PENNSYLVANIA DEATH PENALTY; PHILADELPHA INQUIRER; "LIFE IS A BETTER CHOICE"; THE "BIG PROBLEM": DNA ONLY AVAILABLE IN SMALL NUMBER OF CASES;

"Thanks to the increased use of DNA evidence, 265 people have been exonerated since 1989 of crimes they did not commit. Seventeen of the people who were wrongfully convicted spent time on death row.

That includes Nicholas Yarris, who spent 22 years on death row for a murder in Pennsylvania before DNA evidence proved he was not the killer. He was released in 2003.

If the execution process had been streamlined, as Rendell advocates, then Yarris might have been put to death for a crime he did not commit. Others have not been as lucky as Yarris, who "only" spent more than two decades behind bars after his wrongful conviction.

DNA testing also recently proved that Claude Jones did not murder a liquor store owner in 1989. Sadly, the DNA test was not done until after Jones had been executed in 2000.

It is not known how many others may have been wrongly put to death. The big problem is that DNA evidence is only available in a very small number of cases."

EDITORIAL: THE PHILADELPHIA INQUIRER;

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"Ed Rendell was half right when he talked about the problems surrounding the death penalty in his waning days as governor," the Philadelphia Inquirer editorial published on January 24, 2011 under the heading, "Life is the better choice," begins.

"Rendell called on the General Assembly to either streamline the process or do away with capital punishment," the editorial continues.

"Eliminating the death penalty is the part Rendell got right. Rendell's point that the lengthy appeals process effectively renders death row meaningless is understood. He signed 119 death warrants in his eight years as governor, but no one was executed.

Rendell's suggestion of swifter executions, however, is not the answer. In fact, such a move is in direct conflict with the main problem concerning capital punishment: A person can be put to death for a crime he did not commit. Speeding up the process could lead to more wrongful executions.

Thanks to the increased use of DNA evidence, 265 people have been exonerated since 1989 of crimes they did not commit. Seventeen of the people who were wrongfully convicted spent time on death row.

That includes Nicholas Yarris, who spent 22 years on death row for a murder in Pennsylvania before DNA evidence proved he was not the killer. He was released in 2003.

If the execution process had been streamlined, as Rendell advocates, then Yarris might have been put to death for a crime he did not commit. Others have not been as lucky as Yarris, who "only" spent more than two decades behind bars after his wrongful conviction.

DNA testing also recently proved that Claude Jones did not murder a liquor store owner in 1989. Sadly, the DNA test was not done until after Jones had been executed in 2000.

It is not known how many others may have been wrongly put to death. The big problem is that DNA evidence is only available in a very small number of cases.

Other evidence - including eyewitness testimony - has been shown to be unreliable. In fact, misidentification by eyewitnesses was the leading cause of 75 percent of the wrongful convictions later overturned as a result of irrefutable DNA evidence.

Rendell, who supports the death penalty, is right in saying the endless appeals process revictimizes victims' families and too often wastes money.

A 2009 study by the Death Penalty Information Center found states spend hundreds of millions of dollars on capital punishment, but police chiefs say the death penalty does little to reduce violent crime.

In fact, some states saw their murder rates go up after the death penalty was implemented.

New Jersey eliminated the death penalty in 2007. Pennsylvania should do the same. It will save taxpayers' money, and it may save innocent lives."

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The editorial can be found at:

http://www.philly.com/inquirer/opinion/20110124_Inquirer_Editorial__Life_is_the_better_choice.html

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com

DR. CHARLES SMITH: GLOBE AND MAIL STORY ON TUESDAY'S PROFESSIONAL MISCONDUCT HEARING;

"The college, which governs the conduct of doctors in the province, had held off investigating Dr. Smith while a public inquiry, headed by Mr. Justice Stephen Goudge of the Ontario Court of Appeal, conducted a year-and-half-long probe into the pathologist and his superiors in the Office of the Chief Coroner. In a final report released in October, 2008, Judge Goudge concluded that the doctor's findings – most of which were made in connection with the deaths of babies and infants and often resulted in parents losing custody of other children – “defied logic” and were “simply baffling.”

