CAMERON TODD WILLINGHAM CASE; TIME MAGAZINE ASKS: "IS TEXAS CHANGING ITS MIND ABOUT THE DEATH PENALTY?" WILLINGHAM CASE NOT MENTIONED!

"ACCORDING TO KRISTIN HOULE, DIRECTOR OF THE TEXAS COALITION TO ABOLISH THE DEATH PENALTY, THE STATE AVERAGED NEARLY ONE LETHAL INJECTION PER WEEK OVER A FIVE MONTH PERIOD IN 2008. THERE HAVE BEEN 423 EXECUTIONS IN TEXAS SINCE THE STATE REININSTITUTED THE DEATH PENALTY IN 1982, AND 374 CONDEMNED MEN AND WOMEN ARE CURRENTLY RESIDING ON TEXAS' DEATH ROW. (ONE RESIDENT, MICHAEL BLAIR, WALKED OFF DEATH ROW THIS YEAR AFTER BEING EXONERATED BY DNA TESTING.)"

REPORTER HILARY HYLTON; TIME MAGAZINE;

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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

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"Texas has executed prisoners with a regularity and in record numbers that has earned the state worldwide attention," the story by reporter Hilary Hylton, begins.

(Although the story does not specifically mention Cameron Todd Willingham, it does refer to "Michael Blair, who "walked off death row this year after being exonerated by DNA testing.")

"But, while Texas still led the U.S. in executions in 2008, juries in the state appear to have began to turn away from the ultimate punishment even for the most heinous crimes," the story, published yesterday, continues.

"Ten men and one woman were sentenced to death in Texas in 2008, according to the Texas Coalition to Abolish the Death Penalty. It was the lowest annual figure since the 1976 reinstatement of the death penalty. Texas handed out more than 20 death sentences in each of 2003 and 2004. In 2005, the number fell to 14, and it has not risen above that annual figure since. "The need for revenge, for vengeance is being curbed, the appetite is no longer there," contends Robert Hirschorn, a nationally known Texas attorney and jury consultant who has helped pick juries for many prominent clients, including, most recently, millionaire real estate mogul Robert Durst, who was found not guilty of killing and dismembering his neighbor. "The tide has changed," Hirschorn says. "It used to be fashionable to say, 'I support the death penalty.' It used to be unfashionable to say, 'I am against the death penalty.'"

Nationwide, and particularly in Texas, anti-death penalty sentiment has usually been centered on college campuses and within the Catholic Church, Hirschorn says, but is expanding beyond those communities — a trend he sees reflected in his jury questionnaires as well as in nationwide political polls.

The number of people sentenced to death has been falling nationally since a peak of about 300 a year in the 1990s, according to the Death Penalty Information Center, to 115 people in 2007. The reduction comes as more states, such as New York, New Jersey and Illinois have passed death penalty moratoriums; while some, like Maryland, are considering whether to abolish executions altogether.

Texas still accounts for 50% of the executions in the U.S., and with an appeal process of 10 years (the shortest among the states), the numbers are unlikely to decrease significantly. According to Kristin Houle, director of the Texas Coalition to Abolish the Death Penalty, the state averaged nearly one lethal injection per week over a five month period in 2008. There have been 423 executions in Texas since the state reininstituted the death penalty in 1982, and 374 condemned men and women are currently residing on Texas' Death Row. (One resident, Michael Blair, walked off death row this year after being exonerated by DNA testing.)

But now the number of new residents appears to be slowing. "[In 2008] officials' zeal for executions was not matched by public desire for new death sentences, as evidenced by the continued steep decline in the number of new inmates arriving on death row," Houle says. Nowhere was that more apparent than in Houston, a city dubbed the "capital of capital punishment" in a study by the NAACP. After years of being a major contributor to Texas death row numbers, thanks in part to high profile "tough-on-crime" prosecutors, Houston juries sent no new prisoners to death row in 2008. The Harris County prosecutor's office (which was roiled by the departure of its elected District Attorney over a sex-and-e-mail scandal) brought only two capital cases this year. One ended in a tough plea bargain and a 60-year sentence; the other, involving the vicious murder of a police officer, shocked the city's legal community when the defendant was convicted but spared the death penalty and given a life sentence.

The changing attitudes reflect broader changes in the cultural, political and social climate, says Hirschorn. But another factor is a key change in state sentencing laws, which now allow Texas juries to levy a life-without-parole sentence, dubbed LWOP. The LWOP sentencing provision, though vociferously opposed by the Texas prosecution bar, was passed by a conservative legislature and signed by a conservative governor in 2005.

