive and creating an independent body was not by any means novel, but governments often don’t tackle issues of this kind until something forces their hand. You mention one case – there were actually a whole series of serious miscarriages of justice which eventually came to light, and were corrected.
Leaving aside the political aspects – what is the principle involved that necessitates having such a body?
The fundamental principle is that the door to justice in criminal matters should never be firmly closed, however long after the trial and appeal. That’s something very different from the situation in civil justice where you have to have finality because people base their affairs on judicial decision, and finality is everything. But on the criminal side, finality is not necessarily justice. There’s a secondary point that arises, and that is – what is the principle that governs who should be there to deal with these things ? And there is a principle that says it shouldn’t be the executive…
That’s what I wanted to ask, because our current position is that we do have a royal prerogative of mercy, and we do have the executive in the shape of the Minister of Justice occasionally exercising his discretion to launch an investigation and recommend that matters be sent back to the courts for consideration. What’s wrong with that model?
Everything. New Zealand is not unusual. That is the common Anglo law Commonwealth situation, where the prerogative rests with the Crown and that translates into whatever the local arrangements are in Canada, Australia, or New Zealand. It was the situation in Britain until the mid 1990s. What’s wrong with it is two fold : first of all, if you analyse it, it does not accord with the proper sphere of executive action. Interference in individual cases within the justice system is no longer, in principle, regarded as being within the proper sphere of executive action. I think that is now generally recognized as a constitutional principle. We’ve sharpened up our ideas on the separation of powers in recent years.
So the risk is that the situation may become politicized and the discretion exercised for political favour or gain?
Or even less sharply, that Ministers have more pressing matters on their agenda, they don’t want to be distracted, they don’t have the time to give it their attention, their officials may realize from time to time that the Minister isn’t very interested – or that he is very interested. It works in very subtle ways, It may not be as crude as to say that there may be direct political manipulation of the process. The political arena is a very sensitive and curious and turbulent one.
And the issue of public confidence in the process then arises.
Absolutely. And that, without doubt, is fundamental. No system involving a ministerial decision and the use of civil servants is ever – in my view – going to command sufficient public confidence. Also, those systems are very rarely transparent so you don’t have a clue what’s gone on, what’s going on, and how the decision was reached. And also they don’t normally have – though I suppose theoretically they could have – the necessary investigative powers that, in my view, are essential.
You made the point that there must be no point of finality in the criminal justice system, in that the door must always be left open to correct an injustice – but what comfort can that offer to the victims of crime?
You have to have other mechanisms for dealing with the victims of crime. In some respects of course with terribly serious crimes, you can’t make adequate recompense. It so happens that Britain happens to have the most generous system of compensating the victims of crimes of violence of any country in the world.
What I’m getting at is that finality is important for the victims of crime too, to enable the feeling that justice has been done –
And that their misery is at an end ?
Yes. Because only then, in the cliché term, is ‘closure’ possible.
That’s absolutely right. I have to tell you that any review commission has to tread warily, and has to be very sensitive. We certainly don’t go troubling families and victims unless you have to. And if possible – and in most cases this is what we manage to do – we can begin and complete a case without them ever knowing that it been the subject of an application. When we do have to open it up and possibly speak to them or – if we don’t, and make a referral – of course we understand this is not going to be easy for them. And we have in place elaborate protocols to ensure they are the first to know the outcome, that they are advised, and that there are authorities there to support them. The only thing I can say is that this cannot be, and could not be allowed to be, a reason for not reviewing a miscarriage of justice.
If only because closure also depends on the right person being convicted ?
It does.
The underlying assumption is that truth can be arrived at by investigations launched by the CCRC. Isn’t that a sign that the adversarial method has failed, and that there should be more room for the inquisitorial method within normal court proceedings?
I think there’d have to be a far larger number of cases where things had gone wrong to support that thesis. It’s a very small proportion of cases that give rise to any issues and on the whole, the adversarial system works very efficiently. If I were given the choice of trial by one method or the other, I must say I’d go for the Anglo-American adversarial method any day of the week. When you reach this point [of bringing in the CCRC] you have to use different techniques. Just as you don’t say to the Police, yours should be an adversarial process. Because it can’t be. And neither can a review commission’s.
Well, let’s look at those numbers. You get about 1,000 applications for review a year. You send back 40 or 50 a year for the original appellate court, and have about a 70% success rate off convictions quashed. Are those numbers relatively constant, year by year?
They are, curiously enough. They’re very constant. I’m no mathematician, and I don’t understand why it is – yet mathematicians apparently do – but these numbers hardly fluctuate.
That’s interesting. Because it indicates that there is a chronic, fairly predictable level of error in the British justice system. Certainly one high enough to justify the CCRC’s ongoing existence.
I have absolutely no doubt that if there were a similar Commission here, you would find the appropriate level would be very similar to the British experience, and the Scottish experience, in proportion. And for the same peculiar reason, it would remain fairly constant. You might get blips now and again – because there might be for instance, a rash of cases on a particular matter. We had some malpractice on the part of Customs and Excise at one point which necessitated us investigating and referring a terribly large number of cases to the Court of Appeal. All of which were quashed.
Given that the CCRC itself is not infallible, couldn’t there be a similar chronic level of error in the decisions the CCRC makes to turn down applications?
Oh, of course. And people come back to us. People are allowed to renew their applications any number of times. The only thing we say is that there has got to be something new…. And there have been cases where people have come back a second or third time, and it has been referred at that point.
And your decisions are subject to judicial review – so in terms of Who’s Watching The Watchers, there is someone looking over your shoulder?
Absolutely. Though the judicial review has to be on legal grounds. But I have to say there are cases where we say we found no basis for taking it forward, and that was because we found no basis for taking it forward – that doesn’t mean that such grounds might not exist. But we didn’t find them. There has to be some new evidence or argument – and that has to be discoverable – and sometimes..well, there may be a witness or a bit of evidence out there, but if you can’t find it, you can’t find it.
Just to be clear : a CCRC recommendation doesn’t establish innocence, but it assesses whether fresh evidence or a re-evaluation puts the ‘beyond reasonable doubt’ test’ in jeopardy, correct ?
Yes. We don’t make any recommendation at all. We simply have to decide whether there is a real possibility the appeal court might quash the conviction – and that is on the basis of whether that conviction is safe.
The element of subjectivity here surely, is that you can’t have any idea whether the new evidence would have impressed the original jury as much as it impresses you?
Yes. And that’s why ultimately it is for the Court of Appeal and not for us, to decide. They have more experience than we do, and they are the people to make the right assessment.
And in this process, you don’t presume to recreate the original circumstances of the trial?
No. And of course, that’s not what the Appeal Court does. Put it this way. For the conviction to be safe, the Court of Appeal would have to be convinced that if that evidence had been before the jury, it would still certainly have convicted. If there’s a doubt about that, then that conviction isn’t safe. The answer then is to put it before a new jury, and you have a retrial. That’s where you balance the competing interests in the criminal justice system.
I wonder what impact you would think that cutbacks in legal aid will have on the CCRC’s work. Logically, wouldn’t cutting back on legal aid be likely to generate more miscarriages of justice?
