The 'un-reliability' revolution: Brandon Garrett and Chris Fabricant explain unreliable forensic expert evidence still abounds - inspite of the U.S. Supreme Court's modern test for admissibility of evidence..."The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing."..."We assembled a collection of 229 state criminal cases that quote and in some minimal fashion discuss the reliability requirement. This archive will hopefully be of use to litigators and evidence scholars. We find, however, that in the unusual cases in which state courts discuss reliability under Rule 702 they invariably admit the evidence, largely by citing to precedent and qualifications of the expert or by acknowledging but not acting upon the reliability concern. In short, the supposed reliability test adopted in Rule 702 is rarely applied to assess reliability."

PASSAGE OF THE DAY: "Surveying hundreds of state court cases, we find that courts have largely neglected the critical language concerning reliability in the Rule. Rule 702 states that an expert may testify if that testimony is “the product of reliable principles and methods,” which are “reliably applied” to the facts of a case. Or as the Advisory Committee puts it simply, judges are charged to “exclude unreliable expert testimony.” Judges have not done so in state or federal courts, and in this study, we detail how that has occurred, focusing on criminal cases.

ABSTRACT: "The Myth of the Reliability Test," by Brandon L. Garrett (University of Virginia - School of Law)  and Chris Fabricant (Innocence Project, Inc.)   published by The Fordham Law Review on 12 March 2018.

GIST: "The U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., and subsequent revisions to Federal Rule of Evidence 702, was supposed to usher a reliability revolution. This modern test for admissibility of expert evidence is sometimes described as a reliability test. Critics, however, have pointed out that judges continue to routinely admit unreliable evidence, particularly in criminal cases, including flawed forensic techniques that have contributed to convictions of innocent people later exonerated by DNA testing. This Article examines whether Rule 702 is in fact functioning as a reliability test, focusing on forensic evidence used in criminal cases and detailing the use of that test in states that have adopted the language of the 2000 revisions to Rule 702. Surveying hundreds of state court cases, we find that courts have largely neglected the critical language concerning reliability in the Rule. Rule 702 states that an expert may testify if that testimony is “the product of reliable principles and methods,” which are “reliably applied” to the facts of a case. Or as the Advisory Committee puts it simply, judges are charged to “exclude unreliable expert testimony.” Judges have not done so in state or federal courts, and in this study, we detail how that has occurred, focusing on criminal cases. We assembled a collection of 229 state criminal cases that quote and in some minimal fashion discuss the reliability requirement. This archive will hopefully be of use to litigators and evidence scholars. We find, however, that in the unusual cases in which state courts discuss reliability under Rule 702 they invariably admit the evidence, largely by citing to precedent and qualifications of the expert or by acknowledging but not acting upon the reliability concern. In short, the supposed reliability test adopted in Rule 702 is rarely applied to assess reliability. We call on judges do far more to ensure reliability of expert evidence and recommend sharper Rule 702 requirements. We emphasize, though, that it is judicial inaction and not the language of Rule 702 that has made the reliability test a myth."

The entire abstract can be found at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3136632

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Scott Austic: Western Australia: White elephant case: A very troubling more than decade-old Australian case: Calls for his release focus on key evidence used to convict him: A blood-stained cigarette packet and a knife identified as the murder weapon: There are elements of a magic show in the prosecution's case: The cigarette packet stained with Ms. Thorne's blood was visible in later crime scene photos - but not in the originals, Hmmmm! ABC News reports that West Australia's Attorney-General has refered the conviction to the Court of Appeal, as per the story below. An extraordinary investigative 3-part video called 'Framed' was televised by "Sunday Night." The series can be accessed at the link below. It' s a 'must see.' We will be following developments closely. Harold Levy. Publisher. The Charles Smith Blog.