"Cop killers, baby killers are poster children for the death penalty," Hirschorn says, "and without the option of LWOP you could guarantee the death penalty." In the Houston cop killing case, the lawyers for defendant Juan Quintero initially attempted an insanity defense, citing a traumatic brain injury. Though the jurors rejected it and found Quintero guilty, Mark Bennett, a Houston defense lawyer argued on his blog "Defendingpeople.com" that the head injury testimony lingered in the minds of some jurors, who may have regarded it as a mitigating factor in deciding on a life sentence rather than execution.

But along with changes in sentencing guidelines, something else has changed in Texas, death-penalty opponents claim. In the past, both Democrats and Republicans for high office have embraced the death penalty as an issue, but in recent elections, Houle notes, the issue has been rarely raised. Improved access to better quality defense counsel and the realization that capital cases usually cost county government upwards of $2 million each, Houle says, have helped reduce the number of death penalty cases. Recent U.S. Supreme Court decisions striking down the death penalty in certain kinds of cases — the rape of a child — and concerns about the legality of executing mentally retarded or mentally ill individuals have also slowed the number of capital cases being brought. With broader legal options, the most execution-prone state of the union may increasingly be opting for some other punishment than a life for a life."

The story can be found at:

http://www.time.com/time/nation/article/0,8599,1868145,00.html

Harold Levy...hlevy15@gmail.com;

UP-DATE: DOOLEY CASE: APPEAL COURT BLOCKS ATTACK ON OPINIONS RENDERED BY DR. CHARLES SMITH AND OTHER PATHOLOGISTS; REJECTS FRESH EVIDENCE APPLICATION

"A panel of Ontario Appeal Court judges has rejected fresh evidence presented by lawyers representing a Toronto couple convicted of second-degree murder in the death of their seven-year-old son," The CBC reports.

"Randal Dooley died in September 1998 of a brain injury, the culmination of what the judge presiding over his parents' 2002 trial called one of the worst cases of child abuse in Canadian history," the CBC story, published yesterday, continues.

"The boy's father, Tony Dooley and stepmother, Marcia Dooley, were sentenced to life in prison in May 2002. Marcia Dooley's parole eligibility was set at 18 years, while Tony's was set at 13 years.

Lawyers for the couple are now asking the Ontario Court of Appeal to grant the two a new trial, saying fresh evidence casts doubt on the cause of death.

Two experts in the original trial — Dr. Robin Humphreys and the now discredited Dr. Charles Smith — concluded the boy had died after being violently shaken.

Alternate cause of death

On Tuesday, defence lawyer Gerald Chan presented the opinion of another pathologist, Dr. David Ramsay, who said shaking may not have caused the fatal brain injury.

Ramsay also said there is no reliable data on how much force is required to cause that injury, and suggested it could have been caused by a fall from a bunk bed — an explanation given by the Dooleys in 2002 for Randal's death.

However, Justice David Doherty said Tuesday all the experts agree that Randal suffered a fatal brain injury. He said if the injury wasn't caused by shaking, it could have been caused by the blunt force of a hand or fist.

Doherty questioned how the information presented Tuesday was new evidence, since many of the arguments had been made at their trial.

The Appeal Court is scheduled to hear arguments on the appeal through Thursday.

Trial judge criticized

Tony Dooley's lawyer, Clayton Ruby, kicked off the appeal Monday by saying the original trial judge had erred by repeatedly using inflammatory language in his comments to jury members instead of encouraging them to be unemotional.

The presiding judge at the time, Superior Court Justice Eugene Ewaschuk, determined Marcia Dooley inflicted most of the beatings and was the one who murdered Randal.

During sentencing, Ewaschuk called Marcia Dooley "Randal Dooley's cruel and evil stepmother."

Ewaschuk called Tony Dooley a coward, saying the father chose deliberately to do nothing to prevent his son's death.

An autopsy on Randal, who weighed just 40 pounds at the time of his death, discovered 13 broken ribs, a lacerated liver and a tooth in his stomach. A pathologist testified the boy had been stomped on and kicked.

"We provide an appeal because it's good for us to have a justice system we can be proud of. It's not for [Tony Dooley]; it's for us," Ruby said Monday, acknowledging the Dooleys were unlikely to receive public sympathy."

The story can be found at:

http://www.cbc.ca/canada/toronto/story/2009/09/22/randal-dooley-appeal-evidence482.html

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM: WHY THIS CASE SHOULD GIVE PROPONENTS OF CAPITAL PUNISHMENT SERIOUS REASON TO PAUSE.

