Yearly Archives: 2012

Damning forensic report ‘removed’ from journal now available… essential reading.

The case of Simon Hall in the UK has already made the headlines time and again, for all the wrong reasons. See just some of the coverage of the case collated here… and you can visit Simon’s great campaign website ‘Justice 4 Simon’ here… . This is an apparent miscarriage of justice that has gone on for far too long.

Now, another shocking twist in the tale.

Simon’s conviction rests on fibre analysis. For his appeal, a highly respected independent expert in fibres analysis – Tiernan Coyle, was employed to re-examine the evidence used to secure Simon’s conviction. He found multiple flaws in the evidence, and had no doubt that the conclusions reached were unsustainable. Unfortunately, this was not sufficient to win Simon his appeal.

As a respectable scientist, Tiernan Coyle then sought to publicise his findings to the wider forensic science community, sending his report to the scientific journal ‘Science and Justice’. Peer reviewers used terms like ‘valid’, ‘compelling’ and ‘highly convincing’ in their reviews, and commented on Coyle’s professional approach to the issues raised by the case, as well as stating that the report raises important issues that the fibres community needed to debate, which justified its publication. It was duly accepted and published. Subsequently, the article was withdrawn from Science and Justice, supposedly for ‘copyright’ reasons (the article showed images from the Forensic Science Service’s original analysis – although these images were used in the bundle of evidence at the trial and appeal so have been seen by anyone with access to the evidence).

Tiernan is then to be congratulated that rather than be silenced by this outrageous withdrawal of his paper from the journal, he has made it publicly available, with a short commentary on the story of how he was driven to this action.

I highly recommend that all those interested in forensic science and justice read the report. It demonstrates clearly how not only are people being wrongly convicted using flawed forensic science, but that even when discovery of flawed scientific conclusions are aired, it may not be enough to win freedom for the wrongly convicted. It is a salutary tale for those convinced that forensic science will end miscarriages of justice. It is also illuminating that while some in the forensic community wish to work to strengthen the scientific basis of their work, and share mistakes and assist in research, there are elements of the community that remain strongly resistant. This cannot be allowed to happen if progress is to be made.

Go to Tiernan Coyle’s website here…

The Case of Simon Hall

Cuts to Legal Aid in NZ a Threat to Forensic Science and Justice?

An interesting short comment has appeared on The Forensic Group site (New Zealand based), questioning whether the cuts to legal aid in that country are having a detrimental impact on the commissioning of forensic tests. It also warns that some of the ‘best’ defence lawyers in New Zealand are moving out of criminal law because of the funding shortages. As they explain:

“The problem with losing good criminal defence lawyers is that access to justice will be compromised, there will be more appeals and, potentially, miscarriages of justice.”

Some very worthwhile questions asked…. read the full post here…

Legal Aid costs and forensic science: the cost of justice?

ABC critical report on forensic evidence in Australian courts.

Leading forensic science and legal expert Prof Gary Edmond has featured in a highly critical report on forensic evidence being presented in Australian courts. Much of it is backed by very little ‘science’. Using voice identification evidence to illustrate some of the pitfalls, the report warns that much forensic evidence can be “dangerously misleading”. Read the full report here…

Courts’ use of forensic evidence called into question

Still a Long Way to Abolishing Death Penalty in Japan?

As Carole posted today, it has been 10 years since the signing of European Protocol 13, which abolished the death penalty. According to Amnesty International, more than two thirds of the countries in the whole world are either abolitionist or abolitionist in practice.

There is (I’d like to say) a trend in the United States towards abolition. So where is Japan at?

As I have posted here through Mark, Justice Minister Toshio Ogawa sent three people to gallows in March this year.

Just before he signed the order for the executions, he terminated Justice Ministry’s internal study panel on death penalty. In 2010, the then Justice Minister Keiko Chiba set up the panel to review whether to retain or abolish the death penalty and discuss about the conditions on death row. It aimed to get the debate going in the country, and was supported by Chiba’s successors.

