Author Archives: Phil Locke

Fire Science and SBS? Yes – The Child Abuse Experts Can Learn From This

Sue Luttner, editor of the blog OnSBS, has posted an article that points out the parallels between “old” and discredited arson science and the situation with child abuse experts who are stuck in a paradigm paralysis regarding shaken baby syndrome (SBS).

‘Hats off’ to Sue, because the parallels had never struck me before, but they are incredibly close.

Please see Sue’s article here.

Botched Execution in Arizona

Joseph Wood was put to death by the state of Arizona yesterday.

“It took one hour and 57 minutes for the execution to be completed, and Wood was gasping for more than an hour and a half of that time.”

See the AOL story here.

17, on Death Row …. and Innocent

Shareef Cousin was once the youngest person in the US on death row.

His case is yet another example of how mistaken (or false) eyewitness testimony can override an airtight alibi.  And this one was also compounded by a Brady violation regarding the eyesight of the witness, a lying detective, and coerced snitch testimony.

Cousin has recently authored a CNN article decrying the death penalty.

This quote from the article:  “It is hard to argue that the death penalty is applied fairly. Take it from me, someone who lived alongside guys on death row: The system does not identify and sentence “the worst of the worst” to death — just the most powerless.”

You can read the CNN article here.

Justice System Reform – Why We Can’t Get it Right. It’s All About Root Cause.

“Chicago police call for tougher penalties for firearm offenses after dozens of people were shot over holiday.”

You may have heard that dozens of people were shot in Chicago over this recent 4th of July weekend.  I just saw the headline above, which is the response from the Chicago police to the tragic weekend.  What struck me immediately is that this reaction is so stupidly human.  But sadly, it’s human nature.  To most, it would appear to be a quick-response, expedient solution to a terrible problem; and it’s the expediency of this “solution” that makes it attractive to both the politicians who make the laws and the constituency that elects them to office. The belief is that we can pass a law, make the penalties harsher, and then say, “There, we solved THAT problem.”  But guess what?  This will NOT solve the problem, and it NEVER will.  The US justice system has a culture of “punishment” and “revenge”.  We always seem to believe that the threat of more severe punishment will serve as a deterrent to future evil-doers.  The standard political response to the problem of “crime” has always been more cops, more prisons, and tougher sentences.  Well … the US already has the most draconian sentencing laws in the world, and yet, even though we have only 5% of the world’s population, we have 25% of the world’s prisoners (see Convictions  by the Numbers).

Doesn’t seem like super-tough sentences have done much to stem the US crime problem, does it?  And we know this.  Yet we, as an electorate, keep insisting from our legislators that there be more cops, more prisons, and ever tougher sentences.  It’s gotten to the point of being downright silly – tragic but silly.

So what should we do?  To fix any problem, you have to understand, and deal with, the root cause.  Unless you eliminate the root cause, the problem will not go away.  You can try to treat the symptoms of the problem (e.g. gun deaths in Chicago), but the problem will persist.  And I don’t believe we even know and understand what the root cause(s) of most crime are. I would expect that they’d have something to do with things like poverty, education, discrimination, culture, mental health issues, and more.

[Editorial observation:  I suspect that so-called "crimes of passion" are something that will always be part of the human condition, and we're just stuck with them.]

Unfortunately, dealing with root cause is much, much more difficult than dealing with the obvious symptoms of a problem, and I believe this is largely why it doesn’t get done.  It takes lots of time, lots of money, and lots of effort – and who wants to do that when you can just pass a law making sentences harsher, and then tell yourself you’ve just addressed the problem?  It is absolutely human nature to jump to what seems to be the quickest, easiest solution, despite the fact that the “solution” may not cure the problem at all.

There ARE systematic ways to uncover root cause.  They involve structure, process, and data.  Please see our previous post on Six Sigma.  Root cause is at the very core of what Six Sigma is all about.  Unfortunately, given our justice system and our processes for enacting laws, I see no feasible way root cause analysis and corrective action could be applied to the US justice system – at least certainly not within my lifetime.  I expect that we’re just going to have to continue stumbling along with our electoral and legislative processes, and hope that some day enough voters and enough legislators eventually “get it.”

New Treatise on SBS (Shaken Baby Syndrome)

Sue Luttner maintains the blog OnSBS.  She is a long time observer and reporter of the state of SBS in the justice system.  We  have reblogged many of her articles here on the WCB.