In the years since I started publishing this Blog I have become increasingly disturbed by the 'white elephant' in the room: Sheer, unadulterated, willful   misconduct in the criminal justice system - much  of it involving forensic evidence - committed by lab technicians,  pathologists, police officers, prosecutors and others.  Think Annie Dookhan; Think Sonia Farak; Think David Kofoed; Think Charles Smith; Think Ken Anderson; Think Gene Morrison.  I have therefore decided to run this image of a white elephant at the top of every applicable post henceforth, to draw our reader's attention to   what I see as a major problem in all too many criminal justice system's - my own included.  Harold Levy; Publisher: The Charles Smith Blog;

"Reformers have for years recommended that all forensic labs be independent from law enforcement and prosecutorial agencies' and this is a key reform promoted by The Justice Project (2008). But fixing these problems is only half the answer' because half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud' evidence tampering' and/or perjury.
From "The Elephant in the Crime Lab," by co-authored by Sheila Berry and Larry Ytuarte; Forensic Examiner; Spring, 2009; http://www.t-mlaw.com/blog/post/the-elephant-in-the-crime-lab/

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STORY: "Scott Austic's conviction for murder of Stacey Thorne sent for appeal by WA Attorney-General," published by ABC News.

GIST: "WA's Attorney-General has agreed to refer a decade-old conviction over the murder of a pregnant woman to the Court of Appeal, following concerns raised about some of the evidence in the case. Scott Austic's conviction over the 2007 murder of 35-year-old Stacey Thorne in Boddington, south-east of Perth, will be considered by the appeals court following a petition by the jailed man.

Ms Thorne was stabbed 21 times and left to die. She was 22 weeks pregnant at the time of her death, with Austic's trial in 2009 told he was the likely father of the baby and killed Ms Thorne because he did not want her to have his child. Austic was found guilty of murder and jailed for a minimum of 25 years. But issues surrounding that conviction have long been in the public domain, with former Governor Malcolm McCusker having advocated for the case to be reviewed. The Corruption and Crime Commission also reviewed the case, which Attorney-General John Quigley said was part of the reason he had accepted a recommendation that it be re-examined. "The CCC noted, however, that there were potential concerns in relation to aspects of the evidence against Mr Austic, including in relation to a cigarette packet and the knife identified as the murder weapon," Mr Quigley said. "I have accepted the Solicitor General's advice that public confidence in the administration of justice requires that those concerns be fully addressed in an independent, open and transparent way. "I hope that the examination by the court of matters that have been the subject of public comment for some years will finally bring speculation about this case to an end." Among the issues investigated by the CCC were claims a cigarette packet stained with Ms Thorne's blood was visible in later crime scene photos but not the originals. Austic pleaded not guilty to the murder and lost an appeal against his conviction, before unsuccessfully petitioning for a second appeal. Mr Quigley's decision to now exercise his power to refer the matter to the Court of Appeal is a rare move. It is also something his predecessor and now shadow attorney-general Michael Mischin declined to do in the Austic case. The Government is planning to change the law to allow convicted people to launch a second appeal against a conviction straight to the state's highest court, without needing the Attorney-General's approval.

The entire story can be found at:
 http://www.abc.net.au/news/2018-04-21/scott-austic-stacey-thorne-murder-conviction-referred-for-appeal/9683424

See the three part 'Sunday Night' video at the link below:  "To police, the brutal murder of popular teacher’s aide Stacey Thorne was an open and shut case. Very quickly they had her lover, Scott Austic, in their sights. They had the murder weapon, a knife discarded near Stacey’s home. They had Scott’s DNA on a drink can found on the road outside her house and, on his cigarette pack, were traces of Stacey’s blood. Within days, police had Scott in custody. And in no time at all, he was doing hard time – 25 years’ jail for Stacey’s murder.  But Scott’s mother and daughter were convinced he didn’t do it. And now a team of lawyers and forensic experts believe they can prove his innocence.  In this major Sunday Night investigation, guest reporter Michael Usher presents the convincing proof that crucial evidence against Scott was planted. That Scott Austic has languished in jail for 10 years now for a murder he probably didn’t commit. Eminent QC Malcolm McCusker describes Scott’s imprisonment as one of the greatest cases of injustice in Australia. And when you see this investigation, you will understand why. Producers: Michael Muntz, Mark Llewellyn, Duncan McNab, Gareth Harvey and Lisa Ryan."

https://au.news.yahoo.com/sunday-night-framed-39548094.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

