Back in action: On-Going: Rapid DNA: (Part One); Rapid DNA’ network for quick database checks on arrestees. ..Washington Post (reporter Tom Jackman) reports that your at-home DNA test results could be used to solve cold cases. But some worry that that although the rise of consumer genetic tests has provided law enforcement with new tools that have the potential to break open cold cases, there is concern about whether - both in terms of privacy and technology - this may be going...

PASSAGE OF THE DAY: "Privacy and technology advocates are leery of where Rapid DNA could lead, particularly because, as Jennifer Lynch of the Electronic Frontier Foundation observed, “there’s no agency that’s controlling the rollout of this technology.” The FBI acknowledged that anyone can buy a Rapid DNA machine, and police departments and prosecutors in Palm Bay, Fla., Cumberland County, Pa., Richland County, S.C., Tucson, Orange County, Calif., and the Utah attorney general’s office are using them, mostly to compare samples from crime scenes with known suspects, or simply to speed up DNA processing. Orange County has its own database of 180,000 arrestees against which it can compare unknown samples. The New York City medical examiner’s office recently purchased one of the machines to try to identify bodies that have been brought to the morgue without identification. Lynch noted that people who are not trained in the collection of crime scene evidence might submit contaminated samples, and DNA has been shown to transfer from innocent people into crime scenes. In 2013, a San Jose man was charged with, and then exonerated of, murder when it was found that paramedics who took him to a hospital had unknowingly carried his DNA on their next run, to the scene of the homicide. But the courts have approved the taking of DNA from arrestees and analyzing it, with the U.S. Supreme Court in 2013 endorsing Maryland’s DNA practice as “like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” Lynch said that “we learn more and more every day about DNA, and what can be determined from a DNA profile. ... I wonder if the Supreme Court would look at this differently now, now that we know how much information that DNA can tell us.”

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STORY: "FBI plans ‘Rapid DNA’ network for quick database checks on arrestees," by reporter Tom Jackman, published by The Washington Post on December 13, 2018.

SUB-HEADING: "New machines create DNA profiles in less than two hours, rather than days or weeks."

SUB-HEADING:  "Your at-home DNA test results could be used to solve cold cases."

PHOTO CAPTION: "The rise of consumer genetic tests has provided law enforcement with new tools that have the potential to break open cold cases."

GIST: "Though DNA has revolutionized modern crime fighting, the clues it may hold are not revealed quickly. Samples of saliva, or skin, or semen are sent to a crime lab by car (or mail), and then chemists get to work. Detectives are accustomed to waiting days or weeks, or longer, for the results. Some labs are so backed up, they take only the most serious crimes. Some samples are never tested. But a portable machine about the size of a large desktop printer is changing that. A “Rapid DNA” machine can analyze the DNA in a swab and produce a profile of 20 specific loci on the DNA strand in less than two hours. Some local police departments and prosecutors have been using Rapid DNA machines for about five years to solve crimes. In Orange County, Calif., recently, police investigating a stabbing found a trail of blood they believed was left by the assailant. The Rapid DNA machine was able to produce a profile that matched someone already in the Orange County database but who was “not on the radar” of investigators, Assistant District Attorney Jennifer Contini said. He was arrested. “The speed with which you can give law enforcement these clues is critical,” Contini said. “When you are out on these suspects fast, they confess. We’ve had tremendous success.” And last month, one of the two manufacturers of Rapid DNA machines, ANDE of Waltham, Mass., shipped six of the machines to California for use in trying to identify victims of the massive wildfires there, using DNA from family members to create a temporary searchable database.  However, the machines are not connected to CODIS, the FBI’s combined national DNA database. So the FBI is launching a Rapid DNA initiative to place the machines in police and sheriffs' booking stations around the country, hoping to enable law enforcement to check arrestees against the CODIS database and, when matches are made to DNA from unsolved crimes, head off the release of the suspects. In testifying to Congress about the Rapid DNA network in 2015, then-FBI Director James B. Comey said the technology “would help us change the world in a very, very exciting way.” Comey said it would allow “booking stations around the country, if someone’s arrested, to know instantly — or near instantly — whether that person is the rapist who’s been on the loose in a particular community before they’re released on bail and get away or to clear somebody, to show that they’re not the person.” Thirty states and the federal government allow DNA to be taken at the time of arrest. Sixteen states allow it to be analyzed immediately, and in the other 14 states, DNA may be taken at arrest but not analyzed until after arraignment on charges. The FBI expects a Rapid DNA network will not only enable more identifications of crime suspects, but also drastically reduce the time investigators spend waiting for DNA results and lessen the burden on crime labs. Congress approved legislation last year authorizing the Rapid DNA network, and the FBI plans to roll it out slowly beginning next year. “Our goal in 2019,” said Thomas Callaghan, chief biometric scientist for the FBI Laboratory, “is to be able to have a pilot project done where we actually develop a DNA profile in a booking station, with no human review, and have it electronically enrolled and searched in the national database. We have to ensure that the quality that’s done in a lab can be done in a booking station,” which are often jails where fingerprints and mug shots are usually taken. The FBI program will not allow the submission of unknown crime scene DNA from the Rapid DNA machines to the CODIS database. “The machines were initially developed,” Callaghan said, “for large amounts of DNA from a single person, soon after it’s collected.” Crime scene DNA could have a mixture of DNA from different sources, or be contaminated by its surroundings, and the machines have not proved “robust enough to handle crime scene samples,” Callaghan said, so the Rapid DNA submissions to CODIS may come only from known individuals. A crime scene investigator with the Prince George's County Police Department in Maryland prepares to swab for DNA evidence at the scene of a triple homicide in 2015. New Rapid DNA machines can produce DNA profiles from such samples in less than two hours. (Evelyn Hockstein For The Washington Post) Also, to facilitate quick responses, initial submissions from Rapid DNA machines will be checked only against a “DNA Index of Special Concern,” which includes unknown profiles from unsolved homicide, sexual assault, kidnapping and terrorism cases, the FBI said. The Rapid DNA submission will be checked against the entire CODIS database during a subsequent run of all DNA submissions from around the country, which is done once each day. Privacy and technology advocates are leery of where Rapid DNA could lead, particularly because, as Jennifer Lynch of the Electronic Frontier Foundation observed, “there’s no agency that’s controlling the rollout of this technology.” The FBI acknowledged that anyone can buy a Rapid DNA machine, and police departments and prosecutors in Palm Bay, Fla., Cumberland County, Pa., Richland County, S.C., Tucson, Orange County, Calif., and the Utah attorney general’s office are using them, mostly to compare samples from crime scenes with known suspects, or simply to speed up DNA processing. Orange County has its own database of 180,000 arrestees against which it can compare unknown samples. The New York City medical examiner’s office recently purchased one of the machines to try to identify bodies that have been brought to the morgue without identification. Lynch noted that people who are not trained in the collection of crime scene evidence might submit contaminated samples, and DNA has been shown to transfer from innocent people into crime scenes. In 2013, a San Jose man was charged with, and then exonerated of, murder when it was found that paramedics who took him to a hospital had unknowingly carried his DNA on their next run, to the scene of the homicide. But the courts have approved the taking of DNA from arrestees and analyzing it, with the U.S. Supreme Court in 2013 endorsing Maryland’s DNA practice as “like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” Lynch said that “we learn more and more every day about DNA, and what can be determined from a DNA profile. ... I wonder if the Supreme Court would look at this differently now, now that we know how much information that DNA can tell us.” The Rapid DNA machines are made by ANDE, which produces the ANDE 6C model, and IntegenX of Pleasanton, Calif., which developed the RapidHIT System. So far, only the ANDE 6C has been approved for the FBI’s Rapid DNA program. ANDE is not yet selling the machines to law enforcement agencies, instead selling only the disposable chips that facilitate each test, said Annette Mattern, the chief communications officer for ANDE. The company wants the price per DNA test to be below $200, which law enforcement officials said is much cheaper than the current cost of full lab tests. “The people concerned about privacy are concerned about genetic profiles. That’s not what we do,” Mattern said. “When you look at the profile, it doesn’t tell us what you look like, or who your grandmother is. You can’t tell anything except that that is a match to another one. We believe it is as invasive as taking fingerprints.” Mattern also said the chance for a sample being contaminated is less with a Rapid DNA machine because so many fewer steps, and fewer people, are involved. The sample does not need to be transported to a lab and be handled by various people there. The handling process is complete once a vial has been placed in a Rapid DNA machine. The Utah attorney general’s office has two ANDE 6C machines, and “we’re extremely excited with the results we’ve gotten,” said Nate Mutter, the office’s assistant chief of investigations. He said many of the cases brought to him by counties around the state are gun cases in which investigators are trying to match DNA on a discarded gun with a known suspect. A burglar in Cache County, Utah, who left DNA on a soda can on Sept. 19 was identified, arrested and convicted by Oct. 17 — about the same amount of time a conventional DNA test alone would have taken. “We’re not fishing for an unknown here,” Mutter said. “This is an investigative tool to make the link between suspects and items of evidence. Just because we can’t load the information into CODIS doesn’t mean the technology can’t be used to assist us.” He said the portability of the machines was a bonus. “You can bring it anywhere, and it still gives you lab-quality results,” Mutter said. Lynch said that if the Rapid DNA machines “haven’t been validated for DNA mixtures, they certainly shouldn’t be used for that purpose,” and items such as guns and knives are good candidates to have more than one person’s DNA on them. Contini, the Orange County prosecutor, said Rapid DNA could have long-term effects on crimes such as burglary and larceny, in which serial offenders tend to be involved. “You take a recidivist off the street early,” she said, “you’re not just solving crime, you’re preventing crime. And you’re benefiting public safety big time.”"

