Category: Forensics

Steven Hayne Admits to Perjury

Tuesday, November 6th, 2012

It’s been a while since we visited the Steven Hayne saga in Mississippi. There was some big news today.

If you’ll remember, when my story about Hayne broke and the Innocence Project went after him a short time later, Hayne was asked by the Jackson Clarion-Ledger about why he was never board certified in forensic pathology by the American Board of Pathology. Here was his response:

He said the American Board of Pathology hasn’t certified him because he walked out of the examination. He said he got angry at what he regarded as a stupid question – ranking in order what colors are associated with funerals instead of asking questions about forensic pathology.

“I’ve got a temper. I don’t put up with crap like that,” he said. “I walked out and took another examination from another board.”

After that article ran, the paper was contacted by the American Board of Pathology:

“As the executive director of the American Board of Pathology I was surprised by Dr. Hayne’s description of the ‘stupid question’ (related to colors associated with funerals) on his forensic pathology examination that caused him to walk out of the exam,” Dr. Betsy Bennett said by e-mail. “Dr. Hayne took the forensic pathology examination in 1989. I pulled the text of this examination from our files, and there was no question on that examination that was remotely similar to Dr. Hayne’s description.”

When confronted with this information, Hayne responded:

“She is flat wrong. She doesn’t know what she’s talking about.”

He said he would stake his reputation and career on that question appearing on the test, saying, “It’s like remembering where you were when men landed on the moon.”

And now, the latest.

The latest salvo comes in a post-conviction relief motion filed in Monroe County Circuit Court by attorneys for former Mississippi State University professor David Parvin, convicted last year in the 2007 shooting death of his wife.

Hayne now acknowledges a previous statement he made in connection with his credentials isn’t true, according to the documents filed by Parvin’s attorneys on appeal, James L. Robertson of Jackson, Jim Waide of Tupelo and Tucker Carrington, who heads the Mississippi Innocence Project.

Hayne had testified under oath in a 2004 trial and reiterated to The Clarion-Ledger in 2008 that he walked out of an 1989 exam for certification in forensic pathology because of a stupid question about ranking in order what colors are associated with funerals.

In a recent deposition by the Innocence Project, Hayne was confronted with the exam and admitted there was no such question about death, lawyers wrote.

At the time Hayne “walked out” of the exam, he was failing it, lawyers wrote.

That means he not only flat-out lied to the Clarion-Ledger in 2008, he has now admitted under oath that he lied in his testimony at a murder trial. And probably not just one.

Longtime defense lawyer Matthew Eichelberger recalled quizzing Hayne about the same matter.“That man looked me in the eye, looked all 12 jurors in the eye and looked Circuit Judge Betty Sanders in the eye,” he said. “And he swore that he walked out of the exam because it contained all of these absurd questions. Of course, we now definitively know that not to be true.”

In the case that brought all of this out, Hayne claimed under oath that he could tell by a shotgun wound how far away the muzzle of the gun was from the victim when it was fired. So we now have definitive evidence that Hayne has lied under oath about his qualifications. He has also repeatedly lied about them out of court. And the Mississippi Supreme Court itself has found that Hayne gave testimony in a murder case that was unsupported by science (preposterous is more like it). What do you think, will Mississippi finally show some sense of shame and admit that every case in which this guy was involved now needs to be reexamined? Think we’ll see him arrested and charged with perjury?

Nah. Me neither.

By the way, Jeffrey Havard was convicted of murdering his girlfriend’s little girl almost exclusively because of Hayne’s testimony. That testimony has since been called into question by qualified forensic pathologists. Havard was denied again by the Mississippi Supreme Court earlier this year. His post-conviction petition is now in federal court. If he loses there, he’ll likely get an execution date.

Lunch Links

Friday, September 28th, 2012

Morning Links

Monday, September 24th, 2012

This Week in Government Incompetence That Likely Ruined Lives

Saturday, September 15th, 2012

In Arizona:

Arizona’s child-welfare agency has discovered a computer glitch that officials say kept public records from parents, lawyers and others for more than 15 years, a malfunction that could have led to children being wrongly removed and prevented caregivers from supporting civil claims against the state.

“If a case got to the wrong result because information wasn’t disclosed, that’s a big, big problem,” said Mark Kennedy, who has represented about 400 parents over the past three years. “To me, it’s pretty significant when CPS says we’re going to contact 21,000 lawyers. That’s like saying, ‘Start searching your case files because there may be some problems out there.’ “

In Massachusetts:

The top official at the state laboratory that mishandled drug samples has resigned, and another lab executive has been fired, state law enforcement and health authorities announced Thursday, the latest development in an unfolding scandal.f

The lab officials failed to ­detect obvious signs of problems with a chemist’s work ­involving drug samples from criminal cases, state executives said at a Beacon Hill press conference. They compounded that error by making the “poor decision” to wait six months to alert the state’s public health commissioner once problems were identified, said Dr. JudyAnn Bigby, secretary of health and human services in the Patrick administration . . .

The chemist, who worked at the Jamaica Plain lab from 2003 until she quit in March, handled 60,000 samples, poten­tially imperiling 34,000 criminal cases. Officials have not publicly named the chemist, but authorities familiar with the investigation identified her as Annie Dookhan.

Problems with the chemist were discovered in June 2011, according to state officials, but lab directors did not bring those issues to the attention of Public Health Commissioner John Auerbach until December.

Here’s how we can make this sort of thing less common.

Costs and Benefits of Modern “Sex Crime” Witch Hunts

Friday, August 17th, 2012

People of our present era like to believe that they are sophisticated, intelligent, and incapable of engaging in the kind of witch hunts that made Salem, Massachusetts, famous, yet in the past 30 years American law enforcement and prosecutors have pursued what only could be described as witch hunts, as they have railroaded innocent people into prison for crimes that clearly have not occurred. There are the more famous witch hunts, such as the McMartin and Kern County cases in California, the Little Rascals Case in North Carolina, the Grant Snowden case in Florida, the witch hunt of Wenatchee, Washington, and many more.