REPORTER GREG MCARTHUR: THE GLOBE AND MAIL;

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Background: The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers.

The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation.

The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges.

William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes.

In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling.

The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, mistating evidence, chronic tardiness, and the catastrophic misinterpretation of findings.

The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."

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"Disgraced pathologist Charles Smith’s professional future will be officially decided next week when he stands before a disciplinary committee of Ontario’s College of Physicians and Surgeons," the Globe and Mail story by reporter Greg McArthur published earlier today begins, under the heading, "College to decide professional fate of disgraced doctor Charles Smith."

"Dr. Smith, whose erroneous expert evidence and testimony contributed to more than a dozen criminal charges, many of which resulted in wrongful convictions, will have to answer on Tuesday to allegations that he is incompetent and acted in a manner that would be regarded as “disgraceful, dishonourable and unprofessional,” the story contnues.

The college, which governs the conduct of doctors in the province, had held off investigating Dr. Smith while a public inquiry, headed by Mr. Justice Stephen Goudge of the Ontario Court of Appeal, conducted a year-and-half-long probe into the pathologist and his superiors in the Office of the Chief Coroner. In a final report released in October, 2008, Judge Goudge concluded that the doctor's findings – most of which were made in connection with the deaths of babies and infants and often resulted in parents losing custody of other children – “defied logic” and were “simply baffling.”

It’s not clear what arguments, if any, Dr. Smith is prepared to offer in his defence. When he testified before the public inquiry, he stated that his mistakes were not intentional. He also made a tearful apology to William Mullins-Johnson, who spent 12 years in jail after being wrongfully convicted of sodomizing and murdering his four-year-old niece. Dr. Smith’s lawyer, Niels Ortved, declined to comment about what the pathologist is expected to say.

There are a range of penalties that Dr. Smith could face from the panel: His certification could be revoked completely, or merely suspended for a specified period of time; he could be required to pay a fine to the provincial government of not more than $35,000. He has been unable to practise medicine for nearly three years. He agreed to stop practising shortly after Judge Goudge’s probe commenced, and then later resigned his licence, said Kathryn Clarke, a spokeswoman for the College of Physicians and Surgeons.

In October, Ontario’s provincial Liberal government announced that Mr. Mullins-Johnson would receive $4.25-million in compensation. Earlier in August, the government pledged a maximum of $250,000 to the victims in the other cases examined by Judge Goudge."

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The story can be found at:

http://www.theglobeandmail.com/news/national/college-to-decide-professional-fate-of-disgraced-doctor-charles-smith/article1883002/

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com

DEATH INVESTIGATION IN AMERICA; FRONTLINE; TUESDAY FEBRUARY 1, 2011; A BLUNT, DISTURBING PERSPECTIVE; LOOKS TO BE OF INTEREST TO OUR READERS;

"Every day, nearly 7,000 people die in America. And when these deaths happen suddenly, or under suspicious circumstances, we assume there will be a thorough investigation, just like we see on CSI. But the reality is very different. In over 1,300 counties across America, elected coroners, many with no medical or scientific background, are in charge of death investigations. Nationwide there is a severe shortage of competent forensic pathologists to do autopsies. The rate of autopsies - the gold standard of death investigation - has plummeted over the decades. As a result, murderers go free and innocent people go to jail. FRONTLINE correspondent Lowell Bergman reports the results of a joint investigation with ProPublica, NPR, and the Investigative Reporting Program at UC Berkeley."

FROM PROMO FOR UPCOMING FRONTLINE, PROPUBLICA AND NPR PRODUCTION;

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"Popular television shows portray death investigators as high-tech sleuths wielding the most sophisticated tools of 21st century science," a press release for the production, set to run at 9.00 PM February 1, 2011 begins.

