Author Archives: Phil Locke

Eyewitness Rules Ignored – Wrongful Convictions Result

Posted on June 28, 2013 | 2 comments

It has been heavily documented that eyewitness misidentification is the single largest contributing cause of wrongful conviction. The reasons for this are many, and range from the vagaries of how the human brain works, to the procedures used by law enforcement for establishing an eyewitness identification. In court, an eyewitness identification will even trump a rock solid alibi, so it’s important to do everything possible to ensure the integrity of eyewitness identifications. There’s not a lot we can do about the vagaries of the human brain, except try to understand how they impact a person’s memory and perception. But there are lots of things we can do about how police go about establishing an eyewitness ID. Federal guidelines have been issued, and a number of states have taken steps to improve the process, including mandating the use of “blind” administration of lineups. It seems, however, that what’s being done in practice is lagging far behind what’s being recommended or required. A recent article by Kevin Johnson in USA TODAY brings this point home:

WASHINGTON — More than four out of five police agencies in the U.S. have no written policies for handling eyewitness identifications despite long-standing federal guidelines, according to a report obtained by USA TODAY.

The findings in the National Institute of Justice report, come as flaws in eyewitness identification represent the single greatest cause of wrongful conviction, contributing to 75% of convictions overturned through DNA testing, according to the Innocence Project, which uses DNA testing to challenge criminal convictions.

The report, which was produced for the Justice Department’s research arm by the Police Executive Research Forum, is the first national assessment of eyewitness identification standards. In it, 84% of police agencies reported that they had no written policy for conducting live suspect lineups, and slightly more than 64% said they had no formal standard for administering photo displays of potential suspects.

Read the full story by Kevin Johnson of USA TODAY here.

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Posted in Eyewitness identification, Police conduct (good and bad), Reforming/Improving the system

Texas Set for Execution #500 – Kimberly McCarthy

Posted on June 25, 2013 | Leave a comment

Kimberly McCarthy, who claims jury selection in her trial was tainted by racism, is on track Wednesday to become the 500th person executed in Texas during the modern era. The total dwarfs that of every other state. The closest, Virgina, has put to death 110.

KIMBERLY McCARTHY has the gruesome distinction of holding No. 500 in the Texas death-penalty lottery. Unless she receives a stay before Wednesday night, McCarthy will become the 500th person, and only the fourth woman, executed by Texas during the post-reinstatement era of the U.S. death penalty. The ex-crack addict was condemned in a 1997 robbery-slaying near Dallas. McCarthy is the former wife of New Black Panther Party founder Aaron Michaels, with whom she has a son. She is one of 10 women on Texas death row. McCarthy’s appeals allege that jury selection in her trial was tainted by racism.

If Texas follows through with its plan, Execution Watch will provide live coverage and commentary on the execution, as well as the protests planned outside the death house in Huntsville.

RADIO SHOW PREVIEW – TEXAS’ 500TH EXECUTION: EXECUTION WATCH – Unless a stay is issued, we’ll broadcast live: Wednesday, 26 June 2013, 6-7 PM Central Time, KPFT FM Houston 90.1 and Online…

http://e xecutionwatch.org > Listen

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Posted in Capital punishment

Shaken Baby Syndrome – Where Are We? – A Reality Check

Posted on June 19, 2013 | 6 comments

The task of bringing true science to bear on the issue of shaken baby syndrome has proven to be incredibly difficult. Progress has been meager and slow, and for those committed to seeing that true justice is done in these cases, the work is extremely frustrating. The extant pediatric medical community continues to wrap itself ever tighter in their beliefs in the medical folklore that has resulted in so many wrongful convictions based upon rigid, unyielding diagnostic dogma that has been discredited. For background on the SBS problem, please see previous WCB posts here, here, here, here, here, here, and here.

Dr. Steven C. Gabaeff is a California physician who has specialized in child abuse cases, and is a member of the Los Angeles Superior Court Expert Witness Panel. Dr. Gabaeff is also one of those rare medical practitioners who is board certified in Emergency Medicine, and who understands the flaws in the currently prevailing views of SBS. He recently responded to an SBS online bulletin board posting concerning an article about a man who has been charged for a second time with infant abusive head trauma. I believe that his response provides an insightful view of what the situation is today, and also reveals some of the frustration that so many of the people who are dedicated to this cause have to deal with. That response is posted here with his permission.

