STORY: "How a ‘bent’ policeman could be key to clearing a man’s name, 40 years on," by reporter Duncan Campbell, published by The Guardian on August 28, 2017.
SUB-HEADING: "Stephen Simmons says he was wrongly jailed for mailbag theft in 1976.
He was advised to Google the arresting officer, and discovered a
disturbing history"
GIST: "Even
Stephen Simmons’s own parents did not believe him when he told them he
was completely innocent of a mailbag theft for which he was convicted
and jailed back in 1976. But now, more than four decades later in a
landmark case, he is hopeful that his name will finally be cleared after
it emerged that the police officer who arrested him was not only a
mailbag thief himself but also notorious for a series of high-profile
cases that had major ramifications for race relations. Simmons, now 62 and a businessman living outside Dorking in Surrey,
was out with a couple of friends in Clapham, south London, just after
midnight in June 1975. They were in his car when DS Derek Ridgewell of
the British Transport Police (BTP) and two colleagues approached out of
the blue. They were taken in for questioning about stolen mailbags. “We knew nothing at all about it,” says Simmons, reliving the arrest
at the home he shares with his wife, Sue. “But when I was being
questioned, Ridgewell threw a trophy – something like a football cup –
at me. It hit me on the chest and it dropped to the ground and he said:
‘Pick it up.’ I almost did but for some reason I stopped and he said:
‘Very clever.’” But not clever enough. Although there were no stolen
goods in the car, Ridgewell would claim in court that Simmons had said:
“We hadn’t got a chance to load it in the motor so don’t plant fuck all
in it.” They were given a duty solicitor. “He told us that if we called the
police liars the judge would send us to prison for a very long time.”
Nonetheless, they pleaded not guilty but were all convicted. Simmons was
sent to Hollesley Bay borstal in Suffolk and served eight months. He
lost his job at a laundry and his flat, but over the years since has
managed to build up a successful business in audio and phone equipment
for cars. However, the conviction has haunted him ever since. “Throughout my whole life I carried the shame for my imprisonment.
One of the hardest things was that my parents – my father was disabled
during the war and my mother worked six days a week as a cleaner in the
hospital to bring up six children – didn’t believe that the police could
lie and one of my own brothers still taunts me as a ‘train robber’,”
says Simmons, who has suffered from ill-health ever since. One of his
co-defendants, also damaged by the case, became an alcoholic and is now
dead. Then one evening four years ago Simmons was listening to an LBC
radio programme on legal matters in which the barrister Daniel Barnett
answers questions. He rang in and asked for advice about trying to clear
his name. “He said: ‘Have you ever thought of Googling the name of the
officer?’ I did and was gobsmacked by what I discovered.” What emerged was that Ridgewell had himself been convicted of
conspiracy to rob mailbags from the Royal Mail, was jailed for seven
years in 1980 and had died in prison in 1982. What also emerged was that
Ridgewell was responsible for a series of notorious cases in which
young black men were falsely accused of robbery on the London
underground. One of his victims was Winston Trew, who along with three
others became known as the Oval Four and was jailed for two years at the
Old Bailey in 1972. Trew has recently written a book about the case,
Black for a Cause, in which he investigated Ridgewell’s extraordinary
career. Using the Freedom of Information Act, Trew uncovered Ridgewell’s
strange life, which turned out to be a cross between Life on Mars and a
Joe Orton play. He had worked both for the BTP and in what was then
southern Rhodesia (now Zimbabwe). In London, he made a name for himself
by arresting dozens of young black men for “mugging” on the underground,
a high-profile issue in the 1970s. His technique was, dressed in plain clothes, to confront
young black men, accuse them of robbing people on the tube, beat them up
if they resisted arrest, make up a semi-confession and see the men
convicted at the Old Bailey. His behaviour led to a series of causes
célèbres. Along with the Oval Four, he arrested those known as the
Stockwell Six, the Waterloo Four and the Tottenham Court Road Two. It was during the last of these cases that the courts finally
realised something very odd was happening. The two young men arrested at
Tottenham Court Road underground station were devout Jesuit students
from Oxford University and the judge, Gwyn Morris, halted their trial in
1973 and said: “I find it terrible that here in London people using
public transport should be pounced upon by police officers without a
word.” In the wake of this bad publicity, Ridgewell was quietly moved off
the undergound squad and given the job of investigating mail theft. He
joined forces with a couple of career criminals with whom he split the
proceeds from stolen mailbags before finally being arrested and jailed
for seven years. Asked by the governor at Ford prison what had happened to him, his
response was: “I just went bent.” At the age of 37, he suffered a heart
attack in jail and died. Having learned all this, Simmons approached the Criminal Cases Review Commission
(CCRC), which examined his case and has now referred it to the court of
appeal. A CCRC spokesman has described the case as “highly unusual”
because of the timescale. “I have never even been able to tell my two daughters about this,”
says Simmons, “but I saw a psychiatrist who said that I should pursue it
or I would never get over it. “That man Ridgewell ruined three lives for no reason and I am sure
many, many more, and if this can help someone else who was also arrested
by him then at least something will have been achieved.” Trew, who still lives in south London, also hopes that Simmons’s
story will remind people of the damage that one rogue police officer can
cause to people’s lives. “I was elated when I was contacted by the CCRC about the case,” says
Trew, who became a university lecturer in sociology. “It has been a long
time coming.”