Ms. Luttner has recently had published a definitive, scholarly work that traces the origins of SBS, and explains why the hypothesis of SBS is scientifically questionable.

If you are student of SBS at all, this is a must read.

For me, the most cogent point the paper makes is that SBS evolved into being through massively flawed inductive reasoning, driven by statistically invalid anecdotal observations of extremely small populations.  SBS is just a collection of guesses and speculations canonized into a “diagnosis,” which Prof. Deborah Tuerkheimer has so aptly stated is a “medical diagnosis of murder.”

Access the paper here.

 

Women’s Criminal Justice Network

I just became aware of the Women’s Criminal justice network.

Check it out.  Here’s a link WCJN.

The home page features an article on the Tammy Traxtle case.  It’s a glaring example of how plea deals are used by prosectors to make their cases, and the crushing punishment you can receive if you don’t “take the deal.”

This quote from the article:   “The district attorney offered Tammy a deal. “Just say you saw Jeff shoot Carlos, and you’ll get 18 months. Take the plea, do the time, and soon you will be back to work and reunited with your children. It is a short sentence for a horrible crime. Cross us, go to court, and you will face the consequences. We will ask for life, you will do 25, and that is years, not months!””

 

Albuquerque Police Out-Of-Control

We have posted often before about issues of police overreach and misconduct – phony lineups, ignoring evidence, fabricating evidence, coercing confessions, lying on the stand, and more.  However it seems the Albuquerque, New Mexico police department has set a new standard for police overreach.

Albuquerque has an officer-involved shooting rate 4 times that of Chicago and 8 times that of New York.  The Albuquerque police have killed 26 people in just the last four years, and the city has paid out $30 million in civil judgements – so far – as a result of those killings.  However, in the last 30 years, not a single Albuquerque officer has even been charged, much less convicted, of using excessive force.

Watch the CNN video here, which shows the murder of a homeless man by the Albuquerque police.  Warning – this will make you angry.

The US Justice Department has been investigating, and the Albuquerque police department will soon be operating under consent decree with the USDOJ.

David Ranta Family Sues NYPD for $15M Over Wrongful Conviction

David Ranta spent 23 years in prison for a murder he did not commit – as a consequence of false eyewitness identification, a bogus lineup, a jailhouse snitch, and police tunnel vision.

The David Ranta case has been previously reported on this blog here, here, here, and here.

The David Ranta family is now suing the NYPD for $15 million for their suffering.  See the Huff Post story here.

Book Review – Forensic Testimony; Science, Law and Expert Evidence

 

Bowers book

There has been a recent addition to the literature regarding the validity of forensic evidence and the power that expert testimony has in court.  The book Forensic Testimony; Science, Law and Expert Evidence is written by C. Michael Bowers and published by Elsevier Academic Press.

Professor Jane Taylor, University of Newcastle, New South Wales, Australia has reviewed the book, and you can read that review here.

I have had the opportunity to personally review this book, and can say without question that it is a must read for anyone who deals with the validity (or lack of) and the power of forensic evidence and expert testimony in a trial.

The book really resonates with me, because it emphasizes the problems with the “uniqueness principle” and the use of flawed inductive reasoning in the development of the forensic disciplines (I refuse to call them “sciences.”) that I have been preaching about for years.

I most highly recommend it.  The book is available on Amazon here.

The chapter headings:

Chapter 1     The History of Experts in English Common Law, with Practice Advice for Beginning Experts

Chapter 2     Science and Forensic Science

Chapter 3     The Admissibility of Forensic Expert Evidence

Chapter 4     Professional Forensic Expert Practice

Chapter 5     Managing Your Forensic Case From Beginning to End

Chapter 6     Character Traits of Expert Witnesses: The Good and the Bad

Chapter 7     Voir Dire and Direct Examination of the Expert

Chapter 8     Cross Examination: The Expert’s Challenge and the Lawyer’s Strategies

Chapter 9     Uniqueness and Individualization in Forensic Science

Chapter 10   Forensic Failures

Chapter 11   Forensic Expert Ethics

Chapter 12   The Unparalleled Power of Expert Testimony

 

 

Adrian Thomas “Not Guilty” in Second Trial

Adrian Thomas was originally convicted of causing the death of his 4-month old son in 2008.  This was largely a result of his confession under interrogation by the police in Troy, NY.