___________________________________________________

Regarding the case … the likely etiology of the problems with the second newborn was perinatal subdural hematoma rebleed from moderate trauma, and probably other treatment failures that would never see the light of day in an article like this in the newspaper, that resulted in severe brain damage.

What can he do? He should have moved to another country… until we solve this.

Most of the time we look like Don Quixote, and unfortunately we are not addressing the issues here on the scale required. The authorities’ MO (modus operandi) has not changed an iota in 40 years: they diagnose abuse and only abuse, repress contradictory evidence, and abuse their ill-gotten authority to accuse, convict, intimidate, and to clone a new generation prescreened to be the same or better at executing the same conviction-producing MO as the old timers. There really isn’t that much evidence that what we’re doing is preventing what happened to this guy already or even what will happen to him in the near future.

Continue reading →

6 Comments

Posted in Editorials/Opinion, Junk science, Reforming/Improving the system

Texas Set for Execution #499, Elroy Chester

Posted on June 11, 2013 | 27 comments

Texas plans to put to death Elroy Chester III Wednesday in Huntsville. Execution Watch will provide live radio coverage and commentary on the state killing, Texas’ 499th of the modern death-penalty era.

RADIO SHOW PREVIEW – EXECUTION WATCH

Unless a stay is issued, we’ll broadcast live: Wednesday, 12 June 2013, 6-7 PM Central Time, KPFT FM Houston 90.1 and Online…

http://e xecutionwatch.org > Listen

Join the discussion on Facebook: Execution Watch

TEXAS PLANS TO EXECUTE:

ELROY CHESTER III, who pleaded guilty to shooting to death an off-duty firefighter in Port Arthur when he interrupted the burglary Chester was committing. Chester’s attorneys argued on appeal that he is ineligible for execution because he is mentally impaired, but a divided federal appeals court upheld the sentence. Chester’s previous execution date of April 24, 2013, was delayed by the trial court in response to a motion he filed. Chester’s execution would be the 499th in Texas in the modern death-penalty era.

27 Comments

Posted in Capital punishment

U.S. Supreme Court Sanctions DNA Swab after Arrest

Posted on June 3, 2013 | 2 comments

The US Supreme Court has ruled that if a person has been arrested under probable cause by the police, they can be subjected to a DNA swab.

See the CNN story here.

2 Comments

Posted in Legislation, Police conduct (good and bad)

Prosecutorial Misconduct – What’s to be Done? A Call to Action

Posted on May 20, 2013 | 32 comments

(Graphic: The Veritas Initiative, link)

Let me begin this post with an apology to all the prosecutors out there who are personally committed to upholding the highest standards of ethics and the law. That being said, you know what they say about “a few bad apples.”

Prosecutorial misconduct. Well folks, this one is a hot button of mine. Ask the average citizen, and they are totally unaware that such a thing ever happens. After all, prosecutors are honorable people who are committed to ethics, justice, upholding the law, and to helping protect the public by ensuring that the “bad guys” are sternly dealt with, and if necessary, isolated from society, or even put to death. At least this is what they tell us in their campaign speeches when they’re running for election or re-election. But prosecutorial misconduct and misdeeds happen, and they happen more frequently than any normal citizen would imagine. Let’s look at some data. The National Registry of Exonerations has compiled detailed data for 873 exonerations (wrongful convictions) for the period 1989-2012. You can see the full report here – exonerations_us_1989_2012_full_report. Here is Table 13 from that report showing frequency of causes contributing to wrongful convictions:

The red box highlights the cause of “official misconduct.” (Note that the percentages for each type of case total to more than 100%. This is because any wrongful conviction can have more than one contributing cause.) The average for all 873 cases in which “official misconduct” was a contributing factor is 42%. This figure includes both police misconduct and prosecutorial misconduct, and the table does not separate the data for the two. However, if we assume a 50/50 split, this yields an occurrence of prosecutorial misconduct in 21% of wrongful convictions. And keep in mind, this data set includes only data for known wrongful convictions. Who knows how many more times this happens, and it doesn’t “get caught?” I think we can safely say that prosecutorial misconduct is not an “ignoreably rare” phenomenon.