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog;
PUBLISHER'S NOTE: Yesterday's post, on the Susan Neill-Fraser case, also stresses the need to establish an independent criminal cases review system in Australia - as a solution to the lack of political will when it comes to allegations of wrongful conviction: "The
reluctance of the political establishment to question the justice
system in cases where wrongful conviction is alleged is
common.........In
South Australia, Henry Keogh, convicted of the murder of his
girlfriend, spent two decades in prison despite his legal team
presenting the South Australian government with compelling evidence,
eventually accepted by the state’s highest court in 2014, of serious
flaws in the forensic evidence used to convict him. The government of
Labor Premier Mike Rann refused to allow Keogh
justice because it was too busy burnishing its attacks on criminal
defence lawyers and sounding tough on law and order. The
solution to the lack of political will when it comes to allegations of
wrongful conviction is to establish an independent criminal cases review
commission. These
bodies — one exists in Scotland and others in England and Wales — are
at arm’s length from politics and enable a dispassionate, fair analysis
of the claim. Such a commission process does not exist in Australia and
the result is messy and political in cases such as Neill-Fraser’s. The
legal system in a democratic society should not be afraid to say it got
it wrong, or at least be open to scrutiny when such as claim is made."
EDITORIAL: Miscarriages of justice need closer scrutiny," by The Times Colonist, published on August 26, 2017.
GIST: "Parole boards in Canada set great store on offenders admitting guilt
before granting them release. Within reason, the policy makes good
sense. Prisoners who are in denial about their actions, or who cannot
discern right from wrong, are a threat to re-offend. Facing facts, in
particular uncomfortable facts, is an important step toward
rehabilitation. However, there are grounds for concern if the policy is taken too far.
Our courts do a good job of sorting out the innocent from the guilty,
but they are not infallible. In recent decades, more than a dozen Canadians have been convicted of
high-profile crimes they did not commit, and these are just the cases we
know of. Most, like David Milgaard, Donald Marshall and a Vancouver
man, Ivan Henry, maintained their innocence throughout. Milgaard spent 23 years behind bars, Marshall 11 and Henry 27. Yet none were granted parole. Rather, they were released because new evidence came to light, or
serious questions were raised about police or prosecutorial conduct. Had
they relied on parole boards for their freedom, who can say how long
they might have waited?...........This is only one aspect of a larger issue. Our justice system is heavily stacked against prisoners who wish to appeal. Again, there are good reasons for that. We are entitled to place
confidence in the outcome of criminal trials. The defendants have every
opportunity to establish their innocence; indeed, the benefit of the
doubt is in their favour. But when a miscarriage of justice does occur, proving it is an uphill
battle. Long before Milgaard was finally exonerated, serious doubts had
been raised as to his guilt. But getting a hearing for those doubts
proved to be a formidable task. Part of the problem is that the same agencies that investigate and
prosecute offenders must later be convinced they made a mistake. But
law-enforcement officials and Crown prosecutors are only human. No one
likes to admit an error, particularly if the implication is that an
innocent victim was sent to prison. In 1995, after a series of such errors made headlines in Britain, the
government there established a Criminal Cases Review Commission.
Operating at arm’s length, the commission investigates potential
miscarriages of justice, and can, when warranted, file an appeal. Last
year, of 14 cases sent to the courts for reconsideration, half resulted
in the original conviction being overturned. Might something of that sort work here? Following Milgaard’s
exoneration, the province of Saskatchewan set up a royal commission to
look into the case. The commission recommended that the federal government create an
independent body to review allegations of wrongful conviction, along the
lines that Britain followed. To date, however, no such agency has been created. Parliament, it appears, is unwilling to entertain doubts on this subject. Yet our courts operate as much on a foundation of public trust as upon
due process. And nothing shakes confidence more thoroughly than the
suspicion that errors are being brushed under the carpet.
Then again, if our trial process cannot stand external scrutiny, just how robust is it? Milgaard, Marshall and Henry, collectively, spent 61 years in prison
for crimes they did not commit. Some would say that’s reason enough to
take a second look at the way we investigate miscarriages of justice."
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog;
COMMENTARY: "The appeal of Sue Neill-Fraser’s murder conviction puts the Tasmanian legal system on trial," by Greg Barns, published by The Mercury on August 27, 2017. (Barrister
Greg Barns is a Hobart-based human rights lawyer. He was previously an
adviser to state and federal Liberal governments.)