In each of these cases, people have been accused of the most sordid and horrible kinds of child molestation, from outright rape to shoving swords into the rectums of children (and, amazingly, leaving absolutely no trace of injury), cooking babies in microwave ovens, engaging in Satanic rituals in the middle of the day at day care centers, throwing children into shark-infested waters, and more. We would like to think that there at least would be some physical or corroborating evidence for such actions, but these “crimes” were pursued even though nothing seemed changed about the children.

Often, the charges seem to be absolutely contrived. In Dade County, Georgia, for example, Brad Wade was accused of sexually molesting a minor on a very short stretch of I-59 while simultaneously driving more than 60 mph. (While he had been driving in from Alabama, the alleged molestation took place only in Georgia.) That might seem a bit strange, but when one realizes that Alabama authorities had recognized that the accusations and their backgrounds (yet another child custody fight) simply did not make sense, so Northwest Georgia authorities, which push nearly every sexual abuse accusation (as long as the accused is not politically-connected), eagerly jumped on the charges and Wade is serving a lengthy sentence in a Georgia prison.

When one steps back and takes a hard look at these cases, it is apparent that the authorities have depended upon mass hysteria and a news media that soaks up every story, no matter how contrived it might be. Because I have no expertise in psychology (except in dealing with four internationally-adopted teenagers in my home), I am reluctant to deal with psychological aspects of witch hunts except to say that people really do come to believe things that physically seem to violate laws of time and space.

I turn, instead, t0 those things where I do have more formal experience, the cost and benefit patterns that accompany these witch hunts, patterns that would interest an economist like me. Accompanying that curiosity are some questions that never seem to be asked when the hysteria breaks out:

  • Why is corroborating evidence ignored, even when it absolutely points to the falsity of the charges?
  • Are there any overt patterns that are seen time and again when authorities go after people accused of these horrific things?
  • Does anyone benefit, financially, professionally, or otherwise, from the pursuing of these charges?

If we can answer these questions, then we also are able to get a clearer picture of why these charges are levied and why the authorities are hellbent on bird-dogging them, even in the face of corroborating evidence that absolutely debunks the accusations. Furthermore, we might get a better sense of why jurors in such cases are likely to convict innocent people.

In the situation of bogus child molestation charges, there really is a Ground Zero: the Child Abuse Protection and Treatment Act of 1974, commonly known as the Mondale Act. If ever there were an outright federal assault on the Rights of the Accused which came out of Anglo-American Law, it was this law. Congress passed it, of course, because Sen. Walter Mondale (who was up for re-election) claimed that child abuse was epidemic and the federal government had to step in to put an end to this horror.

Now, Mondale was right in saying that there always are horrific cases of child abuse and molestation, and I can say, as one who has been involved in four international adoptions, that such outrages occur inside and outside the USA. No one will dispute that fact. However, the federal “solution” to this problem has been to create huge incentives and moral hazards for false accusations. This is a law that not only eviscerated the Rights of the Accused, but also created incentives for local and state governments to make money and for individuals employed in that system to enhance their own personal prospects.

Economists are fond of saying that incentives matter, and CAPTA and similar laws passed in its wake (including the Violence Against Women Act of 1994 and beyond) created numerous financial and personal incentives for police and prosecutors to emphasize these kinds of cases. At the same time, CAPTA lowered the legal threshold for prosecution and denied defendants the right to bring corroborating evidence that might prove exculpatory.

For example, authorities claimed that molested and abused children would be traumatized by having to be in the same courtroom with their alleged abuser, so children often would testify from the judge’s chamber via a closed-circuit television. Such an arrangement only served to make the defendant look to be such a monster that he or she had to be guilty. (The U.S. Supreme Court struck down this practice, saying that it deprived the defendants of the Sixth Amendment right to face one’s accuser.)

The Mondale Act also told states receiving federal money to eliminate the requirement for corroborating evidence, which mean that the accusation itself would constitute all of the proof needed for a conviction, which lowered the legal standard in criminal cases to something akin to preponderance of the evidence, the civil standard, instead of guilty beyond a reasonable doubt. The Rape Shield laws, which also have applied to sexual abuse cases, encouraged judges to disallow evidence such as the accuser having a history of making false charges, and the courts also permitted the admission of hearsay evidence, especially when it would benefit the prosecution’s case.

We should not be surprised at the results, as numerous people have been wrongfully convicted for something that never happened. Because American courts tend to overturn convictions on issues of procedure and not guilt or innocence, one can say with certainty that in the United States of America today, actual innocence no longer is a legitimate defense, at least in some kinds of cases. Furthermore, the appeals courts constantly are looking for reasons to impose “finality,” which means that they wash their hands of the evidence and the hard fact that those appealing their convictions might well be innocent.

While it almost is impossible statistically to trace the patterns of accusations and convictions, nonetheless we have seen the development of cost and benefit patterns that have followed in the wake of the changes in how such cases proceed. We should remember that witch hunts don’t occur because people mysteriously become hysterical en mass. They happen, instead, because individuals benefit from making and pursuing these charges, and in the case of so-called sex crimes, the benefits can be huge.

Before looking at the benefits, however, let us examine who bears the costs. People who are accused either must depend upon a public defender or must pay for legal representation from their own resources, and it does not take long for the money spigot to run dry. Tonya Craft literally had close to a million dollars to spend on her defense, and she still ran out of funds before the case even came to trial. In the infamous Duke Lacrosse Case, each of the three defendants had to spend more than $1 million apiece just to try to debunk what were transparently-false charges.