Continue reading →

32 Comments

Posted in Editorials/Opinion, Prosecutorial conduct (good and bad), Reforming/Improving the system

Yet Another Execution Scheduled in Texas

Posted on May 14, 2013 | Leave a comment

Texas is set to draw closer Wednesday to the ignoble distinction of having put to death 500 people in the modern era of the death penalty. The Lone Star State plans to kill Jefferey Williams, whose execution would be No. 498. Unless Williams receives a stay, Execution Watch will broadcast live coverage and commentary on the state killing.

TEXAS PLANS TO EXECUTE: JEFFEREY D. WILLIAMS, condemned in the 1999 shooting death of a plainclothes Houston police officer who was trying to arrest him for driving a stolen Lexus. Williams claimed he did not know the man was an officer, assumed he was being attacked, and shot the man in self defense. Williams’ execution would be the 498th in Texas in the modern death-penalty era..

EXECUTION WATCH RADIO SHOW PREVIEW:

Unless a stay is issued, we’ll broadcast live: Wednesday, 15 May 2013, 6-7 PM Central Time, KPFT FM Houston 90.1 HD3 and Online…

http://e xecutionwatch.org > Listen

Join the discussion on Facebook: Execution Watch

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Posted in Capital punishment

Texas Plans to Execute Carroll Joe Parr Tomorrow

Posted on May 6, 2013 | 8 comments

Carroll Joe Parr, whose childhood neglect and abuse were extreme even by death-row standards, is slated to be put to death Tuesday, May 7, 2013 by the State of Texas. His would be the 497th Texas execution in the modern death-penalty era. No other state comes close for volume. Second-place Virginia has executed 110.

CARROLL JOE PARR grew up in poverty so extreme, he was often given baked dirt to eat. His sister once tried to kill him. Texas plans to execute Parr for the shooting death of a man in a drug deal outside a North Waco convenience store in 2003. Parr and his fall partner, Earl Whiteside, were accused of approaching two men sitting in a car, forcing them to the side of the building at gunpoint, and robbing and shooting them. One victim survived. Whiteside testified against Parr and received a 15-year sentence on a plea to aggravated robbery. Parr’s would be the 497th Texas execution in the modern death-penalty era.

EXECUTION WATCH RADIO SHOW

Unless a stay is issued, we’ll broadcast live: Tues, 7 May 2013, 6-7 PM Central Time, KPFT FM Houston 90.1 HD3 and Online…

http://e xecutionwatch.org > Listen

Join the discussion on Facebook: Execution Watch

8 Comments

Posted in Capital punishment

Day One of California Innocence Project’s “Innocence March”

Posted on May 3, 2013 | 2 comments

On April 27, 2013, the California Innocence Project started a march from San Diego to Sacramento with clemency petitions for 12 of its clients who are innocent yet remain incarcerated. The public was invited to join at any of the 2 public walking days, or the rallies hosted along the way.

View the Innocence March website here.

See the YouTube video here.

2 Comments

Posted in Reforming/Improving the system

World Congress on Infant Head Trauma (Shaken Baby Syndrome)

Posted on April 29, 2013 | 3 comments

There will be a significant event in the pursuit of true science in diagnosing shaken baby syndrome (abusive head trauma) on November 15-17, 2013 in Dallas, Texas

The World Congress on Infant Head Trauma will bring together international speakers to find common ground and debate controversial topics in pediatric forensic pathology. This unique congress focuses primarily on the pathology and etiology of head trauma (and its mimics) and not the overarching issue of child abuse.

See the conference website here.

I am hopeful that this will be the start of dragging the majority of the pediatric medical community into an understanding of the true science underlying cause-and-effect relationships involved in infants that present with “triad” symptoms.

3 Comments

Posted in Editorials/Opinion, Junk science

Medical ‘Folklore’ Yields Yet Another Shaken Baby Wrongful Conviction

Posted on April 25, 2013 | 7 comments

Melissa Staas is a staff attorney with the Family Defense Center in Chicago, and has recently made the SBS (Shaken Baby Syndrome) defense community aware of a case in Chicago that exemplifies many of the problems with the extant pediatric medical establishment in dealing with medical conditions that are misread by uninformed doctors diagnosing abuse. This is a classic case of what I call “dueling experts.” See the previous WCB post addressing SBS medical expert testimony and “dueling experts” here.