"WILLINGHAM'S CASE WOULD BE FRIGHTENING ENOUGH IF IT WERE UNIQUE. THE FACT THAT THERE MAY BE SEVERAL INNOCENT PEOPLE WHO HAVE BEEN EXECUTED IS ABHORRENT AND SHOULD GIVE ANY CAPITAL PUNISHMENT PROPONENT SERIOUS PAUSE.

THE EXECUTION OF AN INNOCENT PERSON IS AN IRREVOCABLE EVENT THAT, AS SUPREME COURT JUSTICE HARRY BLACKMUN ONCE WROTE, COMES PERILOUSLY CLOSE TO MURDER. NO SOCIETY SHOULD TOLERATE IT. OF THAT, THERE CAN BE NO DOUBT."

JOHN HOLDRIDGE and CHRISTOPHER HILL: THE HOUSTON CHRONICLE;

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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

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"Cameron Todd Willingham's unthinkable story has shocked the conscience of many Americans," John Holdridge and Christopher Hill's column in the Houston Chronicle begins, under the heading, "Error-prone death penalty system ensnares innocent."

"The state of Texas executed Willingham in 2004 for supposedly murdering his three children by setting their house on fire," the September 18, 2009, column continues.

"His conviction was based in substantial part on testimony by the state's arson experts about the cause of the fire. A recent report by a fire expert hired by Texas condemns the state's arson testimony as bogus and unscientific.

In other words, Willingham almost certainly was innocent — as he desperately maintained until his last dying breath.

The expert's damning report has led to an onslaught of publicity about the case. However, this publicity should not mislead Americans into thinking Willingham has been the only innocent victim of our error-prone system of capital punishment. There have almost certainly been at least nine others, and possibly many more given the flaws in our criminal justice system revealed by the recent explosion in DNA exoneration. These include Carlos DeLuna, Ruben Cantu, Gary Graham, Larry Griffin and, perhaps, Sedley Alley — names no doubt unfamiliar to most Americans.

The state of Texas executed DeLuna in 1989 for stabbing to death a clerk at a convenience store. At his trial, DeLuna's lawyers attempted to show that the murder was committed by a man named Carlos Hernandez. The lead prosecutor called Hernandez a “phantom.” Hernandez was real. A post-execution investigation by the Chicago Tribune showed that Hernandez almost certainly committed the crime, and Hernandez's family acknowledged that he boasted about getting away with the murder.

Cantu was executed by the state of Texas in 1993 for an attempted robbery-murder. His conviction was based on testimony from his co-defendant and a surviving victim of the attempted robbery. After Cantu's execution, both men recanted, and the victim disclosed that he had been coerced by police to identify Cantu. The prosecutor in Cantu's case, Sam Millsap, has since become a vocal campaigner against the death penalty.

In 2000, the state of Texas executed Graham, who changed his name while in prison to Shaka Sankofa. The evidence against him consisted of one eyewitness who, after being subjected to a suggestive photo lineup, said she saw Graham through her car windshield in a dark parking lot from 20 to 40 feet away. Other witnesses stated that Graham was not the murderer because the murderer was much shorter than he was.

Missouri executed Griffin in 1995 for a murder that occurred during a drive-by shooting. Prior to his trial, no one bothered to interview a surviving victim of the shooting who knew Griffin. When contacted after Griffin's execution, this victim stated categorically that Griffin was not involved in the crime. Also after Griffin was put to death, the first police officer on the scene gave a new account that thoroughly undermined the testimony of the one witness who had identified Griffin as the murderer.

Not everyone is convinced that these men were innocent. Some assert that they have not been shown to be innocent beyond a reasonable doubt. That may be true in some of the cases.

However, absent DNA evidence, which exists in only about 10 percent of murder cases, a death-row inmate often has a nearly impossible time proving beyond a reasonable doubt that they did not commit a crime. As the old saying goes, it can sometimes be impossible to prove a negative. That is one reason why our criminal justice system requires prosecutors to prove guilt beyond a reasonable doubt, and does not require criminal defendants to prove their innocence.

DNA evidence did exist in Alley's case but it didn't do him any good. The state of Tennessee executed Alley in 2006 for the rape and murder of a 19-year-old servicewoman. Alley had confessed to the crimes, but a leading expert on false confessions concluded that his confession was probably false. There was a simple way to find out. The Innocence Project, which took on Alley's case, asked the courts to allow it to test the DNA evidence to see whether Alley was innocent. The courts and the state of Tennessee refused. Alley was put to death, despite the serious doubts about his guilt.