Yes. It is worrying. As chairman, I never got drawn into the fairly fierce debate about the adequacy of criminal legal aid. I didn’t think it was right to do so. There is no doubt that the adversarial system is critical to the effectiveness of a criminal trial in the common law system. That pre-supposes competent lawyers. If there are serious cutbacks, all sorts of things can happen. Any diminution in the quality of the criminal bar for example, and any curtailment of adequate preparation time and so on, can impact very heavily. Even at the moment, a very significant proportion of applications to the Commission are based on inadequate legal representation.
In New Zealand, we’ve just had legal aid brought back under the control of the same Justice Minister [Simon Power - pictured left] and executive that also holds the discretion to re-open unsafe convictions. In Britain, is legal aid administered by a truly independent body?
There is some kind of agency or body – called the Legal Services Commission – that is responsible for it. Ultimately of course, it is the Ministry of Justice and the Treasury that determine the overall budget, and the Legal Services Commission that figures out how it will work in practice. Its under tremendous strain at the moment. There is, I know, much concern in the legal profession about its future.
This cutback in legal aid is occurring at the same time the CCRC’s own resources to correct those failings are also being reduced, correct? What cutbacks occurred on your watch?
On my watch? I can’t recall the exact figure.
What was your overall budget ?
It was about 8 point something million [pounds] in my time. We were expected to make so-called efficiencies of something like 3% a year.
I saw a figure of about 300,000 pounds in cutbacks a year, in each of three years.
Well, that’s right, that’s right. We certainly re-arranged our affairs so that in my time, we reduced our expenditure by probably about half a million pounds a year. But still there was the expectation was that each year the budget would reduce.
What was the rationale for that?
Just the curbing of public expenditure. I don’t think we were particularly singled out. I wanted us to be singled out because I said : look, you are applying these so called ‘efficiency savings’ even-handedly across all arms-length bodies like ours. Actually, that’s not the way to do it. Because the needs of some are different from the needs of others. It needs to be done selectively, and with discrimination. But they weren’t very interested in that argument.
The CCRC seems to be the sort of body that might be chronically lacking in powerful friends. Politicians always like to be seen as being friendly to the victims of crime. And the judiciary – though it wouldn’t wish you ill – mightn’t be too upset if hardship was inflicted on an organization set up to second–guess their decisions.
Well, that’s right. And the political imperative that gave rise to its creation soon passes. You become a bit of the furniture. And there certainly wasn’t the ministerial interest in us that there had been in the early days. Sometimes that’s not bad. You fall off the radar screen and than can have its advantages. But that was certainly true in my time. It was a Labour government under Prime Minister Blair, and you’re quite right – all the rhetoric was about re-balancing criminal justice, and favouring the interests of victims and so on. It was indeed a worrying time. The interests of justice seemed to have been effaced. I didn’t feel we were a high priority, and didn’t feel we were much loved by Ministers. We weren’t hated by them… But we did have influential friends. The senior judiciary were very great supporters. I worked with three different Lord Chief Justices, every one of whom was a fervent supporter of the Commission privately, and publicly. As were most of the senior judges in the Court of Appeal…and a good number of members of Parliament. I never felt friendless.
Lets talk about a really contentious issue in your work : the role of expert witnesses in criminal trials. You had Sir Roy Meadow, an expert witness in the infamous Sudden Infant Death Syndrome case who testified that the odds of two SIDS deaths in the same family were 73 million to one, when in fact, the more accurate figure was 200 to one. How can juries negotiate a situation where there are competing experts ?
Very difficult, isn’t it? You only have to think about it to realize that’s not really why we have a jury system. Its a very odd situation. Its one thing to drag ordinary folk off the streets and ask them to decide whether Miss X or Mr Y is telling the truth and which is the more honest person – that’s the sort of thing we expect juries to be able to decide. Is this dishonest? That’s what we expect them to decide, in certain kinds of property cases. That’s what juries are supposed to be good at.
But the notion that a jury can adjudicate between the expert opinions of Professor X and Doctor Y is ludicrous. It is absolutely ludicrous – and it is to place upon the jury a burden for which they are wholly ill-equipped. To make our system do that, to my mind, makes no sense whatever.
Given the tragic outcome of that SIDS case – where we had a grieving mother [Sally Clark pictured left] wrongly convicted of murder and who, even after being exonerated, committed suicide – you would think that would impel the system to give juries more assistance about how to cope when the experts on the stand can’t be trusted, or contradict each other. Has anything been done?
No. No, nothing, really. I should say that Meadow didn’t just give evidence on that one case, which was particularly notorious. He was the principal prosecution witness for the Crown in any number of civil and criminal cases involving children – so his evidence was very widespread, and was relied on very heavily by the Crown.
It is easy enough to identify the problem – but what sort of structural changes would actually help the jurors faced with this dilemma?
I think the fundamental change that has to be faced is that you can’t leave those issues to the jury. We don’t expect the jury to listen to prosecuting counsel and defence counsel on technical points of law and reach a view on which is the correct one. The judge tells them : ‘This the law, I direct you. Matters of fact are for you, matters of law are for me, and I will tell you.’ Of course, they have this residual constitutional right to ignore what the judge tells them, but that’s a different issue.
If, as you seem to be intimating, we should expand the judge’s instructional role to include scientific and technical expert evidence as well – wouldn’t we, at the very least, need to require the judge to provide a rationale for the direction he has given?
I’m sure that’s right. Otherwise there would be no way of knowing how he has come to that conclusion, and why they favour one view rather than the other. And then you may well say – what expertise does the judge have on technical issues? So you may have to find some method of ensuring that the judge is advised…and going a stage further. When you think about it, if you really do have a situation where there is a real conflict on a fundamental issue between the experts on either side – and that evidence is absolutely crucial to supporting any possible conviction – can you really say the Crown has proved its case beyond reasonable doubt?
We have had this [problem] in the Sudden Infant Death Syndrome cases. We have had it in the Shaken Baby cases, where there is no certain science and the clinicians are very undecided as to when you can be certain – you can never be certain – that the baby has been shaken to death.
We had it in another notorious case, where parents were convicted of killing their baby by forcibly administering salt to him. That was over-turned on appeal, but they were initially convicted of murder. It turned, as I recall, on expert witnesses for the Crown saying that there was no way that a baby would somehow get this salt down a baby’s throat without someone really forcing it. And that was of course seized on by the jury. It later emerged that the whole thing was fallacious, and there were other explanations for the high concentrations of salt.
Given the inherent corroboration problems in rape cases, do you support the moves to spare witnesses from adversarial questioning?
Oh, I don’t think you can do that. But we’ve gone a long way in England to building a regime which balances the competing interests. In a matter as serious as a rape allegation where the consequences to the defendant are so significant and the sentence so severe –
And the nature of the crime is such there is usually no other witness to establish the facts?
Absolutely true. To remove that in any way from the adversarial process is actually unthinkable. What we have done is introduce limitations on some of the lines of questioning that used to be very common, and which have now been adjudged to be immaterial, and prejudicial.
Providing the guidelines of questioning are followed, is there anything inherently of concern about convictions based on the testimony of children?
I have no experience of that, to be honest. I think children probably present exactly the same sort of problems as adults. Some are believable, and some aren’t. Some know when they are telling the truth, and some don’t.
Point being – a conviction that relied on the testimony of a child or a group of children, might be seen by a bloc of public opinion as prone to fancy or influence or to the eliding of truth and fantasy, such that it would be inherently risky to rely on it. What do you think?