Melissa sent an e’mail describing an appellate court brief recently filed by the Family Defense Center in a so-called “abuse” case in Chicago. That e’mail follows: (posted here with her permission)

Continue reading →

7 Comments

Posted in Editorials/Opinion, Junk science, Reforming/Improving the system

Texas is on an Execution Roll – #496 Coming Up

Posted on April 23, 2013 | Leave a comment

Texas is preparing to put to death Richard Cobb Thursday in what would be the state’s 496th execution of the modern death-penalty era. No other U.S. state has put more citizens to death. The closest, Virginia, has executed 110.

TEXAS PLANS TO EXECUTE:

RICHARD COBB, one of two men condemned in a 2002 robbery-slaying in the small, East Texas town of Ruskin. He and Beunka Adams, who was executed April 26, 2012, were convicted of forcing three convenience-store workers into a car, driving them to a field, raping one of the women, and shooting all three with a shotgun. One worker, a mentally disabled man, died. The women survived by playing dead.

EXECUTION WATCH: Unless a stay is issued, we’ll broadcast live: Thurs, 25 April 2013, 6-7 PM Central Time, KPFT FM Houston 90.1 and Online…

http://e xecutionwatch.org > Listen

Join the discussion on Facebook: Execution Watch

NEXT SCHEDULED TEXAS EXECUTION:

On May 7, Texas plans to kill CARROLL JOE PARR.. If it does, Execution Watch will air.

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Posted in Capital punishment

Arson Investigation – FINALLY, After 21 Years, the IAAI Endorses NFPA921

Posted on April 22, 2013 | 2 comments

The phenomenon of “flashover,” by which any ‘compartment fire’ (ie: a fire in a room) can produce all the traditionally accepted signs of arson, was discovered in 1991. Watch a video of flashover occurring here.

The NFPA (National Fire Protection Association), which is the recognized authoritative body on fire science, published the first edition of its standard NFPA921 (Guide for Fire and Explosion Investigations) in 1992, and it included a recognition of the phenomenon of flashover. Consequently, it was declaring that all the “rules” and “indicators” that had been used by arson investigators for decades to determine if a fire was arson were wrong. NFPA921 was immediately met with “stonewall” resistance from the US fire inspection community, including the IAAI (International Association of Arson Investigators).

The process of dragging fire investigation into the reality of science has been long and arduous. The IAAI eventually offered a grudging acknowledgement of NFPA921, but it was not until January 12, 2013 (just three months ago) that the IAAI issued a “full” endorsement of NFPA921. Their official position statement follows:

Continue reading →

2 Comments

Posted in Editorials/Opinion, Forensic controls, Junk science

Hair Analysis Evidence About to Join CBLA as “Junk Science”

Posted on April 21, 2013 | 3 comments

The FBI and the Department of Justice have announced that they are beginning an unprecedented review of over 10,000 cases involving microscopic hair analysis evidence. They have conceded that, since at least 1985, FBI agents have been providing hair evidence testimony in court that is not scientifically supportable. See previous WCB hair analysis evidence post here.

These actions result in large part from the work done by Washington Post reporter Spencer Hsu. And in recognition of this, Spencer was awarded the Innocence Network 2013 Journalism Award last Friday evening (4/19/13) at the National Innocence Network Conference, being held this year in Charlotte, NC. See one of Spencer’s articles on this subject from last July here.

The case reviews will be assisted by the Innocence Project and the National Association of Criminal Defense Lawyers.

The last time the FBI abandoned a forensic practice was in 2005 when CBLA (compositional bullet lead analysis) was debunked because its premise is not scientifically supportable. See previous WCB CBLA post here.

The 2009 report by the National Academy of Sciences on the state of forensics in the US had this to say about hair analysis evidence – “The report finds no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA.”