GIST: The case of Sue Neill-Fraser is a hard one for the legal system in Tasmania. To date, the political reaction to it has been all too predictable and disappointing. For
the record, this columnist was once a member of the Neill-Fraser legal
team and has stayed in touch with the case and its advisers. Whether
Neill-Fraser’s conviction should be overturned is a matter for the
Supreme Court to determine and therefore not the subject of this column. What
is a legitimate focus for broader community discussion is how society
deals with cases where there is an allegation of wrongful conviction
and, particularly, the political response. It is fair to say politicians and those who advise them are generally
not enamoured of upsetting the criminal justice process on behalf of
persons who allege they have been wrongfully convicted. Neill-Fraser was convicted in 2010 of the murder of her husband. She
maintained her innocence at her trial and she, along with a strong
supporter group and legal team, are seeking to have her conviction
overturned. The
case is inherently controversial because it is what we call a wrongful
conviction case. That is, it is a case where the argument is that the
legal process was flawed. If
Neill-Fraser has her conviction overturned — and to reiterate, that is a
matter for another forum — the conclusion that must be drawn is that in
this case justice was not done and a woman lost her liberty for a
number of years (she has been in prison since 2010) on the basis of a
flawed verdict. The
importance of the case cannot be overestimated. It has attracted the
likes of eminent journalists such as Charles Wooley, who revealed last
Saturday week that Premier Will Hodgman refused to entertain a
compelling argument from one of Australia’s best criminal barristers,
Robert Richter QC, for an independent inquiry into the case. Several days after Wooley and the Mercury’s Patrick Billings reported on the case, it got front page billing in The Age. Nick McKenzie, who has broken many stories of consequence over the years, often with the ABC’s Four Corners
program, set out the machinations of the case, including the recent
development of Tasmania Police charging individuals who could be said to
be supportive of Neill-Fraser, prior to the forthcoming hearing on the
case in the Supreme Court. Wooley reported that, when Richter presented Hodgman, Acting
Attorney-General Matthew Groom and their advisers with a request for an
independent investigation into the case to be undertaken by an eminent
lawyer from outside this small state, one of Richter’s team observed
that the politicians and their advisers “looked like they had consumed
sour milk”. “They were very dismissive,” Wooley relayed that this unnamed person
had said. Richter presented a report to the politicians that dealt with,
in detail, an alternative scenario about how Neill-Fraser’s husband
died. The
reluctance of the political establishment to question the justice
system in cases where wrongful conviction is alleged is common.........In
South Australia, Henry Keogh, convicted of the murder of his
girlfriend, spent two decades in prison despite his legal team
presenting the South Australian government with compelling evidence,
eventually accepted by the state’s highest court in 2014, of serious
flaws in the forensic evidence used to convict him. The government of Labor Premier Mike Rann refused to allow Keogh
justice because it was too busy burnishing its attacks on criminal
defence lawyers and sounding tough on law and order. The
solution to the lack of political will when it comes to allegations of
wrongful conviction is to establish an independent criminal cases review
commission. These
bodies — one exists in Scotland and others in England and Wales — are
at arm’s length from politics and enable a dispassionate, fair analysis
of the claim. Such a commission process does not exist in Australia and the result is messy and political in cases such as Neill-Fraser’s. The
legal system in a democratic society should not be afraid to say it got
it wrong, or at least be open to scrutiny when such as claim is made."
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog;
COMMENTARY: "Federal appeals court refuses qualified immunity for bite-mark experts," by Radley Balko, published by The Washington Post on August 23, 2017. (Radley
Balko blogs about criminal justice, the drug war and civil liberties
for The Washington Post. He is the author of the book "Rise of the
Warrior Cop: The Militarization of America's Police Forces.")
GIST: A couple months ago,
I wrote about a decision from the U.S. Court of Appeals for the 5th
Circuit, which held that expert witnesses Steven Hayne and Michael West,
while perhaps grossly negligent, could not be sued by the two innocent
men their testimony wrongly put in prison, because they were protected
by qualified immunity. The wrongly convicted men had to show either
recklessness or intentional misconduct, and the court found that what
Hayne and West did in those cases didn’t meet that standard. Last week, the U.S. Court of Appeals for the 7th Circuit issued its own ruling in a lawsuit against two bite-mark experts. This one turned out differently.The case is from Wisconsin, and the wrongly convicted man is Robert Lee Stinson. I wrote about the case in a 2015 series on bite mark evidence. Here’s a summary.......(The rest of this incisive commentary deserves to be read word by word. But I will direct the reader to Balko's illuminating conclusion. HL).........."And yet, all this time later, four things remain true. 1: It remains nearly impossible for wrongly convicted people to hold junk science practitioners accountable in court. 2:To this day, prosecutors still use and defend bite-mark evidence, and courts still allow it into evidence. 3:To this day, no court in the United States has upheld a challenge to the validity of bite-mark evidence. 4: When it comes to the controlling case law on whether bite-mark evidence should be allowed in court, the Stinson decision is still the authority in Wisconsin, and Brewer is still the authority in Mississippi.
When
an innocent person is convicted, the legal system seems to bend itself
into contortions to shield the expert witnesses who helped convict that
person from liability. That’s understandable. If expert witnesses are
subjected to real liability for their opinions, they’ll be reluctant to
testify. Some should be reluctant. But it might discourage more
legitimate experts, too. So instead, the system also feels obligated to
shield obvious quacks from the extremely sympathetic people they’ve
harmed. Here, there was a rare win for a wrongly convicted man. But
he’ll still need to convince a jury. And for every Robert Lee Stinson,
there are many more Kennedy Brewers and Levon Brookses. The
odd thing is, all of this could be prevented, or at least
diminished. If the courts diverted half the time and energy they spend
cleaning up after these charlatans toward preventing them from
testifying in the first place, there would be far fewer sympathetic
exonorees to file lawsuits. Unfortunately, that’s a lesson the courts seem incapable of learning."
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog;
COMMENTARY: "Judge to decide if Mississippi should put Jeffrey Havard to death for a crime that never happened," by Bruce Fischer, published by Wrongful Conviction News on August 26, 2017.
GIST: "Jeffrey “Jeff” Havard currently sits
wrongfully convicted on death row in Mississippi for the sexual assault
and murder of his girlfriend’s six-month-old daughter, Chloe Britt.
