SECTION ON "ERRONEOUS CONVICTIONS OF THE INNOCENT" FROM PAPER BY STEIKER'S WHICH MOVED AMERICAN LAW INSTITUTE TO DROP SUPPPORT FOR DEATH PENALTY;

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BACKGROUND: The American Law Institute dropped its support of the death penalty in 2009 after its members perused a paper written by Carol Steiker, Harvard Law School, and Jordan Steiker. University of Texas Law School. One of the major reasons the Institute cited for dropping this support was the likelihood, especially given the availability and reliability of DNA testing, that some persons sentenced to death will later, and perhaps too late, be shown to have not committed the crime for which they were sentenced. One of the sections of the influential paper raises the element of erroneous convictions of the innocent in America's criminal justice system, as follows:

"Although there is debate about what constitutes a full “exoneration,” it is beyond question that public confidence in the death penalty has been shaken in recent years by the number of people who have been released from death row with evidence of their innocence.

The Death Penalty Information Center, an anti-death penalty organization, keeps a list of exonerated capital defendants that now totals 129 for the years since 1973.

While it is difficult to extrapolate from the number of known exonerations to the “real” rate of wrongful convictions in capital cases (for the same reason that it is difficult to extrapolate from the number of professional athletes who test positive for steroids to the rate of steroid use among athletes), reasonable estimates range from 2.3% to 5%.

Because exonerations of death-sentenced prisoners are such dramatic events, they have generated extensive study of the causes of wrongful convictions, in capital cases and more generally.

There is widespread consensus about the primary contributors to wrongful convictions: eyewitness misidentification; false confessions; perjured testimony by jailhouse informants; unreliable scientific evidence; suppression of exculpatory evidence; and inadequate lawyering by the defense.

Professor Samuel Gross of Michigan has studied wrongful convictions in both capital and non-capital cases, and he has made a convincing case that erroneous convictions occur
disproportionately in capital cases because of special circumstances that affect the
investigation and prosecution of capital murder.

These circumstances include pressure on the police to clear homicides, the absence of live witnesses in homicide cases, greater incentives for the real killers and others to offer perjured testimony, greater use of coercive or manipulative interrogation techniques, greater publicity and public outrage around capital trials, the “death qualification” of capital juries which makes such juries more likely to convict, greater willingness by defense counsel to compromise the guilt phase to avoid death during the sentencing phase, and the lessening of the perceived burden of proof because of the heinousness of the offense.

In light of the well-known causes of wrongful convictions and the great public concern that exonerations generate, especially in capital cases, one might expect that this would be an area in which remedies should be relatively easy to formulate and achieve
without much resistance in the judicial or legislative arenas.

In fact, remedies have proven remarkably elusive, despite the clarity of the issues and degree of public sympathy.

First, it did not prove easy for those who were eventually exonerated by DNA to get access to DNA evidence or to get relief even after the DNA evidence excluded them as the perpetrators of the crimes for which they were convicted.

A recent study of The first 200 people exonerated by post-conviction DNA testing revealed that approximately half of them were refused access to DNA testing by law enforcement, often necessitating a court order.

After being exonerated by DNA evidence, 41 of the 200 required a pardon, usually because they lacked any judicial forum for relief, and at
least 12 who made it into a judicial forum were denied relief from the courts despite their favorable DNA evidence.

Second, these early difficulties cannot be written off as preliminary kinks that have been worked out of the system.

While the vast majority of states have now passed legislation requiring greaterpreservation of and access to DNA evidence, the ABA Moratorium Implementation Project’s recent assessment of 8 death penalty states included an assessment of how well these states were complying with the ABA’s recommendations regarding preservation of and access to biological evidence, and the provision of written procedures, training and disciplinary procedures for investigative personnel.

As in the context of the provision of defense counsel services, findings of complete non-compliance or only partial compliance with the ABA’s recommendations were commonplace, while full compliance was rare.