As previously posted on this blog, Thomas was subjected to a 9 hour highly coercive interrogation by the Troy police:  Blatantly Coerced Confession Results in Conviction Reversal.

Thomas’s confession was even the subject of the documentary film Scenes of a Crime.

In a second trial, just concluded June 11, 2014, Adrian Thomas was found not guilty.

See the Times Union story here.

 

Flawed Forensics – Part of a TV Series from Al Jazeera America Examining the US Justice System

Al Jazeera America is running an eight part series called The System which examines the state of the justice system in the US.  This coming Sunday, June 1, the program will cover flawed forensics, and will highlight the case of Mississippi death row inmate Willie Manning.  Manning is a victim of the now-acknowledged faulty hair analysis practices of the FBI.

There is a zip code box on the Al Jazeera America home page to help you find their programming in your area:

AlJazeera3

Here is the schedule for the entire series, The System:

Episode 1: False Confessions, Sunday May 18th at 9E/6P

Episode 2: Mandatory Sentencing, Sunday May 25th at 9E/6P

Episode 3: Flawed Forensics, Sunday June 1st at 9E/6P

Episode 4: Eyewitness Identification, Sunday June 8th at 9E/6P

Episode 5: Parole: High Risks, High Stakes, Sunday June 15th at 9E/6P

Episode 6: Juvenile Justice, Sunday June 22nd at 9E/6P

Episode 7: Geography of Punishment, Sunday June 29th at 9E/6P

Episode 8: Prosecutorial Misconduct, Sunday July 6th at 9E/6P
 

 

More Mike Nifong Prosecutor Misconduct Exposed

Surely you remember Mike Nifong.  He’s the (former) Durham County North Carolina District Attorney who prosecuted the Duke lacrosse team rape case.  What a fiasco that was.  Nifong was ultimately disbarred and did jail time for his blatant misconduct as a prosecutor.  See previous WCB post here.

Well, to quote a recent Washington Post article by Radley Balko, “… prosecutorial misconduct is rarely a one-off phenomenon.”  And indeed, yet more egregious misconduct by Nifong has just been exposed as a result of the 1995 murder conviction of Darryl Howard being overturned for Nifong’s prosecutorial misconduct.

You can read Radley Balko’s Washington Post Story about it here.

(Thanks to Camille Tilley for passing this story along in a recent WCB comment.)

Challenges to ‘Shaken Baby’ Convictions Mounting

There is an excellent (and brief) article on the current state of post-conviction SBS challenges that appeared in the Wisconsin State Journal.

You can read that story here.

Thanks to Keith Findley, co-founder of the Wisconsin Innocence Project and current president of the National Innocence Network, for passing this along.

Acquittal in California SBS Case

There was an acquittal in an SBS case in California this past Wednesday.

Quentin Stone was found not guilty of inflicting abusive head trauma (the current “official” term for SBS) on his infant son, who, days before, had accidentally fallen off the bed.

Sue Luttner, in her blog OnSBS.com, has done an excellent job of summarizing the case, and you can read her post here.

Even a “Disney World” Defense Can’t Overcome a (False) Eyewitness

Jonathan Fleming was convicted of murder in New York in 1990.  He was just recently exonerated and released after spending 24 years in prison for the murder he did not commit.  The story has recently been reported on this blog with the Fox News story here.  You can also read the CNN story here and the AOL story here.

Fleming had an alibi for the time of the crime.  He was at Disney World with his family.  The hotel staff remembered him, his family vouched for him, and he had a hotel receipt for a collect phone call from the hotel on August 14, 1989 9:27 p.m., which was just 4 1/2 hours before the shooting in New York.  But despite all that, because he was identified by an “eyewitness,” he was convicted.  Quoting the CNN story, “The prosecution … produced a witness who said she saw Fleming commit the crime.”

The reason that I wanted to highlight this particular case is because it’s yet another example of how eyewitness testimony, even though false or mistaken, will trump a solid alibi.

This is not a rare occurrence. Data from the National Registry of Exonerations shows that false or mistaken eyewitness identification is a contributing factor in 43% of wrongful convictions.

And to top it off, in this particular case, the phone call receipt was found in the prosecution’s case file, but was never produced – can you spell “Brady violation?”   And — the “eyewitness” was offered a deal for her testimony, and then recanted 2 weeks after the trial; but of course, her recantation was not allowed by the court.

