Sunday, July 23, 2017

Legal experts to judges: Be be more skeptical of forensic methods that don’t pass scientific muster: Courthouse News reports on judicial conference..."Trial judges should be more skeptical of forensic methods that don’t pass scientific muster, a panel of legal experts told judges at the Ninth Circuit Judicial Conference on Tuesday. Jennifer Mnookin, dean of the UCLA School of Law, said Tuesday that popular culture, particularly TV shows like “CSI,” have led juries to believe forensic evidence is authoritative and almost always reliable. That simply isn’t true, she said. “Faulty forensic science is the second most frequently found contributing cause [of DNA exonerations], second only to eyewitness identifications that turn out to be erroneous,” she said. Forensic techniques like fingerprint identification, bite marks, ballistics, hair and footprint analysis were all called into question in a Barack Obama administration report last year by the President’s Council of Advisors on Science and Technology. It debunked decades of forensic practices, saying evidence needs to be empirically and independently tested multiple times in order to determine its scientific validity. “It must take scientific study to make a field scientifically reliable,” Mnookin said. “Experience, no matter how extensive, could not be a substitute for scientific study.”


STORY: "Skepticism of Forensic Methods Urged at 9th Circuit Conference," published by Courthouse News on July 18, 2017. Thanks to Dr. Mike Bowers (CSIDDS Forensics in Focus)  for bringing this to our attention:

GIST: "Trial judges should be more skeptical of forensic methods that don’t pass scientific muster, a panel of legal experts told judges at the Ninth Circuit Judicial Conference on Tuesday. Jennifer Mnookin, dean of the UCLA School of Law, said Tuesday that popular culture, particularly TV shows like “CSI,” have led juries to believe forensic evidence is authoritative and almost always reliable. That simply isn’t true, she said. “Faulty forensic science is the second most frequently found contributing cause [of DNA exonerations], second only to eyewitness identifications that turn out to be erroneous,” she said. Forensic techniques like fingerprint identification, bite marks, ballistics, hair and footprint analysis were all called into question in a Barack Obama administration report last year by the President’s Council of Advisors on Science and Technology. It debunked decades of forensic practices, saying evidence needs to be empirically and independently tested multiple times in order to determine its scientific validity. “It must take scientific study to make a field scientifically reliable,” Mnookin said. “Experience, no matter how extensive, could not be a substitute for scientific study.”
Law enforcement agencies were quick to challenge the PCAST report when it was released this past September, but Tuesday’s panel urged judges to strongly consider the report when deciding whether to admit forensic evidence in criminal trials. “PCAST was truly directed at the courts,” Los Angeles Deputy Public Defender Jennifer Friedman said. “It was not intended to tell the people in this room how to decide cases, but to discuss and explain the intersection of scientific validity and legal reliability.” Friedman said a real tension has developed between science and the courts. While science is always looking forward, questioning hypotheses and retesting methods, the courts tend to look backwards at precedent to ensure fairness. “But we have an opportunity in the courts to drive the science in a direction that many scientists really do want to go,” Friedman said.........Ninth Circuit Judge Alex Kozinski said like many judges and others in the legal community, he had long accepted the idea that certain forensic methods were virtually infallible. But he said a 2005 article in Science Magazine made him question his long-held beliefs. “It went through, step by step, various methods of forensic evidence used in criminal cases and just showed that when you subject them to tests of scientific validity they turn to be doubtful and all the way down to completely useless,” he said. “Bite marks turn out to be completely useless, bullet fragments tend to be highly unreliable. Fingerprints, which I thought were the standard of validity, turn out to have a significant error rate when you test them against unknown samples.” He added, “The PCAST report addresses some of these issues and I thought it was a step forward in bringing all of us to a conclusion that maybe we need to do a better job, because after all this is not a situation where we’re dealing with just technicalities but we’re dealing with the question of whether people are guilty or innocent.” Meanwhile, defense lawyers need to start raising concerns about forensic evidence with judges, Kozinski said. “I think there’s a reluctance to put to the test scientific evidence put on by the prosecution. Many defense lawyers, like the rest of us, grew up with fingerprints, bite marks and footprint evidence and simply accept it as being inherently valid and not worth challenging,” he said. “And if judges don’t have the issue presented, it’s difficult for a judge. Many judges are reluctant to say – if the lawyers don’t raise the issue – have you thought about the scientific validity of this.” An even bigger problem, Friedman added, was that there aren’t a lot of scientific experts out there who are available or willing to testify. “It’s challenging to find experts,” she said. “And we don’t always represent the most enviable clients.”"

The entire story can be found at:

https://www.courthousenews.com/skepticism-forensic-methods-urged-9th-circuit-conference/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Saturday, July 22, 2017

David Bain: New Zealand; 10-part Podcast - 'Black Hands' - examining the Bain family murders, by journalist Martin van Beynen, to be launched July 24, Stuff reports...(Link to first installment); Why the David Bain story needed to be told one more time..." He wasn't a podcast listener before, but he's listened to many now, and reckons this one's pretty good. He doesn't want to give too much away, but there's some fascinating new material from the diaries of Bain's mother Margaret and new interviews from people who knew David well........."This is New Zealand's most talked-about case, maybe its most sensational case and yet I'm not sure that people really understand what the facts are. That was one of the reasons – to make sure there was a balanced account out there somewhere."