World DNA Day: (April 25, 2018): Florenico Dominguez; A modern day clash: Defendant’s fair-trial rights, including the right to confront and challenge evidence used against him pitted against a private company’s business secrets — secrets that were integral to producing key evidence in the case....San Diego Union Tribune: "DA fights judge's order to hand over info on how new DNA test works." (Reporter Greg Moran)..."The program uses a powerful algorithm to interpret complex DNA evidence that contains genetic material from multiple people. The software runs millions of calculations on the statistical likelihood of whether or not a specific individual’s DNA is present in the mixture, and does it quicker and with greater accuracy than humans can. The San Diego police crime lab is one of a growing number of labs in the country using this method, known as “probabilistic genotyping.” The city purchased STRmix from the New Zealand company that developed it in 2015, and so far has spent $189,000 on licensing and training, city records show. The FBI and U.S. Army labs started using STRmix, and last year the crime lab for the city of New York did, too. Other companies have developed similar computer software programs for sale to labs. The tool is especially useful for DNA evidence that has two or more contributors to it — known as mixture samples. Analyzing these samples has been a controversy among scientists for years, leading to concerns that interpretations by scientists can be error-prone or rely too much on subjective determinations."

PASSAGE OF THE DAY: "At a hearing on March 28, San Diego Superior Court Judge Charles G. Rogers ruled that Speredelozzi should get the information he needs from prosecutors, though he delayed enforcing that for a month to allow prosecutors to appeal. The judge said the concerns of Environmental Science and Research or ESR — the makers of STRmix, which is a joint venture between the governments of New Zealand and the State of South Australia — that its proprietary information could be exposed in court, don’t outweigh Dominguez’s rights. “Why should Mr. Speredelozzi’s hands be tied in defense of his client?” Rogers asked. He said terms of the Non-Disclosure Agreement Speredelozzi would have to sign could prohibit him or his expert witnesses from revealing how the program works and their critiques of it in open court at a trial."

STORY: "DA fights judge's order to hand over info on how new DNA test works," by reporter Greg Moran, published by the San Diego Union Tribune.
 

