Author Archives: Jessica S. Henry

Two Travesties of Justice and Not a Single Apology in Sight

Posted on November 20, 2017 | Leave a comment

Anyone interested in criminal justice knows that our system is broken. Two recent cases out of Louisiana highlight just how broken our system really is.

The first case is about a now-senior citizen named Wilbert Jones, who was released last week from prison after serving 45 years for a rape he didn’t commit. Presidents Nixon, Ford, Carter, Reagan, Bush, Clinton (twice), Bush (twice), Obama (twice) came and went, while this innocent man languished in prison waiting for a miracle to occur.

Mr. Jones was a poor, black teenager in 1972 when he was arrested. He was convicted of abducting a white nurse from a hospital parking lot and raping her, and was sentenced to life without parole. The case against him was weak, resting solely on the nurse’s questionable identification of Mr. Jones made nearly three long months after the rape had occurred.

The prosecutor involved in the case appears to have withheld crucial evidence from the defense, including the identity of another man, accused of a rape in a difference case who better matched the nurse’s description of the suspect. This apparently was not uncommon: the prosecutor in Mr. Jones’ case had a reputation of routinely violating his constitutional obligations to turn over exculpatory evidence to the defense.

It took the Innocence Project New Orleans nearly 15 years to gain Mr. Jones’ freedom. And here’s the kicker. Even though the prosecution has said they will not seek to re-try Mr. Jones, they nonetheless requested that bail be set at $2,000. Even more outrageously, the judge granted the bail motion. Let me repeat: a judge set bail for a 65-year-old man who spent 45 years in prison for a crime he did not commit in a case where the prosecution is not planning to re-try him.

Seriously?

Keeping with the theme of outrageous, last week Kevin Smith was released from a New Orleans jail, after serving nearly eight years without ever having been convicted of a crime. In 2010, Mr. Smith was arrested for a non-violent drug offense and placed in the county jail, where he sat, and sat, and sat some more, awaiting his day in court. His case was delayed because of a hurricane, because of a competency hearing, because of motions and who-knows-what else as lawyers for both sides hemmed and hawed about moving forward with the case. In the meantime, Mr. Smith rejected a plea offer of 10 years, which would have ended his sentence in 2015, and finally filed his own motion to be released, arguing that his constitutional right to a speedy trial had been violated. After his lawyers joined his motion, a judge set Mr. Smith free. He earned the dubious honor of having spent the most time in pre-trial detention for a non-violent offense.

Louisiana has the highest rate of incarceration in the country. It is rife with allegations of corruption and misconduct. It disparately impacts poor people of color. The system is simply not working, and it is time for places like Louisiana to do something about it.

Mr. Jones and Mr. Smith are owed far more than an apology by Louisiana. In the meantime, a mea culpa by the State would be a good start.

This piece also appeared in the Huffington Post.

Nothing to Smile About: Bite Mark Evidence Blasted Again

Posted on September 22, 2016 | 2 comments

Your smile could cost you your freedom.

Just ask Crystal Weimer from Pennsylvania, or William Richards from California. Weimer and Richards don’t know each other, but their fates were eerily and tragically similar.

Both were tried and convicted of murder in unrelated cases. Both of their convictions were based on testimony by so-called bite mark experts, who claimed to have matched marks found on victims with each of the defendant’s “bite mark.” In both cases, the prosecution relied heavily on the “matching” bite marks as proof of the defendants’ guilt. In both cases, the bite mark evidence was just plain nonsense.

A new report released this week by the President’s Counsel of Advisors for Science and Technology (PCAST), offered yet another devastating critique of bite mark evidence:

available scientific evidence strongly suggests that [bite mark] examiners not only cannot identify the source of bite mark with reasonable accuracy, they cannot even consistently agree on whether an injury is a human bite mark. For these reasons, PCAST finds that bite mark analysis is far from meeting the scientific standards for foundational validity.

PCAST, an advisory group appointed by the President and made up of the nation’s leading scientists and engineers, suggested that bite mark analysis was unlikely to be “salvageable” as a forensic methodology and that scarce forensic resources should be devoted elsewhere.

The PCAST report adds to the chorus of experts that put bite mark evidence in the junk science category. In 2009, leading scientists from the National Academy of Sciences issued a report condemning bite mark evidence as highly unreliable.

But despite all the criticism from top-notch forensic experts, bite mark evidence has not been banned from the court room.

Which means that innocent people could wind up in prison for crimes they didn’t commit based on “science” that isn’t scientific at all.

In June, 2016, both Weimer and Richards were exonerated – just one day a part. As it turns out, the bitemark evidence that put them in prison was just plain wrong. Collectively, they spent nearly thirty years in prison.

And that is nothing to smile about.

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Posted in forensic science, Junk science, Reforming/Improving the system, Uncategorized

Tagged bite mark, forensic reform, forensic science, junk science

On Death Row for a Murder that Wasn’t?

Posted on June 6, 2016 | Leave a comment

Rodricus Crawford sits on Louisiana’s death row, awaiting execution for the murder of his one-year-old son, Roderius

But although Roderius (affectionately called “BoBo”) is dead, he likely was not murdered – not by his father. Or by anyone else.