STORY:  "Why the David Bain story needed to be told one more time,"  by reporter Adam Dudding, published by Stuff on July 22, 2017.


GIST: "Black Hands, a 10-part podcast series examining the complex and controversial Bain family murders by award-winning Stuff journalist Martin van Beynen is launching on July 24. The slaughter at Every St, Dunedin, was 23 years ago. There have been two trials, numerous reviews, half a dozen books, a guilty verdict and a not-guilty verdict, millions of dollars spent and millions of litres of newspaper ink spilt since then. Seriously, is there anything left to say about the Bain family murders?
Actually, says veteran journalist Martin van Beynen, there is. Loads. So much in fact that on Monday, Stuff will release a 10-part podcast series, written and narrated by van Beynen, which will tell the strange story of the Bain family murders and their aftermath once again, starting with that disturbing 111 call of June 20 1994, when David Bain announced that his family – father Robin, mother Margaret and siblings Arawa, Laniet and Stephen – were "all dead". The series is called Black Hands, a reference to something Bain said to his aunt and uncle soon after the murders, when he read a news report and grew distressed, putting his head in his hands and repeatedly talking about "black hands taking them away". The Bain case, says van Beynen, is just one of those stories that is so complex and so unusual that the public fascination never ends, even after all those books and the wall-to-wall trial coverage including a famous TV fist-pump, and the sequels concerning judges who disagreed, a payout that wasn't a payout and, most recently, a name-change and emigration. He's been following the Bain case in one way or another for two decades, and the podcast in particular has consumed a phenomenal amount of his time and attention. But he says it's wrong to assume he's obsessed with the case. People don't believe him when he says it, but "it's never been under my skin".
Martin van Beynen, veteran print journo and now a podcaster, has been following the Bain case for 20 years. This is just something that sometimes happens in journalism: you follow a case, and you develop some understanding of it so you keep getting asked to follow it, and then one day, without really meaning to, you discover you've become some kind of expert. Van Beynen's home is in Diamond Harbour on the south shore of Lyttelton Harbour, 45 winding minutes' drive south of central Christchurch.  Upstairs, the bedroom that used to belong to van Beynen's oldest son Jack (himself a Stuff journalist) is now Bain HQ. The single bed is covered in ringbinders of court transcripts and evidence files. A bookshelf contains five Bain-related titles, including three by Bain's longtime supporter Joe Karam. A pinboard by the bed holds a diagram of 65 Every Street complete with body outlines, an aerial photo of suburban Dunedin, and a blown-up photo of the Bain victims' joint headstone. Pinned alongside are van Beynen's scribbled notes to himself: "Why the keys in the red anorak?"; "Alibi – out on my round as normal"; "wash hands, clean up, 111". Van Beynen was aware, of course, of the sensational 1994 murder and the 1995 trial that found David guilty of killing his family. He was working at the Press in Christchurch and knew Dunedin from his days at the Otago Daily Times. But he didn't engage with the case journalistically until 1997, after former All Black Karam published David and Goliath, laying out the case for Bain's innocence. Van Beynen says he was assigned the Karam interview mainly because he happened to have a law degree, which meant he often got the justice-related yarns. The pair had a drink at the Crowne Plaza and at one point went to Karam's room so he could change. "I remember seeing him in his underpants in his hotel room, and I thought, this guy is really quite confident. No qualms about that at all." He was also impressed with Karam's book, but he did his own research and talked to reporters who'd covered the trial and were convinced of Bain's guilt, "so I balanced that against what Joe was saying." After the piece ran, Karam "said I was the 'most conscientious journalist in New Zealand'. He wouldn't say that now." Then in 2009, the Bain retrial came to Christchurch, and van Beynen was sent to cover all 12 weeks. It was a national obsession, and feeding the demand was a hard slog: online updates six times a day, something fresh for the daily print story, plus a weekend feature wrap-up. He wasn't the only reporter there for the entire retrial, but once it was over, and Bain was found not guilty, he did something out of the ordinary. He'd been chatting with Fairfax's then-executive editor Paul Thompson about how the jury seemed to get it wrong second time around. Van Beynen had gone in with a reasonably open mind; he'd listened to all the same evidence as the jury, and as far as he was concerned, the evidence clearly pointed to Bain's guilt. "And Paul said, 'Why don't you write something for us?' So he did, and the response, says van Beynen, was amazing: hundreds of emails and phone calls and letters, mostly along the lines of: "This needed to be said." Van Beynen says he is in no way a campaigner or a crusader. "I was just a journalist who tried to cover the case in an honest way, and I came up with some conclusions.".........Because that's how this podcast began its life: from 2014 to 2016 van Beynen researched and wrote a 100,000 word manuscript that contained significant new research and told, for the first time, the entire Bain story. When a publishing deal fell through van Beynen thought it was destined for a bottom drawer, but Fairfax's South Island editor-in-chief Joanna Norris reckoned it might make a great podcast. Van Beynen said yes, and the rest – including a horrifying realisation that podcasts are totally different from books, a 50,000-word trim, a total rewrite, many hours in a recording studio, battles with Bain's legal team over access to the courtroom audio from the trials, more edits and fresh interviews with sources – is history. He wasn't a podcast listener before, but he's listened to many now, and reckons this one's pretty good. He doesn't want to give too much away, but there's some fascinating new material from the diaries of Bain's mother Margaret and new interviews from people who knew David well........."This is New Zealand's most talked-about case, maybe its most sensational case and yet I'm not sure that people really understand what the facts are. That was one of the reasons – to make sure there was a balanced account out there somewhere."
 