Willingham's case would be frightening enough if it were unique. The fact that there may be several innocent people who have been executed is abhorrent and should give any capital punishment proponent serious pause.

The execution of an innocent person is an irrevocable event that, as Supreme Court Justice Harry Blackmun once wrote, comes perilously close to murder. No society should tolerate it. Of that, there can be no doubt.

Holdridge is director of the American Civil Liberties Union Capital Punishment Project; Christopher Hill is state strategies coordinator for the ACLU Capital Punishment Project."The story can be found at:

http://www.chron.com/disp/story.mpl/editorial/outlook/6626188.html

Harold Levy...hlevy15@gmail.com;

UP-DATE: DOG-SCENT "EVIDENCE", MORE ON INNOCENCE PROJECT OF TEXAS REPORT; LINK TO ACTUAL REPORT PROVIDED BY "GRITS FOR BREAKFAST."

"PIKETT ASSERTS OUTLANDISH SUCCESS RATES FOR HIS DOGS, CLAIMING ONE OF THEM HAD ONLY MADE ONE ERROR IN 2,831 LINEUPS. "ACCORDING TO THE RESEARCH DONE BY THE DUTCH POLICE AND OTHER EXPERTS IN THE FIELD, THIS IS ABSURD. EVEN USING RIGOROUS TRAINING METHODS, EXPERTS BELIEVE THAT THE BEST DOGS WORKED IN PERFECTLY CONTROLLED CONDITIONS CAN ONLY BE RIGHT APPROXIMATELY 85% OF THE TIME."

ACCORDING TO THE REPORT, "PIKETT HAS ALSO CLAIMED THAT HIS DOGS CAN IDENTIFY SCENTS MORE THAN A DECADE OLD AND THAT THEY CAN FOLLOW SCENTS LEFT BY CARS - CLAIMS WHICH HAVE BEEN CRITICIZED BY EXPERTS IN THIS FIELD.""

GRITS FOR BREAKFAST;

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Background: This Blog has been delving into the havoc caused by the late John Preston and his magical dog who could purportedly trace scents across water. The focus now turns to Deputy Keith Pikett, another so-called dog-scent "specialist", a canine officer with the Fort Bend County Sheriff's Office, just southwest of Houston. Time Magazine has reported on two apparent miscarriages of Justice involving Pikett; The first case studied involves Calvin Lee Miller, who was charged with robbery and sexual assault after Pikett's bloodhounds alerted police to a scent on sheets that Pikett said matched a scent swipe from Miller's cheek. DNA evidence later cleared Miller, but only after he served 62 days in jail. In a second case, former Victoria County Sheriff's Department Captain Michael Buchanek was named as a "person of interest" in a murder case after Pikett's bloodhounds sped 5.5 miles from a crime scene, tracking a scent to Buchanek's home. Another man later confessed to the murder.

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"Grits for Breakfast," a quirky blog published out of Houston, Texas, which, by its own admission, "looks at the Texas criminal justice system, with a little politics and whatever else suits the author's fancy thrown in."

"All opinions are my own. The facts belong to everybody," says publisher Scott Henson, "a former journalist turned opposition researcher/political consultant, public policy researcher and blogger."

"Welcome to Texas justice," Grits for Breakfast warns the reader. "You might beat the rap, but you won't beat the ride."

A Grits for Breakfast post on September 22, 2009, gives readers the opportunity to download the entire recently released Innocence Project of Texas report into the miscarriages of justice and wrongful murder convictions caused by dog-scent "evidence" - and sheds some light on the report's contents.


"Yesterday the Innocence Project of Texas released its report criticizing "scent lineups" used by Fort Bend County Sheriff's Deputy Keith Pikett, who as regular readers know has seen his dogs' identification of suspects debunked in several recent, high-profile cases, including two capital murders," the post begins, under the heading, "Texas Innocence Project report discredits unscientific dog 'scent lineups".

"See a copy here (pdf) and initial coverage from the Houston Chronicle and the Victoria Advocate," it continues.

"The brief report, written by IPOT legal director Jeff Blackburn, is well worth a full read but I thought I'd point out a few highlights.

One new fact-bite in the report concerns the use of scent lineups in communist Cuba, where "secret police have amassed thousands of bottles of scents taken from anti-Castro slogans painted on walls and other such 'crime scenes' and are using them as 'proof' against dissidents." A footnote pointed out this recent Miami Herald story on the use of scent lineups in Cuba, where we get a glimpse of the totalitarian origins of this bizarre practice:

the use of 'criminal odorology' started in the Soviet Union in the 1960s, was developed by the former East Germany and in 1972 was established around Communist-ruled Europe.