Its very difficult and slightly dangerous to generalise. You have to fall back and say that you have to treat every case as it is. It would be very dangerous, given the incidence of child sex abuse, to say that children can never give evidence that could support a conviction.
You’ve been publicly critical about lip reading experts and earprint experts. Are there any other kinds of experts that you think should not be recognised by the courts as being expert witnesses?
Can’t think of any at the moment. But I just think the courts need to be just a little bit more cautious about admitting people as experts, or as representing disciplines that can rightly have experts. We’re just a bit too casual about this in the English courts. The Americans have more rigorous tests of what can constitute a discipline whose experts can be called to give evidence in a criminal trial.
Finally, to summarise – why should the CCRC be allowed to second guess the joint work of the judge and the jury in the original trial, given that those parties heard all the evidence in context, and were able to judge in person, the relative reliability of witnesses?
And the answer is : we don’t. And it wouldn’t be right to do so, you’re absolutely correct. That’s why the jurisdiction only comes into play when there is something new, and which by definition, wasn’t before the trial judge and trial jury or indeed, the Court of Appeal. So, it is premised on the notion that something – whether it is legal, or factual – something new has emerged which justifies further consideration. And that further consideration is by the court, and by the appropriate and relevant appeal court. The CCRC system we have fully respects the role of the justice system, and of the judiciary. We don’t in any way replace or oust them. We simply provide a mechanism for laying before them something new that suggests the conviction isn’t safe.
That process must entail some initial guesswork on your part, as to whether the Court of Appeal will buy in and treat the new elements as substantive – and offering the chance of a re-evaluation.
Yes, that’s right. You know, if we went about our job in a reckless, casual or neglectful way, I don’t think we would have won the confidence of the appeal court that we have. I said earlier that successive chief justices and senior judges of the criminal division of the Court of Appeal have been very strong supporters of the Commission. While there may have been the odd case now and then that they thought ought not to have troubled them, and where we may well have spent our energies elsewhere, the fact is we have acquired a quite enviable record – which is a tribute to my colleagues that do the work, day in and day out – and which we would not have if we were putting rubbish before the Court of Appeal.
Yes, but to your critics that’s precisely the problem. They would regard a quota of referrals that’s satisfactory to the upper realms of the judiciary as being indicative of a problem. They strongly believe that you should be ruffling their feathers a bit more by sending them more cases, because the chances are – by playing footsy with the judiciary – you are neglecting cases that may have merit.
Yes, and the Commission has to tread that narrow line. Because you’ve got those on the one hand – the defence constituency – that says the Commission is far too cautious, and should be sending much more to the court. And you’ve got the court whose confidence one wishes to retain. How do you cope with that? You cope with that by simply following a line of integrity and carrying out what you judge to be your statutory duty. The fact is – 30% of the referrals don’t result in anything being overturned. It doesn’t have to be a cast-iron certainty to be referred.
I wasn’t there for the first seven years of the Commission’s life. But you can imagine…when it was set up and started work, the first group of commissioners felt their way gingerly, were very uncertain. They weren’t all by any means, criminal lawyers. They had to understand how the Court of Appeal dealt with these things. Over the years they got some feedback, and a sense of how referrals were dealt with.
The danger by the time I was there – and certainly by the time I’d been there a year or two – was that actually you could predict the final outcome quite easily in about 98 % of the cases. The danger is that then goes further, and you’re sitting on the Commission and you start thinking ‘Oh, there’s no way this conviction is going to be overturned.’ And the others say ‘Yeah, that’s right, there’s no way the Court is going to overturn this.’ And so you don’t refer it, and that 70 % then starts creeping up. We could hit 100% without the slightest difficulty. Or at any rate,95 or 96 %.
So that’s what you’ve got to guard against : of simply, through experience becoming the Court of Appeal and doing their job for them by sending them only what Lord Bingham once called the ‘racing certainties.’ So I think to have kept it at 70% is pretty good. It takes some effort to do that."
The article can be found at:
http://werewolf.co.nz/2010/08/when-justice-fails/
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
Friday, September 3, 2010
Thursday, September 2, 2010
CAMERON TODD WILLINGHAM: "TEXAS DEATH ROW BLUES." A SONG BY COMPOSER/SINGER LUKE POWERS ABOUT "A REAL SOUTHERN GOTHIC HORROR STORY."
"All I can do is write a little song--after the fact. But if it helps wake people up, and will make them listen, feel, then it's done its job. Especially when the death penalty has become more a political than judicial issue. Sad state of affairs--I guess they call it Texas. I don't know whether all the men and women who have been executed were guilty or not. But I do know that they're dead."
SINGER/SONG-WRITER LUKE POWERS TO PUBLISHER CHARLES SMITH BLOG;
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BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire. Legendary "Innocence" lawyer Barry Scheck asked participants at a conference of the National Association of Criminal Defence Lawyers held in Toronto in August, 2010, how Willingham, who had lost his family to the fire, must have felt to hear the horrific allegations made against him on the basis of the bogus evidence, "and nobody pays any attention to it as he gets executed." "It's the Dreyfus Affair, and you all know what that is," Scheck continued. "It's the Dreyfus AffaIr of the United States.
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PUBLISHER'S NOTE: Song-writer/singer Luke Powers has given this Blog permission to make available to our readers the video of his recently released song, "Texas Death Penalty Blues." The song is found on his recently released music video "HWY 100: Twilight Zone with Twang," a New Americana CD release on Phoebe Claire Records." "Texas Death Row Blues" is described by the publisher as, "a real Southern Gothic horror story based on the 2004 execution of Cameron Todd Willingham. In 2009 the fire science used to convict Willingham has been called into question - generating international attention." Powers brings an unusual background to this cd which his publisher tells us was inspired by Snopes.com and Franz Kafka. His biography tells us that, "When he is not writing songs, Luke teaches at Tennessee State University, an historically black college in Nashville, TN. Luke has a PhD in English from Vanderbilt University and Master's in Folklore from the University of North Carolina at Chapel Hill. In addition to scholarly work he has published fiction and poetry." What truly impresses me about Luke Powers is his interest in the subject matter of this site and his deeply-honed aversion to injustice. "I was really impressed by your site. If there's any cure for bad science, it's good science. I applaud the work you do," he said to me in an email. "All I can do is write a little song--after the fact. But if it helps wake people up, and will make them listen, feel, then it's done its job. Especially when the death penalty has become more a political than judicial issue. Sad state of affairs--I guess they call it Texas. I don't know whether all the men and women who have been executed were guilty or not. But I do know that they're dead." Luke Power's new CD was released towards the end of August. It's eclectic nature can be fathomed from the titles to some of the songs, such as: "Mechanical Monkey" -- a hymn to the cymbal-crashing wind-up toy; "Humanzee" -- a lament of the world's only hybrid human/chimpanzee; "King of the Blues" -- a paean to the first bluesman to sell his soul to the devil; "Balloon Boy" -- the testimony of a true believer in the infamous PR hoax; "Ballad of the Minie-Ball" -- Civil War legend about a minie-ball ricochet that impregnated a Southern belle (true story); "The World's Smallest Confederate Veteran" -- song about a little person who rose to rank of General and post-war sideshow attraction (undetermined);, and "Starchild" -- confession of a Roswell crash alien reincarnated as a human girl. HWY 100 is available on I-TUNES and CDBaby.com. Free downloads (mp3s, music videos) and information about the songs can be found at http://www.phoebeclaire.net.