Similar resistance can be found to implementing reforms aimed at preventing some of the most common causes of wrongful conviction, such as videotaping police interrogations to prevent false confessions, changing photo identification procedures to avoid misidentification, subjecting jailhouse snitch testimony to greater pretrial scrutiny, and performing external independent audits of crime labs.

Resistance to providing adequate funding for capital defense services has already been documented above, and the failure of defense lawyers to challenge misidentifications, false confessions, and unreliable scientific evidence has been an important element in the generation of wrongful convictions.

This resistance has a variety of causes.

Some law enforcement groups resist changes in investigative procedures with which they have been comfortable, such as interrogations and identification procedures.

Moreover, they may oppose proposals for greater monitoring and disciplining of investigative personnel because they fear that misunderstandings may lead to misuse of such procedures.

Some reforms are expensive, such as investing in the infrastructure for reliable preservation of biological material, while others promise to be too open-ended in the resources that they might require, such as improving defense counsel services.

Once again, as in the provision of adequate defense counsel services, there is not very much question about the general types of improvements that would be helpful in
reducing wrongful convictions; rather, there appears to be an absence of political will to implement them (or to do so in an expeditious fashion).

Moreover, a number of the factors catalogued by Samuel Gross that render capital prosecutions more prone to error are simply inherent in the nature of capital crimes and not obviously subject to amelioration by changing the capital justice process.

These circumstances militate against the undertaking of a reform project by the ALI and support the suggestion that the ALI instead call for the rejection of capital punishment as a penal option."

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The entire paper by Carol Steiker and Jordan Steiker can be found by clicking on Google search - at the following address - and then scrolling to the bottom where it is included as "Annex B."

http://www.google.ca/search?q=%22report+to+the+ALI+concerning+capital+punishment%22+steiker&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

Harold Levy...hlevy15@gmail.com;

SECTION ON "INNOCENCE" FROM PAPER BY CAROL STEIKER AND JORDAN STEIKER WHICH MOVED AMERICAN LAW INSTITUTE TO DROP SUPPPORT FOR DEATH PENALTY;

"THE LARGE NUMBERS OF EXONERATIONS IN CAPITAL CASES MAY BE DUE IN PART TO THE FACT THAT MANY OF THE SYSTEMIC FAILURES THAT LEAD TO WRONGFUL CONVICTIONS ARE LIKELY TO BE MORE COMMON IN CAPITAL THAN OTHER CASES. MOREOVER, COURTS HAVE BEEN RESISTANT BOTH TO PROVIDING CONVICTED DEFENDANTS WITH PLAUSIBLE CLAIMS OF INNOCENCE THE RESOURCES (INCLUDING ACCESS TO DNA EVIDENCE) NECESSARY TO MAKE OUT THEIR INNOCENCE CLAIMS, AND TO GRANTING RELIEF EVEN WHEN STRONG CASES HAVE BEEN MADE."

PAPER FOR AMERICAN LAW INSTITUE: CAROL STEIKER AND JORDAN STEIKER;

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Background: The American Law Institute dropped its support of the death penalty in 2009 after its members perused a paper written by Carol Steiker, Harvard Law School, and Jordan Steiker. University of Texas Law School. One of the major reasons the Institute cited for dropping this support was the likelihood, especially given the availability and reliability of DNA testing, that some persons sentenced to death will later, and perhaps too late, be shown to have not committed the crime for which they were sentenced. One of the sections of the influential paper raises the treatment of "innocence" by America's criminal justice system, as follows:

"Just as McCleskey effectively precludes challenges to racial discrimination in capital sentencing (at least challenges based on patterns of outcomes over time), the Court’s doctrine also makes virtually no place for constitutional consideration of claims of innocence.

In Herrera v. Collins, the Court rejected petitioner’s claim of actual innocence as a cognizable constitutional claim in federal habeas review.

The Court held that while claims of actual innocence may in some circumstances open federal habeas review to other constitutional claims that would otherwise be barred from consideration, the innocence claims themselves are not generally cognizable on habeas.

