Category Archives: Technological breakthroughs

“Automatic” Justice? Is Technology Eliminating the Presumption of Innocence?

A recent legal research paper from the School of Law at Queen Mary University of London has raised the issue of technology’s impact upon the criminal justice system, and how its effect may be replacing presumption of innocence with presumption of guilt. A truly frightening prospect. You can download the paper here: Automatic justice? Technology, Crime and Social Control.

The nature of evidence in the justice system has steadily been evolving to be ever more founded in technology, be it legitimate and proven technology … or not. And the tendency is for the prosecution (and police) to say, “We have ‘scientific’ evidence of your guilt; therefore, you are guilty.”

And here’s the problem: much of this “technology” has not been verified and statistically validated. It just gets presented in court as “science,” and judges, lawyers, and juries don’t have a clue as to whether or not it’s actually accurate or relevant. How do you know the latest “computer app” is actually true and accurate? You don’t. We’ve seen frequent examples of so-called forensic “science” being proven wrong. Just three of these would be compositional analysis of bullet lead (CABL), microscopic hair comparison, and bite marks. There are currently thousands of cases under re-investigation as a result of scientifically flawed FBI hair comparison work and testimony. There are some infamous cases of fingerprint identifications being wrong; one of these being the case of Brandon Mayfield. Most people, (including lawyers) don’t understand that there is huge margin for error in locating a cell phone through cell towers.

The agents of the justice system – lawyers, judges, police, and especially juries – have been notoriously ignorant regarding the scientific, technological, and mathematical issues of evidence. This is why so much of the justice system depends upon so-called  “experts” to try to understand and explain what all the technology means; but, these experts, often self-styled, may be legitimate — or they may not be. Unfortunately the lawyers, judges, and juries have no way to tell. Defense attorneys will most commonly not technically question (cross examine) prosecution “experts.” This is too bad, because, in my opinion, a technically knowledgable and logically-penetrating defense attorney could just “take apart” many prosecution “experts” – even medical doctors. The typical legal defense strategy is to present “your own” expert, which puts the poor jury in the position of having to decide which of the dueling experts to believe. All this, unfortunately, leaves the justice system, and the defendant, at the mercy of “experts,” and there is no scientific way built into the justice system to sort through which “science” is true and correct, and which is junk – and which experts are truly expert, and which are charlatans.

From the conclusion of the paper: “Our deepest concern is the emergence of a potentially unfettered move towards a technologically driven process of ‘automatic criminal justice.’”

We – all of us – have a problem. The justice system was never conceived or designed to comprehend the explosion of technology. And the lawyers and judges are not trained or prepared to deal with it. It’s a problem.


Friday’s Quick Clicks…

Court refuses to award compensation to Phil Webster, UK man wrongfully convicted of rape…

Mark Webster’s 2012 conviction for abduction has been overturned by a Virginia court due to new witness statements…

Darren Corbridge and John Naylor, two UK men wrongfully convicted of attacking police officers, will receive five figure sum  in compensation settlement …

FBI crime lab admits to errors in DNA profiles

There are lies, damn lies and statistics.

The Washington Post reports that the FBI has notified local crime labs that it has discovered errors in data used by forensic scientists in thousands of cases to calculate the chances that DNA found at a crime scene matches a particular person.

The FBI is downplaying the significance of the problem, but a scientist who identified errors 10 years ago in the DNA profiles the FBI analyzed to generate the population statistics data called the consequences of the disclosure appalling and said they could have led to wrongful convictions. You can read the story here.

Constructing Rich FALSE Memories of Committing Crime

We have reported numerous times before about how malleable human memory can be (here and here) and on the dangers of the Reid Technique of interrogation that arise from this (here and here).

On Feb. 3, Mark Godsey posted this article from the LawTimesNews describing the resesarch of Prof. Stephen Porter and Julia Shaw.  The study demonstrated that it is relatively easy to get people to “remember” details of a crime they never committed.