Havard has stated from the beginning that the infant slipped from his
arms while lifting her from the tub, causing her head to hit a nearby
toilet. There is no evidence whatsoever to support a sexual assault
charge. Multiple experts currently support Havard’s claims that Chloe’s
death was the result of an accident. In May of 2016, the Mississippi Supreme
Court ordered an evidentiary hearing for Havard’s case based on defense
claims of new evidence due to changes in the science behind Shaken Baby
Syndrome (SBS). Last week, after nearly 15 years of incarceration on
death row, Havard finally had the opportunity to return to the courtroom
of Adams County Circuit Court Judge Forrest Johnson, with renewed hope
that the truth would finally be heard. Judge Johnson presided over Havard’s
trial in 2002. The trial was speedy to say the least. Within a matter of
two days, the court selected a jury, tried the case, received the
jury’s verdict, and sentenced Havard to death. The jury heard from only
one expert who testified for the prosecution. Havard asked for an expert
of his own but the request was denied by Judge Johnson based on
financial restraints of the county. At the time, indigent defendants
were expected to rely on the prosecution’s expert if they could not
personally afford their own. Havard’s 2002 trial was a sham. It is
not possible to properly try a death penalty case in two days. To put
things into perspective, last week’s evidentiary hearing took three
days. The judge listened to testimony from four experts who testified
for the defense, and also heard testimony from a pediatrician who
testified for the prosecution. Havard’s evidentiary hearing, which was
dedicated to a single topic, and provided no immediate decision, took
longer than the entire trial which landed Havard on death row in 2002. Havard’s evidentiary hearing began on
August 14, 2017 and concluded on August 16, 2017. The Adams County
Courthouse where the hearing took place is in Natchez, Mississippi, a
historic Mississippi River town bordering Louisiana. I was intrigued by
the small town feel of Natchez. Entering the courthouse for the first
time gave me the sense that I had somehow stepped back in time. The
courthouse is listed as the oldest in Mississippi, and is no doubt rich
in history. A history which the building now struggles to contain.........The hearing began with instructions from
Judge Johnson, laying out the guidelines set by the Mississippi Supreme
Court. The high court recognized that the cause of death in Havard’s
case warranted review but the high court did not grant the defense’s
additional request to review the charge of sexual assault, keeping on
par with their previous rulings on past appeals. The high court’s orders that Havard’s
evidentiary hearing could only review the charge of SBS, provided for
unique circumstances, because Havard sits on death row solely due to the
combination of charges. Without the charge of sexual assault being
tacked on, Havard’s case would have never been a death penalty case in
the first place. Havard’s lawyers refused to be deterred. The defense
made sure throughout the hearing to highlight on the record that there
are currently no experts who support the claim of sexual abuse. Every
expert who testified, as well as the prosecution’s pediatrician, all
stated under oath that there was no evidence of a sexual assault. The prosecution’s case in 2002 was built
primarily on the testimony provided by Dr. Steven Hayne and the ER
staff that was present on the night Chloe died. Hayne conducted the
autopsy on the infant. Hayne did not find evidence of sexual assault
while conducting the autopsy, even though he was told to look for it.
Hayne helped the prosecution when he testified that a contusion in the
infant’s anus could have resulted from penetration with an object. Hayne
also testified that the death was the result of SBS. Hayne has now
retracted those statements. There is not one single shred of
evidence that Chloe Britt was ever sexually assaulted, by Jeff Havard or
by anyone else. The sexual assault allegation was based on observations
of the ER staff that the infant’s anus was dilated. The ER staff was
not qualified to give an opinion regarding sexual abuse. Every single
staff member who provided a statement to police, made the same mistake
when misdiagnosing the condition of the infant’s anus. The court
furthered the damage when wrongly allowing the ER staff to testify as
experts at trial. Anal dilation has given rise to
suspicion of sexual abuse in other cases, and a clinical study was done
to clarify the subject. Researchers found that anal dilation is a common
artifact in accidental deaths involving severe brain injury. Havard’s defense filed several appeals
over the years citing expert evidence that no sexual assault had
occurred, but those appeals were all denied. After Havard’s conviction,
Mississippi’s post-conviction relief office obtained the services of
former Alabama state medical examiner Dr. James Lauridson to review the
autopsy findings of Hayne. Lauridson concluded that the evidence failed
to confirm that a sexual assault of any kind had taken place. There was
no sign of any tears or lacerations in the infant’s anus and it was not
out of the ordinary for dilation to occur naturally. Lauridson noted
that there was no trace of Havard’s DNA found on or inside the infant.
He also noted that a thermometer inserted into the infant’s anus at the
emergency room could have caused the small one centimeter bruise noted
by Hayne. Lauridson’s report refuted the prosecution’s claim of a sexual
assault. Interestingly, Lauridson’s expert opinion had no bearing on
appeal. After Judge Johnson finished addressing
the court, the defense called Dr. Steven Hayne to the stand. Hayne poses
many problems for the state of Mississippi. Hayne has a shady past that
involves thousands of autopsies, and countless legal cases. Hayne was
presented by prosecutors as a primary expert in criminal trials for a
period of decades in Mississippi. Investigative journalist Radley Balko has been reporting on Hayne’s questionable conduct for years. The SBS issue may open the door for the
state of Mississippi to resolve their issues with Hayne in this case,
and may explain why the evidentiary hearing was limited to the
discussion of SBS. Challenges against the sexual assault charge work to
directly attack Hayne’s credibility. If Hayne is fully discredited, that
revelation could open a can of worms which could impact countless other
cases in Mississippi. If Havard’s innocence is determined based on
changes in science, then everyone is off the hook. The State could claim
that it was merely following the science available in 2002 when they
convicted Havard. No blame for anyone. Simply an advance in science. Of
course, those who have closely followed this case may have a far
different outlook on who deserves blame. Hayne’s history shows that he has been
willing to provide testimony favorable to the prosecution regardless of
the facts. Havard’s case is no exception. Hayne testified in 2002 that
he saw a one-inch contusion in the infant’s anus during autopsy. It was
discovered after trial that the contusion was only one centimeter, which
is quite different than one inch. Hayne claimed in an affidavit that he
misspoke during the trial when providing the measurement. At trial,
regardless of the size, Hayne testified that the contusion was most
likely the result of penetration of an object. On the surface, Hayne’s
description must have sounded a lot like sexual assault to the jury. Fast forward to 2014. Hayne stated in a
2014 affidavit that he specifically told prosecutors on more than one
occasion prior to trial that he could not support a finding a sexual
abuse. This information was withheld from the defense, which is a Brady
violation. Most shockingly, the defense learned in
January of 2014, 12 years after the conviction, that Hayne had looked at
tissue sections under a microscope and found definitively that there
was no evidence of sexual assault. In a case where suspicion of sexual
assault only arose when ER doctors and nurses noticed what they believed
to be physical evidence of sexual abuse. Hayne’s microscopic findings
were clearly exculpatory, and would have positively shown that the
doctors and nurses had misinterpreted what they saw. The state withheld
this evidence from the defense as well and failed to tell the doctors
and nurses about it before they testified. Why didn’t Hayne testify at trial in
2002 that there was no evidence of a sexual assault? Because no one
asked him. Prosecutors stood before the court during opening statements
and told the jury that Hayne had, “confirmed the nurses and doctors
worst fear, that this child had been sexually abused.” The prosecution
knew that Hayne had done no such thing; in fact, he had done just the
opposite. The prosecution lied to the jury. When Hayne took the stand,
they were careful not to ask specific questions about sexual abuse, and
Hayne was sure to only respond directly to questions asked. The defense
had their hands tied. They could not possibly ask a question they did
not know the answer to. If they had asked Hayne if the infant had been
sexually assaulted and his answer was anything other than no, they would
have instantly buried their client. The prosecution knew the defense
would never take the chance. The lies told during opening and closing
arguments by the prosecution were left unchallenged, and a wrongful
conviction was the result. Hayne’s statements in his affidavits
which were reiterated during the evidentiary hearing state that he does
not support a claim of sexual assault and that he no longer believes
that Chloe died by shaking alone. He now believes that impact had to be a
factor. Meaning that the infant could have died from a short fall.