3 Comments

Posted in Junk science, Reforming/Improving the system

Judge Bans Personal Electronics From Courtroom to Prevent Witnesses Intimidation

Posted on April 16, 2013 | 3 comments

Witnesses being exposed to retribution for their testimony is not a new thing. After all, the Witness Protection Program was established by the Organized Crime Control Act of 1970. But this was primarily an “organized crime” phenomenon. With today’s 24-hour news cycle fanning the flames of public indignation over high profile cases, and the ubiquity of electronic and social media, witnesses, and others involved in high profile cases, face a new kind of threat – harassment and intimidation by electronic media. The Witness Protection Program provides physical security for those witnesses who may be in danger of bodily harm, or even death, and this protection is extremely expensive. As for electronic intimidation and harassment, a solution, so far, evades us.

Electronic harassment has been an unfortunate byproduct of the internet age and social media. The internet provides would-be harassers with a “cloak of anonymity,” which seems to encourage even casual harassers to send intimidating e’mail’s and texts. And sometimes worse than that, hackers will publicly post the personal information of witnesses and others involved in a case whom they view to be contrary to their own beliefs. This can happen both during an ongoing trial and post-conviction or post-acquittal; driving witnesses and even jurors into hiding to escape the onslaught wrought by the electronic blitz.

Things have come to the point where Cook County (IL) Chief Judge Timothy Evans is moving forward with a ban on personal electronics in courtrooms. Starting Monday, the Cook County criminal courthouses begin their ban on electronic devices that include cell phones, smartphones, tablets, laptops and “all other electronic devices capable of connecting to the Internet or making audio or video recordings.” Read the HuffPost article here.

One more example is the fact that Alyce LaViolette, a domestic abuse expert, who testified for the defense in the Jodi Arias trial had to be taken to the emergency room for “for anxiety attacks and palpitations” after an online barrage was launched against her. Read the HuffPost story here.

We have previously decried what we’ve called “trial by media” or “trial by website.” This is when the public forms strong opinions about guilt or innocence of a defendant based upon coverage by news media, or when someone becomes dedicated to the guilt or innocence of a defendant, and sets up a website to try to convince others of their beliefs. Of course, the media and the general public cannot possibly have knowledge of all the facts and details involved in these cases, but these strong public opinions can, and do, have influence on the outcomes of cases. For example, they can force a change of venue for a trial, and who knows how jurors might be influenced.

Two other high-profile cases that have also suffered from abuse of the electronic media are the Casey Anthony capital murder trial, and the Steubenville football rape case.

The justice system is not supposed to be “trial and judgement by public opinion.” One would hope that responsible citizens would understand that this activity is malicious, and produces no net positive end result. But alas, I believe that this is largely founded in “human nature,” and what the solution might be is beyond my ken. Perhaps just public knowledge that this kind of stuff happens may help.

3 Comments

Posted in Editorials/Opinion, Reforming/Improving the system

Texas Marches Toward 500 Executions

Posted on April 15, 2013 | Leave a comment

Texas is preparing to carry out its 495th execution of the modern era Tuesday, the date for Ronnie Paul Threadgill. The Lone Star State is fast approaching its 500th execution. No other state comes close. Since the Supreme Court reinstated the death penalty in 1976, second-place Virginia has executed 110.

TEXAS PLANS TO EXECUTE: RONNIE PAUL THREADGILL, sentenced to death for a 2001 slaying outside a Navarro County nightclub in which a 17-year-old boy was fatally wounded when two shots were fired into a car. The U.S. Supreme Court declined in 2012 to review the case. Threadgill’s appeal asserted that his lawyers should have negotiated for a felony murder charge instead of capital murder. His would be the 495th execution in Texas during the modern era, in which nearly 40 percent of all U.S. executions have been carried out by Texas.

RADIO SHOW PREVIEW: EXECUTION WATCH

Unless a stay is issued, we’ll broadcast live: Tues, 16 April 2013, 6-7 PM Central Time, KPFT FM Houston 90.1 and Online… http://e xecutionwatch.org > Listen

Join the discussion on Facebook: Execution Watch

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Posted in Capital punishment

David Bryant Freed After 4 Decades, Based Upon IAC Claim (Ineffective Assistance of Counsel)

Posted on April 12, 2013 | 2 comments

The NY Times article follows:

By: Marc Santora Published: April 11, 2013

Karen Smith was 8 when she was raped, beaten, stabbed and left for dead in the stairwell of a Bronx apartment house in 1975. Even in a city that was rife with crime and inured to violence, it was a horrific scene — the body of the little girl was found wearing only socks and underwear, a Nestle’s candy bar by her side and blood spattered four feet high on the wall.