Our sincere thanks to the publisher of the study, SAGE Publications, for allowing us to post a link to the full text of the research article.  The link will be active until March 5, 2015.  See the full text here:  Constructing Rich False Memories of Committing Crime.

This excerpt from the abstract of the article:  “It appears that in the context of a highly suggestive interview, people can quite readily generate rich false memories of committing crime.”  And of course, for the term “highly suggestive interview” we can substitute “Reid Technique.”


New technique may be able to date fingerprints

A key factor in the dubious conviction of Texan Kerry Max Cook in a 1977 rape and murder case was testimony of a police officer that the age of Cook’s fingerprints at the victim’s apartment near Cook’s put him there at the time of the murder. The officer later admitted that he knew his testimony was not supported by science but that the prosecutor pressured to make the statement anyway.

Now the prosecutorial science fiction of the 1970s may be on thee verge of becoming a scientific fact. As Discovery News reports here, Dutch scientists say they have discovered how to accurately date fingerprints. If true, the discovery could let police place a suspect at the scene at the time a crime was committed or help defense investigators prove that the prints were left there well before or after the event.

Pre-requisites for a safe Criminal Justice System I: GOOD Science.

Junk_Science_zps5ca255edTime and again, we are reminded that ‘junk science’ can so easily lead to injustice. This need not just be wrongful convictions, but can damage confidence in the justice system in many ways, including giving false hope to victims. However, it is shocking to still see cases where BAD science can lead to people being wrongfully convicted. It is still happening daily around the world. In the US, ‘bite mark’ evidence is still being used to convict, EVEN when the bite mark evidence given at trial is later reversed by the same experts  – read the shocking story here….

When Courts Uphold Bad Science, Innocent People Stay in Prison

Fortunately for one suspect – DNA evidence came to his rescue – albeit 3months after his arrest and imprisonment on child rape charges. The suspect had been identified by the victim AND failed a lie detector test, but was eventually freed when DNA testing that he had pleaded for, linked to another convicted felon who lived nearby. The Prosecutor had only reluctantly agreed to DNA testing, stating previously that it would be ‘a waste of taxpayers money’. Read here…

Rape Suspect Denied DNA Test Is Finally Cleared

This is a shocking reminder that prosecutors and governments as a whole, often think of forensic science as a ‘cost’ that can be cut. This is playing out now in the UK, with the ongoing cost-cutting which has seen the closure of the Forensic Science Service and full privatisation of the forensic science ‘market’, as well as the slashing of police science budgets. Now, finally, the media are reporting on the shocking delay in the UK of utilising advances in DNA profiling. Read more here….

Britain goes from ‘pole position to banana republic’ in DNA profiling

How long before we are counting the cost in terms of wrongfully convicted individuals?

New Understandings in Medical Science Lead to Exoneration in Australia…


The WA Court of Appeal today set aside the 30-year-old second degree murder conviction of Chris von Deutschburg, with this morning’s judgement saying a “miscarriage of justice occurred at the (1983) trial”.

The acquittal was heavily dependant on evidence from WA microbiology Professor Marshall, which was submitted in the appeal run by Malcolm McCusker QC, before he became WA Governor.

On June 1 1983, Mr von Deutschburg, then a homeless 18-year-old known as Christian Wilhelm Michael scuffled with an elderly man during a house robbery.

The man died of a bleeding duodenal ulcer seven days later, and the teen was then jailed for life with hard labour in December and served seven years before being paroled in 1990.

In the December 1983 Supreme Court trial, then state pathologist Donald Hainsworth insisted 86-year-old Stavros Kakulas’s condition was brought on by stress caused by the incident.

But in October 2005, The Sunday Times started investigating the case and interviewed Prof Marshall, who said he stood by an affidavit refuting the evidence that convicted Mr von Deutschburg which he he wrote in 1986 when Mr von Deutschburg had previously considered appealing.