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Annie Dookhan: Sonja Farak: Massachusetts: Misconduct complaints filed against two former state prosecutors (Anne Kaczmarek and Kris Foster) who worked on the Farak case, after a judge ruled that they had committed egregious misconduct; Kaczmarek, now a Suffolk County assistant clerk magistrate, led the prosecution of former forensic chemist Sonja Farak, who pleaded guilty in 2014 to stealing from the evidence locker to feed her addiction to narcotics. Kaczmarek also directed the state’s prosecution of chemist Annie Dookhan. Foster, now general counsel for the Massachusetts Alcoholic Beverages Control Commission, fielded motions from defendants whose cases involved drug samples that were analyzed by Farak. At hearings held in December, Foster admitted to writing a “vague” letter to another judge about reviewing evidence seized from a search of Farak’s car. Carey found that both prosecutors withheld key evidence “through deception,” such that another judge incorrectly ruled that Farak’s on-the-job drug use extended back just a few months. Many defendants in cases in which Farak analyzed evidence outside that time frame were denied the opportunity to appeal their cases. But materials obtained by state troopers indicated Farak had used drugs in the lab for at least a year before her arrest. These documents were not disclosed to the court or defendants until several months after Farak went to prison. Farak later testified that her substance abuse stretched back several years earlier. "..."


STORY: "Misconduct complaints filed against former state prosecutors, by reporter Shawn Musgrave, published by The Boston Globe on July 21, 2017.

PHOTO CAPTION: "Sonja Farak stood during her arraignment in 2013. A Springfield judge determined that two former state prosecutors who worked on her case committed egregious misconduct."

GIST:  "The state bar has been asked to investigate two former state prosecutors who worked on the case of a former state chemist at the Amherst drug lab, a month after a Springfield judge determined that the lawyers committed egregious misconduct. In a decision that resulted in dismissal of drug charges against several defendants, Judge Richard J. Carey of Hampden County Superior Court ruled that the two former prosecutors, Anne Kaczmarek and Kris Foster, deliberately concealed documents and made misrepresentations to another judge. Carey found their conduct “constitutes a fraud upon the court.” “Their intentional and deceptive actions ensured that justice would certainly be delayed, if not outright denied, and in the process, they violated their oaths as assistant attorneys general and officers of the court,” Carey wrote. Complaint letters that cite Carey’s ruling were written by Nina Morrison, an attorney with the Innocence Project, a legal services and criminal justice reform group based in New York, and Daniel Medwed, a professor at the Northeastern University School of Law. The complaints were filed with the Office of Bar Counsel, which investigates claims of misconduct by Massachusetts attorneys. The letters ask the state bar to conduct an investigation into whether the former prosecutors violated ethical rules for attorneys and warrant some kind of sanction. “No lawyer, especially one with the power and responsibility of an assistant attorney general, should be immune from investigation for ethical violations,” Morrison and Medwed wrote. The accused attorneys, who no longer work for the state attorney general’s office, did not respond to requests for comment. The attorney general’s office declined to comment. Kaczmarek, now a Suffolk County assistant clerk magistrate, led the prosecution of former forensic chemist Sonja Farak, who pleaded guilty in 2014 to stealing from the evidence locker to feed her addiction to narcotics. Kaczmarek also directed the state’s prosecution of chemist Annie Dookhan. Foster, now general counsel for the Massachusetts Alcoholic Beverages Control Commission, fielded motions from defendants whose cases involved drug samples that were analyzed by Farak. At hearings held in December, Foster admitted to writing a “vague” letter to another judge about reviewing evidence seized from a search of Farak’s car. Carey found that both prosecutors withheld key evidence “through deception,” such that another judge incorrectly ruled that Farak’s on-the-job drug use extended back just a few months. Many defendants in cases in which Farak analyzed evidence outside that time frame were denied the opportunity to appeal their cases. But materials obtained by state troopers indicated Farak had used drugs in the lab for at least a year before her arrest. These documents were not disclosed to the court or defendants until several months after Farak went to prison. Farak later testified that her substance abuse stretched back several years earlier. Kaczmarek acknowledged that she made mistakes in handling the evidence, while Foster defended her actions as stemming from her supervisors’ directions."

The entire story can be found at:

https://www.bostonglobe.com/metro/2017/07/21/misconduct-complaints-filed-against-former-state-prosecutors/7Z0nswU64coUDTrNgkDzSP/story.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Friday, July 21, 2017

Arson 'science': David Lee Gavitt; Cameron Todd Willingham; California Innocence Project discusses the role of innocence projects in reviewing fire investigation, shattered 'myths' and some of the cases in which innocence projects have found convictions based on the unscientific methods of fire investigators..." Until recently, arson cases often relied on now widely discredited methods of fire cause analysis. Early fire investigations were based on apprentice based teaching passed down through generations of investigators experienced in fire analysis or firefighting. This knowledge was largely based on observation and intuition, not actual science. Many indicators of an intentional fire (e.g., burn patterns, presence of an accelerant, windown cracking, etc.) were never questioned. The problem with this approach is that it could lead a fire investigator to the wrong conclusion and wrongfully accuse a person. In addition, there were no consistent requirements for what types of science background or educational background an investigator was required to have. New forms of fire investigation are now based on laboratory science to determine whether the prior myths about the causes of fire are valid. Scientists are now conducting experiments and studying the fire patterns. The findings has shattered dozens of arson myths as the science improves."