The Court assumed – without deciding – that a “truly persuasive” showing of innocence would constitute a constitutional claim and warrant habeas relief if no state forum were available to process such a claim.

But, the Court found that Herrera’s claim failed to meet this standard.

More recently, the Court has suggested just how high a threshold its (still hypothetical) requirement of a “truly persuasive” showing of innocence would prove to be.

In House v. Bell, the petitioner sought federal review with substantial new evidence challenging the accuracy of his murder conviction, including DNA evidence conclusively establishing that semen recovered from the victim’s body that had been portrayed at trial as “consistent” with the defendant actually came from the victim’s husband, as well as evidence of a confession to the murder by the husband and evidence of a history of spousal abuse.

The Court held that this strong showing of actual innocence was the rare case sufficient to obtain federal habeas review for petitioner’s other constitutional claims that would otherwise have been barred, because no reasonable juror viewing the record as a whole would lack reasonable doubt.

But even this high showing was inadequate, concluded the Court, to meet the “extraordinarily high” standard of proof hypothetically posited in Herrera.

Unlike innocence, the problem of inadequate counsel has been
squarely held to undermine the constitutional validity of a conviction.

Despite the fact that “effective assistance of counsel” is a recognized constitutional right, the scope of the right and the nature of the remedy have precluded the courts from being able to ensure the adequacy of representation in capital cases.

Perhaps in response to repeated accounts of extraordinarily poor lawyering in capital cases, this daunting standard of proof suggests that even if the Court does eventually hold that some innocence claims may be cognizable on habeas, such review will be extraordinarily rare.

Thus, the problem of dealing with the possibility of wrongfu convictions in the capital context (like the problem of dealing with patterns of racial disparity) has been placed in the legislative rather than the constitutional arena.

The reliance on the political realm to deal with the issue of wrongful convictions is less troubling than such reliance on the issue of racial disparities, because there is far more public outcry about the former rather than the latter issue. But the problem of wrongful convictions in the capital context has proven to be larger and more intractable than might have been predicted.

The large numbers of exonerations in capital cases may be due in part to the fact that many of the systemic failures that lead to wrongful convictions are likely to be more common in capital than other cases. Moreover, courts have been resistant both to providing convicted defendants with plausible claims of innocence the resources (including access to DNA evidence) necessary to make out their innocence claims, and to granting relief even when strong cases have been made. Finally, larger- scale reforms that might eliminate or ameliorate the problem of wrongful convictions are often politically unpopular, expensive, or of uncertain efficacy. (See section on “Erroneous Conviction

The entire paper by Carol Steiker and Jordan Steiker can be found by clicking on Google search - at the following address - and then scrolling to the bottom where it is included as "Annex B."

http://www.google.ca/search?q=%22report+to+the+ALI+concerning+capital+punishment%22+steiker&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

Harold Levy...hlevy15@gmail.com;

ACCESSSIBLE RELIABLE DNA TESTING ONE OF THE FACTORS THAT MOVED AMERICAN LAW INSTITUTE TO DROP SUPPORT OF DEATH PENALTY;

"THE PAPER PREPARED AT THE DIRECTOR’S REQUEST BY CAROL STEIKER AND JORDAN STEIKER SETS FORTH IN DETAIL, WITH SUPPORTING DOCUMENTATION, THE MAJOR REASONS WHY MANY THOUGHTFUL AND KNOWLEDGEABLE INDIVIDUALS DOUBT WHETHER THE CAPITAL-PUNISHMENT REGIMES IN PLACE IN THREE-FOURTHS OF THE STATES, OR IN ANY FORM LIKELY TO BE IMPLEMENTED IN THE NEAR FUTURE, MEET OR ARE LIKELY EVER TO MEET BASIC CONCERNS OF FAIRNESS IN PROCESS AND OUTCOME. THESE INCLUDE: (E) THE LIKELIHOOD, ESPECIALLY GIVEN THE AVAILABILITY AND RELIABILITY OF DNA TESTING, THAT SOME PERSONS SENTENCED TO DEATH WILL LATER, AND PERHAPS TOO LATE, BE SHOWN TO NOT HAVE COMMITTED THE CRIME FOR WHICH THEY WERE SENTENCED;