GIST: "Like any defense lawyer, Matthew Speredelozzi wants to know how San Diego prosecutors concluded that his client’s DNA was found on a blood-stained pair of gloves not far from a murder scene. But his efforts to do so have touched off a legal skirmish between the defense lawyer, the San Diego Police crime lab, the District Attorney’s Office and a private company that developed a new DNA analysis technique that is on the forefront of forensic science. At issue is a defendant’s fair-trial rights, including the right to confront and challenge evidence used against him, against a private company’s business secrets — secrets that were integral to producing key evidence in the case. Speredelozzi said he needs to see the computer software source code, the user manual and other materials used in a DNA analysis computer program called STRmix, which was used by the San Diego crime lab to connect his client, Florenico Jose Dominguez, to the 2008 murder of 15-year-old Moises Lopez in San Diego. But prosecutors balked, contending that information is both copyrighted and a business trade secret of the private company that developed the software program. Moreover, the terms of a Non Disclosure Agreement that the city inked with the company when purchasing the software in 2015 prohibit turning over that material. The company is willing to make the code and software available to defense lawyers but only under strict conditions — one of which requires the defense lawyer to sign similar confidentiality and Non Disclosure Agreements. At a hearing on March 28, San Diego Superior Court Judge Charles G. Rogers ruled that Speredelozzi should get the information he needs from prosecutors, though he delayed enforcing that for a month to allow prosecutors to appeal. The judge said the concerns of Environmental Science and Research or ESR — the makers of STRmix, which is a joint venture between the governments of New Zealand and the State of South Australia — that its proprietary information could be exposed in court, don’t outweigh Dominguez’s rights. “Why should Mr. Speredelozzi’s hands be tied in defense of his client?” Rogers asked. He said terms of the Non-Disclosure Agreement Speredelozzi would have to sign could prohibit him or his expert witnesses from revealing how the program works and their critiques of it in open court at a trial. Speredelozzi says he has to have his experts examine the software and determine not only if it is accurate, but also how it works. The program uses a powerful algorithm to interpret complex DNA evidence that contains genetic material from multiple people. The software runs millions of calculations on the statistical likelihood of whether or not a specific individual’s DNA is present in the mixture, and does it quicker and with greater accuracy than humans can. The San Diego police crime lab is one of a growing number of labs in the country using this method, known as “probabilistic genotyping.” The city purchased STRmix from the New Zealand company that developed it in 2015, and so far has spent $189,000 on licensing and training, city records show. The FBI and U.S. Army labs started using STRmix, and last year the crime lab for the city of New York did, too. Other companies have developed similar computer software programs for sale to labs.
The tool is especially useful for DNA evidence that has two or more contributors to it — known as mixture samples. Analyzing these samples has been a controversy among scientists for years, leading to concerns that interpretations by scientists can be error-prone or rely too much on subjective determinations. In 2010, a leading forensic science group recommended changes to interpretation guidelines that made DNA analysis that previously would have included a defendant to now be deemed inconclusive. The probabilistic genotyping software is heralded as a solution, sorting out the different DNA contributors in a sample with greater precision. Dominguez’s case history reflects how using DNA-mixture evidence has changed. At his 2010 trial he was included as a contributor to a blood mixture found on the gloves, though at low levels and under guidelines that were soon changed. Under the revised guidelines, that same evidence was deemed inconclusive. That change was a key factor in Speredelozzi getting Dominguez’s conviction thrown out last year and earning him a new trial. In preparation for that trial, the San Diego crime lab again tested the evidence, this time using the STRmix tool. Court papers said those tests showed the likelihood that Dominguez’s DNA is in the blood on the gloves is 318 billion times more likely than not in one sample, and 4.16 billion times more likely than not in a second. Speredelozzi wants his experts to see how that conclusion was reached by examining the software. At the hearing he likened the process to a “black box,” where evidence goes in, a conclusion comes out — but what happens in between can’t be known. “The prosecution is saying, sorry, it’s a secret — we can’t tell you,” he told Rogers. In an email response to questions, Bjorn Sutherland of ESR said the company makes the software and code available to defense lawyers on a time-limited basis. (Speredelozzi argued that the time limit is inadequate for analysis.) Sutherland also said that income from the sale of the program “is applied to activities that underpin the criminal justice system” and publicly disclosing how the program works would injure the company and imperil those revenues. “Public disclosure of STRmix source code or other proprietary information has the potential to cause irreparable damage to these efforts,” he said. “Doing so could destroy our ability to undertake development, training, implementation and validation support, defense training, and court appearances.” District Attorney spokesman Steve Walker said the office plans to appeal Rogers’ ruling. He said the materials the defense wants are the property of a private company that the DA’s office has no control over, and noted that ESR is willing to provide the information to Speredelozzi. He said the appeal will be “challenging (Judge Rogers’) ruling that we possess and can distribute the company’s intellectual property without limitation.” In his ruling, however, Rogers determined that ESR was part of the “prosecution team,” a designation that if it stands would mean the computer program is information the prosecutors have control of and would have to turn over. Defense lawyers’ access to the genotyping programs has been an issue in cases around the country. In a 2012 murder case, a Los Angeles judge ruled another maker, TrueAllele, had to produce its code for defense examination, though under a court protective order limiting who could see it. That ruling was overturned on appeal, when the appeals court concluded the reasons for accessing the code did not outweigh the trade secret protections, and the code was not needed to understand how reliable the program is. Suzanna Ryan, a Carlsbad-based forensic consultant who has worked on the Dominguez case, said defendants need to know if the program works as boosters say it does. She said the genotyping tool was an issue in a New York state case, where a DNA sample was interpreted using STRmix and included the defendant. But another test done with TrueAllele said the results were inconclusive. “You need to know how the program is working,” she said,” and in order to do that you need an expert to look at it who can say whether or not what it is supposed to be doing, it is doing.”"

The entire story can be found at:

http://www.sandiegouniontribune.com/news/public-safety/sd-me-dna-code-20180416-story.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

World DNA Day: (April 25, 2018); Major Development: Innocence Project launches a special feature exploring the history of DNA and its unique role in proving innocence..."Through an interactive timeline and riveting stories of some of the first beneficiaries of DNA testing including, Gary Dotson, Kirk Bloodsworth and Paula Gray, you'll see how DNA technology has evolved in the last few decades to help restore the freedom of 356 people in the United States."

POST: "The history of DNA and its unique role in proving innocence," published by The Innocence Project on April 22, 2018.