POST: "Fire Investigation," currently posted  by The California Innocence Project on its website.

GIST:  "Fire investigation is the analysis of fire-related incidents.  Investigators need to determine whether a fire was accidental or intentional.  If an intentional arson fire was set, the investigator’s findings will lead to criminal charges.  If the fire resulted in deaths, then a person will be charged with murder.  Until recently, arson cases often relied on now widely discredited methods of fire cause analysis.  Early fire investigations were based on apprentice based teaching passed down through generations of investigators experienced in fire analysis or firefighting.  This knowledge was largely based on observation and intuition, not actual science.  Many indicators of an intentional fire (e.g., burn patterns, presence of an accelerant, windown cracking, etc.) were never questioned.  The problem with this approach is that it could lead a fire investigator to the wrong conclusion and wrongfully accuse a person. In addition, there were no consistent requirements for what types of science background or educational background an investigator was required to have. New forms of fire investigation are now based on laboratory science to determine whether the prior myths about the causes of fire are valid.  Scientists are now conducting experiments and studying the fire patterns.  The findings has shattered dozens of arson myths as the science improves.  Many are also pushing for higher standards for arson investigators, such as having a chemistry or physics background  Also, in 2000, a publication of the National Fire Protection Association, NFPA 921 (“Guide for Fire and Explosive Investigations”), became widely accepted as providing the standards and knowledge needed to be a competent fire investigator. Innocence projects have reviewed numerous arson convictions and found many of these convictions to be based on the unscientific methods of fire investigators.  Investigators have come to their conclusions based on arson “indicators” which are now disputed after laboratory experiments. A 2012 case from Michigan illlustrates the use of new scientific research in an exoneration.  David Lee Gavitt was released on June 5, 2012 after spending 26 years in prison after being convicted of arson and three counts of the first degree murder of his wife and children.  His conviction was overturned based on new analysis of the 1985 fire that engulfed Gavitt’s home.  The experts concluded that a flashover (a phenomenon where a fire burns to eventually explode and engulf an entire room) occurred.  The flashover phenomenon had not yet been discovered in 1985 when the Gavitt’s home caught fire.  Moreover, the 1985 forensic fire technician misread reports, and the assertion of the presence of gasoline was wrong.  John Lentini, one of the nation’s leading arson scientists, said in an affidavit that the experts “bundled [arson] myths together” and “in light of modern fire science, there is simply not one shred of credible evidence that the fire. . . was intentionally set.” In Texas, the application of new science was not as well-received. Cameron Todd Willingham was found guilty of the murder of his three daughters in a house fire he allegedly set in 1991 and sentenced to death.  Prosecutors insisted Willingham intentionally set fire to his own home in order to kill his three daughters because fire investigators at the time determined the fire was arson.  Willingham consistently declared his innocence.  Based on expert testimony and a jailhouse informant who said Willingham had confessed, Willingham was found guilty.  In 2004, after fire analysis techniques were developed with scientific investigation, nationally recognized expert Gerald Hurst reanalyzed Willingham’s case and determined the prior expert forensic fire testimony was incorrect.  State officials did not act on the new reports and Willingham was executed in 2004. Each year, more arson cases are being re-examined by innocence projects and the application of the new scientific research should lead to more exonerations."

The entire post can be found at:
https://californiainnocenceproject.org/issues-we-face/fire-investigation/

See also "Simple fire science for arson investigators and courts by John Lentini  at the link below: (Thanks to Dr. Mike Bowers of CSIDDS (Forensics in Focus) for bringing this article to our attention);
https://csidds.com/2017/07/13/simple-fire-science-for-arson-investigators-and-courts-by-john-lentini/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Thursday, July 20, 2017

Hersh Wolch: Manitoba; A tribute to a truly great lawyer, great human being, great mentor to many, and defence counsel in one of Canada's most memorable DNA cases (Regina V. David Milgaard) - and many other extraordinary cases featuring complex forensic issues, including Kyle Unger and Steven Truscott. May he rest in peace. Harold Levy. Publisher; The Charles Smith Blog..."While Wolch represented many clients through the years, Milgaard - who he was able to free after Milgaard served 23 years in prison for the murder of Saskatchewan nursing aide Gail Miller in 1969 - was his most well known. Milgaard was released after DNA evidence cleared him of the crime. Wolch even cross examined Larry Fisher - who ultimately was convicted of the murder - before a special hearing of the Supreme Court of Canada, one of only three hearings in its history to have received evidence. David Asper, who as a criminal lawyer worked on the Milgaard case with Wolch, said Wolch's "cross examination of Larry Fisher at the Milgaard hearing in the Supreme Court was an amazing piece of lawyering, that not only led to getting David’s release, but ultimately the investigation and conviction of Larry Fisher."