Hayne bases his current beliefs on changes in science related to SBS.
Hayne attempted to save face by saying that he still believes the death
was the result of a homicide, but he offered not valid theory to support
that belief. Hayne’s demeanor in court was a bit questionable. During
breaks, he appeared to wander about, willing to chat with anyone who
would provide an ear. At one point, he sat down next to Havard’s
stepfather, engaging him with stick figure drawings he had sketched on a
pad in an apparent attempt to form new theories. After Hayne’s testimony was concluded,
the defense called Dr. Michael Baden to the stand. Baden is a physician
and board-certified forensic pathologist. Baden is the former Chief
Medical Examiner of New York City and is the former chief forensic
pathologist for the New York State Police. Baden is well respected
worldwide for his work in this field. Baden testified that he believed Chloe’s
death had nothing to do with shaking. Per Baden, it is no longer
accepted in the field of science that shaking alone is enough to cause
fatal injury in children. Impact is now considered a requirement to
produce fatal injuries, if other factors such as neck or rib injuries
are not observed. Baden went on further to say that caution needs to be
used to assure that injuries which were once thought to be caused from
shaking alone, are not currently being automatically re-categorized as
shaking with impact simply to meet the new criteria. In cases of head
injuries from short falls, shaking is not required and should be
eliminated if there is no supportive evidence of shaking. Baden stated that the injuries observed
during autopsy were entirely consistent with a blunt force impact which
would have resulted from a short fall as described by Havard. Baden
stated that the infant had no signs of injury to the neck or ribs, which
would have been present had the infant been violently shaken. He went
on to say that autopsy findings which are found to be consistent with
early statements given from a person who was present show that those
statements carry more weight. He said it is difficult to tell a story
that later matches up with an autopsy report if you are not telling the
truth. The ER staff testified at trial in 2002
that retinal hemorrhages were present when Chloe arrived to the ER. The
jury was told that retinal hemorrhages could only be caused by shaking.
Meaning that the jury was told that the only possible cause of death was
SBS. Baden stated that there are multiple
causes of retinal hemorrhages. Any suggestion that retinal hemorrhages
are only caused by SBS is false. Baden stated that short falls were a
cause of retinal hemorrhages. Everyone who testified after Baden agreed
with his assessment, including the pediatrician who testified for the
prosecution. Unfortunately, this expert evidence was not available at
Havard’s trial, leaving the jury to decide his fate based on unqualified
witness testimony. Baden told the court that pathologists
are more qualified than other specialties to diagnose cause of death.
Per Baden, ER doctors and pediatricians specialize in the treatment of
living patients. Pathologists have the task of looking beneath the
surface of non-living bodies to properly determine cause of death.
Evidence exists after death that his not available to doctors who are
treating living patients. Dr. Janice Ophoven was next to testify
for the defense. Ophoven is a pediatric forensic pathologist with over
30 years of clinical, administrative and quality improvement experience.