“As a result of my own research and findings . . . I strongly believe that all statements to the effect that the ulcer which caused Mr Kakulas’s death was caused by stress are medically incorrect,” he said in the 1986 document.

A petition for clemency by law firm Mallesons Stephen Jaques, settled by Mr McCusker, led to then WA attorney-general Christian Porter referring the case to the Court of Appeal in May 2012.

This was after Prof Marshall — who won the Nobel in 2005 with co-researcher Robin Warren for proving bacteria not stress caused most ulcers — emphatically told the State Solicitor’s Office the injuries did not cause the ulcer or its bleeding.

Prof Marshall wrote to the SSO in April 4, 2012, saying: “There is no likelihood that his (Mr Kakulas’s) injuries either worsened or contributed to the duodenal ulcer in question.”

In the Supreme Court this morning Justice Michael Buss said Mr von Deutschburg’s appeal had been allowed, there was a “judgement of acquittal” and that the “conviction for murder has been set aside”.

“The medical evidence before this court is incapable of proving beyond reasonable doubt that the appellant’s assault upon Mr Kakulas caused or materially contributed to his death,” the judgement said. “A miscarriage of justice occurred at the trial.”

Mr von Deutschburg, 48, who now lives in Victoria, said: “Today I welcome the Court of Appeal making a decision in this matter … in 1983 it took just three days to find me guilty, but some 30 years to finally accept my innocence.

“I served a life imprisonment with hard labour sentence, including years within Fremantle Prison, all based upon DPP trial evidence that simply never existed. This injustice spanning almost three decades has devastated my life.

“Thank you to Professor Marshall for his medical work of healing the sick, and saving the life of an innocent person persecuted by the State for some 30 years.

“Thank you to my current legal team Sam Vandongan SC and Legal Aid Natalie Sinton. Thank you to my previous legal team including now Governor Malcolm McCusker QC, Judith Fordham, and law firm Mallesons. Thank you to News Ltd journalist Paul Lampathakis who has been working tirelessly for the past some seven years.”

Mr von Deutschburg also thanked the foreman of the 1983 jury for support “all these decades and for visiting me while I was in Fremantle Prison, (and) RP and all those who have variously helped over these past 30 years.”

The former jury foreman, who cannot be named for legal reasons, told PerthNow the decision was “a great weight off my shoulders” because he always knew Mr von Deutschburg was “wrongly convicted”.

He said the jury wanted questions about whether anti-inflammatory drugs had been given to Mr Kakulas, which potentially could have caused the ulcer to bleed, and whether there was a differing medical opinion on the cause of ulcers. But he said the jury was told it could only deal with the evidence at the trial and therefore was compelled to convict him.

Wednesday’s Quick Clicks…


New Scholarship Spotlight: Failed Evidence: Why Law Enforcement Resists Science

harris_david-0187_0Pittsburgh professor David Harris has posted the above-titled article, Chapter 1 of his new book, on SSRN.  Download full text here.  Abstract states:

News reports about police and science like DNA identification, and popular entertainment like the television program CSI and its many imitators, give the impression that science is now the handmaiden of law enforcement. But this picture is at best misleading. Law enforcement does rely on some scientific techniques, but far more often police and prosecution prefer to ignore or even resist science that bears directly on the basics of police investigation. Years of scientific research on eyewitness testimony, police interrogation, and basic forensic techniques (other than DNA and chemical analysis) tells us how these foundational aspects of investigation go wrong. This science also explains how we can improve these aspects of how evidence is gathered and used. This work has been published, peer reviewed, and duplicated – sometimes for decades. But despite the fact that 300 cases of wrongful convictions have now been exposed using DNA, law enforcement continues to resist changes to these basic techniques that police use every day.

The focus of Failed Evidence is why law enforcement resists, and what can be done to overcome it. The resistance to better, more accurate investigative techniques has its roots in two aspects of human thinking: cognitive barriers (e.g., cognitive dissonance, group polarization, and loss aversion), and institutional and political barriers (e.g., the imperatives of arrest and conviction, the ingrained “us versus them” heart of police culture). These problems keep most police and prosecutors from even considering positive change.