REPORT OF THE COUNCIL TO THE MEMBERSHIP OF THE AMERICAN LAW INSTITUTE ON THE MATTER OF THE DEATH PENALTY: (APRIL 15, 2009)

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"A STUDY COMMISSIONED BY THE INSTITUTE SAID THAT DECADES OF EXPERIENCE HAD PROVED THAT THE SYSTEM COULD NOT RECONCILE THE TWIN GOALS OF INDIVIDUALIZED DECISIONS ABOUT WHO SHOULD BE EXECUTED AND SYSTEMIC FAIRNESS. IT ADDED THAT CAPITAL PUNISHMENT WAS PLAGUED BY RACIAL DISPARITIES; WAS ENORMOUSLY EXPENSIVE EVEN AS MANY DEFENSE LAWYERS WERE UNDERPAID AND SOME WERE INCOMPETENT; RISKED EXECUTING INNOCENT PEOPLE; AND WAS UNDERMINED BY THE POLITICS THAT COME WITH JUDICIAL ELECTIONS."

ADAM LIPTAK: NEW YORK TIMES;

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PUBLISHER'S NOTE: A section of the report that moved the American Law Institute to drop its support to the death penalty last year reads as follows. (It is followed by Adam Liptak's recent New York Times column which asserts that the Institute's decision was the most important death penalty development last year. Whether one agrees with this or not, there is reason to hope that this a positive sign of the times.

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The section is headed "Reasons for Concern about Whether Death-Penalty Systems in the United States Can Be Made Fair," and reads as follows:

"The paper prepared at the Director’s request by Carol Steiker and Jordan Steiker sets forth in detail, with supporting documentation, the major reasons why many thoughtful and knowledgeable individuals doubt whether the capital-punishment regimes in place in three-fourths of the states, or in any form likely to be implemented in the near future, meet or are likely ever to meet basic concerns of fairness in process and outcome.

These include (a) the tension between clear statutory identification of which murders should command the death penalty and the constitutional requirement of individualized determination;

(b) the difficulty of limiting the list of aggravating factors so that they do not cover (as they do in a number of state statutes now) a large percentage of murderers;

(c) the near impossibility of addressing by legal rule the conscious or unconscious racial bias within the criminal-justice system that has resulted in statistical disparity in death sentences based on the race of the victim;

(d) the enormous economic costs of administering a death-penalty regime, combined with studies showing that the legal representation provided to some criminal defendants is inadequate;

(e) the likelihood, especially given the availability and reliability of DNA testing, that some persons sentenced to death will later, and perhaps too late, be shown to not have committed the crime for which they were sentenced;

and (f) the politicization of judicial elections, where—even though nearly all state judges perform their tasks conscientiously—candidate statements of personal views on the death penalty and incumbent judges’ actions in death-penalty cases become campaign issues."

The document can be found at:

http://www.ali.org/doc/Capital%20Punishment_web.pdf

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"Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it," Adam Liptak's January 4, 2010 New York Times column began, under the heading "Group Gives Up Death Penalty Work."

"There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely," the column continued.

"But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.

“The A.L.I. is important on a lot of topics,” said Franklin E. Zimring, a law professor at the University of California, Berkeley. “They were absolutely singular on this topic” — capital punishment — “because they were the only intellectually respectable support for the death penalty system in the United States.”

The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.

The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed.

Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at the Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said. “What this does is pull the plug on the whole intellectual underpinnings for it.”

The framework the institute developed in 1962 was an effort to make the death penalty less arbitrary. It proposed limiting capital crimes to murder and narrowing the categories of people eligible for the punishment. Most important, it gave juries a framework to decide whom to put to death, asking them to balance aggravating factors against mitigating ones.

The move to combat arbitrariness without giving up sensitivity to individual circumstances is known as “guided discretion,” which sounds good until you notice that it is a phrase at war with itself.