GIST: "To commemorate World DNA Day on April 25, we've launched a special feature exploring the history of DNA and its unique role in proving innocence. In the cases of our clients Kennedy Brewer and recently deceased Levon Brooks (pictured above), who were wrongly convicted largely based on discredited bitemark testimony, DNA helped set them free and spurred an investigation into the widespread misconduct of two experts involved. The feature also introduces the way DNA exclusion is just the first step on the path toward justice through the story of our client Philip Barnett, and his brother Nathan, who were convicted of rape and murder. Although DNA excluded the brothers and matched a convicted pedophile, they are not yet exonerated of the crime."
You can explore the page here.

The entire post can be found at:
https://mail.google.com/mail/u/0/?tab=wm#search/%22innocence+project%22/162edb8b878721fa

Plea from Innocence Project: "Help Free the Innocent: Support DNA Testing: Using DNA testing to prove innocence is at the core of the Innocence Project’s work. Empowered with the unequivocal proof of innocence provided by DNA technology, we have litigated hundreds of cases, leading to the exoneration and freedom of more than 180 people through DNA testing. Donate today — Your gift will be matched dollar for dollar and 100% will pay for DNA tests for our clients seeking to prove their innocence. Thank you for your commitment to justice. (Make donation from the following link);

 https://support.innocenceproject.org/give/179430/#!/donation/checkout"

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Bill Cosby: Norristown, Pensylvania. On-going retrial. Cosby trial jurors prepped about "rape myths" by forensic psychiatrist who led off the prosecution's case, The Washington Post. Will Barbara Ziv's prove to be one of the most important witnesses if prosecutors prevail in the sprawling case?..."Ziv testified about “rape myths” — widely believed misconceptions about the behavior of victims of rape and sexual assault, such as expecting women to immediately file police reports and to cut off contact with the men who attack them. “Most common knowledge about sexual assault is wrong,” Ziv said. In a sense, the Cosby retrial, now nearing the two-week mark, is shaping up as a referendum on rape myths, a test both of its grip on the mind-set of the public and of the notion there may be exceptions to its tenets. Prosecutors, who rested their case Thursday, are betting on jurors absorbing the concept and applying it to Constand’s testimony, particularly her behavior after she says Cosby assaulted her in 2004. The core of the defence case is a portrayal of Constand as a liar and extortionist. But Cosby’s attorneys are also angling to raise doubts that she is a true victim by pounding her with arched-eyebrow questions about the same sorts of behaviors that Ziv described as utterly commonplace for women who have been sexually assaulted. While being cross-examined, Ziv testified that no more than 7 per cent of sexual assault allegations are false, and she thinks the number could actually be as low as 2 per cent."

PASSAGE OF THE DAY: "Of all the lines of attack on Constand’s credibility, one of the most persistent has been the defence suggestion that she is lying because she maintained contact with Cosby after the alleged assault. In one of Constand’s police interviews, she said their contact was “rare and brief.” But, on the witness stand, she said that they spoke dozens of times on the phone, though she asserted that the calls — including two she placed on Valentine’s Day — were related to the Temple women’s basketball team. Constand also was forced to acknowledge that she’d gone to Cosby’s home after the dinner at the Chinese restaurant to confront him. In a mocking tone, Mesereau asked: “After the Chinese dinner you drove to his house with the man who had assaulted you?” Constand said she had. “I wanted to know what pills he gave me,” she said. But he wouldn’t answer her questions, she said. So she left, she said, still wondering what exactly had happened — and why."

---------------------------------------------------------------

STORY: "Cosby trial jurors prepped about rape myths," by Manuel Roig-Franzia, published by The Washington Post on April 22, 2018. (Carried by The Toronto Star):

SUB-HEADING: "As defence raises doubts about Cosby accuser Andrea Constand, psychiatrist testifies victims often fuzzy about details."