From this understanding of why the resistance to science occurs, Failed Evidence distills six recommendations for making change happen, and gives concrete examples of progress from around the nation.

Vigilante justice goes high-tech in Ohio

Emotions often run high in criminal cases, and the higher they run the greater the likelihood that a defendant may be wrongly convicted.

History is replete with news-media fueled hysteria leading to false allegations and convictions. The 1915 lynching is Leo Frank is one early example. More recently, we saw that in 1989 wrongful convictions explored in the searing new Ken Burns documentary, The Central Park Five, and in the false rape charges filed against three members of the Duke University lacrosse team in 2006.

Another possible injustice is currently unfolding in the Steubenville, Ohio, rape case of two members of the popular Steubenville High School football team. The alleged alcohol-fueled rape of an unconscious 16-year-old girl at a party while other boys supposedly watched and did nothing, has set off an international firestorm.

What makes the media conflagration different in this case is that it has been fueled by bloggers and hackers who contend that other boys should be charged and that authorities are trying to cover up other wrongdoing by people associated with the football team.

Contrary to the narrative perpetrated in the cybersphere, law enforcement was not dismissive of the allegations. The alleged rape occurred on August 11. The girl’s mother reported it to police on August 14. Charges were filed on August 27, the same day that local authorities requested the assistance of the Ohio attorney general’s office for additional investigation.

But that wasn’t good enough for some, particularly a purported local member of the international hacker collective Anonymous who calls himself K.Y.

K.Y. has released a lot of information (and some misinformation) on his LocalLeaks web site. He also has threatened to release the social security numbers and other personal information of people he believes have information on the rape if they don’t come forward.

While some of the information K.Y. has thus-far released might be helpful, much of it seems to be fueled by personal animosity and to have been obtained illegally. (Like some cops and prosecutors, K.Y. apparently feels it’s OK to break the law to make others pay a price for breaking the law.)

This is a new frontier in media-fueled rushes to judgment. While some, including Erika Christakis have expressed concern about this new form of vigilante justice, many in the traditional media have followed the social media’s lead.

What makes this particularly frightening is the instant worldwide distribution via social media of unproven allegations by a masked man who doesn’t mind destroying the reputations of teenagers who may have had nothing to do with the rape in question.

To anyone who cares about justice and the rights of the accused to a fair trial, CNN correspondent Gary Tuchman’s interview with K.Y. should be a cause concern. ”We aren’t the judge nor the jury, but it’s fair to say we are the executioner,” K.Y. said of Anonymous. The hacker added that, because some of the people have ”incriminated themselves” in online tweets and postings, there is no real need to wait for the courts to decide on their guilt or innocence. ”If you think they are guilty, that’s because your conscience is telling you they are guilty,” K.Y. said. Case closed.

Trials often lead to unjust results, particularly in emotionally charged cases. But trials sure beat having the accused subjected to a high-tech lynching by a self-anointed ”executioner” hiding behind a Guy Fawkes mask.

Monday’s Quick Clicks…

  • Two defendants exonerated of murder in NY last Friday, but ordered to be supervised by court for 90 days, cannot be released until Wednesday because that is when ankle monitors will be once again available
  • In the UK, The University of Bristol Innocence Project has received the 2012 Pro Bono Award at the Bristol Law Society’s Annual Awards in recognition of its work in obtaining an appeal for the 30-year old case of William (‘Wullie’) Beck.  The award, which recognises ‘excellence’ in pro bono work, was presented to UoBIP members for their work on the case of Wullie Beck, who was arrested in 1981 for an armed robbery of a post van. Mr Beck served six years of imprisonment for his conviction based exclusively on eyewitness identification.
  • Federal judge find parts of expert cell tower analysis inadmissible under Daubert
  • NPR story on case of Wisconsin Innocence Project (listen here):  New video enhancement technology could lead to a new trial for a man convicted of armed robbery. But some on the high court fear using new technology to challenge old convictions could overwhelm the courts with new cases.
  • A federal appeals court has overturned the guilty verdict of a Chicago woman who has been in prison for seven years for the strangulation of her 4-year-old son.  Details here.