STORY: "Hersh Wolch, lawyer who acted in several wrongful conviction cases, dead at 77," by reporter Kevin Rollason, published by The Winnipeg Press, on July 19, 2017.

PHOTO CAPTION: "Defence lawyer Hersh Wolch represented David Milgaard, Steven Truscott, and Kyle Unger among others."

GIST: "When it came to wrongfully accused criminals in Canada, defence counsel Hersh Wolch represented a veritable who's who in a legal career that was more than five decades long.
Wolch, who represented David Milgaard, Steven Truscott, and Kyle Unger among others, died on Monday after suffering a heart attack at his Calgary residence. He was 77. "He was probably the most brilliant trial lawyer I ever had the privilege to watch in a courtroom," his former Winnipeg legal partner, Sheldon Pinx, said on Monday. "He was extraordinarily gifted. He was also skilled in cross examination and other aspects you need in court. "I am shocked. I am totally shocked." Wolch first received his Bachelor of Commerce at the University of Manitoba in 1962, before graduating with a law degree in 1965. He was called to the Bar of Manitoba in 1965, Saskatchewan in 1972, and Alberta in 1978. Wolch began his legal career as a Manitoba Crown attorney from 1965 to 1971, and then went to the federal Department of Justice until 1973. Wolch switched from prosecuting criminals to defending them and while in Winnipeg he was part of the law firm Wolch, Pinx, Tapper, Scurfield. But about two decades ago, with most of his practice in Calgary, he decided to relocate there. Milgaard: Most prominent case:  While Wolch represented many clients through the years, Milgaard - who he was able to free after Milgaard served 23 years in prison for the murder of Saskatchewan nursing aide Gail Miller in 1969 - was his most well known. Milgaard was released after DNA evidence cleared him of the crime. Wolch even cross examined Larry Fisher - who ultimately was convicted of the murder - before a special hearing of the Supreme Court of Canada, one of only three hearings in its history to have received evidence. David Asper, who as a criminal lawyer worked on the Milgaard case with Wolch, said Wolch's "cross examination of Larry Fisher at the Milgaard hearing in the Supreme Court was an amazing piece of lawyering, that not only led to getting David’s release, but ultimately the investigation and conviction of Larry Fisher.........Greg Rodin, who was a partner in Wolch's law firm in Calgary, said Wolch "was working to the end - and probably too hard. "He had numerous cases ongoing. We were working together on Unger. Hopefully that will resolve itself soon." Unger was convicted of first-degree murder in the death of Brigitte Grenier in 1990, at a music festival in Roseisle. But, after spending 14 years in prison, Unger was cleared with the federal justice minister saying in 2009 that the conviction had probably been a miscarriage of justice. He has since launched a $14.5 million lawsuit against federal and provincial justice officials. ( Rodin said Wolch had many precedent setting cases through the years. "Hersh was, if not the most, among the most prominent practitioners of criminal law this country has ever seen," he said. "He has helped many people." Wolch is survived by his wife, Alberta Court of Appeal Justice Sheilah Martin, and seven children."

SOME OF THE CASES NOTED BY THE FREE PRESS WHICH HAVE BEEN FOLLOWED BY THIS BLOG OVER THE YEARS  IN ADDITION TO DAVID MILGAARD: Represented Kyle Unger in his appeal after a hair found on the body of 16-year-old Brigitte Grenier, used during his trial to connect him with Grenier, was determined not to be from him..........Represented Steven Truscott. Truscott, then 14, was sentenced to hang in 1959 after being convicted of the rape and murder of schoolmate Lynne Harper. His sentence was later changed to life in prison and he received parole after serving 10 years. Wolch represented him years later when Truscott wanted to clear his name He was acquitted by the Ontario Court of Appeal in 2007, and awarded $6.5 million by the Ontario government for his wrongful conviction."

The entire story can be found at; 
http://www.winnipegfreepress.com/local/hersh-wolch-lawyer-who-acted-in-several-wrongful-conviction-cases-dead-at-77-435004373.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;