However, Ogawa terminated the study panel and cancelled the plans to set up another discussion panel with experts on the matter. Continue reading

Blood Spatter – Some “Legal Stuff”

Jodie English is a criminal defense lawyer practicing in Indianapolis, IN who deals only with major felonies.  She has drafted three “model” or “template” motions dealing with blood spatter or blood pattern analysis (BPA) evidence – one each to ‘limit’, to ‘discover’, and to ‘exclude’.  I attach them here with her permission.

Motion to Limit BPA

Motion to Discover BPA

Motion to Exclude BPA

You might want to reference my previous post on the subject:

https://wrongfulconvictionsblog.org/2012/04/30/blood-spatter-evidence/

Unusual DNA Exonerations of Alleged “Female Rapists” in Zimbabwe Charged with Robbing Men of Semen at Gunpoint…

From news source:

Three women, who early this year made headlines after being accused of sexually attacking male hitchhikers in search of semen, yesterday escaped life imprisonment after forensic DNA results exonerated them from the offences.
The women — Sophie (26) and Netsai (24) Nhokwara and Rosemary Chakwizira (28) — and their male co-accused Thulani Ngwenya (24) were being charged with contravening Section 66 (1) (b) of the Criminal Law (Codification and Reform) Act, for which if one is convicted would attract the same sentence as in rape cases.Charges against the quartet were withdrawn by prosecutor Tapiwa Kasema after the State cited lack of evidence.

Asked by regional magistrate Fadzai Mthombeni why the State had decided to withdraw the charges, Kasema said:

“Considering the correspondence from the Attorney-General’s (AG) Office dated April 20 2012, the results from South Africa exonerated the accused from the case of aggravated indecent assault.”

However, Kasema told the court that the AG’s Office had instead decided to prefer soliciting charges against Netsai and Rosemary.

The two will be charged with contravening Section 81(2) of the Criminal Law (Codification and Reform) Act.

The two were remanded to May 10 and 16 respectively in different courts.

Netsai will be tried in Court 11 while Rosemary would stand trial in Court 5.

Kasema advised the court that Netsai and Rosemary would be served with necessary court papers to enable them to prepare their defence.
All the accused were accompanied by their lawyer Arnold Taruvinga.

Allegations were that the three women were suspected to be part of a syndicate of female “rapists” terrorising male hitchhikers along the country’s main highways and “raping” them at gunpoint.

They were arrested at an accident scene on October 8 last year when they had allegedly gone to the spot to collect their “valuable loot”.

10th Anniversary of European Protocol 13 – abolishing the death penalty.

Today marks the 10th anniversary of the signing of Protocol 13, which abolishes the death penalty.  The full text of Protocol 13 of the European Convention of Human Rights and Fundamental Freedoms is here….  A good day for justice in Europe. One day, a good day for the world…?

Prosecutors in Israel Agree to Post-Conviction DNA Testing in High-Profile Murder Conviction…

From web source:

The state prosecution told the High Court of Justice yesterday it will submit articles of clothing worn by a man murdered 17 years ago for advanced DNA testing, to help determine whether the case should be retried.

At issue are nine blood and saliva stains on the shoes and shirt that attorney Shmuel Levinson was wearing when he was killed in August 1994, after he surprised a burglar in his Jerusalem home. Levinson had been named chairman of the Association for Civil Rights in Israel shortly before his murder.

Ovadia Shalom, a drug addict and known property thief, was arrested six months later on suspicion of various property crimes. At some point, police began to suspect that he had murdered Levinson. Shalom was convicted of the crime in 1997 and is serving a life sentence, though neither the police’s criminal identification department nor the coroner could definitively link him to it.

Based on the technology available at the time, which did not include DNA testing, the coroner’s office said the blood stains found at the scene were consistent with Shalom’s blood. But a hair found in a sock at the scene was found not to be Continue reading

Thursday’s Quick Clicks…

European Court of Human Rights Accepts Use of Anonymous Witnesses to Convict…

Yikes!  From web source:

THE killers of Northampton teenager Letisha Shakespeare have failed in a new bid for freedom after the European Court of Human Rights rejected their appeal against the use of an anonymous witness.