Ophoven is trained in pediatrics and is board certified in pathology
and forensic pathology. Ophoven’s practice is focused on understanding
child abuse and injury to children. Ophoven stated that no evidence exists
to show that Chloe’s death was the result of child abuse. She reiterated
Baden’s testimony that violent shaking alone was no longer an accepted
cause of death in infants. Ophoven told the court that it was a common
belief in the scientific world back in 2002 that short falls could not
cause fatal injuries in children. She went on to say that the scientific
community no longer believes that to be true. She made it clear that
there have been significant changes in science regarding infant head
injuries and SBS since the time of Havard’s trial. She also refuted the
2002 retinal hemorrhage trial testimony, stating that it is well known
in the medical community that retinal hemorrhages can be caused by short
falls. Ophoven concluded that the infant’s
death was the result of a short fall as described by Havard. She also
reiterated Baden’s statement that pathologists are more qualified to
determine cause of death than ER doctors and pediatricians. Dr. Chris Van Ee was the final expert
called by the defense. Van Ee holds a Ph.D. in Biomedical Engineering
from Duke University and is a licensed Professional Engineer. Van Ee has
specific expertise in the analysis and risk assessment of head injury
in the infant and adult populations. Van Ee testified that a short fall was
the most logical scientific reason for the death of Chloe Britt. Van Ee
told the court that short falls are now known to cause injuries which
were once thought to be caused only by violent shaking. Per Van Ee, a
one-foot fall onto a carpeted surface head first has a higher chance of
producing a head injury to a child than violent shaking. Van Ee
testified that he reviewed photographs of the bathroom in Havard’s
trailer and determined that the fall described by Havard could have
caused fatal head trauma. Tests conducted by Van Ee using
crash-test-dummies, concluded that a short fall from three-feet onto a
hard surface such as a porcelain toilet could generate forces similar to
a car accident which could lead to the death of a six-month-old infant. On the final day of the hearing, the
prosecution called Dr. Scott Benton to the stand. Benton is the medical
director of the Children’s Justice Center and chief of the division of
forensic medicine at the University of Mississippi Medical Center. Benton’s qualifications as an expert on
issues of infant death were challenged by the defense because Benton is a
pediatrician, not a pathologist. Both Baden and Ophoven provided clear
reasoning in their testimony as to why pathologists are uniquely
qualified to analyze cause of death. Judge Johnson noted the defense
objection and said that he would take it into consideration when ruling
on the case. During questioning, Benton argued that
shaking alone could prove fatal for an infant. His testimony ignored
current scientific literature which states that shaking alone without
other signs of injury is not enough to cause fatal injuries in children. Benton also attempted to exaggerate the
severity of the small contusions found on the infant’s face, discounting
testimony from both Baden and Ophoven who said that the small bruises
were likely caused from the fall or during resuscitation attempts in the
ER. Per Ophoven, resuscitation attempts are not a gentle process and
are often frantic. She described the situations as a time of organized
chaos. On cross examination, it was discovered
that Benton was not contacted by the State to evaluate the case.
Benton’s participation was the result of his own eagerness to get
involved. Benton contacted Jerry Mitchell from the Clarion Ledger
because he had read a single article of Mitchell’s and had determined
that the case was a homicide. After an email exchange with Mitchell,
Benton’s further inquiries led to his eventual work on behalf of the
prosecution. It was also discovered on cross
examination that the Children’s Justice Center where Benton works is
experiencing financial difficulties due to a mismanagement of funds that
were received from grants. The medical center now looks to benefit
upwards of fifty thousand dollars for Benton’s testimony in this case.
Benton told the court that his involvement was in no way an attempt to
make money, and that his medical center was seeking private donations to
sustain their efforts to care for children. In closing, the defense argued that they
had met the burden of proof put forth by the Mississippi Supreme Court.
The defense was required by the high court to prove that new evidence
was available to show that the science behind SBS has changed since the
time of Havard’s trial. After hearing from the defense experts who
testified, and after witnessing the exhibits being entered, which
included up to date medical literature, there is no doubt that the
requirements for a new trial have been fully satisfied by the defense. In a perfect world, we would see
prosecutors who were willing to admit past errors. But we live in a far
different reality. In our current justice system, the clear majority of
prosecutors protect their office relentlessly at all costs. Sadly, the
prosecution in this case fits the typical mold. The prosecution’s main
argument during closing was not directed at challenging the legitimacy
of claims made by the defense. The Prosecution’s argument was that the
evidence presented was available at the time of Havard’s trial in 2002,
so it should not be allowed. Appellate laws are complicated and vary
depending on the type of case. In layman’s terms, for purposes of
describing the requirements for this case, the current laws state that
evidence based requests for new trials can only be made by use of new
evidence which was not available at trial. These laws may have good
intentions but in the end, they can have a devastating impact on
indigent defendants. If you are poor and you do not have the
means to hire experts at trial, you are in trouble. Once convicted, if
there is evidence to exonerate you that was available at the time of
your first trial, it is currently inadmissible because it is technically
not new. Meaning that details in medical journals that can possibly
exonerate defendants that are not found by public defenders, with
extremely limited budgets and no expert assistance, cannot be used in
future hearings because they were technically available at time of
trial. Let that sink in. Do these criteria work to assure fair
trials? Do these criteria show that prosecutors are working to seek
proper justice? Does suppression of exonerating evidence simply because
an indigent defendant’s public defender failed to find it in the first
trial truly work to seek real justice? Now, to be clear, the prosecution’s
argument is absurd because new evidence has clearly been proven to have
become available after Havard’s trial. Evidence which absolutely meets
the current requirements. This is irrefutable. The judge has no reason
to disagree based on current law. But I find it disturbing that any
state in our country would ever attempt to suppress valid evidence based
on the current criteria. Valid evidence should never be suppressed. Our
goal should always be to seek the truth. The truth in this case shows that the
state of Mississippi is trying to put an innocent man to death for a
crime that never happened. Current evidence, which goes far beyond the
topic of SBS alone, shows that there is no longer any viable case
against Jeff Havard. The original theory of the crime has been
disproven. There is no evidence to suggest that the death of Chloe Britt
was anything other than a tragic accident. If Judge Johnson rules in
favor of a new trial, the State will most likely decide not to retry the
case due to lack of evidence. Knowing this should give people pause. If
justice is truly the goal, why is the state of Mississippi trying so
hard to uphold a faulty verdict in a death penalty case? A ruling from Judge Johnson is expected to take 60 to 90 days. Injustice Anywhere advocates for Jeffrey Havard. Please visit www.freejeffreyhavard.org to keep up to date with updates on the case."
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog;
STORY: 'Death on the Derwent: in search of truth," by reporter Nino Bucci, published by the Cootamundra Herald on August 27, 2017.