After East Germany collapsed in 1989, West German investigators found a warehouse packed with tens of thousands of sealed jars containing bits of cloth impregnated with the odors of criminals and dissidents -- used to identify or track them.

(See an academic paper in Spanish on the use of scent lineups in Cuba.)

But the meat of the report related to Deputy Keith Pikett, who along with his wife undertook training pet bloodhounds as police dogs in the early '90s "on their own without using any known or established program."

The most extensive scientific testing of "scent lineup" methods has occurred in the Netherlands says IPOT, citing this 2002 New York Times story. They use elaborate methodologies which include controls that Deputy Pikett has not adopted.

When he gets into the courtroom, Pikett has sometimes misrepresented his credentials. In one of his first big cases he "testified that he had a Bachelor of Science in Chemistry degree from Syracuse University and a Master's degree in Chemistry from the University of Houston. This was a lie: Pikett has never received degrees from either institution." In the case where appellate courts formally affirmed his status as an expert witness, he also misrepresented himself as having a masters degree in Chemistry. Defense attorneys in that case did not challenge his testimony.

Pikett asserts outlandish success rates for his dogs, claiming one of them had only made one error in 2,831 lineups. "According to the research done by the Dutch police and other experts in the field, this is absurd. Even using rigorous training methods, experts believe that the best dogs worked in perfectly controlled conditions can only be right approximately 85% of the time."

According to the report, "Pikett has also claimed that his dogs can identify scents more than a decade old and that they can follow scents left by cars - claims which have been criticized by experts in this field."

The report quotes police dog experts from the around the country (including from the National Police Bloodhound Association) and from the UK harshly criticizing Pikett's methods. One called him an "unprofessional charlatan." Another concluded Pikett had "intentionally misspoke concerning the capabilities and expertise of his scent discriminating bloodhounds in given situations."

Finally, the report calls on police agencies and prosecutors to immediately stop using scent lineups by Deputy Pikett, and for the Attorney General to "conduct a full and complete investigation into every case in which scent lineups have been used, and to aid in the release of any person convicted on such testimony."

The recommendation about the AG vetting these old cases is particularly salient. Who knows how many false convictions have been obtained using this type of garbage evidence?"


You can access this article at:

http://gritsforbreakfast.blogspot.com/2009/09/texas-innocence-project-report.html

Harold Levy...hlevy15@gmail.com;

MARCIA AND TONY DOOLEY CASE: SMITH OPINION COMES UNDER ATTACK IN ONTARIO COURT OF APPEAL ALONG WITH OTHER GROUNDS;

"WHAT THE LAWYERS WILL ARGUE, THIS IN THE WAKE OF THE WELL-DOCUMENTED FALL OF DISGRACED PATHOLOGIST DR. CHARLES SMITH (WHO TESTIFIED AT THIS TRIAL AND WHO, WITH ANOTHER EXPERT WHO TESTIFIED, BELIEVED RANDAL HAD DIED OF A RECENT SUBDURAL HEMATOMA, POSSIBLY CAUSED BY SHAKING, OR BLUNT FORCE, OR BOTH) AND THE DISCREDITED "SHAKEN-IMPACT SYNDROME" THEORY, IS THAT THE CUMULATIVE EFFECT UNDERMINES THE CONCLUSION THAT THE PAIR HAD THE REQUISITE INTENT FOR MURDER.

NOTHING, HOWEVER, SIGNIFICANTLY DIMINISHES THE IMPACT OF THE 61 TRIAL WITNESSES AND 92 TRIAL EXHIBITS AND THE HARD TRIAL TRUTH - THAT RANDY WAS THE VICTIM OF A VICIOUS, ESCALATING AND ULTIMATELY FATAL PATTERN OF ABUSE THAT COULD ONLY HAVE BEEN CARRIED OUT BY THOSE WHO HAD A DUTY TO PROTECT HIM."

COLUMNIST CHRISTIE BLATCHFORD: THE GLOBE AND MAIL;

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""The buildings are cheek-by-jowl in downtown Toronto, their entrances maybe a couple of hundred feet apart," Christie Blatchford's column, published earlier today begins, under the heading, "bloodlessness of appeal belies violent death
Lawyers are now arguing that Randy Dooley's stepmother and father were wrongly convicted of murder."