The Supreme Court’s capital justice jurisprudence since 1976 has only complicated things. Justice Harry A. Blackmun conceded in 1987 that “there perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required.”

That was an understatement, Justice Antonin Scalia said in 1990. “To acknowledge that ‘there perhaps is an inherent tension,’ ” he wrote, “is rather like saying that there was perhaps an inherent tension between the Allies and the Axis powers in World War II.”

Justice Scalia solved the problem by vowing never to throw out a death sentence on the ground that the sentencer’s discretion had been unconstitutionally restricted.

In 1994, Justice Blackmun came around to the view that “guided discretion” amounted to “irreconcilable constitutional commands.” But he drew a different conclusion than Justice Scalia had from the same premise, saying that “the death penalty cannot be administered in accord with our Constitution.” He said he would no longer “tinker with the machinery of death.” The institute came to essentially the same conclusion.

Some supporters of the death penalty said they welcomed the institute’s move. Capital sentencing “is so micromanaged by Supreme Court precedents that a model statute really serves very little function,” Kent Scheidegger of the Criminal Justice Legal Foundation wrote in a blog posting. “We are perfectly O.K. with dumping it.”

Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated.

But opponents of the death penalty said the institute’s move represented a turning point.

“It’s very bad news for the continued legitimacy of the death penalty,” Professor Zimring said. “But it’s the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.”

Samuel Gross, a law professor at the University of Michigan, said he recalled reading Model Penal Code as a first-year law student in 1970. “The death penalty was an abstract issue of little interest to me or my fellow students,” Professor Gross said. But he remembered being impressed by the institute’s work, saying, “I thought in passing that smarter people than I had done a sensible job of figuring out this tricky problem.”

Things will look different come September, Professor Gross said.

“Law students who take first-year criminal law from 2010 on,” he said, “will learn that this same group of smart lawyers and judges — the ones whose work they read every day — has said that the death penalty in the United States is a moral and practical failure.”

The column can be found at:

http://www.nytimes.com/2010/01/05/us/05bar.html?ref=us

Harold Levy...hlevy15@gmail.com;

UPDATE; ROBERT LEE STINSON CASE; 23 YEARS IN PRISON AFTER WRONGFUL CONVICTION; MILWAUKEE ASKS JUDGE TO DISMISS LAWSUIT;

"ROBERT LEE STINSON SERVED 23 YEARS IN PRISON AFTER BEING WRONGFULLY CONVICTED IN THE DEATH OF A 63-YEAR-OLD MILWAUKEE WOMAN IN 1985.

THE WISCONSIN INNOCENCE PROJECT HELPED TO RELEASE STINSON LAST YEAR, IN PART BY USING DNA TECHNOLOGY TO DISCREDIT EVIDENCE AGAINST HIM.

STINSON IS SUING THE CITY OF MILWAUKEE, TWO POLICE OFFICERS AND A DENTIST WHO TESTIFIED THAT HIS TEETH MATCHED BITE MARKS ON THE VICTIMS' BODY."

THE ASSOCIATED PRESS;

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BACKGROUND: Robert Lee Stinson was convicted of the 1985 murder of a Milwaukee woman. Stinson's conviction rested almost exclusively on bite-mark identification purporting to match Stinson's teeth to bite patterns found on the victim's body. (Dr. L Thomas Johnson, a Wisconsin bite mark analyst, testified at Stinson’s trial for a 1984 murder that bite marks on the victim’s body matched Stinson’s teeth.) In 2005, the Wisconsin Innocence Project accepted Sinton's case and developed two kinds of new evidence. First, DNA testing revealed male DNA in saliva on the victim's sweater, and this DNA excluded Stinson. Second, working with California forensic science expert Christopoher Plourd, WIP arranged for the bite-marks to be re-examined by a panel of four nationally-recognized experts, Dr. Gregory Golden, Dr. David Senn, Dr. Norman Sperber, and Dr. Denise Murmann. Using modern methods, the panel unanimously concluded that Stinson's teeth could not have inflicted the bites. The Milwaukee County District Attorney's Office did not oppose Stinson's motion to reverse his conviction, and he was freed. Bite-mark identification has been implicated in numerous other wrongful convictions around the country.