NYPD Will Apply Grant to Identify, Catalog DNA Evidence

Eight hundred persons convicted in New York City are seeking to prove their innocence through DNA testing. Unfortunately, it has been difficult to locate evidence in the city’s massive evidence storage facility. Now those who are actually innocent in this group have new hope. The National Institute of Justice has granted $1.2 million to enable the New York Police Department to dedicate a new staff person to search for sexual assault and homicide cases so that the evidence can be reclassified and assigned a bar code—making the evidence more readily available. Some DNA testing will also be covered by the grant, which will begin on October 1, 2012.

As reported in The New York Times (here) the funds will be applied in a highly efficient manner “because they will be utilizing infrastructure and expertise already in place. The cataloguing system for the evidence will utilize the NYPD’s recently modernized evidence tracking system.” A “new Innocence Project staff person will expedite innocence claims”…and “the Chief Medical Examiner has agreed to donate all staff time for the DNA testing.” Continue reading

Decision to Grant New Trial in Arson Case Stands

Kristine Bunch, who has spent 16 years of a 60-year sentence in prison after being convicted of murder and arson in the mobile home fire that took her young son, is “a step closer to freedom,” said Rob Warden, Executive Director of the Center on Wrongful Conviction (CWC) at Northwestern Law. On Wednesday, the Indiana Supreme Court denied the prosecution’s request to review an Indiana Court of Appeals decision to reverse and remand the case for a new trial. The Appeals Court’s decision was based in part on new science that has discredited older arson theory utilized in this and other cases.

The defense argued that fuel could not have been used, that other possible causes of the fire were not adequately considered, and that a lab report that was Continue reading

Breaking News: Exonerative DNA Test Results Announced in High-Profile “Bite Mark” Murder Case in Ohio

Former Police Captain Douglas Prade

Douglas Prade, a former police captain from Akron, Ohio, was convicted of killing his ex-wife in 1998 based primarily on “bite mark” evidence (i.e., an expert testified at trial that the bite mark impression left on his ex-wife’s skin matched Douglas’ teeth).  Doug’s ex-wife, Margo Prade, was a prominent doctor in Akron at the time she was murdered in her van in the parking lot of her office.  The case received significant national media attention at the time of trial, including from Dateline NBC and other  national programs.

The law firm of Jones Day and the Ohio Innocence Project have teamed up for several years now on the case, seeking DNA testing of the bite mark (the bite occurred through the lab coat Margo was wearing when she was killed; DNA testing was sought of the bite mark area of the lab coat).  DNA testing at the time of trial in 1998 was not sensitive enough to obtain meaningful results.  At the time of trial, experts testified that the killer would have “slobbered” all over the part of the lab coat where the intense bite occurred, and the state’s own expert testified at trial that future testing  of the bite mark area of the lab coat would be the best place to find the killer’s DNA (presumably assuming DNA testing continued to become more advanced and sensitive).

The OIP and Jones Day announced today that DNA testing of the bite mark area of the lab coat found male DNA, and Captain Prade was excluded as the source of that DNA.   Prade was also excluded from all other DNA found at the crime scene, including the male DNA found under the victim’s fingernails.  Despite the prosecution’s claims that the lab coat might have been contaminated, months of DNA testing on various parts of the lab coat, pursued by the prosecution, failed to show any male DNA profiles anywhere on the coat except in the bite mark area where the killer bit so hard that he left a deep, lasting impression.

The litigation in this case has been under seal until today.  Prade’s opening brief is here; the Innocence Network’s amicus brief is here; the State’s response is here, and Prade’s reply brief is here.