"But it's a million miles from the trenches where Randy Dooley's parents' murder trial was held in the spring of 2002 to the august Ontario Court of Appeal, where lawyers are now arguing that his stepmother and father were wrongly convicted," the column by Blatchford, who covered the Dooley trial, continues.

""The little boy died on the evening of Sept. 24, 1998, his daddy phoning 911 the next morning to report, rather memorably, "For some reason, it seems like my little son has killed himself or something. He's stiff as a board."

Both Marcia Dooley, Randy's stepmother, and his father Anthony (Tony) Dooley were convicted by a jury almost four years later of second-degree murder.

Though on the evidence heard at the three-month trial, she was found to have been the actual murderer, Mr. Dooley a secondary player or party, the jurors' verdict suggested they accepted the prosecutorial theory that the long-standing abuse of Randy was a joint enterprise.

Their differing degrees of criminal responsibility were reflected in the sentences Ontario Superior Court Judge Eugene Ewaschuk gave them - the missus eligible to apply for parole after 18 years in prison, the mister after 13 years.

In the able hands of Judge Ewaschuk, the trial was a vibrant, living thing, as trials ought to be, and the dead boy - seven years old, three-foot-10-inches tall and 42 pounds, Randal was at autopsy found to have at least 13 broken ribs, a developing pneumonia, a torn liver and adrenal gland and four areas of injury to his brain linked to two separate incidents, one old, one recent - had a presence in the courtroom.

Not so at the appeal court, where bloodlessness is the name of the game, but where even so, Clayton Ruby, the appeal lawyer for Mr. Dooley, yesterday brought matters to a new depth of aseptic dryness.

Mr. Ruby made the argument - it is the first one in his 88-page factum - that Judge Ewaschuk prejudiced the Dooley jurors by describing the dead boy numerous times in his final remarks as "poor, pitiful Randal."

Outside the courthouse on a break, Mr. Ruby said the judge had a duty to remind the jurors to be dispassionate and that by repeatedly saying " 'poor, pitiful Randal,' that alliteration, we say, had the effect of inflaming the jury."

In his factum, he went even further. "There are, regretfully, a large number of judicial comments which refer to 'poor, pitiful Randal,' " Mr. Ruby wrote.

"Indeed, a juror might well think that this was Randal Dooley's proper name."

Har-har-har: There's nothing like having a laugh at an old judge (Judge Ewaschuk is now semi-retired) and a dead kid (now in his grave almost 11 years to the day).

Mr. Ruby appears to be throwing everything but the kitchen sink at this one.

In addition to the miscarriage-of-justice-by-alliteration allegation, he raised the spectre of racism, pointing out that "the opportunities for hatred of and disgust at these two black accused persons in the public mind were numerous," as if Randy, the alleged object of so much misplaced sympathy, was not also black; he argued that because Mr. Dooley wasn't present in the apartment for the last assault upon Randal, he shouldn't have been convicted and said, "If I'm right about that, there should be an acquittal," and today, lawyers for both Dooleys will also argue a "fresh evidence" application.

The fresh evidence in my view hardly lives up to its name in this instance.

What the lawyers will argue, this in the wake of the well-documented fall of disgraced pathologist Dr. Charles Smith (who testified at this trial and who, with another expert who testified, believed Randal had died of a recent subdural hematoma, possibly caused by shaking, or blunt force, or both) and the discredited "shaken-impact syndrome" theory, is that the cumulative effect undermines the conclusion that the pair had the requisite intent for murder.

Nothing, however, significantly diminishes the impact of the 61 trial witnesses and 92 trial exhibits and the hard trial truth - that Randy was the victim of a vicious, escalating and ultimately fatal pattern of abuse that could only have been carried out by those who had a duty to protect him.

As even one of the defence lawyers at trial once wearily agreed, "You don't have to be a brain surgeon to look at Randal's body and see obvious signs of abuse." And only two people had ongoing exclusive access to that little boy.

His parents described his last day as utterly normal, even as they also told the police he had vomited four or five times, wet himself, lost control of his bowels and suffered a seizure such that Marcia Dooley stuck him in a bathtub of cold water and even forced ice on a spoon into his mouth.

As Randy's older brother Teego, then 11, testified - he was in the bathroom when Mrs. Dooley did her trick with the spoon, perhaps breaking off the tooth later found in Randy's tummy at autopsy - he took his little brother out of the tub, dressed him in dry jammies, and lay down beside him.