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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
ROBERT LEE STINSON: KEITH FINDLEY: YES FORENSIC SCIENCE SHOULD BE FEARED BY THE GUILTY - BUT IT SHOULD NOT LEAD TO THE INNOCENT; SUPERB COMMENTARY;
"And certainly no scientific analysis supports the analyst's claim that his method has no error rate. No real science, not even DNA analysis, can claim such perfection.
This is precisely the type of indefensible testimony that sent Robert Lee Stinson to prison for 23 years for a Milwaukee murder he did not commit. In that case, the expert (a forensic dentist) proclaimed that he had matched Stinson's teeth to bite marks on the deceased's body, to the exclusion of all other teeth in the world. DNA not only exonerated Stinson 23 years later, but also identified the true perpetrator.
KEITH FINDLEY: MILWAUKEE WISCONSIN JOURNAL-sentinel; Keith Findley is co-director of the Wisconsin Innocence Project. He is also president of the Innocence Network, an affiliation of more than 60 innocence projects around the world which filed a brief in the court of appeals challenging the ballistics expert's claims in the case discussed."
PHOTO: ROBERT LEE STINSON;
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BACKGROUND: Robert Lee Stinson was convicted of the 1985 murder of a Milwaukee woman. Stinson's conviction rested almost exclusively on bite-mark identification purporting to match Stinson's teeth to bite patterns found on the victim's body. (Dr. L Thomas Johnson, a Wisconsin bite mark analyst, testified at Stinson’s trial for a 1984 murder that bite marks on the victim’s body matched Stinson’s teeth.) In 2005, the Wisconsin Innocence Project accepted Sinton's case and developed two kinds of new evidence. First, DNA testing revealed male DNA in saliva on the victim's sweater, and this DNA excluded Stinson. Second, working with California forensic science expert Christopoher Plourd, WIP arranged for the bite-marks to be re-examined by a panel of four nationally-recognized experts, Dr. Gregory Golden, Dr. David Senn, Dr. Norman Sperber, and Dr. Denise Murmann. Using modern methods, the panel unanimously concluded that Stinson's teeth could not have inflicted the bites. The Milwaukee County District Attorney's Office did not oppose Stinson's motion to reverse his conviction, and he was freed. Bite-mark identification has been implicated in numerous other wrongful convictions around the country.
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"Attorney General J.B. Van Hollen was right recently when he declared, "Murderers should fear forensic science." Forensic science evidence can be a powerful tool against the guilty," Keith Findley's commentary on the Milwaukee Wisconsin Journal-Sentinel, published on Sept. 2, 2010, under the heading, "No silver bullets in forensic evidence," begins.
"It has also proven to be a powerful tool for exonerating the wrongly accused and convicted," the commentary continues.
"But in our exuberance to embrace the wonders of forensic science, we must be careful not to be swept away too readily by any claims presented in the guise of "forensic science." As effective as forensic science evidence can be, it can also be flawed, misleading, remarkably unscientific, and sometimes flat wrong.
Indeed, examination of the nearly 260 DNA exonerations of the last two decades reveals that misleading or erroneous forensic science evidence has been the second most prevalent contributor to wrongful convictions - second only to mistaken eyewitness identification. And a recent analysis of DNA exoneration cases found that prosecution forensic analysts gave invalid or inaccurate testimony in 60% of the trials studied.
It is thus with some irony that Van Hollen celebrated the power of forensic science evidence in a press release about a court of appeals opinion affirming a conviction in a case that included some of the most suspect and least-scientifically grounded forensic "science" testimony possible. In that case, a ballistics expert visually matched a bullet from a murder to the defendant's gun, and testified that no "other gun in the world would have left those particular type of markings on that bullet." He added, "There is no error rate" for his "eyeball analysis."
Ballistics can be a useful tool in identifying sources of bullets from a crime scene. But there is no basis in science for proclaiming that a particular bullet could be matched to a particular gun to the exclusion of all other guns. There is no scientific basis for such assertions because they have not been studied adequately. No scientific principles define how many points of similarity must be identified to call a gun and a bullet a match, or even what protocols analysts should employ when making their visual comparisons.
And certainly no scientific analysis supports the analyst's claim that his method has no error rate. No real science, not even DNA analysis, can claim such perfection.
This is precisely the type of indefensible testimony that sent Robert Lee Stinson to prison for 23 years for a Milwaukee murder he did not commit. In that case, the expert (a forensic dentist) proclaimed that he had matched Stinson's teeth to bite marks on the deceased's body, to the exclusion of all other teeth in the world. DNA not only exonerated Stinson 23 years later, but also identified the true perpetrator.
And it is precisely the kind of testimony that the National Academy of Sciences decried recently as unsupported by scientific evidence and grossly improper.
It is, unfortunately, very common for ballistics experts to make these kinds of exaggerated claims.
In upholding admissibility of such misleading and unfounded testimony, the Wisconsin Court of Appeals did not endorse the sort of testimony or claims made by the analyst; it merely declared that it was bound by Wisconsin law to permit such testimony - dubious as it may be - because in Wisconsin, unlike most other jurisdictions, courts are not permitted to play a significant gatekeeping role in screening out unreliable expert testimony.
In the end, what the case really demonstrates is the importance of taking a fresh look at the way we generate and use forensic science evidence in Wisconsin. If courts are not going to screen out unreliable and exaggerated scientific claims, then the state - through legislation, oversight by prosecutors, or self-regulation by the labs - must ensure that only forensic science evidence truly grounded in scientific principles, and validated by scientific research, is offered in our courts.
Making sure that murderers (and other felons) have good reason to "fear forensic science," and that forensic science does not lead us to pursue innocent people like Robert Lee Stinson, depends on it."
The commentary can be found at:
http://www.jsonline.com/news/opinion/102105579.html
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
KEVIN KEITH: OHIO; GOVERNOR OVERRIDES CLEMENCY BOARD, COMMUTES DEATH PENALTY BUT INSISTS HE IS GUILTY; LAWYERS WANT NEW TRIAL;
"Strickland said that despite evidence supporting Keith's guilt, "many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it."
The "case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court," Strickland said. "Under these circumstances, I cannot allow Mr. Keith to be executed."
REPORTER ANDREW WELSH-HUGGINS: THE ASSOCIATED PRESS;
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BACKGROUND: On the evening of February 13, 1994, Marichell Chatman, her daughter Marchae, and Marichell’s aunt Linda Chatman were shot to death at the Bucyrus Estates Apartments in Bucyrus, Ohio. Richard Warren, Marichell’s boyfriend, and Marichell’s young cousins, Quanita and Quinton Reeves, were also shot but survived. On February 15, 1994, Kevin Keith was arrested for these shootings. By May 31, 1994, Mr. Keith was sentenced to death for this crime. From crime to sentencing, only three-and-a-half months passed. In spite of his alibi and no conclusive forensic evidence proving his involvement, Mr. Keith was convicted in 1994 and sentenced to death. In 2007, after all his allotted appeals were exhausted, new counsel took on Mr. Keith’s case. Upon investigating, counsel discovered new evidence for Mr. Keith that supported what Mr. Keith was saying from day one – he is actually innocent. The new evidence proves that the primary evidence used to convict Keith was flawed. The eyewitness identification testimony by a surviving victim was improperly influenced. Thirteen years after he was convicted, Mr. Keith discovered that one of the State’s “witnesses” does not actually exist. At Keith’s trial, the police had testified about a fictitious person and attributed a statement to her in order to bolster the shaky identification testimony of the surviving victim. Mr. Keith’s new evidence further implicates an alternative suspect who told a police informant that he was paid to carry out the murders for which Keith is scheduled to die. The police were aware of the statements by the alternative suspect, but no one turned them over to Keith’s counsel. Kevin Keith failed to persuade the state's clemency board or the courts to stop his execution which had been set for September 15, 2010.