Does this stink, or what?!  I’m tempted to launch into a much broader exposition on the failings of the justice system, but will save that for a future post on “the nature of innocence work.”

Finally, a Judge Calls Shaken Baby Diagnosis an “Article of Faith”

Now for the first time, a federal judge has condemned the standard SBS diagnosis itself.”

Jennifer Del Prete has been released from prison after 10 years, pending a new trial.  She was convicted in 2005 of killing 14-month-old Isabella Zielinski by shaking when she was working at a suburban Chicago day care facility.  She was convicted solely on the basis of SBS “triad” symptoms present in the child.  She has steadfastly maintained her innocence.

Deborah Tuerkheimer is a professor of law at DePaul University and author of the recently published book Flawed Convictions, ‘Shaken Baby Syndrome’ and the Inertia of Injustice.  Prof. Tuerkheimer has studied the Del Prete case, among many others, and has written about it.  She recently authored an article on the case for online Slate magazine.  Read Prof. Deborah Tuerkheimer’s story here.

You can also read the ABC News, Chicago story about the case here.

 

Defendant in Coldest Case Ever “Solved” Appeals His Conviction

In September, 2012, Jack McCullough was convicted of a murder committed in 1957.  The conviction was based largely upon an eyewitness identification made 53 years after the crime by a woman who was 8 years old at the time of the crime.  The unreliability of eye witness identifications has been well documented; but 53 years after the crime, and by an 8 year old?!

In addition, if you read about the exculpatory evidence that the judge ruled McCullough was not allowed to present at trial, including an alibi and the fact that he had been cleared by investigators, you have to believe he has a case.

See the CNN story and video here.

Louisville to Pay Whistleblower Cop $450,000

Louisville Metro Government has agreed to pay $450,000 to former police detective Barron Morgan who says he was demoted to patrol officer on the graveyard shift for trying to help an imprisoned woman prove her innocence on a homicide charge.

” … after Kentucky State Police, who had investigated the 1998 murder, complained that Morgan was assisting the Innocence Project, a Louisville police commander “cursed” him and he was ordered to stop cooperating.”

Read The Courier-Journal story here.

 

Wrongful Liberty – A Tragic Consequence of Wrongful Conviction

You’ve heard us mention a number of times on this blog that when a wrongful conviction occurs, this leaves the real perpetrator free to keep committing crimes.  I’m sure everyone nods their head, and agrees that’s a terrible thing.  However, it isn’t until one quantifies what that really means, and brings some specificity to it, that you can begin to comprehend how tragic it really is.

At the current National Innocence Network Conference, I had the opportunity (yesterday) to hear a presentation by Prof. Frank Baumgartner of the University of North Carolina about the work he’s done in documenting what he calls “wrongful liberty.”  Wrongful liberty is exactly the situation described above – a wrongful conviction occurs, an innocent person is sent to prison, and the real perpetrator remains free to commit more crimes.

In future, you will continue to hear from me a constant drumbeat about the need for more data to effect meaningful legislative reform – and what Prof. Baumgartner has done is brilliant.  He has undertaken to actually document the crimes committed by true perpetrators of a crime, for which there was a wrongful conviction, during the period from when the wrongful conviction occurred to when the true perpetrator was eventually arrested.

This data creates a compelling case for criminal justice reform, because it expands the reasoning from “just” an injustice to an innocent, wrongfully convicted person to an argument that includes a very real public safety issue.

The work, so far, has been limited to the state of North Carolina, and has been further limited by the availability of appropriate data.  But I am optimistic and hopeful that this effort can, and will, be expanded to a national level.  This is a winning argument.

You can read Prof. Baumgartner’s paper here:  WrongfulLiberty2014

Bronx Prosecutor Scolded and Barred From Courtroom for Misconduct

Assistant District Attorney Megan Teesdale was banished from Bronx Judge John Wilson’s courtroom after failing to reveal evidence that would have freed a man held at Rikers Island on bogus rape charges.

“To my mind, this is an utter and complete disgrace — not just for you, but for your office in general,” Bronx Criminal Court Judge John Wilson told Bronx assistant district attorney Megan Teesdale before dismissing the case on March 21.

“This situation, while egregious, reflects a larger problem endemic to our criminal justice system,” said Segundo’s attorney, Robyn Mar of the Bronx Defenders.

Brady violations often go unpunished within city District Attorney’s offices, according to lawyer Joel Rudin.

Read the full NY Daily News story here.