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MILWAUKEE, Wis. -- "A lawyer for the city of Milwaukee is asking a judge to throw out a lawsuit from a man wrongfully convicted in the eighties," the Associated Press reported earlier today under the heading "Milwaukee Attorney Wants Wrongful Conviction Lawsuit Thrown Out" and the sub-heading "Milwaukee City Lawyer Asking Judge To Dismiss Lawsuit."

"Robert Lee Stinson served 23 years in prison after being wrongfully convicted in the death of a 63-year-old Milwaukee woman in 1985," the story continues.

"The Wisconsin Innocence Project helped to release Stinson last year, in part by using DNA technology to discredit evidence against him.

Stinson is suing the city of Milwaukee, two police officers and a dentist who testified that his teeth matched bite marks on the victims' body.

In a response filed Thursday, the city attorney's office denied that the officers conspired to frame Stinson and is asking for the lawsuit to be dismissed."

The story can be found at:

http:
//www.channel3000.com/news/22187036/detail.html


Harold Levy...hlevy15@gmail.com

GRAHAM STAFFORD AND SHANE DAVIS CASES; AUSTRALIA; LOOSENING THE SHACKLES. OPINION PIECE. THE COURRIER MAIL;

"The Stafford case suggests the old system of trial and appeal is not always adequate in a world of changing science, public and passionate advocacy and altered states of evidentiary trust. The limitations of our legal system were further demonstrated last month when it was left to the a bunch of law students and lawyers in Griffith University's The Innocence Project to secure the retesting of DNA evidence in the case of Shane Davis, who is serving time for the murder of Michelle Cohn in 1990."

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BACKGROUND: (WIKIPEDIA): Graham Stuart Stafford was a sheet metal worker from Goodna, near Ipswich, Queensland who was convicted in 1992 of the murder of twelve-year-old Leanne Sarah Holland. Leanne Holland, the younger sister of Stafford's former partner, Melissa Holland, was murdered in September 1991. Her viciously mutilated body was found three days after she was reported missing in nearby Redbank Plains. It is possible she was also sexually interfered with and tortured with a cigarette lighter. Stafford appealed to the Queensland Court of Appeal, but this appeal was rejected on 25 August 1992. In 1997, the Queensland Court of Appeal re-examined the case after Stafford lodged an application for pardon with the State Governor on the basis of evidence gathered by private detective, Graeme Crowley. The Court of Appeal dismissed the appeal again by a two-to-one majority on the grounds that there was still enough evidence to convict. Two applications for special leave to the High Court of Australia subsequently failed. Stafford was released in June 2006 after serving over 14 years in prison. Stafford, who was born in England and does not have Australian citizenship despite having migrated to Australia in 1969, faced deportation in November 2006. Some people, including Professor Paul Wilson of Bond University believe that Stafford is a victim of a miscarriage of justice. The Queensland Attorney-General, Kerry Shine, has agreed to closely consider any request on Stafford's behalf concerning a petition to clear him of the murder conviction. In April 2008, the Queensland Attorney-General referred the case to the Court of Appeal for a very rare second appeal for pardon. On December 24, 2009 the Court of Appeal overturned Graham Stafford's conviction and ordered a retrial by a 2-1 majority. The dissenting judge wanted an immediate acquittal.

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BACKGROUND: THE SHANE DAVIS CASE: Shane Davis was convicted by a Supreme Court jury in Brisbane in November 1991 of the murder of South African tourist Michelle Joanne Cohn at a Surfers Paradise apartment block on Boxing Day in 1990. He was sentenced to life in prison, but has always maintained his innocence and has even refused the opportunity of parole several times during the past five years.