The entire story can be read at:
https://www.washingtonpost.com/crime-law/2018/12/13/fbi-plans-rapid-dna-network-quick-database-checks-arrestees/

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; 

(Shelly Kuzyk): Disgraced former doctor Charles Randal Smith: Ontario; He's back in the news in an uusual role - acting as an expert witness for the defence in a murder case (his only known defence case) back in 1999, as recounted by Hamilton Spectator columnist Susan Clairmont. (Part One below ): In Part Two below of this post, columnist Clairmont, in a column published three days ago (February 1, 2019), takes us to an extraordinary forensic bombshell. Not over yet! I then go on a riff on yet another forensic bombshell in the career of the notorious ex-pathologist - with a story by retired Globe and Mail Justice reporter Kirk Makin which revealed yet another forensic bombshell: his testimony as an expert witness in a U.S. death penalty case - and the possibility that the since defrocked doctor's testimony nearly sent a man to death row. (Former Globe and Mail Justice Reporter Kirk Makin). Read on!

PUBLISHER'S NOTE: Almost two decades after my first story on Charles Smith, the infamous former doctor is still in the news (in a very bizarre way) as the following columns by Hamilton Spectator scribe Susan Clairmont indicate. Amazingly,  three Smith victims are still before the  Ontario Court of Appeal in their quest for exoneration.   Much more news to come. Much more grist for our mill. Stay tuned!

Harold Levy: Publisher: The Charles Smith Blog.

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PART ONE:

COMMENTARY: "Clairmont: What if disgraced doctor caused wrongful acquittal in 1999 murder case?"  by columnist Susan Clairmont, published by The Hamilton Spectator on July 20, 2017.

GIST: "It is well known that the bogus evidence of disgraced pediatric pathologist Charles Smith led to people being wrongfully convicted of killing children. But what if he also caused a killer to be wrongfully acquitted? The troubling question is raised now as Shelly Kuzyk, 45, faces an aggravated assault charge after an infant she was babysitting was brought to McMaster Children's Hospital with multiple broken bones. In a Hamilton courtroom 18 years ago, a jury found Kuzyk not guilty of second-degree murder in the death of another child in her care, 15-month-old Tristin Tooke. During that trial Smith was called as a powerful expert witness by the defence and his testimony may have been the key to the jury's decision to find Kuzyk not guilty. Though the 1999 trial was carefully covered by media at the time, what was never reported was that Smith's testimony was so shockingly out of whack with what the Crown's medical experts testified to that the discrepancy prompted the Hamilton police to write a letter to the regional coroner. The police asked that "this matter be reviewed with the intent to reduce the opportunity for experts from the same office providing wildly conflicting opinions about the timing of injuries during criminal investigations." The police never received a response to that letter, says Staff Sgt. Steve Hrab. Hrab was the homicide detective in charge of investigating Tristan's 1997 homicide. He arrested Kuzyk for murder. His name is on the letter sent to the coroner's office. By fluke, he is now in charge of the current aggravated assault case against Kuzyk. All the doctors who testified at the murder trial, including Smith, agreed Kuzyk's version of events was impossible. She claimed Tristan received his fatal head injuries by rolling off a waterbed onto a carpeted floor. But the issue at stake was the timing of Tristin's fatal injuries. Dr. Chitra Rao, a world renowned expert in forensic pediatric pathology, did the autopsy. She told the trial the boy sustained his injuries in a four- to six-hour period when Kuzyk was known to be alone with the child. Doctors who tried to save Tristan's life agreed with that time frame. Smith, however, expanded the window of opportunity by several more hours, opening up the possibility Kuzyk's ex-fiancé had caused the injuries during a brief visit with the child. The ex-fiancé was never charged and denied hurting the baby boy. It was, that jury heard, the first time Smith had ever testified on behalf of the defence. He was lauded as the ultimate expert in his field by defence lawyer Roger Yachetti (who told The Spec this week he has no concerns with his client's acquittal), by Justice David Crane and by himself. "You will forgive me for boasting," Smith said at one point. "I do more pediatric forensic work than anyone else in the country." The problem is, he did it very, very badly. Smith's fall from grace is one of the biggest medical and legal scandals in Canadian history. His career began unravelling in about 2003 (four years after Hamilton police raised concerns) when peers uncovered serious and prolific flaws in his work. Eventually, at least a dozen people would have their child murder convictions overturned, the Ontario government would financially compensate the wrongfully convicted and their families, Smith would be stripped of his medical licence and a massive public inquiry would examine Smith's failures and the state of forensic pathology in Canada. (The inquiry revealed Smith had no special training in forensics, unlike Hamilton's Rao who did.) The College of Physicians and Surgeons said Smith's opinions were "either contrary to, or not supported by the evidence," were "misleading" and that he acted "as an advocate" rather than offering unbiased opinions. Soon after the not-guilty verdict and years before the Smith scandal, the Crown began an appeal of Kuzyk's acquittal on the murder charge, but then abandoned the process, saying there were no solid grounds. Lawyer Asgar Manek, who is representing Kuzyk on her current charge, says his client's legal history "should rest in peace." "It's not relevant for this trial," he says, adding he is leaning toward a jury trial. While the Crown would legally be able to argue that "similar fact evidence" should be presented to the jury if Kuzyk had been convicted on the previous murder charge, that cannot be done when there is an acquittal. Any attempt to introduce evidence about the murder charge at a new trial could cause a mistrial, Manek says. An appeal must be done on the basis of an error in law occurring, and in 1999 the Ministry of the Attorney General said there were no appealable errors. In hindsight though, there is a flaw that wasn't apparent. And that is the credibility of Smith. First, Justice Crane, in his charge to the jury, said Smith had "a speciality in forensic pediatric pathology." In fact, Smith did not qualify as a specialist in forensics at all. The judge also said: "Dr. Smith has outstanding credentials, and it is his opinion that Tristan's injuries could have possibly been inflicted as early as 6 p.m." This gave jurors permission to consider the possibility Kuzyk's ex-fiancé caused the fatal injuries. Whether Smith's evidence was the key to the acquittal, only the six men and six women of that jury will ever know.