GIST: "On the opening day of the prosecution case against Bill Cosby, a shoulder-to-shoulder courtroom audience waited, many scooting forward in their seats, for an assistant district attorney to call the first witness. Would it be Andrea Constand, the lanky former pro basketball player and main witness against Cosby, who alleges that he drugged and sexually assaulted her? Would it be one of five other women — known as “prior bad act witnesses” — cleared to testify against the legendary entertainer? The reaction, then, when prosecutor Kristen Feden called out the name of an expert witness to lead off Cosby’s retrial on sex assault charges might best be summed up as “meh.” Shoulders slumped. There were audible groans. But this particular expert, a flinty-voiced and abundantly self-assured forensic psychiatrist named Barbara Ziv, may prove to be one of the most important witnesses if prosecutors prevail in the sprawling case. Ziv testified about “rape myths” — widely believed misconceptions about the behavior of victims of rape and sexual assault, such as expecting women to immediately file police reports and to cut off contact with the men who attack them. “Most common knowledge about sexual assault is wrong,” Ziv said. In a sense, the Cosby retrial, now nearing the two-week mark, is shaping up as a referendum on rape myths, a test both of its grip on the mind-set of the public and of the notion there may be exceptions to its tenets. Prosecutors, who rested their case Thursday, are betting on jurors absorbing the concept and applying it to Constand’s testimony, particularly her behavior after she says Cosby assaulted her in 2004. The core of the defence case is a portrayal of Constand as a liar and extortionist. But Cosby’s attorneys are also angling to raise doubts that she is a true victim by pounding her with arched-eyebrow questions about the same sorts of behaviors that Ziv described as utterly commonplace for women who have been sexually assaulted. While being cross-examined, Ziv testified that no more than 7 per cent of sexual assault allegations are false, and she thinks the number could actually be as low as 2 per cent. Rape myths have been studied for decades. But, according to Ziv, they persist despite the voluminous academic research that undercuts them. She explained that people generally believe sexual assault is committed by strangers when, in fact, 85 percent of victims know their attackers. Citing U.S. government statistics, she said fewer than 30 per cent of sexual crimes are reported to police. And, crucially for the Cosby case, she testified that victims are often fuzzy about details, frequently wait for long periods to report their crimes and typically maintain contact with their attackers to try to “make sense” of what happened to them. The decision to call Ziv as the first witness represented a major tactical shift by prosecutors. In Cosby’s first trial, which ended with a hung jury last June, they opted for a more dramatic kickoff, calling a “prior bad acts” witness who sobbed on the witness stand about Cosby allegedly drugging and sexually assaulting her at the swanky Bel-Air Hotel in Los Angeles in 1996. This time, they opted to first educate the seven-man, five-woman jury about rape myths. Once on the stand, Constand — a former Temple University women’s basketball official, who is more than 30 years younger than the comedian — gave chilling testimony about a night in January 2004 when she says Cosby gave her pills that he claimed were herbal medication. She says they blurred her vision and left her legs feeling rubbery, and that the entertainer groped her breasts and roughly penetrated her vagina with his fingers. Constand has said she regarded Cosby, then a Temple trustee, as a mentor. She testified that she didn’t contact police until a year later when she’d moved back to Canada and began screaming at night from persistent nightmares. That is perfectly normal behavior, according to researchers such as Ziv. But Cosby’s defence team framed it differently, hoping to persuade jurors that Constand delayed because she wasn’t actually assaulted and suggesting her nightmares and depression were caused by the breakup of a friendship and financial problems. Once Constand went to police, her statements were fraught with inconsistencies large and small — a not uncommon occurrence with sexual assault victims still sorting through their trauma. James Reape, a Montgomery County, Pennsylvania, detective, testified that those inconsistencies “fell by the wayside” when he read deposition testimony in which Cosby admitted to giving Benadryl, which the comedian uses as a sleep aid, to Constand and to having sexual contact with the former Temple University women’s basketball official. A key potential problem with Constand’s accounts is that she told a police investigator that she was assaulted after eating dinner with Cosby and a group of Philadelphia educators at a Chinese restaurant in March 2004. She later changed her account, saying the assault happened two months earlier on an evening when she arrived at Cosby’s house with an empty stomach and he insisted she drink an old-vintage wine. Over and over, Constand was forced to admit under a barrage of questions from Cosby’s attorney, Tom Mesereau, that she’d gotten key details wrong. “I was mistaken about the night of the Chinese food,” Constand said. “It was just my mistake.” Another time, she attributed a detail she changed to the fact that she “was nervous” when interviewed by police. Before Constand took the stand, Ziv — who spoke in general terms and said she had not reviewed the Cosby case — advised jurors that the public often wrongly thinks that sex-assault victims do things to make themselves vulnerable to attack. She was referring to the clothes women wear or the way they behave before they’re assaulted. On the witness stand, Constand — who testified three days after Ziv — found herself answering questions along those same lines. Constand testified the comedian gave her gifts, including three cashmere sweaters.  “Did you make a point to wear the cashmere sweaters that Mr. Cosby gave you when you saw him?” Mesereau asked. Constand, who often appeared confused on the witness stand, stammered that she hadn’t. But the implication was clear: Constand wearing the sweaters might be interpreted by Cosby as a sign that the much younger woman was receptive to his sexual advances. Of all the lines of attack on Constand’s credibility, one of the most persistent has been the defence suggestion that she is lying because she maintained contact with Cosby after the alleged assault. In one of Constand’s police interviews, she said their contact was “rare and brief.” But, on the witness stand, she said that they spoke dozens of times on the phone, though she asserted that the calls — including two she placed on Valentine’s Day — were related to the Temple women’s basketball team. Constand also was forced to acknowledge that she’d gone to Cosby’s home after the dinner at the Chinese restaurant to confront him. In a mocking tone, Mesereau asked: “After the Chinese dinner you drove to his house with the man who had assaulted you?” Constand said she had. “I wanted to know what pills he gave me,” she said. But he wouldn’t answer her questions, she said. So she left, she said, still wondering what exactly had happened — and why."