There is nobility in the trial lawyer's job, and perhaps there's nobility in what lawyers do at the Court of Appeal, and I am merely blind to it. But I am blind, and furious that the appellate Crowns acknowledge in their factum that Judge Ewaschuk's "repeated references to 'poor pitiful Randal' were unnecessary," though they defend them as grounded in evidence and accurate. "No one would quarrel with the sentiment expressed by the trial judge," their factum reads. But, they add, "That sentiment, however had no place in his instruction."

But Judge Ewaschuk was there, in court, every day, as were the jurors, as was I. No one will ever convince me that Randy Dooley was not poor or pitiful, or that jurors should not have heard the judge say he was. He was.. Jurors don't want automatons as judges, even if they may get them in their lawyers.

Oh, and by the way - Randy's brother's name is pronounced Teego (Tea-Go), Mr. Ruby. It does not rhyme with Leggo.

The column can be found at:

http://www.theglobeandmail.com/news/national/bloodlessness-of-appeal-belies-violent-death/article1296656/

Harold Levy...hlevy15@gmail.com;

UPDATE; DOG-SCENT "EVIDENCE"; INNOCENCE PROJECT OF TEXAS SEEKS BAN ON SCENT IDENTIFICATION LINEUPS; SAYS JUNK SCIENCE LED TO MURDER CHARGES;

"NOW IS THE TIME FOR THE STATE OF TEXAS ... TO STEP UP AND DO THE RIGHT THING TO PROHIBIT THE USE OF NOT ONLY DOG SCENT LINEUPS BUT TO ENSURE THERE IS A SCIENTIFIC BASIS FOR ANY FORENSIC TECHNIQUE USED IN COURT," SAID JEFF BLACKBURN, CHIEF COUNSEL FOR THE INNOCENCE PROJECT OF TEXAS.

DURING A NEWS CONFERENCE, THE GROUP RELEASED A REPORT CLAIMING THERE HAVE BEEN AT LEAST FOUR CASES IN WHICH FIVE INNOCENT PEOPLE WERE ARRESTED FOLLOWING SCENT ID LINEUPS CONDUCTED BY A FORT BEND SHERIFF'S DEPUTY, KEITH PIKETT, WHO TRAINS DOGS. TWO OF THE INDIVIDUALS WERE JAILED FOR CAPITAL MURDER BEFORE THE CHARGES WERE DROPPED."

INNOCENCE PROJECT OF TEXAS;

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Background: This Blog has been delving into the havoc caused by the late John Preston and his magical dog who could purportedly trace scents across water. The focus now turns to Deputy Keith Pikett, another so-called dog-scent "specialist", a canine officer with the Fort Bend County Sheriff's Office, just southwest of Houston. Time Magazine has reported on two apparent miscarriages of Justice involving Pikett; The first case studied involves Calvin Lee Miller, who was charged with robbery and sexual assault after Pikett's bloodhounds alerted police to a scent on sheets that Pikett said matched a scent swipe from Miller's cheek. DNA evidence later cleared Miller, but only after he served 62 days in jail. In a second case, former Victoria County Sheriff's Department Captain Michael Buchanek was named as a "person of interest" in a murder case after Pikett's bloodhounds sped 5.5 miles from a crime scene, tracking a scent to Buchanek's home. Another man later confessed to the murder.

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"A group that works to free the wrongly convicted on Monday asked Texas prosecutors and the state commission that investigates forensic misconduct allegations to ban the use of scent identification lineups, saying the technique is junk science that has led to several false arrests," reporter Juan A. Lozano's Associated Press story, published Monday, began.

"Now is the time for the state of Texas ... to step up and do the right thing to prohibit the use of not only dog scent lineups but to ensure there is a scientific basis for any forensic technique used in court," said Jeff Blackburn, chief counsel for the Innocence Project of Texas," the story, bearing the heading "Texas group asks DAs to stop using scent IDs," continued.

"During a news conference, the group released a report claiming there have been at least four cases in which five innocent people were arrested following scent ID lineups conducted by a Fort Bend sheriff's deputy, Keith Pikett, who trains dogs. Two of the individuals were jailed for capital murder before the charges were dropped.

In the scent identification lineups in question, dogs trained by Pikett determine if a suspect's smell matches the smell of crime scene evidence.

Proponents of scent lineups argue each person has a unique smell and dogs can differentiate between subtle differences.

Pikett's attorney, Randall Morse, has said his client has done nothing wrong and is considered a well-respected law enforcement official who has consulted for the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives and other agencies.

Pikett is being sued by two people who claim they were wrongly implicated in crimes because of his scent lineups.