The entire story can be read at:
https://www.thespec.com/news-story/7461691-clairmont-what-if-disgraced-doctor-caused-wrongful-acquittal-in-1999-murder-case-/

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PART TWO:

COMMENTARY: "Hamilton babysitter accused in second child beating again walks away free," by Hamilton Spectator columnist Susan Clairmont, published on February 1, 2019.

SUB-HEADING:  "Crown withdraws charge against Shelly Kuzyk because three other adults were with baby girl her limbs were broken, Susan Clairmont writes.

GIST: "For the second time, babysitter Shelly Kuzyk walked into a courtroom accused of beating the hell out of a baby — killing one of them — and walked out a free woman. This time, her alleged victim was an eight-week-old girl with two broken legs and a broken arm. Last time, it was 15-month-old Tristin Tooke, who suffered fatal head injuries. Unlike Tristin, the baby girl (whose identity is protected by a publication ban) has made a full recovery, court heard. Both times, the case fell apart because the Crown could not prove Kuzyk had exclusive access to the child during the time when the injuries were said to be inflicted. When a jury found Kuzyk not guilty of Tristin's second-degree murder, she was completely in the clear. On Friday, however, she agreed to a three-year peace bond prohibiting her from being alone with or in a caregiving role to children under 14. Because she was acquitted at her 1999 murder trial, that case could not be introduced by deputy Crown attorney Janet Booy in this matter. Booy withdrew the charge of aggravated assault, following a preliminary hearing, because at least three other adults were with the infant during the time her limbs were broken, making it impossible to prove Kuzyk's guilt beyond a reasonable doubt. Kuzyk's lawyer, Asgar Manek, told court his client denies she caused the injuries, but she agrees she is one of four possible suspects. For that reason, she accepts the peace bond. Extremely pale with blond hair in a bun, Kuzyk, 47, read a prepared statement outside the courtroom. "I believe I've been vindicated because of the fact the charge has been dropped," she said. "I am happy and relieved I can finally move on with my life.No members of the child's family were in court. Kuzyk's peace bond prohibits contact with the family and bans her from possessing weapons.On April 14, 2017, Kuzyk babysat the infant daughter of her close friend, who lived in the same apartment building, court heard. Kuzyk, who lived with her boyfriend, watched the child from 5:30 to 10 p.m. The child's mother picked her up, changed and fed her, and noticed nothing amiss then, or during a 3 a.m. diaper change. The next morning during another diaper change, the mom noticed the baby cried when her right leg was raised. There was a bruise near her ankle. The mom called Kuzyk and asked if anything had happened to the girl. Kuzyk said no. At 5:30 that evening, the mom asked Kuzyk to watch the child again, while she ran to the drugstore. After that, the baby's biological father had the child at the park. Back in the mom's care, the child was "fussy." On April 16, the mom brought the baby to urgent care and then McMaster Children's Hospital for an exam and x-rays. The baby had two fractures on one leg, another to her other leg and a broken arm. A doctor who testified at the preliminary hearing said it was difficult to know exactly when each fracture occurred. The pivotal issue in Tristin's murder was also the timing of his injuries. Several trial witnesses — including emergency doctors who tried to save the boy's life and forensic pathologist Dr. Chitra Rao, who was an internationally recognized child abuse expert — agreed on a time frame that left Kuzyk as the only suspect. However, a defence witness testified he believed the time frame was wider, opening the possibility Kuzyk's fiancé could have killed Tristin. Who was that defence witness? Disgraced pediatric pathologist Charles Smith, who would go on to be at the heart of one of the most tragic medical and legal scandals in Canadian history. His inept work led to at least a dozen people being wrongfully convicted of killing children. His discredited career also raises the possibility he caused a killer to be wrongfully acquitted. There is one more twist to acknowledge in this 20-year saga. The Hamilton police detective who arrested Kuzyk for murder all those years ago was — by sheer coincidence — the same one who caught the case of the eight-week-old baby with the broken limbs. The detective has since retired. "I'm of the opinion that my client was judged mostly because of her past acquittal," Manek said outside the courtroom, adding that he thinks the detective failed to properly consider other suspects. Kuzyk has no children of her own, Manek said, but loved caring for the baby girl. "She adored the child."

The entire story can be read at:  https://www.thespec.com/opinion-story/9156000-hamilton-babysitter-accused-in-second-child-beating-again-walks-away-free/

PART THREE:

STORY: "Smith's testimony nearly sent man to death row," by Globe and Mail justice reporter Kirk Makin, published originally on February 9, 2008.