"An unprecedented collaborative investigation by FRONTLINE, ProPublica and NPR found a very different reality: A dysfunctional system in which there are few standards, little oversight, and the mistakes are literally buried," the release continues.

"In state after state, reporters found autopsies—our final physical exam—conducted by doctors who lacked certification and training. An increasing number of the 2.5 million Americans who die each year go to the grave without being examined at all.

Post Mortem, airing Tuesday, Feb. 1, 2011, at 9 p.m. ET on PBS (check local listings), shows that errors by coroners and forensic pathologists have allowed potentially guilty perpetrators to go free and the innocent to be accused of crimes they did not commit.

The FRONTLINE documentary is the fruit of a collaborative reporting effort that will appear on the Web, on radio and on broadcast television. NPR and ProPublica will simultaneously report on Post Mortem beginning Feb. 1, with a multi-part series on Morning Edition, All Things Considered and NPR.org, and detailed reporting at ProPublica.org.

"There are people out there trying to carry out death investigations and they're trying to do them the best they can, but they don't have the training, they don't have the money, they don't have the infrastructure and they don't have the skill," retired Virginia state Medical Examiner Dr. Marcella Fierro tells FRONTLINE. Fierro, said to be the model for Kay Scarpetta in Patricia Cornwell's bestselling mystery series, adds, "Lots of very bad things happen if death investigation is not carried out competently."

In Northern California, FRONTLINE correspondent Lowell Bergman encounters Dr. Thomas Gill, a forensic pathologist, who has left a trail of scandals in his wake. "He had been arrested and charged with drunk driving on his way to work early in the morning. He was giving crazy answers about how he thought people died," private investigator Chris Reynolds tells Bergman about Dr. Gill's past.

In one murder case, the prosecution was so worried about Gill's testimony that it secretly coached him and videotaped the sessions. When the tapes were exposed, the prosecutor was suspended for practicing law for four years. But because of the lack of oversight for death investigators, Dr. Gill has been able to find a series of posts in the field.

In New Orleans, reporters for FRONTLINE, ProPublica and NPR meet Coroner Frank Minyard, who has been elected to the post 10 times and has the power to classify whether or not a death is a homicide, though he is a gynecologist by training. The investigation finds evidence that Coroner Minyard and his staff mishandled autopsies of people who died in the custody of law enforcement officers. Their conclusions had the effect of clearing officers of wrongdoing, but in case after case, independent forensic pathologists have challenged their findings. Mike Miceli, the father of one alleged victim, tells correspondent Bergman: "They find what the sheriff or the police department want them to find."

In Los Angeles, Post Mortem reveals that it is the vulnerable—the sick, the young, the elderly—who suffer most from our dysfunctional system of death investigation. Chief Death Investigator Craig Harvey tells FRONTLINE that because he doesn't have enough staff to check out all the deaths he would like to, "the possibility that a homicide's going to be missed are pretty great." The reporting reveals how a caregiver at a high-end nursing home beat 80-year-old resident Elmore Kittower, breaking 29 of his ribs and smashing his toes and larynx. But when Kittower died, his death certificate stated that he'd died of "natural causes." Only because of an anonymous tip days after his death was Kittower's body exhumed and the caregiver sentenced to life in prison.

In addition to Lowell Bergman, lead reporters include ProPublica's A.C. Thompson and Mosi Secret; NPR's Sandra Bartlett; Ryan Gabrielson of the Investigative Reporting Program at UC Berkeley; and Arun Rath for FRONTLINE. Further reports will examine other aspects of the role of science in law enforcement.

Post Mortem is a case study for the UC Berkeley Investigative Reporting Program's "Collective Work," an innovative project funded by the John S. and James L. Knight Foundation to help identify best practices for the evolving realm of multiplatform, collaborative investigative reporting. "The nation's best investigative reporting is remaking itself for the digital age," said Eric Newton, Knight Foundation journalism program vice president. "This project demonstrates the importance of collaboration as a new standard. Working together, traditional media, new news organizations and journalism educators are achieving much more than they could working alone."