In cases involving child molestation or rape, an ordinary criminal defense attorney usually is not enough, as these are very difficult cases to defend because the accused already has been demonized in the media and by prosecutors, and the laws governing such cases are different than most laws regarding alleged criminal conduct. For example, if one is charged with robbery or murder, an actual robbery or murder must take place, and then the question for the jury is whether or not the defendant is the guilty party.

The sex crime cases, however, have such a low threshold of proof that real-live evidence of such an assault actually having occurred is not needed; all that is necessary is an accusation, and the law provides plenty of incentives for people to make false accusations for purposes of revenge or, in child custody cases, to get the other person out of the way.

The costs can be substantial. I know one attorney who specializes in such cases who requires a down payment up front of $100,000. Since few people keep $100K in spare change, getting the funds is very, very difficult. Then there a experts in forensics, interviewing, and the like who also do not testify for free. One of the reasons that so many people plead to something in such cases is that they do not have the personal resources to fight the charges.

On the benefit side, one only has to think of Janet Reno, Ed Jaegels, Scott Harshbarger (who prosecuted the notorious Fells Acres Case in Massachusetts), and Gary A. Riesen, the Chelan County, Washington, district attorney who was re-elected until his retirement last year by voters despite his “witch hunt” prosecutions. Reno rode her wrongful convictions to the position of U.S. Attorney General, Jaegels has been a conservative icon in California, and Harshbarger rose to prominence in national Democratic Party circles.

Nancy Lamb, who pursued the Little Rascals Case — the most expensive criminal case in the history of North Carolina — was lionized in the media and even now, according to North Carolina’s Judicial District 1 website, remains as a prosecutor who “specializes in child abuse.” In all of these cases, the individual prosecutors benefited from prosecuting innocent people. None had to face lawsuits, and none were brought up before their various state bars for discipline.

Their actions wasted millions of dollars, destroyed individual lives and families, and unnecessarily created real victims. None paid anything resembling a personal price. Likewise, those employed by the various Child Protective Services agencies and the Children’s Advocacy Centers — all of which were created by federal legislation — are immune from lawsuits and face almost no legal scrutiny for their aggressive questioning that literally demands that children “disclose” abuse, even when the children being questioned vociferously deny that any abuse even happened.

When patterns of costs and benefits are so skewed, and when taxpayers are forced to fund witch hunts while individuals are forced to pay for their own defense, we should not be surprised that witch hunts continue to occur on a regular basis. Witch hunts are just one more example of how the political classes of Washington, D.C., in the name of “doing something” actually create situations in which the so-called cure is worse than the disease.

William Anderson

Why the Mainstream Media Never Seems to Learn Any Lessons of History

Wednesday, August 15th, 2012

As child molestation charges last year began to swirl around Robert Adams and the school where he was headmaster, the Creative Frontiers School in Citrus Heights, California, Joy Terhaar, the executive editor of the Sacramento Bee, wrote a column claiming that the “lessons of the past” in child molestation cases served as a guide to the newspaper’s present coverage. She declared:

The shadow of the McMartin Preschool fiasco hung over Sacramento law enforcement and media last week.

You likely followed the news of the abrupt closure Monday of a private elementary school in Citrus Heights because of allegations the principal molested students beginning in 1997.

Just as law enforcement learned from the McMartin molestation allegations in the 1980s, and changed its investigative approach in such cases, the media learned to be more skeptical.

Unfortunately, the column was little more than self-serving rhetoric and when Adams was indicted and charged, the Bee ran a number of articles and columns inferring that Adams really was guilty, including this one by Marcos Benton that lumped Adams with convicted pedophile Jerry Sandusky, the former Penn State football defensive coordinator and did not even offer the possibility that Adams might be innocent. Because I will be writing on the Adams/Creative Frontiers case in future posts, I don’t want to go into detail except to say that I strongly (very, very strongly) believe this case is yet another sickening hoax in which the media glorifies police and prosecutors while innocent people are charged with “crimes” that never occurred.

I have been involved as an observer, a blogger, or an adviser in cases where people have been charged with rape or child molestation, including the Tonya Craft trial (she was acquitted) and the infamous Duke Lacrosse Case (in which the charges were dropped after North Carolina Attorney General found “no evidence” that a rape or any other crime had occurred). There also are others and if I have found one common thread in all of them, it has been the role of the mainstream news media. With only very, very few exceptions, the pack mentality of mainstream journalism has come to the fore and journalist after journalist has written or broadcast stories that assume that charges automatically mean guilt.

Meanwhile, despite the Bee’s claim that the McMartin and other notorious cases of false accusation have helped to steel coverage of cases involving such accusations, I find that simply to be untrue. This unfortunate thread runs from the local media all the way to the top national entities. For example, the Duke Lacrosse Case found two newspapers that inferred guilt and purposely ignored all exculpatory evidence all the way to the bitter end: the local Durham Herald-Sun and the New York Times. (Even after “60 Minutes” eviscerated the charges in an October 2006 broadcast, the H-S and NYT continued to hold to the Party Line.)

(American Journalism Review ran a scathing review of how the media covered the Duke case, and I will say that the writer, Rachel Smolkin, pretty much got it right.)

There is a lingering question here, even as we see media people engaging in the same angst over how they cover these kinds of cases and claiming that they have “learned their lessons,” and the question is this: Why does the mainstream media continue to run over the same cliff time and again?

People have any number of answers ranging from the “liberal media” to outright ignorance. Yes, most mainstream media people are politically liberal and, yes, a lot of them are bright yet ignorant on many things. (Don’t get me started on reporters and economics.) Yet, I believe that the reason we see the same patterns repeated over and over again is institutional, and this goes back to the days of Progressivism and the Progressivist 1922 Canons of Journalism.