Wednesday, July 19, 2017

Phillip Tallio: British Columbia; B.C. False confessions; He has waited 34 years to clear his name, the Globe and Mail (reporter Jana G. Pruden) reports..."After years of intensive investigation and research, the Innocence Project at the University of British Columbia has won Mr. Tallio the right to appeal his 1983 conviction for the murder of his 22-month-old cousin, Delavina Mack, well over three decades after the appeal deadline passed. The historic appeal is based on new DNA evidence and questions about a flawed and tunnel-visioned police investigation, serious concerns about his two alleged confessions, evidence of Mr. Tallio’s cognitive limitations, reports of systemic racism, and witness accounts that raise the possibility of other suspects never investigated by police."..."After his arrest, Phillip Tallio was interrogated by RCMP for 10 hours without speaking to a lawyer. He maintained his innocence during the recorded interview, but then apparently confessed during a period in which the tape recorder malfunctioned. Mr. Tallio also allegedly gave a second confession during a later session with a forensic psychologist, which was also unrecorded. With no direct evidence linking him to the murder, his conviction rested on the two confessions. A judge excluded the RCMP confession from the trial based on doubts about the voluntariness of the statement given Mr. Tallio’s intellectual level, that he was unable to speak with anyone who could help him, and the length and nature of the interrogation – including that he had been held in isolation for 10 hours. The decision left the entire case resting on the statements Mr. Tallio had reportedly made to a forensic psychologist, Dr. Robert Pos. The Crown prosecutor in the case, Deirdre Pothecary, now says she believes Mr. Tallio would have been convicted of first-degree murder if the alleged confession to Dr. Pos was allowed to go before the jury, but found not guilty if it was excluded. Instead, a plea deal was struck before that was decided. Mr. Tallio pleaded guilty to second-degree murder nine days into his trial that fall, which would see him eligible for parole after 10 years rather than face a first-degree conviction with no chance of parole for 25."..."One psychologist who had examined Mr. Tallio before the trial described him as being easily confused and overwhelmed, unable to think things through and anticipate consequences, and having “blind faith” that people would help him. She said he would sometimes tell people what he thought they wanted to hear so that they would stop questioning him, and she expressed concerns about his ability to understand the court proceedings he was facing. She said that before the trial Mr. Tallio appeared to think that the sooner he went to prison, the more likely he would be home for Christmas. A court stenographer who worked on the case described Mr. Tallio as being like a child, and said he was upset over missing Halloween. Mr. Tallio claimed he did not make either confession, and never even met with Dr. Robert Pos, the forensic psychologist he supposedly confessed to. In one affidavit, a retired criminal defence lawyer says he believes Dr. Pos lied about meeting with his client in a different murder case, and the lawyer expressed serious concerns about Dr. Pos (who is now dead), calling him a “deluded professional” who believed he could tell if people were lying by looking at their carotid artery. And then there was the lack of physical evidence to prove or disprove Mr. Tallio’s claims. With all of the RCMP exhibits missing, Rachel Barsky and her colleagues at the UBC Innocence Project located 45 tissue samples that had been taken during the child’s autopsy and were still being stored at the BC Children’s Hospital. Shortly after the samples were located, Mr. Tallio was interviewed again by the RCMP. During the interview, he repeatedly said he hadn’t killed Delavina Mack, and expressed frustration at being unable to prove his innocence. He offered to give the officers any kind of DNA sample they wanted. Asked by one of the officers what DNA meant to him, Mr. Tallio said, “Freedom.” “And if we take your DNA sample and have it checked to the potential DNA located on the vagina sample, what’s that going to show us?” the officer asked. Mr. Tallio answered, “That it wasn’t me.”


STORY: "B.C. inmate Phillip Tallio has waited 34 years to clear his name. These women might help him do it," by reporter Jana G. Pruden, published by the Globe and Mail on July 15, 2017. (Jana Pruden is a feature writer at The Globe and Mail.)

SUB-HEADING: "Phillip Tallio has been jailed for three decades for a brutal crime he says he did not commit. Jana G. Pruden tells the story of a young outsider, a troubling police investigation and the women whose efforts won him the right to an unprecedented appeal.

PHOTO CAPTION:  Robyn Batryn of Maple Ridge, B.C., holds up a picture of Phillip Tallio, who has been in prison for 34 years, accused of raping and killing his 22-month-old cousin in 1983. He and his supporters say he’s innocent, and now his case is being appealed."