Post Mortem is a FRONTLINE production with Cam Bay Productions in partnership with ProPublica and NPR. The correspondent is Lowell Bergman. The lead reporters for ProPublica are A.C. Thompson and Mosi Secret. The lead reporter for NPR is Sandra Bartlett. The film is written and produced by Carl Byker and Lowell Bergman. Post Mortem is part of an ongoing look at coroners and medical examiners on multiple platforms with simultaneous reports to appear at ProPublica.org, on air at NPR and online at NPR.org.

FRONTLINE is produced by WGBH Boston and is broadcast nationwide on PBS. Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Major funding for FRONTLINE is provided by The John D. and Catherine T. MacArthur Foundation and by Reva and David Logan. Additional funding is provided by the Park Foundation and by the FRONTLINE Journalism Fund. FRONTLINE is closed-captioned for deaf and hard-of-hearing viewers by the Media Access Group at WGBH. FRONTLINE is a registered trademark of the WGBH Educational Foundation. The series senior producer of FRONTLINE is Raney Aronson-Rath. The executive producer of FRONTLINE is David Fanning.

ProPublica is an independent, non-profit newsroom that produces investigative journalism in the public interest. In 2010, it became the first online news organization to win a Pulitzer Prize. With the largest news staff in American journalism devoted solely to investigative reporting, ProPublica is supported by philanthropy and provides the articles it produces, free of charge, both through its own website and to leading news organizations selected with an eye toward maximizing the impact of each article. For more information, please visit www.ProPublica.org.

NPR is an award-winning, multimedia news organization and an influential force in American life. In collaboration with more than 900 independent public radio stations nationwide, NPR strives to create a more informed public—one challenged and invigorated by a deeper understanding and appreciation of events, ideas and cultures. The NPR News Investigative Unit crosses all news desks and programs to build upon, and strengthen the commitment to, NPR's established investigative work. The team has been reporting extensively on traumatic brain injury and the military; mine safety in America, following the explosion at Upper Big Branch in West Virginia; and how prison economics influenced Arizona's immigration law. NPR reaches a growing audience of more than 27 million listeners weekly; to find local stations and broadcast times for NPR programs, visit www.npr.org;"

The release can be found at:

http://www.pbs.org/wgbh/pages/frontline/post-mortem/?utm_campaign=Feed%3A+pbs%2FKfWO+%28FRONTLINE+-+Reports+|+PBS%29&utm_medium=feed&utm_source=feedburner

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

CAMERON TODD WILLINGHAM; GRITS FOR BREAKFAST TAKE ON FORENSIC SCIENCE COMMISSION CHAIR BRADLEY; DELAY, DELAY, DELAY - AND KILL ALL INVESTIGATIONS;

"Some of Mr. Bradley's stratagems are breathtakingly bold and crass but as far as I can tell they're essentially working, at least if you assume the chairman's goal is to delay the commission's work as long as possible and ultimately, if he can, to kill all its ongoing investigations while diverting resources to innocuous projects. He's alienating his fellow commissioners in the process, no doubt, but there's scarce evidence that the chairman particularly cares about their good opinion, or for that matter yours or mine."

GRITS FOR BREAKFAST; Grits for Breakfast says it looks at the Texas criminal justice system, with a little politics and whatever else suits the author's (Scott Henson) fancy thrown in. All opinions are my own. The facts belong to everybody." Its motto: "Welcome to Texas justice: You might beat the rap, but you won't beat the ride.")