GIST: "In
the gardens of a Hobart prison, away from the cinder blocks and
corrugated iron and the prying of guards and inmates, an alleged plan to
free murderer Sue Neill-Fraser was born. As
she wandered between the raised beds last November, police suspect
Neill-Fraser spoke to a fellow inmate. The suspected contents of these
conversations would, months later, lead to one of the most controversial
Tasmanian police investigations in recent history. Phones were
tapped. Prison conversations were bugged. And the woman Neill-Fraser
spoke to in the prison garden was charged amid police allegations the
inmate had conjured up a plan with an outlaw bikie boss and others to
shift blame for a murder from Neill-Fraser to a young, innocent woman. Neill-Fraser,
62, had been convicted of murdering her partner, Bob Chappell, who
disappeared from the couple's yacht when it was moored off the Hobart
suburb of Sandy Bay on January 26, 2009. She is into the seventh
year of a minimum 13-year prison term, which could stretch for a decade
longer than that if she is denied parole. It is a matter of great
dispute whether Neill-Fraser - a woman convicted despite no body or
murder weapon being found - is innocent. But there is no dispute that as she stood in the Mary Hutchinson Women's Prison gardens, she was desperate. Either
she tended the garden as a cunning murderer, barely halfway through her
minimum sentence, who wanted out. Or she did so as a woman wrongly
convicted, who had been denied justice by the Court of Appeal and the
High Court, and had only one roll of the dice left. Phones tapped: Tasmania Police were aware that
Neill-Fraser's legal team had been busy. But as eminent barrister Robert
Richter, QC, and Colin McLaren, a former detective who had investigated
the deaths of John F. Kennedy and Princess Diana, set about their task
in earnest, detectives in Hobart were far from idle. The police had received information that the inmate who Neill-Fraser had been speaking to was involved in firearms trafficking. Since the conversation in the prison garden, this inmate had been released. Police started monitoring her phone conversations. Before
long, they allegedly heard evidence relating to another crime, far more
sensational than selling guns to crooks: a conspiracy to pervert the
course of justice to free Neill-Fraser. Police allege that the
inmate developed a plan to coerce evidence from the only person who it
appeared could set Neill-Fraser free: a troubled young woman named
Meaghan Vass. In the web of circumstantial evidence that had led
to Neill-Fraser's conviction for murder - and was, in no small part,
woven with lies she had proffered during police interviews - there was
one significant hole: why was the DNA of Vass, a homeless 15-year-old at
the time of Chappell's disappearance, found on the deck of the couple's
yacht, the Four Winds? Police offered an unlikely and later
discredited explanation; someone had stood on Vass's DNA and then
stepped onto the yacht's deck. Vass had claimed at trial that she had
never set foot on the boat, and did not know how the DNA got there. But,
according to police, the inmate schemed to get Vass to offer a new
explanation: she had been on the yacht that night, in the company of
known criminals, and had planned to steal from it, before Chappell
disturbed them, a fight ensued, and he was killed. Police could
have waited to see if Vass would offer up this testimony to
Neill-Fraser's pending court appeal and whether it would be backed up by
evidence or demolished via cross-examination. Instead, in a move many
lawyers believe was highly controversial, police decided to act
immediately. Detectives applied for warrants to monitor the
conversations of Vass and others. Vass, at this stage, was sharing a
boyfriend with the inmate, a Devil's Henchman bikie boss called
"Sharkie". As the conversations started to flow, police who
listened believed they were recording evidence of a plot to pervert the
course of justice and set Neill-Fraser free. And it got even murkier. Within weeks, allegations emerged that "Sharkie" may be involved in the plan. Police suspected Vass was under increasing pressure to admit to being on the yacht, clearing Neill-Fraser. The
former inmate was allegedly heard describing Vass to Sharkie as her
"little mate". Meanwhile, Vass allegedly confided in her mother that she
was under intense pressure to help clear Neill-Fraser. She seemed
scared and erratic. As police built their case, they allege other
evidence emerged: the former inmate was allegedly going to be paid $3000
cash, a $40,000 reward and a $50,000 education fund for herself and her
children. It seemed money was being sought to pay a drug debt. It
is alleged discussions of cash were intertwined with discussions about
making sure it appeared the evidence was legitimate and untainted. Two
other men vital to Neill-Fraser's bid to clear her name were also soon
ensnared: lawyer Jeffrey Thompson had, police alleged, pressured another
jail inmate to support her case. On August 9, the police swooped.
The inmate who had met Neill-Fraser in the prison garden months earlier
was charged with perverting the course of justice and corrupting a
witness, with police alleging she would be paid almost $100,000 "in
consideration for an understanding that Meaghan Vass be called as a
witness, in a judicial proceeding, to provide false evidence". She was
also charged with unlawful trafficking in firearms. A week later, Mr
Thompson and the other inmate were also charged; both men were alleged
to have perverted justice. It is unclear whether "Sharkie" or Vass
will be next, or whether they have been assisting police, but the investigation is ongoing, and further charges are likely. Clubmates of
Sharkie either declined to comment or did not return calls, and Vass
could not be contacted. 'We simply want the truth' The charges were seen as a blow to Neill-Fraser's chances of a successful appeal. Privately,
senior police are smarting that her supporters have used the conspiracy
charges to back a conspiracy of their own: that the Tasmania Police
were motivated by vindictiveness about the never-ending scrutiny of
their investigation, and had vowed to strangle Neill-Fraser's last bid
for freedom. The truth, as the force saw it, was far simpler: they
were investigating one crime - gun trafficking - and came across
evidence of another. Police say privately they have no concerns that Neill-Fraser was wrongly convicted. That
the witnesses Neill-Fraser was relying on have been charged before they
ever had a chance to front her appeal is merely coincidental, police
insist. "We simply want the truth here, because there is a lot at stake
for some very vulnerable people," one officer said. But
Neill-Fraser's supporters don't buy this. They say police have
effectively scared any future witness from helping Neill-Fraser. While
the evidence of Vass was seen as the strongest element of
Neill-Fraser's appeal, it was also considered shaky; she was far from a
reliable witness. Still, there is other information that suggests
the police case against Neill-Fraser should not be immune from scrutiny.