The entire story can be found at:

 https://www.thestar.com/news/world/2018/04/20/cosby-trial-jurors-prepped-about-rape-myths.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

The late Dr. John Plunkett: Minnesota; Sue Luttner's tribute to 'a champion of justice' on her outstanding Blog 'On SBS'.

PUBLISHER'S NOTE: In her current post, Sue Luttner  includes several illuminating appreciations - all of which are worth reading. One that stands out to me relates to Dr. Jan Leetsma: "Dr. Jan Leestma, author of the classic text Forensic Neuropathology, recalled that meeting John Plunkett in the 1980s—from opposite sides of the courtroom—helped convince him to look more closely at shaking theory. Leestma reviewed “virtually all the literature at the time,” he said, and changed his position. He then became an early and influential voice calling for more scientific rigor in both the research and the testimony regarding shaken baby syndrome. Dr. Leestma’s testimony on behalf of British au pair Louise Woodward in 1997 helped expose the nation to the emerging debate." Also standing out to me is Ms. Luttner's 'personal note' on this champion of justice," under 'Gist' below;

Harold Levy: Publisher; The Charles Smith Blog;

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POST: "Dr. John Plunkett, Champion of Justice," by Sue Luttner, published on her Blog ON SBS.

GIST: "A Personal Note: I had my first phone call with Dr. Plunkett in 2000, when he was about to publish his short fall paper. I had been researching shaken baby for two years at that point, after the niece of a friend was convicted of shaking a baby in her care. I’d been comparing the medical testimony in the trial transcripts with the scientific facts available in the medical journals, and puzzling over the gap. Could I, not a medical professional, but a technical writer and careful reader, possibly have identified fundamental problems with the evidence base for a well-accepted but unproven theory that was almost unbeatable in court? Dr. Plunkett assured me that I had done just that. “You start to look at this with even the rudimentary elements of scientific thinking,” he confirmed, “And you say, ‘What is going on here?'” He then gave me my first lesson in the physics of short falls, and I was hooked. He became the medical advisor to my book, and for 15 years, my book proposal has promised he would write the introduction, an introduction neither one of us ever crafted. I guess I will be dedicating the book to him instead.""