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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 were suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire. Legendary "Innocence" lawyer Barry Scheck asked participants at a conference of the National Association of Criminal Defence Lawyers held in Toronto in August, 2010, how Willingham, who had lost his family to the fire, must have felt to hear the horrific allegations made against him on the basis of the bogus evidence, "and nobody pays any attention to it as he gets executed." "It's the Dreyfus Affair, and you all know what that is," Scheck continued. "It's the Dreyfus AffaIr of the United States. Luke Power's music video "Texas Death Row Blues," can be found at:
http://smithforensic.blogspot.com/2010/09/cameron-todd-willingham-texas-death-row_02.html

For an important critique of the devastating state of arson investigation in America with particular reference to the Willingham and Willis cases, go to:

http://smithforensic.blogspot.com/2011/01/fire-investigation-great-read-veteran.html

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"I attended a meeting Friday of the Texas Forensic Science Commission at which Chairman John Bradley continued his quest to delay the commission's work as long as possible, this time pushing in executive session to request an Attorney General opinion to decide whether they have authority to consider the Todd Willingham case. See MSM coverage," the the Grits for Breakfast post published on Januray 24, 2011 under the heading, ""Delay, delay, it's the word of the day: Bradley proffers excuses to put off investigating forensic errors," begins.

"The commission retired to executive session immediately before the Willingham case was publicly discussed," the post continues.

"When commissioners each silently reentered the room about an hour later, everyone looked tense and grumpy; I'd love to have been a fly on the wall. (OTOH, as fate would have it, I ended up sitting next to Judge Barbara Hervey from the Court of Criminal Appeals, so the delay gave us a welcome chance to chat.)

Clearly jurisdictional issues were the main focus of discussion in executive session. Bradley has repeatedly argued that the commission has no authority to investigate older cases because it can only investigate accredited labs, and accreditation wasn't required until 2005. However, the Attorney General staffer who'd been advising the Commission - before Bradley pushed for creation of a General Counsel position, that is - repeatedly advised the FSC that they could investigate entities that now require accreditation but didn't in the past. Further, notes the Austin Statesman, "several legislators who were instrumental in creating the agency rebutted Bradley's analysis, saying the law was not intended to limit investigations to accredited labs or to post-2005 cases."

Both legislators and the commission's AG adviser have repeatedly said it would be absurd to limit investigations to post 2005 cases because the FSC was created in reaction to Houston crime lab scandals, and it would be nonsensical to claim the commission could not investigate the very case that spawned its creation. (It'd solve quite a few admittedly self-inflicted problems for the commission if the Lege would clarify that language this session: It would solve many more problems if they changed the law to let commissioners name their own chair.)

In any event, Bradley wouldn't let the jurisdictional issues go, so now every active case before the commission - not just Willingham's - will be delayed while the chairman seeks to neuter his own agency's authority. (Of course, by all appearances, that's the main reason he was appointed.) Further, under state law, only the chairman himself - not the entire commission - may draft an opinion request, so look for Bradley to slant the request as much as possible to solicit the outcome he wants.

On Bradley's motion, though quite clearly over his objection, the commission voted to move forward drafting their report on the Willingham case while the AG opinion is pending. This was a clever parliamentary move. It was pretty clear the chairman has isolated himself by pushing delay so hard, and the rest of the commission seemed determined to move forward regardless of his contrary opinion. But through the language in his motion, Bradley was able to exert more control over that process by changing how the final report will be drafted. From Chuck Lindell at the Statesman:

Originally, a four-member subcommittee was to draft a report during a public meeting and then present it to the full committee of seven forensic scientists, a defense lawyer and a prosecutor.

Now, commissioners will submit suggestions to the agency's general counsel, who will compile a draft report. Final language will be hashed out by the full commission in a future open meeting.

Of course, the brand spanking new General Counsel reports to Mr. Bradley, so this new process gives the chairman much more input over drafting than if a committee did it. Indeed, between controlling the content of the AG request and shifting drafting duties on the Willingham report to the General Counsel, the chairman cleverly asserted greater control over the process in a number of important ways on Friday, even though he'd (much) prefer it not go forward at all.

And speaking of the new General Counsel, the proposed House budget cuts the Forensic Science Commission's budget by roughly the amount of her salary. Assuming that reduction stands, the FSC would be faced with a choice of firing their General Counsel or taking money for her salary out of the pot available for investigating forensic flaws. My own view is that was precisely the purpose of Bradley's push to create the General Counsel's position to begin with. But whatever his or anyone else's intentions, that's the tradeoff facing them under the proposed budget. (The budget reduction wasn't mentioned by commissioners at Friday's meeting.)