"We had five innocent people sent to jail. Everyone should be concerned that innocent people are being locked up," said Stanley Schneider, president of Texas Criminal Defense Lawyers Association.

Curvis Bickham said he was one of the people falsely accused in dog scent lineups done by Pikett.

In late 2007, Bickham and another man were charged with capital murder for a triple homicide in Houston after he was placed at the home where the bodies were found by one of Pikett's dogs. Months later, both men were released and charges against them were dropped.

"There's no way I could have been at this scene. I never stepped a foot on that property. To be charged with this crime is wrong," said a tearful Bickham.

Bickham, 49, said his wrongful arrest resulted in him losing his home and in losing business at his barbecue stand.

Blackburn called on the Texas Forensic Science Commission to conduct a full investigation into the use of scent lineups and asked prosecutors around the state to stop using them in criminal cases.

Chairman Sam Bassett said someone would need to first file a complaint with the commission before it could look at the issue and determine if there was negligence or misconduct in the application of forensic science. The commission was created by the Legislature in 2005.

A spokesperson for the Texas District and County Attorneys Association could not immediately be reached for comment."
The story can be found at:

http://www.sltrib.com/jazz/ci_13388061

Harold Levy...hlevy15@gmail.com;
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CAMERON TODD WILLINGHAM CASE: MORE EDITORIAL COMMENT: THE SAN ANTONIO EXPRESS-NEWS: "A LETHAL FAILURE OF JUSTICE IN TEXAS." THE TRUTH SEEPS IN;

"THE OVERWHELMING EVIDENCE IS THAT INVESTIGATORS, PROSECUTORS, COURT APPOINTED DEFENSE ATTORNEYS, JURY MEMBERS, APPELLATE JUDGES, THE TEXAS BOARD OF PARDONS AND PAROLES AND, FINALLY, GOV. RICK PERRY FAILED AND TEXAS EXECUTED AN INNOCENT MAN."

EDITORIAL: THE SAN ANTONIO EXPRESS-NEWS.

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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

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"The one argument that gives even death penalty proponents pause is the prospect that the state might put an innocent person to death," the San Antonio Express News editorial begins,under the heading,"A lethal failure of justice in Texas."

"Death penalty cases have multiple layers of appeals and reviews that are intended to avoid such an eventuality. Does that process work?," the editorial continues.

"In recent years, the exoneration with DNA evidence of scores of death row inmates nationwide — including many from Texas — has raised serious questions about the way some death penalty defendants are represented and treated in the criminal justice system. Still, while there have been doubts raised about some cases in which executions have taken place, no one has been able to point to a case where an innocent person was clearly put to death.

That may be about to change. Journalist David Grann, writing in the Sept. 7 issue of the New Yorker magazine, makes a compelling argument that when the state of Texas gave Todd Willingham a lethal injection in 2004, it executed an innocent man.

Willingham was sentenced to death for the murder of his three children by arson. A review of the case by experts finds the determination of arson as the cause of the fire that consumed the Willingham home in Corsicana in 1991 was utterly faulty.

In 2005, Texas created a commission to investigate forensic errors in criminal cases. One of the first cases the Texas Forensic Science Commission reviewed was the Willingham case.

As Grann notes, a fire scientist hired by the commission issued a scathing report. He found that “investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of ... fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire.”

In a letter last month to the Corsicana Daily Sun, state District Judge John H. Jackson Sr., who sent Willingham to death row as a prosecutor, responded to the mounting evidence of a wrongful execution. “The trial testimony you reported in 1991,” he wrote, “contains overwhelming evidence of guilt completely independent of the undeniably flawed forensic report.”

In fact, beyond the forensic evidence that Jackson now acknowledges as being flawed, there's not a shred of evidence to support the allegation that Willingham or anyone else started the fire that killed his children. Fire experts believe it was caused by a space heater or faulty electrical wiring. In any case, there was certainly no evidence beyond a reasonable doubt to send Willingham to death row.

The overwhelming evidence is that investigators, prosecutors, court appointed defense attorneys, jury members, appellate judges, the Texas Board of Pardons and Paroles and, finally, Gov. Rick Perry failed and Texas executed an innocent man.

Society should retain the power to apply the ultimate penalty to its most heinous and dangerous criminals. But with that power comes the ultimate responsibility to ensure that the state does not put innocent people to death. The Todd Willingham case suggests that Texas has failed in that responsibility."

The editorial can be found at:

http://www.mysanantonio.com/opinion/59776622.html

Harold Levy...hlevy15@gmail.com;