GIST: "In the first year after he was charged with the rape and murder of a child, Phillip James Tallio wrote his teenaged girlfriend 116 letters, every one of them repeating the same thing. He said it before his trial and after his conviction, and when he was sentenced to life in prison. For more than 34 years he said it, over and over, and he would not stop. He said it to family members and to correctional staff, in prison programs and to the parole board, even though he knew saying it meant he would not be released. When people told him to stop saying it, so at least he could get out of prison and have some kind of a life, he told them he would never admit to something he didn’t do. And then he’d repeat the same thing he’d been saying for 34 years: I didn’t do this. Now, a lifetime later, people are listening. After years of intensive investigation and research, the Innocence Project at the University of British Columbia has won Mr. Tallio the right to appeal his 1983 conviction for the murder of his 22-month-old cousin, Delavina Mack, well over three decades after the appeal deadline passed. The historic appeal is based on new DNA evidence and questions about a flawed and tunnel-visioned police investigation, serious concerns about his two alleged confessions, evidence of Mr. Tallio’s cognitive limitations, reports of systemic racism, and witness accounts that raise the possibility of other suspects never investigated by police.“It’s something that us outside of the prison life will never be able to fully comprehend, especially that many years,” says Rachel Barsky, who began working on the case six years ago while a law student involved with UBC’s Innocence Project, and is now a lawyer working as co-counsel on the case. “Thirty-four years in prison. Phillip has missed out on a lifetime.”........ The case has largely come to light because of a former correctional officer who knew Mr. Tallio when he was a teenager and the subsequent efforts of her daughter, Robyn Batryn, who, for the past 15 years, has been working to have the case reviewed. “It makes me sad. He’s lost everything. It’s almost like he has to start right from the beginning,” says Ms. Batryn, a health-care supervisor. She says her mother, now almost 93, wants to see Mr. Tallio released before she dies. The questions around his conviction are significant enough that even the judge who presided over Mr. Tallio’s preliminary hearing has filed an affidavit saying he has come to wonder whether the man imprisoned for 34 years is actually guilty. Mr. Tallio, 51, has been eligible for parole since 1993, but has been repeatedly denied any kind of release, because of his steadfast refusal to accept responsibility for the murder. He has been held long past when most offenders are granted parole, even for the most heinous crimes.........After his arrest, Phillip Tallio was interrogated by RCMP for 10 hours without speaking to a lawyer. He maintained his innocence during the recorded interview, but then apparently confessed during a period in which the tape recorder malfunctioned. Mr. Tallio also allegedly gave a second confession during a later session with a forensic psychologist, which was also unrecorded. With no direct evidence linking him to the murder, his conviction rested on the two confessions. A judge excluded the RCMP confession from the trial based on doubts about the voluntariness of the statement given Mr. Tallio’s intellectual level, that he was unable to speak with anyone who could help him, and the length and nature of the interrogation – including that he had been held in isolation for 10 hours. The decision left the entire case resting on the statements Mr. Tallio had reportedly made to a forensic psychologist, Dr. Robert Pos. The Crown prosecutor in the case, Deirdre Pothecary, now says she believes Mr. Tallio would have been convicted of first-degree murder if the alleged confession to Dr. Pos was allowed to go before the jury, but found not guilty if it was excluded. Instead, a plea deal was struck before that was decided. Mr. Tallio pleaded guilty to second-degree murder nine days into his trial that fall, which would see him eligible for parole after 10 years rather than face a first-degree conviction with no chance of parole for 25......... Eventually she found a lawyer willing to have some students review the proceedings, and she “hounded him to death” until it happened. Ms. Batryn then took their notes to the Association in Defence of the Wrongly Convicted (now called Innocence Canada), which had been involved in overturning high-profile wrongful convictions such as those of David Milgaard and Thomas Sophonow. Progress stalled when it was discovered that all the RCMP forensic evidence in the case had been lost or destroyed, but Ms. Batryn refused to accept it was a dead end. In 2009, she heard about the UBC Innocence Project, and after an extensive review, the group took on the case. ........In his own affidavit, the judge who presided over Mr. Tallio’s preliminary hearing described serious concerns around policing and the administration of justice in the area, including an RCMP practice of imprisoning young Indigenous men for no reason on weekends to keep the community quiet. Judge Charles Cunliffe Barnett said that people in the community were also extremely reluctant to believe a local could commit a terrible crime, and noted that, having lived away for most of his life, Mr. Tallio was an outsider. “I have, over the years, wondered about Phillip Tallio’s case,” Judge Barnett wrote. “Initially, I focused my thoughts upon what I perceived to be the failings of the child protection system. As time went on and I learned that Phillip Tallio was still imprisoned and refused to acknowledge guilt, I came to wonder if he, an outsider in Bella Coola, had truly been guilty of violating and killing Delavina Mack.” The affidavits also raised significant questions about both of Mr. Tallio’s confessions and his guilty plea. One psychologist who had examined Mr. Tallio before the trial described him as being easily confused and overwhelmed, unable to think things through and anticipate consequences, and having “blind faith” that people would help him. She said he would sometimes tell people what he thought they wanted to hear so that they would stop questioning him, and she expressed concerns about his ability to understand the court proceedings he was facing. She said that before the trial Mr. Tallio appeared to think that the sooner he went to prison, the more likely he would be home for Christmas. A court stenographer who worked on the case described Mr. Tallio as being like a child, and said he was upset over missing Halloween. Mr. Tallio claimed he did not make either confession, and never even met with Dr. Robert Pos, the forensic psychologist he supposedly confessed to. In one affidavit, a retired criminal defence lawyer says he believes Dr. Pos lied about meeting with his client in a different murder case, and the lawyer expressed serious concerns about Dr. Pos (who is now dead), calling him a “deluded professional” who believed he could tell if people were lying by looking at their carotid artery. And then there was the lack of physical evidence to prove or disprove Mr. Tallio’s claims. With all of the RCMP exhibits missing, Rachel Barsky and her colleagues at the UBC Innocence Project located 45 tissue samples that had been taken during the child’s autopsy and were still being stored at the BC Children’s Hospital. Shortly after the samples were located, Mr. Tallio was interviewed again by the RCMP. During the interview, he repeatedly said he hadn’t killed Delavina Mack, and expressed frustration at being unable to prove his innocence. He offered to give the officers any kind of DNA sample they wanted. Asked by one of the officers what DNA meant to him, Mr. Tallio said, “Freedom.” “And if we take your DNA sample and have it checked to the potential DNA located on the vagina sample, what’s that going to show us?” the officer asked. Mr. Tallio answered, “That it wasn’t me.”........After more than 34 years, the case of Phillip James Tallio is far from over. Mr. Tallio’s lawyer, Ms. Barsky, says she expects it to take at least five or six months to apply to the courts to have additional samples released for DNA testing. If a judge does order them to be released, the new samples have to be tested before the appeal can proceed. “There are a lot of steps that go into a case as complex as this,” Ms. Barsky says. “We’re dealing with a lot of issues that are unprecedented and that haven’t been done in Canada before … so we have to figure things out as we go along.""