Another sign of behind-the-scenes tension - and another topic where the commission seemed united against its chairman - regarded whether to accept anonymous complaints, which heretofore had always been allowed. The commission is updating their intake forms, over the chair's objections, specifically to allow for anonymous complaints. Bradley argued against the idea briefly, but it was clear he'd already lost this fight in other forums and he didn't press the subject. Dr. Sarah Kerrigan noted that the federal Forensic Science Reform Act filed by Sen. Patrick Leahy would allow for anonymous complaints.

A final oddity was that the chairman seemed to misrepresent or at least dramatically downplay the opinion of Dr. Niram Peerwani regarding a recommendation to accept a case based on allegations against the crime lab in Austin. Peerwani regrettably was unable to attend because he had to testify in court that day. But at the screening committee meeting in December (which Grits attended), he recommended the FSC close out the case, declaring there was "no basis" for the complaint. It had been thoroughly vetted by three other agencies and both Drs Peerwani and Eisenberg said enough investigation had been done. According to that discussion, much of the complaint deals with personnel and supervisory issues, not science, and no specific defendants' cases were implicated.

In response, Bradley had made a rather legalistic argument that the screening committee should consider only a handful of objective criteria - is it an accredited lab, is the complaint about a forensic science as defined under the law?, etc. - and that Peerwani's arguments for "closure" of the case would be better made before the full commission. The chairman also argued that, since the complaints seemed unfounded and the lab seemed to have responded to them as they should, the case would give the commission a chance to "deliver a positive message" to accredited labs by affirming their work. After Dr. Eisenberg seconded the chair's motion to recommend the case, Peerwani reluctantly went along.

But Peerwani's rather strong objections to spending resources on the Austin case weren't voiced in absentia when it was discussed on Friday. Instead, his Aye vote at the screening committee was portrayed as an endorsement that the FSC investigate, which was the opposite of my impression from my memory and notes. Be that as it may, the case has been delegated to an investigative committee whose first meeting date has not been announced.

Some of Mr. Bradley's stratagems are breathtakingly bold and crass but as far as I can tell they're essentially working, at least if you assume the chairman's goal is to delay the commission's work as long as possible and ultimately, if he can, to kill all its ongoing investigations while diverting resources to innocuous projects. He's alienating his fellow commissioners in the process, no doubt, but there's scarce evidence that the chairman particularly cares about their good opinion, or for that matter yours or mine."

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The post can be found at:

http://gritsforbreakfast.blogspot.com/2011/01/delay-delay-its-word-of-day-bradley.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

BREAKING NEWS; NEXT TUESDAY (FEBRUARY 1, 2011) SET FOR DR. SMITH'S PROFESSIONAL MISCONDUCT HEARING; ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS;

"The College alleges that Smith committed professional misconduct in that he:

* Failed to maintain the standard of practice of the profession;

* Engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional;

* Incompetence;

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO;

DR. SMITH'S IMPECCABLE RECORD AT THE COLLEGE CAN BE SEEN AT:

http://www.cpso.on.ca/docsearch/details.aspx?view=4&id=%2031811

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PUBLISHER'S NOTE:

A date has been set for Dr. Charles Smith's discipline hearing.

The hearing will be held on Tuesday February 1, 2011, at 11.00 AM at the College of Physicians and Surgeons headquarters in downtown Toronto;

The College alleges that Smith committed professional misconduct in that he:

* Failed to maintain the standard of practice of the profession;

* Engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional;

* And that he is incompetent.