GIST: "One final, forensic bombshell exploded at the Goudge commission yesterday, when it emerged that Charles Smith testified for the state of Ohio in a 2000 child-murder case where the accused man narrowly escaped being executed. After the man, Christopher Fuller, was convicted of aggravated murder and attempted rape of his three-year-old daughter, Randi - with the help of Dr. Smith's testimony - the jury recommended that he be put to death. The trial judge, however, turned down the request. Citing the 31-year-old man's childhood of severe deprivation and his low IQ, the judge instead sentenced him to life imprisonment. The revelation emerged yesterday - the last day of testimony at the inquiry into the discredited work of Dr. Smith - after lawyer Julian Falconer stumbled across it in a database comprising 30,000 documents that was given to lawyers at the inquiry. The key document was a Sept. 22, 2000, letter from district attorney John Holcomb to Dr. Smith expressing gratitude for his "truly outstanding work." James Lockyer and Louis Sokolov - lawyers representing groups of the wrongly convicted at the inquiry - told reporters that they have not yet been able to ascertain how vital Dr. Smith's testimony was to the state's case. "I have no idea what the courts of Ohio would do with this information," Mr. Sokolov told reporters. "We are in no position to say whether this was a miscarriage of justice. "But what we do know was that a pathologist whose work has been severely discredited in this province gave evidence which contributed to a guilty verdict and [the man] is in prison for life," he added. Mr. Falconer said that, in light of Mr. Holcomb's praise for Dr. Smith, "I suggest that there is little doubt that Mr. Holcomb meant to convey to Dr. Smith that he played an important role in securing Mr. Fuller's conviction." The revelation threw the inquiry into a brief tizzy, as Mr. Falconer, Mr. Sokolov and Mr. Lockyer applied to reopen questioning of former chief coroner James Young. However, Mr. Justice Stephen Goudge ruled against them, noting that they had four months in which to discover the document and take action. In the Ohio case, the victim was determined to have died of "asphyxia" caused by neck and chest compression. The case involved forensic evidence that included the identification of minute hemorrhages as evidence of asphyxia, and a "dilated anus" as evidence of a probable sexual assault. Mr. Falconer noted that the evidence was "eerily similar" to key evidence in the 1992 conviction of an Ontario man, William Mullins-Johnson, in the sex slaying of his niece, Valin Johnson. Mr. Mullins-Johnson was exonerated in October after the Ontario Court of Appeal was told that Dr. Smith's evidence on these points was dangerously wrong. According to evidence at Mr. Fuller's trial, he initially told police that he found Randi unconscious on the bathroom floor one evening and attempted to resuscitate her in a panic. In a second statement to police, he admitted to striking her after she struggled against his attempts to force her to engage in sexual conduct. In rendering sentence, Judge Matthew Crehan said that Mr. Fuller had been dropped on his head as a child, suffered from Asperger's disorder and was depressed. Goudge commission counsel Mark Sandler told the inquiry that lawyers for Dr. Smith have informed him that the Fuller case is the only death-penalty case in which their client has played a role. Mr. Sokolov responded that, given Dr. Smith's general record for accuracy, he was not prepared to accept this assurance at face value."

The entire story can be read at:

 https://www.theglobeandmail.com/news/national/smiths-testimony-nearly-sent-man-to-death-row/article667431/

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;

Back in action: On-Going: Forensic expert Robert Collins Barnes...Expert excorciated for work in David Eastman investigation comes under attack in another prosecution - as a prosecution against Leonard Warwick who is accused of murdering four people and injuring several others in a string of deadly bombings and shootings in the 1980s..."He should not be listened to': solicitor slams forensic expert in Family Court bomber case ..."Mr Winchester was shot twice in the head at close range while getting out of his car in his neighbour's driveway in the Canberra suburb of Deakin. Mr Barnes' analysis linked gunshot residue found in Mr Eastman's boot with that found at the crime scene, describing the retrieved particles as "indistinguishable". The inquiry found that, among other errors, Mr Barnes mixed up exhibits from Mr Eastman's Mazda and the crime scene. In his report on the inquiry, Acting Justice Brian Martin identified serious concerns about Mr Barnes' impartiality. "He behaved in a manner totally inconsistent with the independence of a forensic expert. He identified himself with the prosecution and plainly demonstrated his bias in favour of the prosecution," Mr Martin wrote."The Sydney Morning Herald Subscribe The Sydney Morning Herald Subscribe'He should not be listened to': solicitor slams forensic expert in Family Court bomber case

PASSAGE OF THE DAY: "In a motion argued before the NSW Supreme Court in October, a solicitor acting for Mr Warwick urged Justice Peter Garling not to allow Mr Barnes to be called by the prosecution. Mr Warwick, 71, is accused of murdering four people and injuring several others in a string of deadly bombings and shootings in the 1980s. It is the Crown case that Mr Warwick targeted people linked to a drawn-out custody battle between him and his estranged wife, Andrea Blanchard, over their only daughter, Trudi. His solicitor, Alan Conolly, argued against Mr Barnes being called to provide forensic evidence, saying the Eastman Inquiry report cast his credibility as an expert witness into doubt. “The findings of this report are so damning that this man should not ever be before the Court as an expert. He should not be listened to. He should not be an expert before the Court," Mr Conolly said on October 15. Mr Conolly pointed to findings in the inquiry relating to Mr Barnes' “stubbornness, rudeness and intemperate language” and said it was in the interests of a fair trial not to allow him in the witness box."

STORY: " 'He should not be listened to': solicitor slams forensic expert in Family Court bomber case," by reporter Angus Thompson, published by The Sydney Morning Herald on January 8, 2019.

PHOTO CAPTION: "Robert Collins Barnes, the expert witness whose reliability was "devastated" during the Eastman Inquiry."

GIST: "A forensic expert whose evidence contributed to the unfair trial of a man over the assassination of a top policeman has appeared as a Crown witness against accused Family Court bomber, Leonard John Warwick. Robert Collins Barnes was heavily criticised in an inquiry into the conviction of David Eastman, who spent 19 years in jail for the 1989 shooting murder of Australian Federal Police Assistant Commissioner Colin Winchester. Mr Eastman, a former public servant, was in November found not guilty of the murder following a five-month retrial - which did not include Mr Barnes' evidence - before the ACT Supreme Court.  Mr Winchester was shot twice in the head at close range while getting out of his car in his neighbour's driveway in the Canberra suburb of Deakin.