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"COLUMBUS, Ohio — A condemned inmate had his life spared Thursday when Ohio Gov. Ted Strickland cited "legitimate questions" about evidence used to convict the inmate, even though the governor believes the prisoner committed the crimes," the Associated Press story by reporter Andrew Welsh-Huggins earlier today begins, under the heading, "Ohio gov spares killer who claimed innocence."
"Strickland questioned some of the eyewitness testimony against Kevin Keith, who was scheduled to die Sept. 15, and says he's bothered that other possible suspects weren't fully investigated," the story continues.
"Strickland said Keith has appeals available that could lead to a full reexamination of the crime, but he also acknowledged that might not happen.
Strickland said that despite evidence supporting Keith's guilt, "many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it."
The "case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court," Strickland said. "Under these circumstances, I cannot allow Mr. Keith to be executed."
The move by the Democratic governor overrides last month's decision from his parole board, which unanimously recommended against clemency.
Strickland also overrode the parole board in 2008, when he commuted the death sentence of another inmate who claimed innocence.
Strickland made it clear he believes Keith is likely guilty of the 1994 slayings in Bucyrus, about 60 miles north of Columbus.
"There is evidence which links him to the crimes that, while circumstantial, is not otherwise well explained," Strickland said.
Police say Keith entered an apartment in Bucyrus on the evening of Feb. 13, 1994, and sprayed it with gunfire, killing Marichell Chatman, 24; her 4-year-old daughter, Marchae; and the Marichell's aunt, Linda Chatman, 39.
Three others were wounded, including siblings Quanita Reeves, 7, and Quentin Reeves, 4. Marichell Chatman was the sister of an undercover police informant whose efforts led to a drug raid weeks earlier during which Keith was arrested.
Keith's attorneys questioned eyewitness testimony that identified Keith as the shooter, provided evidence of an alternate suspect and lined up four alibi witnesses.
Keith's attorneys welcomed the decision while noting that their client, who had requested a pardon from Strickland, still needs a new trial to prove his innocence.
"The commutation to a life sentence does not lessen the need for justice to prevail," the attorneys said in a statement.
A message left with prosecutors in Crawford County was not immediately returned.
Keith's brother, Charles Keith, praised the decision, but said more had to be done.
"We're still in pursuit of the truth," said Charles Keith, of Canton. "Now we have to channel our energies and focus ourselves onto getting Kevin out completely."
Strickland spared John Spirko in 2008, citing a lack of physical evidence tying him to a 1982 murder. In 2009 he spared Jeffrey Hill, who killed his mother, Emma Hill, in a cocaine induced rage, after Hill's entire family asked for mercy. Strickland also spared Richard Nields in June, citing court decisions that questioned the appropriateness of a death sentence. Nields strangled his girlfriend during an argument."
The story can be found at:
http://www.chron.com/disp/story.mpl/ap/top/all/7184022.html
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
The "case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court," Strickland said. "Under these circumstances, I cannot allow Mr. Keith to be executed."
REPORTER ANDREW WELSH-HUGGINS: THE ASSOCIATED PRESS;
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BACKGROUND: On the evening of February 13, 1994, Marichell Chatman, her daughter Marchae, and Marichell’s aunt Linda Chatman were shot to death at the Bucyrus Estates Apartments in Bucyrus, Ohio. Richard Warren, Marichell’s boyfriend, and Marichell’s young cousins, Quanita and Quinton Reeves, were also shot but survived. On February 15, 1994, Kevin Keith was arrested for these shootings. By May 31, 1994, Mr. Keith was sentenced to death for this crime. From crime to sentencing, only three-and-a-half months passed. In spite of his alibi and no conclusive forensic evidence proving his involvement, Mr. Keith was convicted in 1994 and sentenced to death. In 2007, after all his allotted appeals were exhausted, new counsel took on Mr. Keith’s case. Upon investigating, counsel discovered new evidence for Mr. Keith that supported what Mr. Keith was saying from day one – he is actually innocent. The new evidence proves that the primary evidence used to convict Keith was flawed. The eyewitness identification testimony by a surviving victim was improperly influenced. Thirteen years after he was convicted, Mr. Keith discovered that one of the State’s “witnesses” does not actually exist. At Keith’s trial, the police had testified about a fictitious person and attributed a statement to her in order to bolster the shaky identification testimony of the surviving victim. Mr. Keith’s new evidence further implicates an alternative suspect who told a police informant that he was paid to carry out the murders for which Keith is scheduled to die. The police were aware of the statements by the alternative suspect, but no one turned them over to Keith’s counsel. Kevin Keith failed to persuade the state's clemency board or the courts to stop his execution which had been set for September 15, 2010.
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"COLUMBUS, Ohio — A condemned inmate had his life spared Thursday when Ohio Gov. Ted Strickland cited "legitimate questions" about evidence used to convict the inmate, even though the governor believes the prisoner committed the crimes," the Associated Press story by reporter Andrew Welsh-Huggins earlier today begins, under the heading, "Ohio gov spares killer who claimed innocence."
"Strickland questioned some of the eyewitness testimony against Kevin Keith, who was scheduled to die Sept. 15, and says he's bothered that other possible suspects weren't fully investigated," the story continues.
"Strickland said Keith has appeals available that could lead to a full reexamination of the crime, but he also acknowledged that might not happen.
Strickland said that despite evidence supporting Keith's guilt, "many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it."
The "case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court," Strickland said. "Under these circumstances, I cannot allow Mr. Keith to be executed."
The move by the Democratic governor overrides last month's decision from his parole board, which unanimously recommended against clemency.
Strickland also overrode the parole board in 2008, when he commuted the death sentence of another inmate who claimed innocence.
Strickland made it clear he believes Keith is likely guilty of the 1994 slayings in Bucyrus, about 60 miles north of Columbus.
"There is evidence which links him to the crimes that, while circumstantial, is not otherwise well explained," Strickland said.
Police say Keith entered an apartment in Bucyrus on the evening of Feb. 13, 1994, and sprayed it with gunfire, killing Marichell Chatman, 24; her 4-year-old daughter, Marchae; and the Marichell's aunt, Linda Chatman, 39.
Three others were wounded, including siblings Quanita Reeves, 7, and Quentin Reeves, 4. Marichell Chatman was the sister of an undercover police informant whose efforts led to a drug raid weeks earlier during which Keith was arrested.
Keith's attorneys questioned eyewitness testimony that identified Keith as the shooter, provided evidence of an alternate suspect and lined up four alibi witnesses.