In 1922, broadcast media was in its infancy, so newspapers tended to be the organizations that hired the most journalists. As an institution, the news media was decidedly Progressive, and it featured people who believed that the role of the press should be to foster “good government” at all levels. That meant that reporters would spend much of their time covering the various governmental entities from the local police and city hall to the U.S. Presidency. Although reporters were claiming to be the “watchdogs” of government, in reality, they became an arm of the individuals in government.

This has developed innocently enough. For example, when the local courthouse reporter goes on his or her beat each weekday, the reporter speaks almost exclusively with government agents, from clerks to judges. While the journalist might talk to individual defense attorneys, they are not going to be able to have the same relationships with reporters as do the government employees because a defense attorney is more likely to keep important information at bay. (There are exceptions, such as the Raleigh News & Observer’s Joe Neff uncovering a number of illegal acts such as strong arming witnesses by one of DA Michael Nifong’s investigators, along with other documents that demonstrated conclusively that Duke accuser Crystal Mangum was not telling the truth. Yet, Neff was an exception, not the rule, in the Duke case.)

As the relationships develop, the skepticism seems to disappear. After all, prosecutors and police tend to be more forthcoming with what they claim to know than are defense attorneys, and delivering information tends to help cement relationships.

In the “sex crimes” cases, the situation is worse. First, states are required to investigate all claims no matter how specious they may be, and news of investigations into these kinds of cases always will be heavily sought by reporters, even if the claims are not true. Second, and I NEVER have seen this fact reported in a mainstream publication or broadcast, government agencies from the police to prosecutors to Child Protective Services receive federal money whenever they pursue charges in such cases, which increases the incentives to charge nearly everyone no matter how bogus the charges might be.

Third, “sex crimes” always are “hot news.” They just are. People are curious, they have instant opinions, and are much more likely to rush to judgment when such accusations are made than they might be in other kinds of cases. Furthermore, political ideology heavily filters the interpretations. For example, the vast number of “they must be guilty” accusations in the Duke case came from the political Left, including much of the Duke faculty and administration, and organizations such as the NAACP. The Marxist blogs such as Counterpunch automatically assumed guilt, and even after the charges were dropped, Counterpunch ran a piece that claimed the charges might have been true and that Nifong was being mistreated.

Daniel Okrent, a former ombudsman for the NYT, told New York Magazine about the Duke case: “You couldn’t invent a story so precisely tuned to the outrage frequency of the modern, metropolitan, bien pensant journalist.”

However, while the “liberalism” bogey certainly has truth, I believe that the situation is institutional, or as the late Warren Brookes once wrote about the mainstream media, the press tends to lean toward the “statist quo.” Not only do media Progressives tend to have a strong faith in the ability of the State to “fix” problems in society, but most of the important professional relationships that reporters have tend to be with government officials. There is a symbiotic relationship between journalists and people in government (and not just elected politicians), as they depend heavily upon each other for news and favorable publicity.

The problem is that when prosecutors and journalists develop symbiotic, mutually-beneficial relationships, due process of law and the rights of the accused often are eviscerated. While various state bar rules for prosecutors specifically prohibit them from making inflammatory public statements that declare someone to be guilty even before trial, prosecutors rarely are disciplined for breaking that rule and for breaking others. Because individuals actually harmed by prosecutorial misconduct are not permitted to sue, the only way for redress is for the prosecutor’s peers to act either through the state bar or by charging the rogue prosecutor with actual crimes. In reality, neither happens very much.

Thus, prosecutors are given free reign and are virtually assured that they will not be held responsible for illegal conduct. Not surprisingly, the media rarely holds them responsible, either. I believe that is because a reporter can benefit when prosecutors illegally leak material to them, an act that is a felony, but is protected by the courts and the media.

One of the worst examples came more than 20 years ago when Rudy Giuliani, then U.S. Attorney for the Southern District of New York, was pursuing Wall Street finance whiz Michael Milken. Giuliani was able to keep Milken and his defense team off balance by illegally leaking testimony and other grand jury material to favorite reporters, and especially James Stewart of the Wall Street Journal. What Stewart and Giuliani did was criminal (as opposed to Milken’s acts which a federal prosecutor later admitted had never been regarded before as criminal), but it was Milken who went to prison and Giuliani and Stewart who went to fame and fortune.

Thus, when journalists act in a reprehensible manner, they are rewarded, and that means it is unlikely reporters are going to change their behavior. What we see in sex crime accusations is that all of these issues come together, and individuals who are accused have virtually no chance with the legal system. With the media trumpeting that the accused always are guilty and with reporters having close ties to the prosecutors, the accused cannot get their story in print or in broadcasts.

In the Tonya Craft case, the prosecutors and police had almost limitless access to the media and quickly pronounced her guilt. When Craft tried to fight back by appearing on a radio talk show, Judge Brian House, who presided at her trial (and made it clear he was in the hip pocket of the prosecutors) slapped her with a gag order that remained until after her trial ended. (A similar thing happened in the Duke Lacrosse Case, when the NAACP demanded that the court impose a gag order. The irony was that the NAACP has long been officially opposed to gag orders because they hurt black defendants, but because of the racial politics of the Duke case, the NAACP was willing to overturn its own positions.)

There is one more factor as to why the media never seems to learn: sheer laziness. When an issue arises, a typical reporter will go to the Rolodex and call up the Usual Suspects. In cases involving alleged child molestation and rape, one often sees Wendy Murphy interviewed, and, as Radley has pointed out, Murphy has a history of telling whoppers. She is not an expert in any sense of the word, but because she is inflammatory, reporters will seek quotes from her.

I recently saw a Discovery Channel broadcast dealing with crimes, and the reporter interviewed Steven Hayne, who claimed that the position of the body would let him know if the murderer was right-handed or left-handed, a preposterous position. Nonetheless, Hayne was available and ready to give a quote. That he was a fraud did not seem to matter, and it took repeated efforts by Radley to expose him.