Mr Barnes' analysis linked gunshot residue found in Mr Eastman's boot with that found at the crime scene, describing the retrieved particles as "indistinguishable". The inquiry found that,  among other errors, Mr Barnes mixed up exhibits from Mr Eastman's Mazda and the crime scene. In his report on the inquiry, Acting Justice Brian Martin identified serious concerns about Mr Barnes' impartiality. "He behaved in a manner totally inconsistent with the independence of a forensic expert. He identified himself with the prosecution and plainly demonstrated his bias in favour of the prosecution," Mr Martin wrote. In a motion argued before the NSW Supreme Court in October, a solicitor acting for Mr Warwick urged Justice Peter Garling not to allow Mr Barnes to be called by the prosecution. Mr Warwick, 71, is accused of murdering four people and injuring several others in a string of deadly bombings and shootings in the 1980s. It is the Crown case that Mr Warwick targeted people linked to a drawn-out custody battle between him and his estranged wife, Andrea Blanchard, over their only daughter, Trudi. His solicitor, Alan Conolly, argued against Mr Barnes being called to provide forensic evidence, saying the Eastman Inquiry report cast his credibility as an expert witness into doubt. “The findings of this report are so damning that this man should not ever be before the Court as an expert. He should not be listened to. He should not be an expert before the Court," Mr Conolly said on October 15. Mr Conolly pointed to findings in the inquiry relating to Mr Barnes' “stubbornness, rudeness and intemperate language” and said it was in the interests of a fair trial not to allow him in the witness box. Justice Garling dismissed the notice of motion, saying it wasn't in the court's power to bar the Crown from calling a particular witness. His remarks were recently made public after an order suppressing Mr Barnes' association with Mr Eastman's trial was lifted. Justice Garling said it was up to him as the trial judge to determine the credibility of Mr Barnes' evidence. "It will be a matter for the Crown to determine what evidence it seeks to lead from Mr Barnes and it will be a matter for the accused, through his lawyers ... to attack the accuracy and veracity of any of it or the credibility of the witness generally," he said. Mr Warwick's trial is ongoing."

The engtire story can be read at:

https://www.smh.com.au/national/nsw/he-should-not-be-listened-to-forensic-expert-family-court-bomber-witness-20181212-p50lr0.html

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;

Back in action: On-Going: Use of Mug shots and wrongful identifications: New York Times article explores the connection between them in this excellent article by reporter Joseph Goldstein..."To the detectives involved, the shooting in January 2018 was just the latest in a long line of crimes solved by asking a victim to search through mug shots, an investigative technique used in New York City for more than 150 years. Detectives enter a description of the perpetrator into a database, which then spits out dozens or even hundreds of matching photos. The witness scrolls through, in hopes of recognizing the culprit. But these open-ended photo searches also increase the likelihood of ensnaring an innocent person, according to studies and experts in eyewitness identification."

 PASSAGE OF THE DAY: "The method has few safeguards to protect against a false identification and can lead police to focus on the wrong person from the outset of an investigation. Many of the nation’s other large police departments — including Chicago, Los Angeles, Houston, Washington, Dallas and Miami-Dade — said they do not rely on the technique, a New York Times survey shows. Detective bureaus in many other jurisdictions do not show booking photos to witnesses until they have a suspect in mind. Investigators then conduct a photo lineup, placing the suspect’s among photos of at least five “fillers” — people who fit the description but are known to be innocent. That approach offers some shield against a false identification: If the witness chooses a filler, police understand the witness is wrong and know not to arrest that person. In a mug shot search, everyone is a potential suspect, and the actual culprit might not be among the group. But whoever the witness selects becomes the focus of the investigation. I think it taints the investigation,” said Deputy Chief Thomas Castro, who oversees detectives for the Dallas Police Department."

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STORY: "Jailing the Wrong Man: Mug Shot Searches Persist in New York, Despite Serious Risks," by reporter Joseph Goldstein, published by The New York Times on January 5, 2019.

GIST: Inside a police station house in Queens about a year ago, St. Clair Steward insisted he had not been involved in a recent shooting. Mr. Steward told the police he had been resting at home.

Investigators did not believe him. The motive behind the shooting was a mystery, but the victim had combed through pictures of people with past arrests and identified Mr. Steward, a father of eight, as the assailant. To the detectives involved, the shooting in January 2018 was just the latest in a long line of crimes solved by asking a victim to search through mug shots, an investigative technique used in New York City for more than 150 years. Detectives enter a description of the perpetrator into a database, which then spits out dozens or even hundreds of matching photos. The witness scrolls through, in hopes of recognizing the culprit. But these open-ended photo searches also increase the likelihood of ensnaring an innocent person, according to studies and experts in eyewitness identification. The method has few safeguards to protect against a false identification and can lead police to focus on the wrong person from the outset of an investigation. Many of the nation’s other large police departments — including Chicago, Los Angeles, Houston, Washington, Dallas and Miami-Dade — said they do not rely on the technique, a New York Times survey shows. Detective bureaus in many other jurisdictions do not show booking photos to witnesses until they have a suspect in mind. Investigators then conduct a photo lineup, placing the suspect’s among photos of at least five “fillers” — people who fit the description but are known to be innocent. That approach offers some shield against a false identification: If the witness chooses a filler, police understand the witness is wrong and know not to arrest that person. In a mug shot search, everyone is a potential suspect, and the actual culprit might not be among the group. But whoever the witness selects becomes the focus of the investigation. I think it taints the investigation,” said Deputy Chief Thomas Castro, who oversees detectives for the Dallas Police Department."

The entire story can be read at:

https://www.nytimes.com/2019/01/05/nyregion/nypd-mug-shots-false-identification.html?emc=edit_na_20190105&nl=breaking-news&nlid=57629086ing-news&ref=headline
 
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;

Brandon Ross; Maine: The authorities called it abuse.The abuse expert contacted by the hospital said baby Ryder was a victim of child abuse. Ross's wife said that was impossible. Why didn't they listen? Ryder's injuries proved to be caused by Ehlers-Danlos syndrome - a genetic condition that causes bones to be abnormally susceptible to fractures. So why did Brandon Ross eventually plead guilty to some misdemeanours instead of the 12 serious child abuse charges? You probably guessed it. The answer is clearly spelled out in the second article below. Read on! Oh yes. Brandon Ross has been pardoned and thereby cleared of wrong doing. But what an ordeal for him and his entire family. And what quiet strength and dignity they showed - in spite of the deafness of the authorities. Harold Levy. Publisher; The Charles Smith Blog.

PASSAGE OF THE DAY: STORY 1: "Brandon Ross had said a medical condition called Ehlers-Danlos syndrome was the cause of his son's injuries. It is a genetic condition that causes bones to be abnormally susceptible to fractures. Former Gov. Paul LePage pardoned Ross on Dec. 31, 2018. Ross had petitioned the governor for clemency. The Rosses received notice of the pardon this week. Former WMTW News 8 reporter Katie Thompson broke the story in 2014 and spoke with experts and advocates who said the condition is common and significantly underdiagnosed. In April 2014, a trip to the doctor led to Ross facing 12 serious charges of child abuse for fractures found on his then 2-month-old son, Ryder Ross."

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PASSAGE OF THE DAY: STORY 2):  “It’s kind of shocking how painless this process was at the end, given how long we had to fight,” Cynthia Ross said Friday. “But we won’t get that time back. Our kids won’t get that time back.” It started in April 2014, about two months after their son, Ryder, was born. Cynthia, 25, and Brandon, 26, who live in Windsor now but lived in Topsham at the time, took him to the hospital after noticing swelling in his leg. Doctors at Maine Medical Center in Portland said Ryder had a broken leg and other bone fractures. They called Dr. Lawrence Ricci, head of Spurwink’s Child Abuse Program, to consult. Ricci told them that Ryder was the victim of child abuse. Cynthia Ross said that was impossible. “We had a home birth with Ryder and were practicing attachment parenting, so he never left my side,” she said. Ricci told her that if her spouse was abusing their son, he would probably hide it. So Ross had doubts. And the more she thought about it, the more she was convinced Ricci had gotten it wrong. Her husband was loving and gentle with both their children. But by then, it was too late. The state Department of Health and Human Services had taken custody of Ryder and the couple’s daughter, Rozalynn, two years older than her brother."