Keith's attorneys welcomed the decision while noting that their client, who had requested a pardon from Strickland, still needs a new trial to prove his innocence.
"The commutation to a life sentence does not lessen the need for justice to prevail," the attorneys said in a statement.
A message left with prosecutors in Crawford County was not immediately returned.
Keith's brother, Charles Keith, praised the decision, but said more had to be done.
"We're still in pursuit of the truth," said Charles Keith, of Canton. "Now we have to channel our energies and focus ourselves onto getting Kevin out completely."
Strickland spared John Spirko in 2008, citing a lack of physical evidence tying him to a 1982 murder. In 2009 he spared Jeffrey Hill, who killed his mother, Emma Hill, in a cocaine induced rage, after Hill's entire family asked for mercy. Strickland also spared Richard Nields in June, citing court decisions that questioned the appropriateness of a death sentence. Nields strangled his girlfriend during an argument."
The story can be found at:
http://www.chron.com/disp/story.mpl/ap/top/all/7184022.html
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
LINDY CHAMBERLAIN: ABC "STATELINE" INTERVIEW WITH AUTHOR JOHN BRYSON: HOW "HOME TOWN PRESSURE" GOT IN WAY OF CORRECTING THE DEATH CERTIFICATE;
"We have to remember that really the prosecution case that was put together, the investigation after the first inquest had exonerated the Chamberlains, was a wonderfully arranged affair. You'll remember all the so-called scientific evidence was kept secret until it was delivered from the witness box. So, everyone was trying to pick up and understand pieces of this case as it progressed. And mostly its progression was through the selective leaking of information to favoured journalists. So it was all understanding on the run, even during the trial."
"EVIL ANGELS" AUTHOR JOHN BRYSON TO ABC INTERVIEWER LAETITIA LEMKE; AUGUST 20, 2010; STATELINE;
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BACKGROUND: WIKIPEDIA): Michael and Lindy Chamberlain's first daughter, Azaria, was born on June 11, 1980. When Azaria was two months old, Michael and Lindy Chamberlain took their three children on a camping trip to Ayers Rock, arriving on August 16, 1980. On the night of August 17, Chamberlain reported that the child had been taken from her tent by a dingo. A massive search was organised, but all that was found were remains of some of the bloody clothes, which confirmed the death of baby Azaria. Her body has never been discovered. Although the initial coronal inquiry supported the Chamberlains' account of Azaria's disappearance, Lindy Chamberlain was later prosecuted for the murder of her child on the basis of the finding of the baby's jumpsuit and of tests that appeared to indicate the presence of blood found in the Chamberlains' car. This forensic gathering convicted her of murder on October 29, 1982, and sentenced her to life imprisonment; the theory was that she slit the child's throat and hid the body. Michael Chamberlain was convicted as an accessory to murder. Shortly after her conviction, Lindy Chamberlain gave birth to her fourth child, Kahlia, on November 17, 1982, in prison. An appeal against her conviction was rejected by the High Court in February, 1984. New evidence emerged on February 2, 1986 when a remaining item of Azaria's clothing was found partially buried near Uluru in an isolated location, adjacent to a dingo lair. This was the matinee jacket which the police had maintained for years did not exist. Five days later, Chamberlain was released. The Northern Territory Government publicly said it was because "she had suffered enough." In view of inconsistencies in the earlier blood testing which gave rise to potential reasonable doubts about the propriety of her conviction and as DNA testing was not as advanced in the early 1980s it emerged that the 'baby blood' found in her car could have been any substance, Lindy Chamberlain's life sentence was remitted by the Northern Territory Government and a Royal Commission began to investigate the matter in 1987. Chamberlain's conviction was overturned in September, 1988 and another inquest in 1995 returned an open verdict. In recent years there have been fatal dingo attacks on children, one famous instance being at the holiday resort at Fraser Island.
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PUBLISHER'S NOTE: It's hard to imagine a more reasonable request than Lindy Chamberlain's bid for a new death certificate which will record the truth - that Azaria was killed by a dingo. To lose a child in those circumstances is bad enough. To be branded as her killer on the basis of ignorance, fear-mongering, faulty police investigation, erroneous expert evidence and a wanting court process, makes matters all the worse. This is compounded by an oppressive prosecution in which Lindy Chamberlain did not have the opportunity to access and conduct tests on key pieces of forensic evidence before her trial. A refusal by the authorities to take such a simple, warranted step, would only be seen as furthering the injustice inflicted on Lindy Chamberlain and her family. It is no answer to say she has been pardoned or that her conviction has been quashed. There will understandably be no closure from the legal process and its dreadful consequences for her until the public record - the death certificate - is corrected. That can't happen soon enough.
HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG.
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LAETITIA LEMKE, PRESENTER: In August 1980 nine and a half week old Azaria Chamberlain disappeared from a campsite at Uluru. Her mother Lindy Chamberlain made headlines around the world, claiming a dingo took her baby. She was convicted of murder, but eventually exonerated. Now, 30 years on, the publication of jury notes has seen the Chamberlain family again thrust into the spotlight. Former lawyer John Bryson wrote the book Evil Angels and knows the story inside out. I caught up with him earlier today to get his take on the Territory Government's decision to open another chapter in the case.
LAETITIA LEMKE: John Bryson, welcome to Stateline.
JOHN BRYSON, AUTHOR: Thank you.
LAETITIA LEMKE: Is this story ever going to go away? Do you think we're seeing the final chapter play out now?
JOHN BRYSON: I don't think so. It's now a fascination through the nation for precisely the opposite reasons that played out when it began. We should remember that when it did begin it was not Lindy Chamberlain who was the first and prime suspect, it was Pastor Michael. And it only became a witch hunt for Lindy Chamberlain when it was realised that Michael Chamberlain himself couldn't possibly have done it. And think the story has changed its methodology of fascination as it goes along. Now it's a fascination with, how on earth did we get it so wrong.
LAETITIA LEMKE: We've seen a media frenzy this week following the publication of confidential jury notes from police files. The Chief Justice has come out and questioned, firstly, why those notes weren't destroyed at the time, as per protocol; and, secondly, how they found their way into Police files. Do we need to see an explanation from Police on this?
JOHN BRYSON: I think so. Love them though I do, the Northern Territory are fairly good at this. You'll remember that with the first outrage at the jurors' verdict in the Chamberlain case, it wasn't long before the Law Department trotted out two jurors to explain their position. I really think that was illegal, just as the brandishing of the notes now is not lawful.
LAETITIA LEMKE: And what do the notes themselves say to you?
JOHN BRYSON: Oh, the confusion. We have to remember that really the prosecution case that was put together, the investigation after the first inquest had exonerated the Chamberlains, was a wonderfully arranged affair. You'll remember all the so-called scientific evidence was kept secret until it was delivered from the witness box. So, everyone was trying to pick up and understand pieces of this case as it progressed. And mostly its progression was through the selective leaking of information to favoured journalists. So it was all understanding on the run, even during the trial.
LAETITIA LEMKE: There've been some very strong headlines that we've seen over the past two weeks that really put into question Lindy Chamberlain-Creighton's character. Is the media continuing to vilify Lindy Chamberlain-Creighton?
JOHN BRYSON: Very much certain parts of it. We have to remember that law enforcement is very skilful at annexing the loyalties of certain people in the media and I'd have no doubt that that's what's happening now, as well.