Likewise, journalists are enamored with people they deem to be experts, and most of them believe that government bureaucrats, from the interviewers at CPS to prosecutors are experts just like the folks at CSI. By not scrutinizing their comments or spending the time to seek out real experts, journalists not only deprive their readers and listeners of facts, but they also further imperil people who are innocent but have been falsely accused.

Given this set of circumstances, I believe that real reform is not possible. The modern media is so tied to government and its stable of “experts” that it is impossible for others to break into that mix. What that means is that every time someone is falsely accused of a sex crime, we can expect the mainstream press to run over the cliff — and then declare after the debacle that journalists have learned their lesson and won’t make that same error again. And again. And again.

William Anderson

“I no longer believe in bite-mark analysis.”

Monday, August 6th, 2012

That’s infamous bite mark “specialist” Michael West, in a deposition last year for the Leigh Stubbs case.

This comes after West has put dozens of people in prison with bite mark testimony, including several on death row. Two of them, Eddie Lee Howard in Mississippi and Jimmie Duncan in Louisiana, are still awaiting execution.

The office of Mississippi Attorney Jim Hood so far has so far refused to go back and reopen all the old cases in which West has testified. Hood should have done that a long time ago. For that matter, the same goes for Hood’s predecessors. And the Mississippi Supreme Court. We’ve known for nearly 20 years now that this guy was a fraud. Hell, we’ve had video evidence. Lots of it. No much cared. Because, as one former Mississippi prosecutor told me, “Nobody wants to be the one to unravel that ball of yarn.”

Will Hood’s office still defend convictions won on West’s testimony now that even West himself concedes his field of expertise is quackery? I’ll be surprised if he does. My guess is that they’ll begrudgingly offer plea bargains to lesser charges that will be too appealing for defendants to turn down. That way convictions stay intact, and nobody has to admit that the system is broken.

But of course it is broken. I don’t know how you take West’s statements at the Stubbs’ depositions, compare them with the multitude of institutions in Mississippi (and Louisiana, and a few other states) that have defended and upheld West’s testimony and expertise over the years, and not conclude that significant parts of the criminal justice system are fundamentally flawed.

I mean, we could have concluded all of that well before West’s come to Jesus moment. It’s been clear for years that he’s a fraud. But it’s sure as hell clear now that he admits it.

 

— Radley

Sunday Links

Sunday, July 1st, 2012

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Saturday, June 30th, 2012

Leigh Stubbs, Tami Vance To Be Released From Prison

Wednesday, June 27th, 2012

I just heard from the Mississippi Innocence Project that Leigh Stubbs and Tami Vance will soon be released from prison. This is fantastic news. They’ll be transferred to a local jail and will be able to post bond as soon as the judge signs an order vacating their convictions. Mississippi Attorney General Jim Hood will then decide if he wants to try them again.

Stubbs was convicted based on more absurd testimony from Michael West, although in this case it was particularly nutty. He not only gave his “expert” opinion with respect to his usual bite mark quackery, but also in videography (enhance!), and some bizarre theory about the crime patterns of lesbians. (A male dentist in Hattiesburg, Mississippi would naturally be who’d I’d turn to for expertise on lesbian domestic violence.)

My Huffington Post article on the case here. Check here to watch the video of West actually using a dental mold of Stubbs’ teeth to create the bite mark that he’d later testify came from Stubbs on the night of the alleged crime.

Kudos to the Mississippi Innocence Project for their great work on this case. I’ll have more later.

Blueford v. Arkansas

Tuesday, May 29th, 2012

Last week the U.S. Supreme Court found another exception to the Constitution’s prohibition on double jeopardy. In a 6-3 ruling (PDF), the Court found that when a jury is given a range of mutually exclusive charges to chose from, the fact that the first jury voted to acquit on the most serious charges doesn’t prevent the state from trying the suspect on those charges again.

In this case, the jury could have chosen to convict on a range of charges from capital murder to manslaughter. They voted unanimously to acquit on the more serious charges, but hung on manslaughter, with a majority voting to convict. The Court’s ruling means Blueford can again be charged and tried for capital murder and first-degree murder.

I don’t agree with the Court’s decision, but that’s not really even the most objectionable part of this case.

From Blueford’s cert petition (PDF):

The state relied entirely on circumstantial medical evidence, and emphasized an autopsy report by a state medical examiner. There was no evidence of any history of abuse by Blueford.

The state’s principal witness was Dr. Adam Craig, a medical examiner at the Arkansas State Crime Lab, who conducted the autopsy and testified about its meaning. Dr. Craig testified that he is not board certified in anatomical pathology despite five attempts to pass the board exam. He concluded that the cause of death was a “closed head injury.” Dr. Craig opined that the death was a homicide based on the “severity of the injuries” and the absence of any other “reasonable explanation” in the information given to him by law enforcement. He rejected the possibility that the injury could have been caused by an accident or a fall, citing one dated medical position paper, and he admitted that he was unfamiliar with recent medical literature documenting that very possibility.

So it’s another shaken baby case. And here, the diagnosis was made by a doctor with questionable credentials.

Blueford’s defense was supported by two expert medical witnesses. The first was Dr. Robert Bux, the head medical examiner for El Paso County, Colorado. Dr. Bux is board certified in anatomical, clinical, and forensic pathology. He has worked on international matters, including service for the International War Crimes Tribunal in former Yugoslavia, and he has published in the Journal of the American Medical Association, among other publications. Dr. Bux testified that Dr. Craig’s autopsy was so poorly performed as to be useless, and suggested that, as a supervisor, he would not continue to employ an examiner who turned in an autopsy like Dr. Craig’s. He also explained that the position paper on which Dr. Craig relied had long been understood to be “inaccurate and not scientifically valid,” In light of the botched autopsy, Dr. Bux explained, either the State’s version of events or Blueford’s could be accurate, and “[t]here’s no way as a forensic pathologist I can tell you which happened.”