The case of Marcus Ellis and Rodrigo Simms was re-examined after their lawyers submitted their original trial had been unfair. It could have paved the way for a fresh appeal against their 2005 murder convictions, which saw them jailed for life.

Their lawyers claimed they did not receive a fair trial at Leicester Crown Court because a key witness, a convicted robber using the pseudonym Mark Brown, was allowed to give crucial and anonymous evidence against them.

The trial judge’s decision to allow the witness to give evidence from behind a curtain and with his voice electronically distorted “defied 1,000 years of common law in this country” and allowed for “a grave miscarriage of justice”, lawyers argued.

Gang members Nathan Martin, 26, Marcus Ellis, 24, Michael Gregory, 23, and Continue reading

Unbelievable: After Kerry Max Cook’s Long Battle For DNA Testing is Won, He Learns Murder Weapon is Contaminated Because Prosecutor Took it Home as a Twisted Souvenir

You can’t make this up.  From news source:

In a new twist for a case full of them, lawyers of Kerry Max Cook, the Dallas man sentenced to death for a gruesome rape and murder before being exonerated two decades later, are accusing a prosecutor in his case of taking home the murder weapon as a dark, twisted souvenir.

This accusation, part of a motion filed in Smith County, is part of Cook’s ongoing effort to officially clear his name and record after 35 years of being branded by the state as a murderer. Cook, who now lives in Dallas, pleaded “no contest” to a reduced murder charge in 1999 and reclaimed his freedom. As part of the plea agreement that freed him, he never admitted guilt. But legally, he is not recognized as innocent. His attorneys are now working to get a judge to rule on his innocence, and finally bring an end — one way or another — to his 35-year quest to clear his name.

Lately it’s been a mix of setbacks and small victories. A judge recently granted permission for DNA testing of new evidence, but refused a request that Smith County District Judge Christi Kennedy be recused from the case.

But on Monday they filed a motion to reconsider the judge’s denial based on new evidence — including, they claim, the revelation that the case’s original prosecutor, A.D. Clark, III, took home key evidence. That evidence included “the murder weapon — a blood soaked knife — and a sample of Mr. Cook’s hair,” Continue reading

Crime-lab scientist claims she was fired for blowing whistle on errors

A fired whistleblowing forensic scientist in Texas claims in a lawsuit that her problems at the Austin Police Department’s crime lab started when she sent a corrected blood-alcohol-level test to the lawyer representing a man charged with intoxication assault.

The suit filed in Travis County District Court last Friday by Debra Stephens says that state law required her to report the corrected amount, but department officials told her that was a violation of lab policy.

Stephens, who worked for the lab for nine years until she was fired in 2011, later filed a complaint against the lab with the Texas Forensic Science Commission for allegedly cutting corners during drug-evidence testing.

Stephens claims that police and city officials subsequently spread false information about her that damaged her reputation, according to an article in the Austin American-Statesman. More details about Stephens’ allegations of mishandled evidence is covered here.

Stephens’ claim of retaliation for exposing lab errors mirror those made in 2009 by Chris Nulf, a former forensic analyst with the Dallas County Crime Lab. Nulf filed an ethics complaint in April against Williamson County District Attorney John Bradley, claiming that Bradley and others on the Forensic Science Commission failed to properly investigate his complaints of negligence and misconduct at the Dallas lab.

AG of Virginia Joins with U. of Virginia Innocence Clinic in Asking for Exoneration…

Virginia AG Ken Cuccinelli

From the Associated Press:

RICHMOND (AP) — Attorney General Ken Cuccinelli is asking the Virginia Supreme Court to exonerate a James City County man wrongfully convicted of rape in 1978.

The Richmond Times-Dispatch reports that Cuccinelli asked the court on Tuesday to expedite a writ of actual innocence for 56-year-old Bennett S. Barbour.

Barbour’s lawyers with the University of Virginia School of Law’s Innocence Project Clinic requested the writ in March.

Barbour was convicted of raping a College of William and Mary student in Williamsburg. DNA tests conducted in 2010 on material from the case didn’t find Barbor’s DNA. The tests identified the DNA of another man, James Moses Glass Jr.