LAETITIA LEMKE: One of the major developments to come out is an open letter from Lindy Chamberlain-Creighton, calling for Azaria Chamberlain's death certificate to be changed to recognise that she was killed by a dingo. Surely this is something that should have happened earlier?
JOHN BRYSON: Most people think so. The third Coroner declined to go in the direction that the Morling inquiry, and later the Appeals Court, had suggested happen. Both of those tribunals were of the opinion that a definite verdict, a definite finding, that a dingo was responsible for the death was warranted.
LAETITIA LEMKE: Why do think that hasn't happened then?
JOHN BRYSON: Oh, home town pressure - same as always.
LAETITIA LEMKE: The Attorney General, Delia Lawries, says she'll launch an investigation. There've been investigations in the past. What would make this one any more successful?
JOHN BRYSON: Hindsight, I think. More than any other case involving miscarriages of justice, this case has been wonderfully dissected, and most of that done by the Morling inquiry. I think that really, there is nowhere to go now, except that road.
LAETITIA LEMKE: How important is it who carries out this investigation?
JOHN BRYSON: Very important that it is not part of law enforcement, that it is outside of those pressures. It's interesting that in every state and territory in the Commonwealth one can still find police who will tell you that Lindy Chamberlain was guilty, and who will tell you that the prosecution had more evidence against her than ever would see the light of day. Those sorts of prejudices are wonderfully virile.
LAETITIA LEMKE: John Bryson, thank you so much for your time.
JOHN BRYSON: Thank you.
The interview can be found at:
http://www.abc.net.au/news/video/2010/08/20/2989356.htm
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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
Wednesday, September 1, 2010
DOUGLAS PRADE: SCIENCE GAVE US A NEW TOOL WHICH GIVES US A MUCH BETTER VIEW OF WHAT HAPPENED: WHY WOULDN'T WE USE IT? DEFENCE LAWYER ASKS;
''The criminal justice system,'' Alden said near the conclusion of his argument, ''is designed to assess innocence and guilt, and to do it accurately.
''If science hands us a new tool that can give us a perfect view, or at least a much better view of what might have happened, why in the world wouldn't we use it?'' he asked Hunter."
REPORTER ED MEYER: THE BEACON JOURNAL;
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BACKGROUND: In one of Akron's most notorious murders, Prade's former wife, Dr. Margo Prade, 41, was found by her medical assistant slumped behind the wheel of her van in her office parking lot on Wooster Avenue on the morning before Thanksgiving in 1997. Autopsy findings revealed she was shot six times. After a lengthy trial, Douglas Prade was convicted in September 1998 of all charges in his indictment: aggravated murder, six counts of wiretapping and one count of possession of criminal tools. Common Pleas Judge Mary Spicer, now retired, sentenced him to life in prison without the possibility of parole for 26 years. Prade, now 64, is serving his sentence at Marion Correctional Institution. The issue addressed by the high court involved a bite mark the killer apparently made on Dr. Prade's left arm — through her lab coat and blouse — as she was attempting to defend herself inside the van moments before the shooting. Although DNA tests were performed on that evidence in preparation for the 1998 trial, only Dr. Prade's DNA profile was found. Profuse bleeding on the doctor's lab coat had overwhelmed any traces of DNA that might have been embedded in the bite mark by the perpetrator. In December, Douglas Prade's attorney, David B. Alden, argued before the high court that DNA technology now can detect a small amount of male DNA, even if it is mixed in with vast amounts of female DNA. If another person's DNA is found inside the bite mark, Alden said, a reasonable conclusion would be that Douglas Prade was not the killer. (Akron Beacon Journal) COLUMBUS, Ohio - The Ohio Supreme Court has ordered a judge to decide whether new DNA testing could alter the case of a former Akron police captain convicted of killing his ex-wife. The Supreme Court sent the case back to a trial court to determine the effect of scientific advances in DNA testing since his conviction in the 1997 slaying.
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"Defense lawyers for former Akron police Capt. Douglas Prade asked a Summit County judge Wednesday for new DNA testing of four specific samples of forensic evidence from the 1997 murder of his ex-wife, Dr. Margo Prade," the Beacon Journal story by reporter Ed Meyer published earlier today under the heading, "Judge hears arguments over retesting DNA: Defense prosecution battle over evidence in Prade murder case," begins.
"Acting on a May 4 order by the Ohio Supreme Court, Common Pleas Judge Judy Hunter heard two hours of arguments by the defense and prosecution about whether the new tests — using DNA technology not in existence at the time of Prade's 1998 conviction — should be granted," the story continues.
"Hunter took the matter under advisement and did not announce a timetable for her decision.
Expanding on his arguments to the high court in December, Prade's lawyer, David B. Alden of the Cleveland firm Jones Day, told Hunter the new tests should be done on the following evidence from the murder scene:
• Dr. Prade's lab coat and cutouts from a section of the coat where the killer apparently left a bite mark on the left inner arm.
• Fingernail clippings taken
during the autopsy.
• Police swabs and links from a bracelet that came off during the slaying.
• Buttons, from Dr. Prade's lab coat, which were found outside her vehicle.
''I submit that if you find the same person [leaving DNA] in the fingernail clippings and in the bite mark,'' Alden said in his 25-minute opening statement, ''that certainly would create reasonable doubt [that Douglas Prade was the murderer].''
Alden said findings from such tests also could be used to search for a match of known suspects in the FBI's nationwide database, the Combined DNA Index System, also known as CODIS.
Any reading of the record used by the Ohio Supreme Court to send the issue back to the Summit County justice system, Alden said, makes it ''an easy call.''
Douglas Prade, once thought to be in line to become Akron's chief of police, was convicted of his ex-wife's murder in a 1998 jury trial.
Margo Prade's autopsy revealed she was shot six times behind the wheel of her van in her office parking lot on Wooster Avenue on the morning before Thanksgiving in 1997.
Now 64, Prade was sentenced to prison for 20 years to life for aggravated murder, multiple counts of wiretapping and possession of criminal tools.
He is behind bars at Madison Correctional Institution and waived his right to attend Wednesday's hearing.
In an interview with the Beacon Journal last year, before the Ohio Supreme Court ruling, Prade maintained his innocence. He said he knows his DNA will not be found in the bite mark, or in any other evidence, because he was not the killer.
At the time of the trial, only Dr. Prade's DNA profile was identified in the bite-mark evidence. Bleeding on her lab coat had overwhelmed any traces of DNA the perpetrator might have left in the mark, Alden said in his Dec. 16 arguments to the high court.
The basis for the Ohio Supreme Court decision was that advances in DNA technology are capable of identifying potentially exonerating clues, even in the smallest form, that previous tests in the case could not.
''The criminal justice system,'' Alden said near the conclusion of his argument, ''is designed to assess innocence and guilt, and to do it accurately.
''If science hands us a new tool that can give us a perfect view, or at least a much better view of what might have happened, why in the world wouldn't we use it?'' he asked Hunter.
Assistant Prosecutor Brad Gessner, head of the county agency's criminal division, argued against new tests.
He spoke for nearly 45 minutes, spending much of his time saying that testing was done on the bite-mark evidence for Prade's trial — and that no traces of saliva were found in that bite mark.