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STORY: "Maine father pardoned, cleared of wrongdoing after being accused of abusing infant son," published by WMTW on February 1, 2019.

GIST: A Maine father has been pardoned nearly five years after being accused of abusing his infant son. Brandon Ross had said a medical condition called Ehlers-Danlos syndrome was the cause of his son's injuries. It is a genetic condition that causes bones to be abnormally susceptible to fractures. Former Gov. Paul LePage pardoned Ross on Dec. 31, 2018. Ross had petitioned the governor for clemency. The Rosses received notice of the pardon this week. Former WMTW News 8 reporter Katie Thompson broke the story in 2014 and spoke with experts and advocates who said the condition is common and significantly underdiagnosed. In April 2014, a trip to the doctor led to Ross facing 12 serious charges of child abuse for fractures found on his then 2-month-old son, Ryder Ross.

 Doctors in Boston, Ohio and Illinois then diagnosed Ryder with a genetic metabolic bone disease, most likely Ehlers-Danlos syndrome. In May 2015, while living in foster care, a follow up X-ray revealed at least one new fracture in Ryder's wrist. The state refused to accept the diagnosis, after the fracture was found while Ryder was in state custody. Later that year, Brandon Ross took a plea deal. He pleaded no contest to two misdemeanor charges and the case was closed. In November 2015, a judge dismissed the child protection case against the Rosses, allowing them to be reunited with their two children. The Ross family is still together -- and growing."

The entire story can be found at:
https://www.wmtw.com/article/maine-father-pardoned-cleared-of-wrongdoing-after-being-accused-of-abusing-infant-son/26109552

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STORY: "After more than 18 months fighting abuse allegations, Maine parents reunited with children,  by reporter Eric Russell, published   by The Press Herald on November 21, 2015.

PHOTO CAPTION: "Brandon Ross, his wife, Cynthia, and their doctor say a rare disease, not abuse, caused their son's injuries. "

GIST: More than 18 months after the state took their children from them amid allegations of child abuse they say were patently false, Brandon and Cynthia Ross have been reunited with their son and daughter. “It’s kind of shocking how painless this process was at the end, given how long we had to fight,” Cynthia Ross said Friday. “But we won’t get that time back. Our kids won’t get that time back.” It started in April 2014, about two months after their son, Ryder, was born. Cynthia, 25, and Brandon, 26, who live in Windsor now but lived in Topsham at the time, took him to the hospital after noticing swelling in his leg. Doctors at Maine Medical Center in Portland said Ryder had a broken leg and other bone fractures. They called Dr. Lawrence Ricci, head of Spurwink’s Child Abuse Program, to consult. Ricci told them that Ryder was the victim of child abuse. Cynthia Ross said that was impossible. “We had a home birth with Ryder and were practicing attachment parenting, so he never left my side,” she said. Ricci told her that if her spouse was abusing their son, he would probably hide it. So Ross had doubts. And the more she thought about it, the more she was convinced Ricci had gotten it wrong. Her husband was loving and gentle with both their children. But by then, it was too late. The state Department of Health and Human Services had taken custody of Ryder and the couple’s daughter, Rozalynn, two years older than her brother. 

VISITATIONS UNDER STRICT CONDITIONS: Every time the parents tried to plead with state caseworkers, they were stonewalled, Ross said. She had to stop breastfeeding her son after just eight weeks. “It was obvious these doctors were not advocating for us,” she said. The only consolation was that the children were placed with Cynthia Ross’ father and stepmother, who were licensed foster parents. But she and her husband could visit only under strict conditions. Two months after that hospital visit, Brandon Ross was arrested and charged with six counts of aggravated assault, three counts of simple assault and three counts of endangering the welfare of a child. The state charged him based on Ricci’s diagnosis of multiple fractures that it believed resulted from more than one incident. Cynthia Ross said she “went into fight mode.” “I sort of made defending my family a full-time job,” she said. Brandon Ross’ attorney, Amy Fairfield, never doubted that her client was innocent. “The doctors were wrong,” she said. “Beyond a shadow of a doubt.” Every month, the Rosses would petition the court for changes to his bail conditions so that they could visit their children. “The hardest thing was telling my daughter, who was 3 years old, that she couldn’t come home with Mommy and Daddy,” Cynthia Ross said. In addition to petitioning the court and fighting with DHHS, the Rosses tried to find out why their son had gotten hurt. It took them several months, but a Boston University doctor, Michael Holick, agreed to see Ryder in October 2014. Holick diagnosed him with a rare metabolic disorder called Ehlers Danlos syndrome and said that disorder contributed to the boy’s leg fracture. The disease is genetic, Holick said, and Ryder inherited it from Cynthia. The state, however, refused to believe it, Cynthia Ross said. Even in May, when her father and stepmother, Bobby and Toni Morton, revealed that Ryder had suffered a wrist fracture while in their care, Ricci, in court documents, said the new fracture, “in no way alters my opinion that the initial constellation of injuries was abusive.” He also said he was not convinced that Ehlers Danlos has been proven to cause fractures in infancy. Ricci, Maine’s foremost child abuse expert, declined Friday to comment on the case or even to acknowledge that he treated Ryder. Pat Mador, the assistant district attorney who represented the state in the criminal case against Brandon Ross as well as in the protective custody case, did not return a call for comment, either.

MAYO CLINIC WEIGHS IN: "Dr. David Deyle, an assistant professor of medical genetics at the Mayo Clinic in Rochester, Minnesota, said Ehlers Danlos syndrome has a few different forms but generally manifests in frequent joint dislocation and easy bruising or bleeding. He said bone fractures are certainly possible. Asked whether a child with Ehlers Danlos could be misdiagnosed as abused, Deyle said he’s never seen that happen but didn’t rule it out. As the custody case continued, Cynthia Ross feared that their willingness to challenge the state posed problems. She worried that because they did not agree with the abuse diagnosis, the state might move to terminate their parental rights. Sure enough, that’s what happened – though the state eventually ended up dropping that motion. Ross doesn’t know why. The state does not comment on child custody cases, citing privacy reasons. In 2014, there were 19,239 referrals of child abuse in Maine. Of those, less than half (8,945) were referred for a child protective assessment, and only 27 percent of those, or 2,392 cases, were substantiated. It’s not known how many resulted in the state taking custody. 