Upon his conviction in 1998, Prade immediately stood, addressed the court, and stated: ”I didn’t do this…  I am an innocent convicted person. God, myself, Margo and the person who killed Margo all know I’m innocent.”  Prade also stated that Continue reading

More on Northern California Innocence Project’s Souliotes Case…

By Linda Starr, Legal Director, Northern California Innocence Project:

This blog has reported here and here on Chief Federal District Court Judge Anthony Ishii’s decision adopting Magistrate Judge Michael Seng’s 99 page Findings and Recommendation that Mr. Souliotes had made a sufficient showing of actual innocence to serve as an exception to the federal one year statute of limitations, and is entitled to have the merits of his underlying claims heard, regardless of whether the federal petition had been filed 5 days late.  Judge Ishii sent the matter back to Magistrate Judge Seng for further adjudication. We at the Northern California Innocence Project at Santa Clara University (NCIP), along with the law firm of Orrick, Herrington and Sutcliffe, have represented Mr. Souliotes for more than 10 years, and are now preparing to litigate the underlying claims of our federal petition for writ of habeas corpus.  The tortured history of this case is worth detailing for others who fight these cases as well as to generate waves of good blog karma to support Mr. Souliotes in his fight for freedom.

In 2000, a Modesto, California jury convicted Mr.Souliotes of a 1997 arson and triple homicide after the state argued that Mr. Souliotes had set the fire that killed a woman and her two children who were living in his rental property.  The district attorney argued that arson investigators had determined that the fire was an arson and that a substance on Mr. Souliotes’ shoes (“MPDs”) matched a substance at the scene that could have been used as an accelerant and that “the shoes tell the tale”.  This was Mr. Souliotes’ second trial after the first jury was unable to reach a verdict.  In both trials the prosecution sought the death penalty, but after the conviction, the jury declined to impose death and imposed 3 sentences of life without possibility of parole.

NCIP and Orrick have litigated this case throughout the state and federal courts for years, arguing that new scientific evidence provided by Mr. Lentini showed that the MPDs from the scene were in fact different from those from Mr. Souliotes’ shoes, and that Mr. Souliotes received ineffective assistance of counsel when counsel failed to call any witnesses at the second trial, after multiple witnesses testified at the first, including an expert who testified that the fire could not be determined to be an arson, financial experts who testified that Mr. Souliotes had no financial motive to set the fire and would not profit from any insurance proceeds, a prospective buyer who testified that he had offered to buy the home for fair market value, and evidence that Mr. Souliotes had voluntarily permitted the tenants to stay in the home, despite having an enforceable eviction order, when their trailer park flooded.

After losing in state court without a hearing, we filed our petition in federal district court.  The district court dismissed our petition as untimely by 5 days when the petition was filed according to a confusing docket entry.  The docketing procedure has since been changed to avoid confusion to others, but was not considered sufficient to excuse the filing.  We obtained a certificate of appealability to the 9th Circuit and began litigating the issues of whether statutory tolling would apply to permit the MPD evidence issue to be litigated, whether the Schlup actual innocence gateway applies to excuse statute of limitations violations and that we met the gateway standard. While our case was pending, another panel of the 9th held that Schlup did not apply to statute of limitations violations (Lee v. Lampert, 610 F.3d 1125, 1128-31 (9th Cir. 2010) and our panel was forced to follow that decision and deny consideration of our underlying constitutional claims, including IAC. We won the statutory tolling issue in the 9th and the court sent us back to the district court to see if we could establish statutory tolling, but that would permit consideration only of a freestanding actual innocence claim.  We then worked with the Network and with NACDL to file amicus briefs in Lee to support a petition for rehearing en banc.  The 9th reversed Lee en banc (Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc) and held “that a credible claim of actual innocence constitutes an equitable exception to AEDPA’s limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits.” Id. at 931-32.  Following this reversed decision in Lee, the 9th then expanded our hearing in the district court to include a Schlup hearing.