Dr. John Galaznik, a board-certified pediatrician with thirty years of experience at the University of Alabama, also testified on Blueford’s behalf. Like Dr. Bux, Dr. Galaznik testified that the available medical evidence was entirely consistent with Blueford’s account of the accident. He explained that the last decade of research had conclusively shown that children can suffer fatal head trauma from short falls. He also expressly rejected the state’s theory that Blueford slammed McFadden into mattresses, emphasizing that the same scenario had been examined by the biomechanical literature, which, in his view, concluded that the mattress-slamming scenario “would not cause the injuries in this case.”

The problem, as we’ve discussed here before, is that a state expert witness, no matter how unqualified, always carries an air of authority and credibility. He’s just trying to help put bad guys away. What incentive would he have to lie? Defenses witnesses, no matter how qualified (and of course, defense attorneys sometimes put hacks on the stand, too), carry the air of a hired gun. Other problems play into this, such as why Craig is doing autopsies for Arkansas in the first place—which itself may have something to do with the nationwide shortage of medical examiners.

Craig’s credibility wasn’t the issue before the Court, so it only comes up in a footnote in Justice Sotomayor’s dissent. Sotomayor also points out that Craig took only two slides of the child’s brain, where the current medical standard is to take 10-20.

The Supreme Court has issued a number of rulings about how to determine the validity of scientific evidence. But I don’t know that the Court has ever addressed how the courts should go about certifying expert witnesses who may be practicing in a credible field, but who themselves clearly aren’t credible. The Daubert test isn’t really applicable to a specific witness who is testifying in an established field. (I’m open to the possibility that I’m wrong on this—if so, please correct me in the comments.) And it seems to me that this is just as important. A persuasive fraud can make a much better impression on a jury than a qualified, credentialed professional who isn’t as skilled at testifying.

I’ve made this point with respect to Steven Hayne in Mississippi, but once you’ve shown an expert witness is willing to give testimony wholly unsupported by science, you have to go back and retry every other case in which that expert’s testimony played a significant role in a conviction. If he’s willing to say something outlandish or is proven to have lied on the witness stand in one case, there’s no reason why his expertise in less cut-and-dried cases should be trusted, even when it’s scientifically plausible.

It’s a Long Road to Better

Sunday, May 27th, 2012

This pretty incredible two-part post from the appellatesquawk blog demonstrates how even good policies like videotaping interrogations can be undermined by bad expert witnesses and indifferent judges.

In 2008, the Troy Police Department videotaped the whole interrogation of Adrian Thomas.  The tape shows Adrian with cops in his face for 9 hours, not including a 15-hour intermission in a secure mental health facility where they took him because he was so depressed.

And no wonder.  Adrian and his wife had awakened that morning to find their 4-month old son barely breathing.  They immediately called 911 and the baby was rushed to the hospital. Although he showed no signs of abuse or neglect,  Child Protective Services swooped down on the Thomas household a few hours later and hauled away their six other children. Adrian was invited to the police station for questioning. He ended up charged with murder.

The post then goes into the details of Adrian Thomas’s interrogation, including some intense psychological manipulation of a grieving father. It’s too long to excerpt here, but it’s well worth reading. This part is key:

There’s one little problem:  there was no head trauma.  No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.

Yet somehow, the police were able to get Adrian Thomas to admit first that he may have accidentally bumped the child, then to admit that he must have blacked out memories of something more intentional, then, finally, to demonstrate with a binder how he violently threw the child to the ground. The confession is all they had. The confession and all the psychological manipulation that went into it was videotaped. But Thomas was still convicted. Here’s how:

The judge saw the whole videotape and thought the interrogation was A-ok. He wouln’t let the defense call Dr. Richard Ofshe to testify about police interrogation techniques and false confessions. False confession research is all anecdotal,  he sneered.  Besides, the jury could see the videotape for itself.

The jury thought it was rather bad of the police to lie, but the sight of Adrian throwing a binder to the floor was enough to make them ignore the medical evidence.

In the second post, appellatesquawk discusses the expert witness the judge did allow to testify: Utah law professor, former judge, and former prosecutor Paul Cassell. Cassell is at the forefront of the “victim’s rights” movement, an occasional contributor at the Volokh Conspiracy, and one of the loudest voices on the law-and-order right. Here’s what Cassell said at Adrian Thomas’ trial:

Unencumbered by training in the behavioral sciences, Cassell  asserted that he was “a practitioner of social psychology.” His psychological research consisted of collecting 219 case files from the Salt Lake County District Attorney’s Office. Lo and behold, in densely populated Salt Lake County, where the leading crime is probably having too many wives, not a single one of the 219 cases involved a claim of a false confession! From which Cassell scientifically concluded that false confessions are as rare as unicorns.

The Einstein of Utah didn’t stop with a single experiment.  He went on to calculate that, according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. Cassell divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, Cassell concluded that the frequency of false confessions is one hundredth of one percent. Well, yes, if 20 million arrests is the same as 20 million true confessions.

Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings.  Needless to say,  there should be no expert testimony on the non-existent phenomenon of false confessions.

The trial judge swallowed this whole.

This is reminiscent of Justice Antonin Scalia’s back-of-the-envelope calculations in Kansas v. Marsh about the frequency of wrongful convictions. And by reminiscent I mean, “also utter bullshit.” Which is appropriate, I guess, given that Cassell once clerked for Scalia.

And yet Thomas’ conviction was still recently upheld by a New York appeals court.