FATHER ACCEPTS PLEA AGREEMENT" In September, Brandon Ross accepted a plea agreement on the criminal charges against him. The state would drop the felony charges and he would pay a fine but would not serve jail time for two simple assault charges, Class B misdemeanors. Fairfield said her client was conflicted about pleading, but believed it was the only way for his family to move forward. If he fought the charges and lost, it might jeopardize the parents’ custody of their children. So, Cynthia Ross said, her husband swallowed his pride and pleaded to a crime he didn’t commit. "I am still amazed how positive he’s remained about all this,” she said. Last month, state caseworkers approved a trial placement for Ryder and Rozalynn. They lived with their parents but were subjected to unannounced visits. On Thursday, a judge dismissed the child-protection case, and for the first time in more than a year and a half, Brandon and Cynthia Ross got to spend time with their children with no one else around. Cynthia Ross said the 18 months of uncertainty has damaged her family. “The hardest part is that the (doctors) still don’t think they were wrong,” she said.
Fairfield said she, too, is frustrated by the lack of accountability by doctors and DHHS officials. She believes there might be grounds for a civil lawsuit. Ross said her family still has to work to get back what they lost. Because of Ryder’s condition, most daycare providers won’t take him because of liability concerns. The Rosses both work full time, but on opposite shifts so they can take turns taking care of their children. She declined to say what they did for a living. They also have to file an appeal with the state to be removed from DHHS’ child endangerment registry – a black mark that could prevent them from working certain jobs or even from going on school field trips with their children. Ross said her husband plans to petition for a pardon from the governor to get his assault charges expunged. But the family is together, she said, and that is what matters to her most."

The entire story can be read at:

https://www.pressherald.com/2015/11/21/after-more-than-18-months-fighting-abuse-allegations-maine-parents-reunited-with-children/

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;

Back in action: On-Going: Texas: Abusing science to kill people? Dallas News story asks whether Texas will follow the scientific standards set by the U.S. Supreme Court and protect intellectually disabled people from getting the death penalty..."Texas, which leads the nation in death row executions, is one of nine states with the death penalty that hasn’t passed a law outlining rules to protect people with intellectual disabilities from being executed. Without a law, the state’s courts had to come up with their own system. But last year, the Supreme Court declared the method violated the Constitution because it relies on nonclinical and unscientific standards to determine who was intellectually disabled."

PASSAGE OF THE DAY: "Texas is at the center of this issue as attorneys for death row inmate Bobby Moore are seeking review from the U.S. Supreme Court for a second time. In 1980, Moore shot James McCarble, a 73-year-old grocery clerk during a botched robbery in Houston. After he was sentenced to death, his attorneys’ appeals hinged on Moore being severely intellectually disabled. Last year, the Supreme Court sent Moore’s case back to the Texas Court of Criminal Appeals, with a sharp rebuke that said the state’s practice was medically outdated and relied on misinformed stereotypes to characterize people with intellectual disabilities. In June, despite pleas from the prosecution to change Moore’s sentence to life in prison, the Texas appeals court upheld the death sentence for Moore. Moore’s attorney has since petitioned the Supreme Court to vacate the Texas court’s ruling. “This gives added impetus for the Legislature to do something,” said Jordan Steiker, a University of Texas law professor and co-director of the school’s Capital Punishment Center. “They should pass a statute that over protects, rather than under protects and makes it hard to make a mistake.”

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STORY: "Will Texas lawmakers penalty?,  by Texas government reporter Rebecca Allen, published by The Dallas News on December 31, 2019.

PHOTO CAPTION: "Medical experts say Bobby Moore, who has been on death row for 36 years, is intellectually disabled. On one test, he recorded an IQ score of 59."

GIST: "Fueled by a U.S. Supreme Court decision chastising Texas for how it determines intellectual disability in death penalty cases, criminal justice advocates say the time has come for the state's legislators to pass a bill that aligns with federal law. Texas, which leads the nation in death row executions, is one of nine states with the death penalty that hasn’t passed a law outlining rules to protect people with intellectual disabilities from being executed. Without a law, the state’s courts had to come up with their own system. But last year, the Supreme Court declared the method violated the Constitution because it relies on nonclinical and unscientific standards to determine who was intellectually disabled. “It’s embarrassing that Texas has had to have the U.S. Supreme Court send back cases to us telling us we’re not using medically informed criteria when applying the death penalty to a very vulnerable population,” said state Rep. Joe Moody, an El Paso Democrat. “We have to tackle that. The Supreme Court has told us we have to make this change.” Moody, chairman of the House Criminal Jurisprudence committee, said he expects lawmakers to take up the issue this year, though legislation has not yet been filed. Last year, House Speaker Joe Straus directed the committee to study the issue and report back to the House. Moody said the committee has drafted a report, and he expects it to recommend how to apply the death penalty to both people with intellectual disabilities and severe mental disorders. In 2001, the Legislature passed a law banning the execution of intellectually disabled people, but Gov. Rick Perry vetoed it a year before the Supreme Court’s Atkins vs. Virginia ruling, which declared the practice unconstitutional. Perry said at the time that the law was unnecessary because judicial safeguards were in place. Texas is at the center of this issue as attorneys for death row inmate Bobby Moore are seeking review from the U.S. Supreme Court for a second time. In 1980, Moore shot James McCarble, a 73-year-old grocery clerk during a botched robbery in Houston. After he was sentenced to death, his attorneys’ appeals hinged on Moore being severely intellectually disabled. Last year, the Supreme Court sent Moore’s case back to the Texas Court of Criminal Appeals, with a sharp rebuke that said the state’s practice was medically outdated and relied on misinformed stereotypes to characterize people with intellectual disabilities. In June, despite pleas from the prosecution to change Moore’s sentence to life in prison, the Texas appeals court upheld the death sentence for Moore. Moore’s attorney has since petitioned the Supreme Court to vacate the Texas court’s ruling. “This gives added impetus for the Legislature to do something,” said Jordan Steiker, a University of Texas law professor and co-director of the school’s Capital Punishment Center. “They should pass a statute that over protects, rather than under protects and makes it hard to make a mistake.” He said without a state statute that appropriately protects people with intellectual disabilities, Texas will continue to find itself entangled in expensive and embarrassing litigation. Texas judges also say they want the Legislature to pass a law, taking the burden off the courts. “The No. 1 area that needs attention and that has needed attention for over a decade is intellectual disabilities,” Judge Elsa Alcala, who sits on the Court of Criminal Appeals, said during a hearing of Moody’s committee in March. “My court has had various judges repeatedly tell the Legislature, ‘Please write a law we can apply.’ ” Alcala and two other judges forcefully dissented in a 67-page rebuke when the court ruled 5-3 to uphold Moore’s death penalty sentence. “Most judges will tell you that we are not law writers. That’s what you do,” she told the House committee members. The legislative session begins Jan. 8."

The entire story can be read at:

https://www.dallasnews.com/news/texas-legislature/2018/12/31/will-texas-lawmakers-protect-intellectually-disabled-people-receiving-death-penalty

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; 

 

Back in action: Technology: Bail: What happens when the risk assessment logarithm doesn't work?..."After setbacks, Spokane County abandons custom criminal justice algorithm in favor of simpler tool. " Reporter Chad Sokol: Spokesman.com.