In the hearing this past February, the state was forced to concede that the fire could not be determined to be an arson and that the MPD evidence from the shoes and at the scene are in fact different substances.  Nonetheless, the state argued that an eyewitness’s testimony that she had seen Mr. Souliotes that night supported the conviction.  Both the magistrate and district court judge agreed that the eyewitness’s testimony completely lacked credibility and that without the concededly bad fire science and MPD evidence, it was more likely than not that no reasonable juror would have found Mr. Souliotes guilty.  Thus, under the standard articulated in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518, 537  (2006), Mr. Souliotes was entitled to pass through the Schlup gateway and argue his underlying claims.

NCIP and Orrick have been fighting to get Mr. Souliotes his day in court for more than a decade.  The state has raised one ridiculous argument after another, has continually misstated the law and has flatly refused to consider any possibility that they got this wrong.

We are thrilled for Mr. Souliotes and his family and eager to show the court that Mr. Souliotes’s trial counsel was ineffective and that he is not only innocent enough to permit consideration of his claims, but undisputedly innocent and should have his conviction reversed.

Our client is now 71 years old, and the court has continued to remind all parties that the matter should be handled in an expedited fashion. We are hoping that we will soon be able to report to you on a successful result for Mr. Souliotes.

Another Federal Court Finds Schlup “Actual Innocence” Gateway Based on New Scientific Understandings…

I blogged here recently about a federal court in California finding the Schlup actual innocence gateway satisfied for federal habeas based on new understandings in fire science that undermined the prosecution’s evidence at trial.  Yesterday, The Second Circuit Court of Appeals found Schlup satisfied on similar grounds in Rivas v. Fischer.  In this case, new scientific understandings pointed the time of death being during a window of time for which the defendant had an alibi…

Decision here

Federal Judge Finds the Schlup “Actual Innocence” Exception to Apply to Otherwise Time-Barred Habeas Case Based on New Advances in Fire Science…

As those who litigate federal habeas cases know, there are strict timelines to bring federal habeas cases.  If an inmate’s lawyer misses the deadline, the inmate is out of luck unless he can meet the gateway “actual innocence” standard from Schlup v. Delo.   A federal judge has found that new advances in fire science, which undermine the basis for the original conviction, satisfy this standard.

From the Los Angeles Times:

By Maura Dolan, Los Angeles TimesJuly 7, 2012
A federal judge has ruled that a Modesto man convicted of setting a fire that killed his tenant and her two children has shown “actual innocence” and may now challenge his conviction on other grounds.Chief U.S. District Judge Anthony W. Ishii upheld the findings of a magistrate who examined the evidence against George Souliotes, 72, and concluded that no reasonable juror would have convicted him given the state of the evidence today.But the court’s finding will not necessarily free Souliotes, convicted of setting a 1997 fire in a rental home he owned.

His lawyers missed a legal filing deadline, and under the law, Souliotes had to prove his innocence before he could appeal his conviction on other grounds, including inadequate legal representation at trial.

In determining actual innocence, the judge considered both old and new evidence, regardless of its admissibility at trial. His decision was based on whether he believed it was “more likely than not” that a reasonable juror with that information would have found the inmate guilty beyond a reasonable doubt.

Ishii said in his ruling that the appeal should now proceed quickly. Citing Souliotes’ age, Ishii said the innocence determination “only heightens” the urgency required.

Fire scientists have discredited evidence that was used to convict Souliotes, and the state has conceded that it no longer can prove that the deadly 1997 blaze was Continue reading

New Fire Science Overturns Two Convictions in a Week…

Two convictions (one in Illinois, one in Michigan) were overturned in the past week due to advances in fire science. It is explained in this article:


Almost three decades ago, David Lee Gavitt was convicted of starting the fire that killed his wife and two children. He was sentenced to life in prison.

This week, Gavitt, now 54, was set free based on new scientific evidence proving that the fire was accidental.