Glass is scheduled to stand trial Aug. 22.

More here

Public Records Access Laws at the Foundation of Innocence Work, Democracy…

I’ve dealt with public records access laws my entire career.  As a prosecutor, I had to respond to public records request from news media from time to time (or more accurately, as I was taught,I had to come up with some reasonable-sounding explanation as to how the case might still be considered “open” so we wouldn’t have to turn over the records).

And I’ve sent out my fair share of public records request letters over the past decade while doing post-conviction innocence work for the Ohio Innocence Project.

But at no time in my career have I better understood or appreciated the deep importance that public record access laws have on our system than right now.  Two things have brought the importance of these laws to the forefront in the past year or two. Continue reading

Focus on D.C. Brady Case with the Mid-Atlantic Innocence Project…

The Washington Post has an interesting article about a pretty egregious sounding Brady case (police failing to disclose information helpful to the defense prior to trial) being litigated at the moment by the Mid-Atlantic Innocence Project and others.  Here’s the article in full:

An attorney whose client was acquitted in a high-profile 1985 murder trial in the District testified Tuesday that prosecutors never shared several pieces of evidence in a case that sent eight men to prison for first-degree murder.

Two people were acquitted in the death of Catherine Fuller, and Michele Roberts, then with the District’s Public Defender Service, was co-counsel for one of them. On Tuesday in D.C. Superior Court, Roberts said that prosecutors withheld evidence from the defense — including the names of three other Continue reading

Wednesday’s Quick Clicks…

Forthcoming book: Life after Death Row

Just a heads up:  A new book will be published later this year by Rutgers University Press.  Title: Life after Death Row. Authors: Saundra Westervelt and Kimberly Cook.  (Pre-order here)  It is based on very detailed interviews and case histories of 18 exonerees who were wrongfully convicted of capital crimes and lived on death row. I had the pleasure of reviewing it for Rutgers Press prior to publication.  It provides valuable insights into the challenges facing these exonerees following their release from prison.  This book adds important information about a subject that has seldom been addressed, and I highly recommend it.

Another lab scandal surfaces in Texas

Texas, which loves to be No. 1 in everything, seems to be making a concerted effort to outdo other states in the number of wrongful convictions. Now it seems determined to be top dog in crime-lab scandals as well.

The Texas Department of Public Safety has just warned district attorneys about errors in drug evidence analysis at its Houston regional lab. Officials said evidence that wasn’t properly tested could have resulted in faulty convictions since 2006 in Houston’s Harris County and several other counties that the lab serves.

In an email to prosecutors in the affected counties, the Department of Public Safety said the errors appeared to all be linked to one forensic scientist who has been suspended.

The Houston Police Department Crime Lab had to be shut down several years ago after lax testing, some of which contributed to wrongful convictions, was discovered there. Problems also have surfaced in a San Antonio crime lab.

But Texas still has lots of competition for lab scandals, as writer Matt Clarke documents here.

New Comprehensive Article on Shaken Baby Syndrome…

A team of innocence lawyers (including Network Board President Keith Findley) and medical experts have posted Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence:  Getting it Right on SSRN.  Download full article here.  Abstract:

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly with the anatomy and physiology of the infant brain, that there are Continue reading

Tuesday’s Quick Clicks…

  • A blogger writes about the impact that recent the Innocence Project of Florida annual gala had on him
  • Yesterday at Robert Dewey DNA exoneration in Colorado, it is revealed that the prosecutors have identified and issued a warrant for a new suspect; prosecutor apologizes to Dewey; more on the good prosecutor here
  • Story on the double DNA exoneration yesterday in Dallas
  • A blogger wonders whether those who still believe Amanda Knox “done it” are biased because of anti-American sentiment
  • A glowing review of exoneree Gloria Killian’s new book about her ordeal
  • The Croation 6:  New evidence supports innocence of six men in Croatia
  • Murder convict in the UK, Luke Mitchell, who has long declared his innocence causes a stir by passing polygraph administered by one the leading technicians in the UK