The entire story can be found at:



https://www.theglobeandmail.com/news/british-columbia/phillip-tallio-appeal/article35680801/



PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;



Tuesday, July 18, 2017

Jeffrey Clark and Garr Hardin: Kentucky; Wrongfully Convicted of ‘Satanic Killing,’ (imprisoned for over 22 years) they claim the Louisville Police Department fabricated evidence and a story about a Satanic ritual killing to convict them...." Clark and Hardin filed nearly identical lawsuits with separate attorneys in the Western District of Kentucky this week, claiming that Detective Handy’s “practice was to coerce confessions by lying to suspects about the evidence against them – including false or sham polygraph results, threats, and false promises of leniency.” The men claim Handy used these tactics during interrogations, and when they refused to confess to Warford’s killing, he “falsely reported that Hardin admitted sacrificing animals as part of a Satanic ritual and later decided that he wanted to ‘do a human.’” Hardin says “nothing in the statement was true. [He] had never sacrificed an animal or a human, and he never told Det. Handy that he had done so or wanted to try.”..."Hardin says the Louisville Metro Police Department and its investigators also falsely asserted a bloodstained handkerchief found in his home had been used to clean up animal sacrifices, despite having no DNA evidence to support the claim. “Hardin consistently maintained the blood on the handkerchief was his own,” says the complaint, “but, on information and belief, defendants either suppressed evidence that corroborated Hardin’s account or deliberately failed to investigate it. DNA testing later proved Hardin right: the blood on the handkerchief was his.” The two men say the only physical evidence obtained by police was a hair supposedly left on the victim by the murderer. A Kentucky State Police forensic investigator told the prosecution the hair belonged to Hardin, but the men claim “post-conviction DNA testing excluded both Hardin and Clark as the source of the hair.” Even a confession from a man with a “long and violent criminal history” did not deter Handy and the other investigators from pursuing charges against Clark and Hardin, they say."..."“This testing proved definitively that none of the hairs found on the victim could have come from Hardin or Clark – including the hair that purportedly matched Hardin’s hair under a microscope,” the lawsuit states."


STORY:  "Inmates Wrongfully Convicted of ‘Satanic Killing’ Say Cops Fabricated Evidence," by Kevin Koeniger, published by Courthouse News on July 14, 2017.

GIST: "A pair of inmates wrongfully imprisoned for over 22 years on murder convictions claim the Louisville Police Department fabricated evidence and a story about a Satanic ritual killing to convict them. Jeffrey Clark and Garr Hardin were released from prison in August 2016 after DNA evidence exonerated them for the killing of 19-year-old Sue Warford, who was found stabbed to death in a Meade County, Kentucky, field on April 5, 1992. Clark and Hardin claim that Louisville Police Detective Mark Handy “immediately focused the investigation on [them] and developed the false theory that they had murdered the victim in a Satanic ritual killing.” Clark and Hardin filed nearly identical lawsuits with separate attorneys in the Western District of Kentucky this week, claiming that Detective Handy’s “practice was to coerce confessions by lying to suspects about the evidence against them – including false or sham polygraph results, threats, and false promises of leniency.” The men claim Handy used these tactics during interrogations, and when they refused to confess to Warford’s killing, he “falsely reported that Hardin admitted sacrificing animals as part of a Satanic ritual and later decided that he wanted to ‘do a human.’” Hardin says “nothing in the statement was true. [He] had never sacrificed an animal or a human, and he never told Det. Handy that he had done so or wanted to try.” Another investigator “conspired with Clark’s estranged girlfriend … to manufacture an inculpatory statement falsely accusing Clark of an interest in Satanism and murder,” according to Hardin’s lawsuit. “[The ex-girlfriend] had reason to falsely implicate Clark because he had witnessed her sexually abusing her son and reported the abuse,” the lawsuit claims. Hardin says the Louisville Metro Police Department and its investigators also falsely asserted a bloodstained handkerchief found in his home had been used to clean up animal sacrifices, despite having no DNA evidence to support the claim. “Hardin consistently maintained the blood on the handkerchief was his own,” says the complaint, “but, on information and belief, defendants either suppressed evidence that corroborated Hardin’s account or deliberately failed to investigate it. DNA testing later proved Hardin right: the blood on the handkerchief was his.” The two men say the only physical evidence obtained by police was a hair supposedly left on the victim by the murderer. A Kentucky State Police forensic investigator told the prosecution the hair belonged to Hardin, but the men claim “post-conviction DNA testing excluded both Hardin and Clark as the source of the hair.” Even a confession from a man with a “long and violent criminal history” did not deter Handy and the other investigators from pursuing charges against Clark and Hardin, they say. James Whitely allegedly confessed to the murder before Clark and Hardin were tried, but the now-exonerated men claim “defendants ignored it.” Clark and Hardin were convicted of the murder in 1995 and sentenced to life in prison. They served over 22 years of their sentences before the Kentucky Supreme Court ordered DNA testing of the physical evidence in 2013." “This testing proved definitively that none of the hairs found on the victim could have come from Hardin or Clark – including the hair that purportedly matched Hardin’s hair under a microscope,” the lawsuit states.  (emphasis in original).""

The entire story can be found at  the following link:
http://www.courthousenews.com/inmates-wrongfully-convicted-satanic-killing-say-cops-fabricated-evidence/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;