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"MORE decades back than I care to confess, a cousin and I were wandering through the mirror maze at Sydney's Royal Easter Show when a bloke appeared through a hidden door, grabbed us by the scruff of the neck and threw us out in an alley," the anonymous Courrier Mail opinion piece, published on January 3, 2010, under the heading "Loosening the shackles of injustice" begins.

"No adult believed us, but we had no idea what we were supposed to have done and the injustice so rankled that the moment of bewilderment lives on in a dusty crevice of my mind," the unsigned opinion piece continues. (Publisher's note: Although unsigned I found it a good read.")

"So, how must Graham Stafford have felt when he was accused of a fiendish murder that the evidence increasingly shows he probably didn't commit?

How must he feel after almost 15 years in prison to know that the likely killer of Leanne Holland is well-known to police and many others involved in the case?

For all his public stoicism and forbearance, he must seethe when he thinks back over the years when he was helpless in the face of injustice.

Stafford isn't out of the woods yet as director of public prosecutions Tony Moynihan reviews the Court of Appeal judgment and decides whether to put him on trial again.

Stranger things have happened but there probably won't be a retrial because a reading of the Court of Appeal judgment suggests it could be throwing good money after bad.

With two judges ruling for a retrial and one for an acquittal, there's not a lot of encouragement for the prosecution.

Bizarrely, the quashing of his conviction and the prospective retrial restores Stafford's presumption of innocence, which must be of faint comfort after all these years.

Yet, some people will still think of him as a killer, a taint he will not entirely eradicate until he is pardoned or found not guilty. He could be denied both.

Those few who still believe he killed his girlfriend's 12-year-old sister will be gnashing their teeth over his freedom.

Others, like me, who believe he deserves the legal benefit of the doubt will have mixed feelings.

Justice has been delivered but it was a damned long time coming. Stafford was found guilty in March 1992 and unsuccessfully appealed in August.

He was denied special leave to appeal to the High Court in March 1993. In 1997, he again lodged an unsuccessful appeal and a year later was again refused leave to appeal to the High Court.

He was released in 2006 and only last week had his conviction quashed.

The Stafford case suggests the old system of trial and appeal is not always adequate in a world of changing science, public and passionate advocacy and altered states of evidentiary trust.

The limitations of our legal system were further demonstrated last month when it was left to the a bunch of law students and lawyers in Griffith University's The Innocence Project to secure the retesting of DNA evidence in the case of Shane Davis, who is serving time for the murder of Michelle Cohn in 1990.

Life dealt Stafford and Davis dud hands but they won a lot of friends – dogged and clever friends – who backed them all the way. Not everyone and not every case can attract that sort of support, which makes it problematical just who can break the shackles of injustice under our legal system.

It is inescapable that we need a criminal review commission that can assess possible miscarriages by reviewing evidence, embracing developments in forensic science and by putting justice ahead of judicial dignity and legal reputation.

If we accept the old saying that justice delayed is justice denied, it is something Stafford will never truly enjoy.

I can't vouch for its absolute accuracy but there is little comfort in the fact that www.justicedenied.org includes more than 84 Australians in a list of 2880 people wrongly convicted around the world.

And a distressing number of them are from Queensland."

The opinion piece can be found at:

http://www.news.com.au/couriermail/story/0,23739,26542411-5012447,00.html

Harold Levy...hlevy15@gmail.com

MELENDEZ-DIAZ; COMMENTARY FROM "A REAL FORENSIC SCIENTIST." LAW MUST PROTECT AGAINST CHARLATANS;

"I ALWAYS LOVE IT WHEN A PROSECUTOR STATES “NO ONE WAS WRONGFULLY CONVICTED”. FIRST OF ALL, MOST PROSECUTORS THINK EVERYONE CHARGED SHOULD BE CONVICTED, REGARDLESS OF HOW THEY GO ABOUT OBTAINING THAT CONVICTION. IT’S ALL VERY MACHIAVELLIAN (THE ENDS JUSTIFY THE MEANS). SECONDLY, HOW DO THE PROSECUTORS KNOW HOW THE JURY WOULD HAVE RULED, HAD THEY NOT HAD THE FALSE TESTIMONY/LAB REPORT TO USE AS PART OF DELIBERATION."