Within a day, the police announced that they had apprehended a suspect, an 18-year-old neighbor named David Bryant who had a previous history of trouble with the law, including two arrests for sexual misconduct.

Mr. Bryant confessed to the murder, was convicted, and the case was largely forgotten.

But on Thursday, nearly 40 years later, a Bronx judge vacated the conviction and ordered Mr. Bryant released after finding that his lawyer at the time had provided a poor defense.

Continue reading →

2 Comments

Posted in Defense lawyering (good and bad), Exonerations, False confessions

Babysitters and Shaken Baby Syndrome

Posted on April 8, 2013 | 4 comments

Those of you who follow shaken baby syndrome cases may have noticed, as I have, that SBS charges seem to fall disproportionately upon babysitters, including family members. However, this is strictly an anecdotal observation on my part, and I have no real data to back it up. But just ask Audrey Edmunds.

I’m sure this is a consequence of being a “lone caregiver” with no other adult witnesses who would be able to testify that the babysitter never abused the child. This is typical of SBS cases. If a child dies and presents SBS (triad) symptoms, the last person alone with the child is “automatically” charged.

If you’re not aware, Sue Luttner maintains an extraordinarily good blog about SBS – OnSBS.com. She has recently posted an article addressing the cases of five babysitters and their travails with the justice system and SBS charges – Mary Weaver, Kelly Kline, Ashley Howes, Suzanne Johnson, and Marina England.

Here is a link to that post:

http://onsbs.com/2013/04/08/old-cases-new-cases-sad-cases-true-cases/

4 Comments

Posted in Junk science, Reforming/Improving the system

Texas Plans to Execute Ricky Lynn Lewis Tomorrow, 4/9

Posted on April 8, 2013 | Leave a comment

EXECUTION WATCH: Unless a stay is issued, we’ll broadcast live:

Tues, 9 April 2013, 6-7 PM Central Time, KPFT FM Houston 90.1 HD3 and Online… htt p://executionwatch.org > Listen

Join the discussion on Facebook: Execution Watch

TEXAS PLANS TO EXECUTE:

RICKY LYNN LEWIS, Convicted of sexually assaulting a Tyler woman and killing her fiance during a home burglary in 1990. A previous execution date was stayed because of claims that Lewis had extremely poor intellectual functioning, but a court ruled in 2005 that his intellectual abilities were not an issue.

SHOW LINEUP

Host: RAY HILL, an ex-convict and activist who founded — and hosted for 30 years — The Prison Show on KPFT. His internet radio show airs each Wednesday at 2 PM CT.: hmsnetradio.org.

Legal Analyst: JIM SKELTON, a legal educator, retired attorney and native Texan who has seen capital trials from both the prosecution and defense tables. Joining him will be Houston criminal defense attorneys SUSAN ASHLEY, LARRY DOUGLAS and MICHAEL GILLESPIE.

Featured Interview: TBA.

Reporter, Outside the Death House, Huntsville: GLORIA RUBAC, member, Texas Death Penalty Abolition Movement, abolitionmovement.org. Reporter, Vigil, Houston: DAVE ATWOOD, founder and former board member, Texas Coalition to Abolish the Death Penalty, ww.tcadp.org.

NEXT SCHEDULED EXECUTION

On April 16, Texas plans to kill RONNIE THREADGILL. If it does, Execution Watch will air.

PRODUCER: Elizabeth, eliza.tx.usa @gmail.com. STUDIO ENGINEERS: Doyle, Mike Lewis. THEME: By Victoria Panetti, SheMonster International, myspace.com/shemonster

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Posted in Capital punishment

Brian Banks, Exonerated of Rape Conviction, Signs with Atlanta Falcons

Posted on April 3, 2013 | 2 comments

The Brian Banks case has been reported on this blog a number of times. See posts here, here, and here. He was a sure-to-be NFL star when he was convicted of a rape he did not commit. He was eventually exonerated with the help of the California Innocence Project, and has had his heart set on getting back into football ever since.

He has recently signed with the Atlanta Falcons, and now has a chance to resume his career.

Read the SportingNews story here.