At the trial, Gessner said, Prade's own defense expert said ''there would be slobbering all over the area of that bite mark, and that slobbering is where the DNA would come from [to] show who the killer is.''
But when the scientists looked at the entire cutout sections of the lab coat, ''no [saliva] activity was detected,'' Gessner said.
''The advancements of DNAtesting,'' he continued, ''has notallowed substances that did not previously exist to exist now. If there was no saliva in 1998, there is no saliva in 2010.''
Hunter stopped Gessner after he made that point, asking the prosecutor: ''Are you saying that because there is no saliva, there is no DNA there to test?''
Hunter said she had read four briefs on the issue — two from each side — in addition to much of the voluminous transcript from Prade's trial.
She then pointed out that even if the bite mark evidence does not contain DNA markers from saliva, ''does that mean there is no DNA [there]?''
The prosecution arguments also were attended by Mary Ann Kovach, the county prosecutor's chief legal counsel, and assistant prosecutor Richard S. Kasay, the agency's chief appellate attorney.
Alden was assisted by attorneys Mark Godsey and Carrie Wood of the Ohio Innocence Project and Lisa Gates of Jones Day.
The story can be found at:
http://www.ohio.com/news/102043973.html
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
JOHN THOMPSON; LOUISIANA; PARALLELS DIGGINS CASE; KEY BLOOD EVIDENCE WITHHELD. JACOB SULLUM ON THOMPSON'S LAWSUIT AGAINST HIS PROSECUTORS;
"After an investigator working for Thompson’s attorneys discovered the blood evidence in 1999, Thompson received a new trial on the murder charge and was acquitted. A federal jury concluded that the district attorney's office was liable because it failed to properly train its prosecutors, who should have known they were constitutionally obligated to share exculpatory evidence with the defense. A 5th Circuit panel unanimously upheld (PDF) the verdict on appeal, and the full court split evenly on the question, allowing the jury's decision to stand. Asking the Supreme Court to review the case, former Orleans Parish District Attorney Harry Connick Sr. argued that his office should not be held responsible for depriving Thompson of his right to due process because Thompson had not shown a pattern of misconduct or demonstrated a direct connection between a lack of training and the error that led to his conviction......"
JACOB SULLUM: Wikipedia tells us that "Jacob Z. Sullum (born September 5, 1965) is a syndicated newspaper columnist with Creators Syndicate and a Senior Editor at Reason magazine. In 2004, he received a Thomas S. Szasz Award."
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"Yesterday the Supreme Court agreed to hear a challenge to a $14 million award that a wrongly convicted Louisiana man won after serving 18 years in prison, 14 of them in solitary confinement on death row," Jacob Sullum's March 23, 2010 post on "Reason" begins, under the heading, "Supreme Court Will Hear Another Prosecutorial Misconduct Case (and May Even Get to Rule This Time.")
"New Orleans prosecutors who tried John Thompson for armed robbery in 1985 failed to turn over blood evidence that would have exonerated him," the post continues.
"Then they used the robbery conviction to prevent Thompson from taking the stand in his murder trial and to obtain a death sentence (by noting that he had already been sentenced to 50 years without parole for the armed robbery). After an investigator working for Thompson’s attorneys discovered the blood evidence in 1999, Thompson received a new trial on the murder charge and was acquitted.
A federal jury concluded that the district attorney's office was liable because it failed to properly train its prosecutors, who should have known they were constitutionally obligated to share exculpatory evidence with the defense. A 5th Circuit panel unanimously upheld (PDF) the verdict on appeal, and the full court split evenly on the question, allowing the jury's decision to stand. Asking the Supreme Court to review the case, former Orleans Parish District Attorney Harry Connick Sr. argued that his office should not be held responsible for depriving Thompson of his right to due process because Thompson had not shown a pattern of misconduct or demonstrated a direct connection between a lack of training and the error that led to his conviction. (If the prosecutors deliberately withheld the evidence, meaning that lack of training was not really the issue, would that make their office less culpable or more?) More controversially, Connick claimed the rationale for granting prosecutors personal immunity—that the threat of lawsuits would have a chilling effect on their ability to do their jobs—also applies to the government's liability. The implication seems to be that the proper pursuit of justice requires preventing victims of injustice like Thompson, who was nearly executed on several occasions, from recovering any damages at all.
SCOTUS Blog has the briefs in the case, Connick v. Thompson, here. Another recent Supreme Court case, Pottawattamie County v. McGhee and Harrington, involved the related but distinct question of when prosecutors can be held personally liable because they screwed over defendants while functioning as investigators rather than prosecutors. That case, which Radley Balko discussed here and here, was settled for $12 million before the Court issued a ruling."
The post can be found at:
http://reason.com/blog/2010/03/23/supreme-court-will-hear-anothe
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
JACOB SULLUM: Wikipedia tells us that "Jacob Z. Sullum (born September 5, 1965) is a syndicated newspaper columnist with Creators Syndicate and a Senior Editor at Reason magazine. In 2004, he received a Thomas S. Szasz Award."
----------------------------------------------------------------------------------
"Yesterday the Supreme Court agreed to hear a challenge to a $14 million award that a wrongly convicted Louisiana man won after serving 18 years in prison, 14 of them in solitary confinement on death row," Jacob Sullum's March 23, 2010 post on "Reason" begins, under the heading, "Supreme Court Will Hear Another Prosecutorial Misconduct Case (and May Even Get to Rule This Time.")
"New Orleans prosecutors who tried John Thompson for armed robbery in 1985 failed to turn over blood evidence that would have exonerated him," the post continues.
"Then they used the robbery conviction to prevent Thompson from taking the stand in his murder trial and to obtain a death sentence (by noting that he had already been sentenced to 50 years without parole for the armed robbery). After an investigator working for Thompson’s attorneys discovered the blood evidence in 1999, Thompson received a new trial on the murder charge and was acquitted.
A federal jury concluded that the district attorney's office was liable because it failed to properly train its prosecutors, who should have known they were constitutionally obligated to share exculpatory evidence with the defense. A 5th Circuit panel unanimously upheld (PDF) the verdict on appeal, and the full court split evenly on the question, allowing the jury's decision to stand. Asking the Supreme Court to review the case, former Orleans Parish District Attorney Harry Connick Sr. argued that his office should not be held responsible for depriving Thompson of his right to due process because Thompson had not shown a pattern of misconduct or demonstrated a direct connection between a lack of training and the error that led to his conviction. (If the prosecutors deliberately withheld the evidence, meaning that lack of training was not really the issue, would that make their office less culpable or more?) More controversially, Connick claimed the rationale for granting prosecutors personal immunity—that the threat of lawsuits would have a chilling effect on their ability to do their jobs—also applies to the government's liability. The implication seems to be that the proper pursuit of justice requires preventing victims of injustice like Thompson, who was nearly executed on several occasions, from recovering any damages at all.
SCOTUS Blog has the briefs in the case, Connick v. Thompson, here. Another recent Supreme Court case, Pottawattamie County v. McGhee and Harrington, involved the related but distinct question of when prosecutors can be held personally liable because they screwed over defendants while functioning as investigators rather than prosecutors. That case, which Radley Balko discussed here and here, was settled for $12 million before the Court issued a ruling."
The post can be found at:
http://reason.com/blog/2010/03/23/supreme-court-will-hear-anothe
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
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