A glance at the College Web site tells us that Dr. Smith enters the hearing with a perfectly clear discipline record: No practice restrictions, no special notices, and no past findings. (Although a discipline committee was extremely disturbed by a long list of omissions and deficiencies in three cases (Jenna, Nicholas and Amber) on October 15, 2002, the College merely imposed a "caution" - which was so insignificant in the hierarchy of punishments that it was not required to be recorded in the College Register. (That explains why there are no previous findings); In retrospect, the failure of the College to impose a tougher penalty - after initially resisting jurisdiction over Dr. Smith - allowed Dr. Smith to continue his shoddy, dishonest work as a self-perceived member of the prosecution team unchecked. (It should be noted that the valiant efforts of College investigators to get to the heart of Smith's actions in the three cases were frustrated by the College's leadership of the day and the Ontario Chief Coroner's Office.)

Why now? In a sense, the hearing is moot as Dr. Smith resigned his membership in the College on August 9, 2008. I suspect, however, - and this is just a personal theory - that the College is proceeding with the hearing out of concern that he could choose to re-enroll at some time in the future. Without a registered finding of professional misconduct the College might find itself compelled to grant him admission, there being no previous findings. (I do, however, find it difficult to apprehend why the College thought it was necessary to proceed against Dr. Smith, when it decided not to proceed against former Chief Coroner Dr. James Young, and Former Deputy Chief Coroner, Dr. Jim Cairns, both of whom were under investigation by the College, and have, like Smith, resigned their membership.)

If the discipline panel find that Smith is guilty of professional misconduct it will have a choice between a variety of dispositions ranging from a caution to the ultimate sanction of expulsion from the profession.

We're watching!

HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG;

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BACKGROUND: The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child killers.

The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation.

The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges.

William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes.

In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling.

The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, mistating evidence, chronic tardiness, and the catastrophic misinterpretation of findings.

The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.coM;

CHARLES SMITH: CITED IN CALGARY HERALD EDITORIAL DECRYING COMMENTS BY CANADIAN PROME MINISTER WHICH THREATEN TO REOPEN CANADIAN DEATH PENALTY DEBATE;

"The science of DNA can't solve all crimes, nor does it serve justice if planted to frame an innocent person. Humans make mistakes, including putting much trust in the testimony of so-called experts, who also make mistakes. One need look no further than disgraced Ontario pathologist Dr. Charles Smith, for proof."

EDITORIAL: THE CALGARY HERALD;

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Background: The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers.

The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation.

The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges.

William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes.

In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling.

The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, mistating evidence, chronic tardiness, and the catastrophic misinterpretation of findings.

The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."

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"Prime Minister Stephen Harper did what he said he didn't want to do: reopen a debate about capital punishment," the Calgary Herald editorial published on January 23, 2011 begins, under the heading, "Kill the death penalty debate."

"In an interview with CBC TV anchor Peter Mansbridge, Harper said he personally believes "there are times where capital punishment is appropriate," the story continues.

"Those afraid of a hidden agenda likely didn't hear the rest; Harper won't attempt to reinstate the death penalty if elected to a majority government. Opposition, pollsters, pundits and newspapers columnists, including this editorial board, have been talking about Harper and the death penalty ever since.

But revisiting death row is an absurdity as long as humans are fallible, and build fallible criminal justice systems.

How many examples do Canadians have to see of a government locking up someone the courts convicted, only to have DNA analysis years later prove their innocence?

What is owed to those people who have had their lives ruined, years stolen, their reputation shattered and their belief in justice destroyed?

The U.S. experience of executing the innocent led former Illinois governor George Ryan, once a supporter of the law, to impose a moratorium on executions in 2000, and on Jan. 11, the Illinois senate voted to repeal the law altogether and is expected to be abolished soon.

He became convinced the system was broken after people on death row were proven innocent. In total, 20 death row inmates in Illinois have been exonerated so far.

The science of DNA can't solve all crimes, nor does it serve justice if planted to frame an innocent person. Humans make mistakes, including putting much trust in the testimony of so-called experts, who also make mistakes. One need look no further than disgraced Ontario pathologist Dr. Charles Smith, for proof.