FROM "A REAL FORENSIC SCIENTIST;"

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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"A forensic laboratory analyst dry-labs cases," "a real forensic scientist" begins his post under the heading "Laboratory Analyst Falsifies Lab Report." (I really enjoy his hard-hitting Blog. It's called "Bench Notes: Forensic Science News and CSI Reviews by a Real Forensic Scientist." HL)

"That is, they didn’t actually perform the forensic testing they are supposed to, and instead just simply authors reports that indicate a crime has occurred," the post continues.

"A former chemist with Erie County’s crime laboratory admitted she failed to conduct the proper forensic tests in a local drug case, but authorities say they don’t believe what was described as “sloppy” lab work had influenced the outcome of criminal cases.

Kelly McHugh, 36, of Hamburg, pleaded guilty last week in Buffalo City Court to second-degree attempted tampering with public records, a Class B misdemeanor, which carries a maximum of 90 days in jail, according to the Erie County district attorney’s office.

McHugh was fired from the Erie County forensic laboratory after issues with her work came to a head in February, triggering investigations by lab officials, the district attorney and state inspector general to determine the scope of the problem.

“I wanted to make sure no one was sitting in jail because of a false report she gave,” said Erie County District Attorney Frank A. Sedita III. “That was a top priority for me.”

It’s rather impressive she was fired. Usually it takes an act of congress to get an government employee fired!

Lab officials, meanwhile, examined a sampling of 564 of McHugh’s 1,420 cases from 2007 and 2009.

The lengthy investigation didn’t reveal any major discrepancies that would affect a pending or past criminal charge, Sedita said.

“We looked at all the cases and found no one was wrongfully convicted,” Sedita said.

But the investigation did uncover other incidents of lab misconduct, the state report pointed out.

In the most blatant example, McHugh examined a substance that tested positive for cocaine but failed to report that a retest showed no cocaine. In the end, the test didn’t have an impact on the case, but authorities called her action “inexcusable.”

McHugh wasn’t trying to falsely convict anyone, Sedita said, but she cut corners in her lab work.

I always LOVE it when a prosecutor states “no one was wrongfully convicted”. First of all, most prosecutors think everyone charged should be convicted, regardless of how they go about obtaining that conviction. It’s all very Machiavellian (the ends justify the means). Secondly, how do the prosecutors know how the jury would have ruled, had they not had the false testimony/lab report to use as part of deliberation.
Next time somewhere like Virginia complains about the Melendez-Diaz ruling, requiring the laboratory analyst to testify and be subject to cross-examination, due to the extra “costs”, remind them the defense needs this right, so that charlatans like this can be weeded out early."

http://www.forensicsguy.com/benchnotes/laboratory-analyst-falsifies-lab-report/

http://www.buffalonews.com/home/story/906331.html

Harold Levy...hlevy15@gmail.com;

UP-DATE: CAMERON TODD WILLINGHAM CASE: TEXAS FORENSIC SCIENCE COMMISSION TO MEET JANUARY 29TH. TEXAS MORATORIUM NETWORK REPORTS;

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." Two days before the Forensic Science Commission was to question Beyler in a public forum, the governor replaced its chairman and two other members whose terms were up. That forced the commission to delay the hearing so new members could read up on the case, and no new date has been set. Perry has since replaced a third member of the commission.

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The Texas Moratorium Network reported earlier today that The Texas Forensic Science Commission, whose review of the controversial case of Cameron Todd Willingham was delayed when Perry replaced all of his appointees on the commission, has scheduled a Jan. 29 meeting in Harlingen, South Texas.

The agenda has not been posted.

The Texas Moratorium Network post can be found at:

http://stopexecutions.blogspot.com/2010/01/texas-forensic-science-commission.html

Harold Levy...hlevy15@gmail.com;