There was some good discussion on the MSNBC show Up with Chris Hayes this morning on the innocence movement. Innocence Project co-founder Barry Scheck was talking about the impressive legislative and policy victories the organization is collecting on issues such as improving how lineups are conducted for eyewitnesses, and recording policing interrogations. The Nation’s Liliana Segura asked Scheck a good question, which I don’t think he really answered. These policy changes are important and shouldn’t be understated, but Segura asked how we change the more fundamental problem, which is that the law enforcement side of the criminal justice system is and has long been strongly incentivized to convict and imprison. And it is prosecutors, not defense attorneys, who inevitably go on to become judges—and who then too often bring that mentality to the bench.

I don’t really blame Scheck for avoiding the question, because it’s a really difficult question to answer. A thorough answer would also involve some harsh words for the bar associations, prosecutors, and the policymakers Scheck is now working with to implement reforms. This isn’t a criticism of Scheck. It’s just realpolitik.

But the answer to that question gets to the heart of the single biggest barrier to meaningful criminal justice reform. The Thomas case illustrates it as well as any. So long as people like Paul Cassell are willing to spout nonsense on the witness stand, and so long as there are judges who will let him (and who will prevent people who have some actual expertise from testifying), even good policies like mandatory videotaping of police interrogations can fall short, even when a coerced, videotaped confession is the meat of a murder charge, even when it isn’t supported by any medical evidence.

So what is the answer to Segura’s question? I don’t think there is one that is satisfactory—or at least one that’s as simple as a new law or a new policy. To change the incentive to convict and imprison, you have to effect a sea change in how the public perceives the roles of law enforcement, especially prosecutors.

There are of course plenty of prosecutors in America who everyday choose not to pursue charges against someone because there isn’t enough evidence, or even when there is enough evidence, because a criminal charge wouldn’t be in the interests of justice. But this is key: Even these conscientious prosecutors don’t tend to publicize those decisions. They don’t put out press releases boasting about their sense of fairness in these cases the way put out releases boasting about their toughness when they’ve charged someone with felonies. That’s because they know that the public doesn’t attach much value to these decisions. They don’t respect a prosecutor who puts a premium on fairness and justice the way they value one who puts a premium on putting the bad guys away. These values aren’t mutually exclusive, of course. But they’re commonly perceived to be.

Look at a guy like Dallas DA Craig Watkins. For several years now Watkins has been bathed in positive press for his role in seeking out and freeing the wrongly convicted. He has been profiled, interviewed, and praised all over the country for his efforts. Elected officials around the country yearn for the kind of press he’s received, and most would ride it to an easy reelection. Yet when Watkins was up for reelection in 2010, he just barely squeezed out another term in office. This is a county with a history of reelecting law-and-order DAs—the DAs whose wrongful convictions Watkins is undoing—by wide margins.

Part of the answer to changing the incentive structure is of course to pressure bar associations to sanction prosecutorial misconduct, particularly willful misconduct. Part of it is waging public campaigns to oust from office prosecutors who make egregious errors. Part of it is to push for serious penalties, even criminal charges for prosecutors who engage in willful misconduct. Part of it is dialing back absolute immunity. As a Reason commenter once put it, convicting an innocent person of a serious crime ought to be akin to a physician amputating the wrong limb. It could well be an honest error, but at the very least, it’s a mistake with an order of magnitude that ought to have you looking for another line of work. That a guy like Forrest Allgood is still coasting to reelection despite two exonerations and five overturned murder convictions (that I know of) shows just how far we are from the ideal.

But public shaming, sanctions, and fighting the reelection of bad prosecutors is just the stick. The carrot is even tougher. We need to start praising prosecutors who make the tough decision not to press charges, particularly in high-profile cases. Actually, it’s even more difficult than that. The prevailing sentiment in this country is that a prosecutor’s job is to bring the most serious charge they possibly can, to stack charges so they have maximum leverage in plea bargaining, and to always charge when they have even the least bit of evidence—and let a jury sort it out. If you’ve read this site for a number of years, you can probably recall a number of cases where a prosecutor publicly said that his or her job was to win a conviction on the most serious charge possible. That, of course, is not their job at all. The George Zimmerman indictment is only the most recent high-profile example of this mentality. But it was disappointing to see how many otherwise smart, reform-minded people were perfectly find with that indictment, which most criminal attorneys I’ve read and spoken to found aggressive and unprofessional nearly to the point of malpractice.

The good prosecutors, the conscientious ones, obviously make the correct calls because it’s the right thing to do. But incentives do matter. I’ve sometimes wondered whether it’s smart to publicly praise prosecutors who make good calls on tough cases, because I wonder if drawing attention to them may actually hurt them. We need to get to the point where a prosecutor is just as likely to put our a news release or call a press conference to announce he’s not pressing charges as he is to seek attention when he is.

I don’t know exactly how we get there. I do think public opinion is, very slowly, moving in the right direction, though. To speed it up, maybe bar associations or a group like the Innocence Project could start giving out awards to courageous prosecutors who show (appropriate) restraint and caution when the public is baying for blood. Maybe such public honors would help generate discussion of these issues.

Somehow, the public needs to begin to grasp that a well-honed sense of fairness and propriety isn’t the same thing as appeasement. And that it’s just as important an attribute as aptitude at winning convictions.

(Via Scott Greenfield, who has more commentary.)

Today in Innocence

Tuesday, May 22nd, 2012

Another head-scratching case in which prosecutors—in this case the Missouri Attorney General’s Office—are fighting an exoneration:

There was no dispute in court Friday in Jefferson City that favorable evidence was improperly withheld from George Allen’s defense in a St. Louis murder trial almost three decades ago.

What stands between Allen, 56, and freedom is the question of whether that evidence exonerates him or is likely to have swayed the jury that convicted him.

On that, there was no agreement in the daylong hearing.

Cole County Circuit Judge Daniel Green, in charge of the case now, said he would decide later in what are two options: exonerating him with the possibility of a retrial, or leaving him in prison to finish his 95-year term.