As for the Clifford Olson and Paul Bernardo-types, they are extreme cases and as the saying goes, extreme cases make bad laws.

Next time the topic of the death penalty comes up, we hope Harper simply kills the conversation."

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The editorial can be found at:

https://mail.google.com/mail/?shva=1#inbox/12db811366a7509d

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com

DAVID KOFOED; APPEALING CONVICTION FOR FORENSIC MISCONDUCT; TAKING THE OFFENSIVE IN HIS APPEAL;

"He maintains that the blood evidence was legitimate. His attorney argues in the appeal that the ruling tells investigators they shouldn’t collect evidence in “suspect” circumstances because, years later, they might face criminal charges if the DNA sample they find is not replicated."

REPORTER JOHN FERAK: THE OMAHA WORLD-HERALD;

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BACKGROUND: (David) Kofoed's work came into question after his 2006 investigation into the slaying of a rural Cass County couple, Wayne and Sharmon Stock. Detectives zeroed in on the couple's nephew and his cousin, but found no physical evidence tying the two to the killings. They managed to get a confession from the nephew, but he retracted it the next day. A day later, Kofoed said he found a drop of one of the victims' blood in a car linked to the suspects that had already been combed over by another forensic investigator. The suspects were charged with murder and jailed for several months before being released because prosecutors determined the confession was unreliable and didn't fit the facts of the case. A man and woman from Wisconsin eventually pleaded guilty to murdering the couple and are serving life prison terms. The FBI began investigating Kofoed after the slain couple's nephew filed a lawsuit alleging civil rights violations. The agency's findings led authorities to charge Kofoed with evidence tampering in April. During his trial, Kofoed blamed the speck of blood found in the car on accidental contamination. But Cass County District Judge Randall Rehmeier said he didn't buy it, and that the evidence showed Kofoed intentionally planted the blood in the car...Kofoed has not been charged in any other investigation. He remains free on bond, but is due back in court in May for sentencing. He faces up to five years in prison and a $10,000 fine. Kofoed has not responded to a request for comment made to his attorney, Steve Lefler, who said Kofoed may appeal...Before issuing his verdict, Rehmeier said there were similarities between that investigation and one in which a man, Ivan Henk, was convicted of murdering his young son, whose body was never found. In both cases, there were confessions by the suspects and a lack of physical evidence to corroborate them until Kofoed found a speck of blood that had previously been overlooked, the judge said. (Associated Press);

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"LINCOLN — David Kofoed was shocked last March when District Judge Randall Rehmeier pronounced him guilty," the Omaha World-Herald story by reporter John Ferak published on January 23, 2011 under the heading, "Shocked by verdict, pursuing an appeal," begins.

"“I did not see that coming,” Kofoed said. “He just got it wrong in this case,"" the story continues.

"Kofoed remains intent on overturning his felony conviction. His appeal contends the judge shouldn’t have let the prosecutor present evidence alleging that Kofoed engaged in a pattern of forensic misconduct.

Rehmeier said he found “significant similarities” between Kofoed’s work on the Murdock case and on the 2003 murder case of 4-year-old Brendan Gonzalez of Plattsmouth.

Each time, the judge said, Kofoed found blood evidence under unusual circumstances — after his crime lab had collected the victim’s blood and as investigators were trying to corroborate a confession.

Brendan Gonzalez’s father was charged with first-degree murder after Kofoed reported finding a perfect DNA profile of the child in a Bellevue trash bin. That was five months after the boy disappeared.

“If I planted evidence, does that have any effect on the fact that he (Ivan Henk) confessed at least six different times?” Kofoed said. “We didn’t need any blood in the Dumpster to convict. We had tons and tons of stuff.”

He maintains that the blood evidence was legitimate. His attorney argues in the appeal that the ruling tells investigators they shouldn’t collect evidence in “suspect” circumstances because, years later, they might face criminal charges if the DNA sample they find is not replicated."

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The story can be found at:

http://www.omaha.com/article/20110123/NEWS97/701239869

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;