The entire post can be found at:
https://onsbs.com/2018/04/15/dr-john-plunkett-champion-of-justice-1947-2018/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

John Plunkett: Minnesota: Star Tribune obituary: An appreciation of the great forensic pathologist who battled shaken baby syndrome and helped reverse convictions based on the flawed doctrine..."Plunkett, a forensic pathologist, spent nearly 20 years challenging shaken baby syndrome diagnoses. He was a leading critic of the theory he once accepted, and his work helped reverse hundreds of convictions based on bad forensics. Plunkett died from cancer April 4, surrounded by his family at his farm in Welch, Minn. He was 70. Plunkett provided expert testimony in 50 convictions that were overturned and personally consulted in hundreds of other cases in his "voracious quest for truth," (Meryl) Goldsmith said. He won a lifetime achievement award from the Wisconsin Innocence Project in 2016 and was the central character in Goldsmith's "The Syndrome," an award-winning 2014 documentary. "He was radiating with warmth and friendliness. You could sense his knowledge and brilliance was extraordinary," Goldsmith said. "Combined with his deep empathy and need to help people who were suffering, he emerged from that as a leader of this movement of forensic integrity."

STORY: "John Plunkett, pathologist who battled shaken baby syndrome, dies at 70," by reporter Trevor Squire, published by The Star Tribune on April 20, 2018. (Trevor Squire is a University of Minnesota student on assignment for the Star Tribune.)

GIST: "While touring the country for a documentary featuring Dr. John Plunkett, filmmaker Meryl Goldsmith remembers strangers in every city greeting Plunkett as a hero. "They would say, 'You're our hero. You're our savior. You're a godsend — an angel,' " Goldsmith said. "He would deflect because he was too humble to take the credit, and we all know he deserves the credit. All these families viewed him as the hero of their lives." Plunkett, a forensic pathologist, spent nearly 20 years challenging shaken baby syndrome diagnoses. He was a leading critic of the theory he once accepted, and his work helped reverse hundreds of convictions based on bad forensics. Plunkett died from cancer April 4, surrounded by his family at his farm in Welch, Minn. He was 70. Plunkett provided expert testimony in 50 convictions that were overturned and personally consulted in hundreds of other cases in his "voracious quest for truth," Goldsmith said. He won a lifetime achievement award from the Wisconsin Innocence Project in 2016 and was the central character in Goldsmith's "The Syndrome," an award-winning 2014 documentary. "He was radiating with warmth and friendliness. You could sense his knowledge and brilliance was extraordinary," Goldsmith said. "Combined with his deep empathy and need to help people who were suffering, he emerged from that as a leader of this movement of forensic integrity." Plunkett was born in St. Paul and earned his medical degree from the University of Minnesota in 1972. He was a pathologist for 26 years at Regina Hospital in Hastings and headed a coroner's office for seven counties. Plunkett saw what victims of abuse looked like and noticed that many shaken baby syndrome (SBS) cases lacked external injuries. He consulted physicists and neurologists and assembled his own team of medical professionals to test the theory. He published his findings in 2001, detailing similar symptoms of brain bleeds in children who had fallen short distances and those diagnosed with SBS. His wife, Donna McFarren Plunkett, called her late husband an optimist, and when the article was met with skepticism and personal attacks, he sought to restore those wrongfully convicted to their families. Plunkett, the oldest of eight children, had a warm persona that connected colleagues, family and friends. His son Ben Plunkett said more than 100 people came to his birthday celebration last year. Goldsmith's cousin, Susan Goldsmith, is an investigative journalist who did research for the film and flew from Oregon to attend Plunkett's funeral service last weekend. She said Audrey Edmunds, a caretaker convicted of murder in a shaken baby case who served 11 years in prison before she was exonerated, drove from northern Wisconsin through a blizzard to attend Plunkett's funeral. Plunkett spent his final years on his farm, where he cared for horses and shared his home with guests. Family and friends stayed at the farm and a neighbor's home to wait out the storm after his funeral, which many called a celebration. "There won't ever be another John Plunkett," Susan Goldsmith said. "He was someone willing to risk everything to help others. He wouldn't rest — reconnecting children who were sent to foster homes and parents sent to prison wrongfully." Plunkett is survived by his wife; sons Ben and Matt; two grandchildren, and seven siblings. Memorials can be made to the Albert Sullivan Endowed Scholarship II Fund for the University of Minnesota Medical School or to the Wisconsin Innocence Project SBS Fund. Services have been held."

The entire story can be found at:

http://www.startribune.com/john-plunkett-pathologist-who-battled-shaken-baby-syndrome-dies-at-70/480301593/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.