Dale Cox was the Lousiana prosecutor against Crawford, a case which rested almost exclusively on the testimony of a state forensic pathologist who claimed that bruises on the child’s lip were consistent with death by smothering. It was undisputed that Bobo had fallen the day before, a fact confirmed by the child’s mother and a fact that explained the bruised lip. More importantly, BoBo also was found to have pneumonia is his lungs, a fact that the same state forensic pathologist dismissed as mere “coincidence.”

Another forensic pathologist, Daniel Spitz, disagreed. After reviewing the case, Spitz concluded that BoBo died of pneumonia. Spitz added that, in his opinion, there:

wasn’t enough evidence to even put this before a jury. You didn’t have anybody who thought this guy committed murder except for one pathologist who decided that it was homicide on what seemed like a whim.

And it is not just Spitz. Other pathologists agree that BoBo likely died of pneumonia. The Innocence Network filed an amicus brief on behalf of Crawford, in which they too argue that BoBo died of an illness, not murder.

So why is Crawford still sitting on death row?

The answer may be as twisted, as it is true: he had the misfortune of being prosecuted by Cox.

Lousiana’s use of the death penalty has been on the decline in recent years. But not in Caddo Parish, a county in Louisiana, which is responsible for most of the state’s death sentences. Between 2010-2015, 8 out of 12 death sentences came from Caddo Parish. Of those eight death sentences, Dale Cox was responsible for four.

Cox is an ardent believer in capital punishment who proudly believes “we need to kill more people.”

And he doesn’t just believe in the death penalty. He believes that people who are sentenced to die should physically suffer, a philosophy long-ago rejected by the Supreme Court. After Crawford was sentenced to die, Cox wrote to the state’s probation department: “I am sorry that Louisiana has adopted lethal injection as the form of implementing the death penalty,” because “Mr. Crawford deserves as much physical suffering as it is humanly possible to endure before he dies.”

Many folks who have reviewed Crawford’s case would strongly disagree; it is no “mere coincidence” that Crawford has been featured as an example of the death penalty gone terribly wrong, and that he is currently the subject of two different petitions to gain his release.

The potentially good news is that there’s a new prosecutor in Caddo now.

James Stewart, an African American, was elected to be the District Attorney of Caddo Parish for the next five years. Cox is no longer with the office.

With a new DA, there is a new opportunity for a second-look at Crawford’s case. And with a just announced death penalty moratorium in Louisiana due to questions about its execution methods, now is the perfect time for Stewart to reexamine whether Crawford should even be in prison, let alone on death row.

Ten people have already been exonerated from Louisiana’s death row. Perhaps Stewart will help Crawford be its number eleven.

Don’t Believe the Bite

Posted on May 10, 2016 | Leave a comment

Eddie Lee Howard, Jr. has been on Mississippi’s death row for nearly two decades, convicted of the 1992 grisly murder of an 84-year-old woman named Georgia Kemp.

Absent any real leads or suspects, the police focused in on Howard, who had spent years in and out prison for attempted rapes. In response to police question, the mentally ill Howard made statements that were allegedly incriminating, but also contradictory.

Then the police caught a break in the case. Dr. Michael West, a forensic odontologist, got involved. West claimed to be able to match bite marks left on a human body with the teeth of the biter.

And in what can only be described as an extraordinary turn of events, three days after Ms. Kemp was buried, her body was exhumed so that Dr. West could look for bite mark evidence. At trial, Dr. West claimed to have found three bites and testified that Mr. Howard was the biter “to a reasonable medical certainty.” Interestingly, the medical examiner who reviewed Kemp’s body at the time it was found did not note any bite marks in his initial autopsy – an omission that seems rather glaring if the bites in fact had been present on the skin. There were no photos of the bite marks from the exhumed body, and no DNA evidence from those marks.

The ability of forensic odontologists such as Dr. West to effectively engage in bite mark comparison has been repeatedly called into question. The well-known 2009 National Academy of Sciences report was scathing in its criticism of bite mark matching, and found no scientific evidence that evidence from a bite mark could identify a particular individual to the exclusion of all others.

But even if West saw what he claims to have seen, his testimony is suspect under the circumstances in this case. Bite-marks “on the skin will change over time” and “can be distorted by the elasticity of the skin, the unevenness of the surface bite, and swelling and healing.” In other words, whatever Dr. West saw on Kemp’s body after it was buried for days and exhumed may reveal very little about her attacker on the day she was killed.

Yet, West’s testimony was critical because it was the only evidence to directly tie Howard to Kemp.

Bad bite-matching testimony has resulted in the wrongful conviction of far too many people. Ray Krone from Arizona was sentenced to death based, in large part, on bite-matching testimony. Known as the “snaggle-tooth” killer, Krone was exonerated from death row after DNA proved he could not have been the killer.

There may be glimmer of hope for Howard, who is now being represented by the Mississippi Innocence Project. At a hearing that began last week, a Mississippi judge considered arguments that the bite-mark evidence in Howard’s case was scientifically unreliable. Even West has distanced himself from the viability of bite mark comparison.

Howard is sitting on death row for a conviction that rests on a largely discredited science, under circumstances that were highly questionable. Bite mark matching evidence is dubious under the best of circumstances, and seemingly fantastical under those presented in his case. Twenty-years on Mississippi’s death row is surely long enough for the state to sort out fiction from fact, and bite marks from apparent innocence.