Some of it has been gleaned from an interview McLaren conducted with
another former detective - Detective Inspector Peter Powell, who had led
the Neill-Fraser investigation. During the two-hour interview
last October, a transcript of which was leaked to Fairfax Media, Powell
makes several seemingly telling remarks, including being shocked at
Neill-Fraser's sentence and admitting Vass was probably on the yacht,
but that he did not know when. Powell says he discounted that two
violent companions of Vass may be involved in Chappell's death because
they were drunks. He said if he was running Neill-Fraser's defence
during the trial, he would have raised why she was not cautioned as a
suspect during her first police interview. "I mean, I'm the first to say if I was running that defence, I might have run it differently," Powell says. He
agrees that at the time of her first interview, even though police did
not consider Neill-Fraser a suspect, her house had been bugged. And
he agrees it is remarkable there was no body, no eyewitness, no known
cause of death, no murder weapon, no confession and yet Neill-Fraser was
convicted. He confirms that a man who had lived on the yacht
moored closest to the Four Winds, who had a serious criminal history,
was not interviewed until after Neill-Fraser was convicted. Police
did not formally interview for weeks - or in some cases at all -
several people who were on the banks near where the Four Winds was found
sabotaged. Powell says this was because the investigation did not start
as a murder probe, and, by the time it was clear Chappell had been
killed, Neill-Fraser was the only suspect. But he says he remains
convinced of her guilt, and that she was sunk by her second interview,
when the lies she had told in the first were uncovered, and she could
not explain them. Leaving the garden: A brisk half-hour walk down the
hill from the prison garden is the Derwent River, and somewhere within
its depths likely lie the remains of Bob Chappell.
It may have
been a month of explosive developments in a murder case that has had no
shortage of drama in the past eight years, but one thing hasn't changed:
Sue Neill-Fraser is still tending the garden. Police have no evidence she is involved in the alleged conspiracy to pervert the course of justice to clear her. On
October 30, she will leave the garden and her four-day appeal will
begin. And a case as deep and murky as the Derwent will be dredged for
the final time.
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog;
STORY: "Susan Neill-Fraser witness Karen Keefe denies providing false evidence," the Sydney Morning Herald reports.
GIST: "A witness crucial to the last-ditch freedom bid of convicted
killer Susan Neill-Fraser has denied she gave false evidence and
corrupted another to do the same. Neill-Fraser is serving 23 years
behind bars for the murder of partner Bob Chappell, who disappeared
from the couple's yacht moored off Hobart in 2009.The 62-year-old has maintained her innocence, with her latest appeal against the conviction set to be heard in October. But the case has been rocked by a police investigation which in August charged three people with interfering in the case. Karen Patricia Nancy Keefe, 41, fronted Hobart Magistrates Court on
Thursday and pleaded not guilty to two charges of perverting the course
of justice and one of corrupting a witness. Police allege she provided false evidence in an affidavit as part of Neill-Fraser's appeal. They say Keefe agreed to accept nearly $100,000 - made up of cash and
a $50,000 education fund for herself and two children - in return for
an understanding another witness would give false evidence. Keefe was remanded in custody and will face trial on November 20. Neill-Fraser's two previous appeals have failed but state
legislation, enacted two years ago, allows for another if there is
"fresh and compelling evidence". Fairfax Media revealed on Tuesday that
Neill-Fraser's last bid for freedom would rely heavily on information
in a "white paper", a confidential dossier that her supporters
believe contains enough fresh evidence to support her appeal. Melbourne
barrister Robert Richter had presented new evidence in the dossier to
Tasmanian Premier Will Hodgman and acting-Attorney General Matthew Groom
that questioned the murder conviction, Fairfax Media reported. A
statutory declaration in the dossier signed by Tasmanian woman Meaghan
Vass states that she was on the yacht on the night of the disappearance
but that Neill-Fraser was not there. Jeffrey Ian Thompson, 51, a
former member of Neill-Fraser's legal team, is before court charged with
conspiring to pervert the course of justice. He is accused of deliberately influencing a witness and prejudicing photographic evidence. Another 57-year-old man has also been arrested and charged with perverting justice in relation to the appeal."
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog;
Two Blogs Now: The Charles Smith Blog; The Selfless Warriors Blog: I created the Charles Smith Blog in 2007 after I retired from The Toronto Star to permit me to keep digging into the story of the flawed pathologist and the harm he had done to so many innocent parents and caregivers, and to Ontario’s criminal justice system. Since then it has taken new directions, including examinations of other flawed pathologists, flawed pathology, and flawed science and technology which has marred the quality of justice in courtrooms around the world. On International Wrongful Conviction Day in 2024, I was thrilled to have the Blog recognized by Innocence Canada, when I was presented with the, "Rubin Hurricane Carter Champion of Justice Award." The heart of the Blog is my approach to following cases which raise issues in all of these areas - especially those involving the death penalty. I have dedicated 'The Selfless Warrior Blog’ (soon to appear) to those exceptional individuals who have been ripped out of their ordinary lives by their inability to stand by in the face of a glaring miscarriage of justice. They are my ’Selfless Warriors.’ Enjoy!