PUBLISHER'S NOTE: "The Spokane Assessment for Evaluation of Risk, known as the SAFER tool, was touted as a cornerstone of local efforts to reduce jail overcrowding and eliminate racial disparities in the justice system. Developed with help from a criminologist at Washington State University, the tool examined some 30 factors – such as criminal records, drug addiction and employment history – to produce a score indicating the likelihood a defendant would miss a court date or commit a new crime if released before trial. But because of staff turnover, software glitches and the challenge of syncing the tool with state court data, the program never worked as intended. After nearly three years of testing and tinkering, officials have scrapped the SAFER tool in favor of a simpler, off-the-shelf program called the Public Safety Assessment, or PSA, which will require less raw information. Maggie Yates, who recently stepped in as Spokane County’s criminal justice administrator, said officials agreed they could not spend more time and resources developing the SAFER tool. The PSA is more “streamlined,” she said, and will finally enable the county to standardize how it evaluates defendants. Although the size of the jail population has not budged despite several years of grant-funded reform efforts, Yates said the new assessment tool could help the county stop incarcerating low-risk defendants only because they can’t afford to post bail. What went wrong? (Read on to find out! HL);

STORY: "After setbacks, Spokane County abandons custom criminal justice algorithm in favor of simpler tool," by reporter Chad Sokol, published by Spokesman.com on January 7, 2019.

GIST: "Spokane County is adopting a new computer algorithm designed to help judges decide which defendants should remain in jail, abandoning a more costly, custom-developed program that was hampered by technical and logistical problems. The Spokane Assessment for Evaluation of Risk, known as the SAFER tool, was touted as a cornerstone of local efforts to reduce jail overcrowding and eliminate racial disparities in the justice system. Developed with help from a criminologist at Washington State University, the tool examined some 30 factors – such as criminal records, drug addiction and employment history – to produce a score indicating the likelihood a defendant would miss a court date or commit a new crime if released before trial. But because of staff turnover, software glitches and the challenge of syncing the tool with state court data, the program never worked as intended. After nearly three years of testing and tinkering, officials have scrapped the SAFER tool in favor of a simpler, off-the-shelf program called the Public Safety Assessment, or PSA, which will require less raw information. Maggie Yates, who recently stepped in as Spokane County’s criminal justice administrator, said officials agreed they could not spend more time and resources developing the SAFER tool. The PSA is more “streamlined,” she said, and will finally enable the county to standardize how it evaluates defendants. Although the size of the jail population has not budged despite several years of grant-funded reform efforts, Yates said the new assessment tool could help the county stop incarcerating low-risk defendants only because they can’t afford to post bail. What went wrong? In early 2016, shortly before Spokane County was awarded a $1.75 million grant from the MacArthur Foundation, the county and the city of Spokane jointly awarded a $70,000 contract to WSU Spokane criminologist Zach Hamilton. An expert on predictive risk algorithms, Hamilton was tasked with creating the SAFER tool from scratch. It was supposed to be a highly sophisticated piece of software, capable of processing huge amounts of raw data and carefully tailored for defendants in Spokane County. In those ways, it’s very different from the PSA, Hamilton said. “We created multiple models, we looked at males and females separately, selected a bunch of items that were collected by an interview, and utilized a lot of localized data that was collected since 2006,” he said. “And by using all of that data, we were hoping to make a tool that was more localized and, in a sense, more accurate for the Spokane population.” But the same breadth of data that would have helped fine-tune the SAFER algorithm also made it cumbersome for the pretrial services team tasked with implementing it. The plan had been to automate the program by connecting to a database of criminal records maintained by Washington’s Administrative Office of the Courts. A similar system is in place for juvenile offender data, but Hamilton said the courts office was reluctant to share adult offender data with individual counties. That meant pretrial services staff had to go through a tedious, time-consuming process of interviewing defendants, researching criminal records and manually entering much of that information into the SAFER program. Hamilton developed a scaled-down version of the tool, SAFER Lite, which was in use for several months last spring. But the pretrial services office had some vacant positions and newer staff members, and judges were reporting the risk scores weren’t as helpful as the evaluations the office had previously provided.
“The brick wall that we ran into was trying to get that last integration piece,” Hamilton said. “We had created the tool. We had put it into software. … But we never got to the point where we could fully integrate the tool utilizing the AOC’s software system. Hamilton said the state office did eventually approve the data transfers the county had been requesting, but that meant there could still be months of programming ahead, and officials decided to quit the project. Yates said roughly $600,000 from the MacArthur grant was used to hire additional pretrial services staff to implement the SAFER tool and perform other new duties. Another $150,000 was budgeted for SAFER but only some of that was spent, she said. Replacement tool: Developed by the Laura and John Arnold Foundation and available for free to any jurisdiction that wants to use it, the Public Safety Assessment is expected to be implemented in Spokane County in the latter half of this year. It’s currently in use statewide in Kentucky, Arizona, New Jersey and Utah, and in counties in at least a dozen other states. According to an explainer on the Arnold Foundation’s website, the PSA “examines nine factors related to a person’s age, current charge and criminal history and produces two risk scores: one that predicts risk of failure to appear for future court appearances, and a second that predicts risk of committing a new crime if released before trial.” “The scores are based on a one-to-six scale, with higher scores indicating a higher level of risk. The PSA also flags defendants who indicate an elevated risk of committing a new violent crime if they are released before trial. The PSA results can help inform a judge’s decision-making; however, the final release decision always rests with the judge.” Risk assessment algorithms have come under scrutiny amid evidence they can perpetuate racial biases already prevalent in the criminal justice system. But Yates said she’s optimistic about the PSA. She pointed to Yakima County, which began using the algorithm in early 2016 as part of a series of pretrial justice reforms. “We virtually eliminated any racial disparity (in the pretrial jail population) after implementing the program, which came as a complete surprise to us,” said Yakima County Superior Court Judge Richard Bartheld. Bartheld cited a 2017 analysis which found that Yakima County’s judges had granted pretrial release to about 64 percent of white defendants but only 49 percent of Hispanic defendants. That margin shrank after the PSA was implemented: Bartheld said the percentage of white defendants released before trial rose to 73 percent, while the share of Hispanic defendants rose to 75 percent. Hispanic people make up about half of Yakima County’s population. Another sign of success: According to Bartheld, of all the defendants released before trial, the share who were released on their own recognizance rose from 36 percent to 85 percent after implementation of the PSA. That means significantly fewer people had to post bail and were allowed to walk free on the promise they would come back to court. “We’re trying to get away from this mindset that if someone is just accused of a crime then we need to lock them up and throw away the key,” Bartheld said.""

The entire story can be read at:
http://www.spokesman.com/stories/2019/jan/04/after-setbacks-spokane-county-abandons-custom-crim/

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;