Among the evidence casting doubt on Allen’s guilt:

  • A coerced confession from a schizophrenic suspect. Even after the confession, the suspect continued to give police incorrect information about the crime. One of the detectives who conducted the questioning now concedes the interrogation was not consistent with department policy.
  • Allen also confessed to a number of other rapes he couldn’t possibly have committed.
  • A jailhouse informant says he was coerced by police to claim Allen had confessed to him in a jail cell.
  • An admission from the same detective above that investigators weren’t certain of Allen’s guilt.
  • Three fingerprints at the crime scene that were never analyzed.
  • In Allen’s first trial, the jury deadlocked 10-2, with the 10 voting to acquit.

But here’s the most convincing part:

[Defense attorneys] also focused heavily on a written report by a St. Louis police crime lab technician, Joseph Crow, in which there were crossed-out references to analysis of the crumpled, bloody robe found near Bell’s naked body. The blood type from semen on it did not match hers, her live-in boyfriend’s or Allen’s. A typed report presented to prosecutors, and used at trial, did not make reference to those findings.

Scheck pointed out that a police report, which never went beyond lead detective Herb Riley, showed police had been looking for a suspect with the same blood type as found on the robe.

“The defense should have had this,” he said. “That’s a powerful argument they never got to make.”

Assistant Missouri Attorney General Michael Spillane said the semen wasn’t relevant because, “This was not truly a forensics case. It was a confession case.”

Well yeah. Of course it wasn’t a forensics case. It wasn’t a forensics case because the forensic evidence was improperly kept from Allen’s attorneys. If it had been a forensics case, the forensic evidence would have excluded Allen, and he would never have been arrested, much less charged, convicted, and imprisoned. (Serology is a poor way to pin a crime on someone to the exclusion of everyone else. It’s much stronger evidence when used to exclude someone.)

This was an “arrest a mentally disabled guy walking in the area of the crime because he looks vaguely like a sex offender, then coerce a confession out of him” case. But that probably doesn’t sound very convincing in a courtroom.

The Innocence Project Settles With Steven Hayne

Monday, May 21st, 2012

The Innocence Project has agreed to pay Mississippi pathologist Steven Hayne $100,000 to settle his defamation suit against them. The Innocence Project admits no guilt, but apparently the organization was getting pressure from its insurer to settle the suit. (Disclosure: Much of my reporting made up part of complaint asking the Mississippi Board of Medical Licensure to revoke Hayne’s medical license.)

It’s a paltry figure, which I think speaks volumes about the strength of Hayne’s case. Unfortunately, that they paid any money at all allows Hayne’s attorney to make claims like this:

Hayne’s attorney, Dale Danks Jr., said he “most definitively” believes Hayne has been vindicated by the judgment.”Very derogatory statements were made against him,” Danks said. “He is pleased to get this behind him. It was not a matter of money.”

Vindicated. Sure. I mean, he has been barred from doing any more state autopsies in Mississippi. And the Mississippi legislature passed a bill specifically aimed at keeping him from ever being used by prosecutors in the state again. And he was forced to resign his membership in the National Association of Medical Examiners in the face of an ethics inquiry. But sure. Let’s go with vindicated.

Here’s where the story accelerates from mildly irritating to outright appalling:

The project’s work helped lead to the exoneration of several individuals, including Kennedy Brewer and Levon Brooks, each of whom had been convicted of raping and murdering a child. Brewer spent 15 years behind bars and had been on death row, and Brooks, sentenced to life in prison, had spent18 years.

Both men from Noxubee County have lawsuits against Hayne, who testified for the prosecution at their trials.

But Danks said Hayne deserves credit for helping to prove the innocence of Brewer and Brooks by preserving the DNA evidence that exonerated the men.

The attorney for the guy who, along with Michael West, was the main reason two innocent men spent nearly two decades each in prison—one of whom was nearly executed—says we should thank Steven Hayne for their eventual exonerations.

“Convicted defendants left uninformed of forensic flaws found by Justice Dept.”

Tuesday, April 17th, 2012

When you cover and read about this sort of thing everyday, you can sometimes build up a resistance to headlines like the one above.

But I mean holy hell. This ought to be pictchforks-in-the-streets stuff.

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

If it isn’t there already, the next sentence should put your chin on the floor.

Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.

I mean, think about that. Taxpayer-paid employees of the Justice Department had direct and exclusive knowledge that there may be hundreds of innocent people in prison, they knew that flawed forensics in these cases needed to be reviewed, and their justification for not doing more as these people continued to rot in prison was, Hey, we did the bare minimum required of us by law.

The immediately obvious problem here is that the ethical requirements need to be strengthened. If the task force charged with investigating possible wrongful convictions is only required to report what it finds to the prosecutor offices that won those convictions—and who obviously have a strong incentive to keep the new information under wraps—what the hell was the point of forming the task force in the first place? And why keep the task force findings from the public?

But even beyond the problematic ethical requirements, I’m having a hard time fathoming how no one on this task force felt morally compelled to go beyond those requirements—to, you know, actually reach out defense attorneys, or attempt to actually reach the convicts or their families. How in the world can you possess this sort of information, then still sleep at night, year after year, knowing that (a) the information obviously isn’t reaching the people who have an incentive to actually put it to use,  (b) you’re one of the few people who could make that happen, and (c) because the information was only available to select group of people, if you or one of your colleagues doesn’t act, no one else will?

I’m obviously fairly skeptical of government. And the criminal justice system is loaded with bad incentives. But I can’t really even think of what poorly-structured incentive would have prevented the members of this task force from doing more than the bare minimum that was required of them. It isn’t as if they were personally responsible for these mistakes. The mind boggles at the mental firewalls an otherwise decent person would have to construct to know this was happening, and still do nothing to stop it.