Gavitt’s is the most recent case that highlights a shift in thinking about what causes a fire — and how what once seemed like telltale signs of arson can actually be the opposite. Last week, a Chicago-area man was released after prosecutors dismissed arson-murder charges against him stemming from a 1984 fire. And Ernest Ray Willis of Texas was exonerated in 2004 after spending almost 20 years on death row, based in part on evidence presented by renown fire scientist Gerald Hurst.

Gavitt’s case involves both a crucial error in forensic science and the debunking of Continue reading

Michigan Arson Exoneration Yesterday….

After an exoneration in Illinois in an arson case just last week, Michigan followed it up with one yesterday (thanks to the U. of Michigan Innocence Clinic).

From the Sentinel-Standard:

After spending 26 years in prison, David Gavitt is a free man.

Gavitt, now 53, was convicted in 1986 in the arson deaths of his wife and two daughters. He was serving three life sentences at Carson City Correctional Facility when lawyers and law students from the Michigan Innocence Clinic took on his case three years ago and filed a Motion for Relief from Judgment last fall.

After extensive examination of trial records and the evidence, Ionia County Prosecutor Ron Schafer signed a stipulation and order, acknowledging that Gavitt was entitled to a new trial, that the prosecutor’s office is not going to retry him, and that he should be released from prison.

Chief Circuit Court Judge Suzanne Hoseth-Kreeger ordered that Gavitt’s charges Continue reading

Thomas Arthur, Death Row, and State v. Commercial Labs….

Thomas Arthur

I previously blogged here about Thomas Arthur, a man who is awaiting execution in Alabama.  He’s on my mind again, because I’m being interviewed today by the Oprah Network for an episode on the case (because I was an expert witness on the case back in 2008).  The issue now is that state officials down in Alabama want to move quickly toward execution, but won’t allow Mr. Arthur the chance to exhaust all possible DNA testing avenues to prove his possible innocence.

The perpetrator in this case wore a wig that was later recovered.  Years later, someone else confessed under oath to wearing the wig and committing the murder.  The State says the third-party’s confession is bogus and was orchestrated by Mr. Arthur.  That may very well be true.  Or it may not.  No one, of course, really knows but Mr. Arthur and the confessor.  But a DNA test result finding the confessor’s DNA in the wig would prove the confession to be accurate and reliable.  And it’s not like DNA has never proven a prosecutor to be dead wrong.

The State submitted the wig to nuclear STR testing in its own lab, and it failed to find a DNA profile.  But anyone who does this type of work knows that private labs, which used more sensitive and advanced forms of DNA testing like mini-STR, frequently find DNA profiles when the state labs can’t.  Just ask my client Raymond Towler.  The State of Ohio in his case claimed for years it could not find any sperm or male DNA  on the child rape victim’s panties.  We sent the same piece of evidence to a commercial lab, which found sperm galore and developed a DNA profile that sprung Mr. Towler from prison after 29 years.  I’ll never forget the call with one of the  prosecutors after we got the exonerative results, wherein she expressed amazement that the commercial lab found something that the State lab  had not.  I wanted to say, “Are you kidding me?, this is the rule rather than the exception.”

I’m not trying to knock state labs or the good people who work for them.  They are underfunded and overworked and have smart and hardworking people doing the best they can (like our state labs in Ohio, who are staffed by scientists I know and trust).  But the simple fact that commercial, private labs usually have more sensitive and up-to-date technology and can often get DNA results that state labs can’t is a given to anyone in this line of work.  The fact that Alabama turns a blind eye to this phenomenon, and wants to execute Arthur without seeing what a private, commercial lab can add to the equation, is egregious.

This editorial from the Atlantic says it all:

Another month, another man on death row, another excruciating case that illustrates just some of the ways in which America’s death penalty regime is unconstitutionally broken. This time, the venue is Alabama. This time, the murder that generated the sentence took place 30 years ago. And this time, there is an execution date of March 29, 2012, for Thomas Arthur, a man who has Continue reading