Saturday, May 26, 2018

Kevin Cooper: California: Calls for DNA testing mount in aftermath of Nicholas Kristof's recent column..."Pressure seems to be growing on Gov. Jerry Brown to allow advanced DNA testing in the case of Kevin Cooper, a black man on San Quentin’s death row for the brutal 1983 murder of a white family. After my in-depth column in the opinion section on the case, Senator Kamala Harris has called on the governor to allow testing and so has John Chiang, the state treasurer and a candidate for governor."


PUBLISHER'S NOTE: Kudos to New York Times columnist Nicholas Kristof for the powerful column in which he makes a compelling  case for re-examining Kevin Cooper's death row case. Judging from the analysis below, this column - and the steadfast attention he has paid to the troubling case over the years -  has prompted more public exposure. But keep in mind that Governor that Gov. Jerry  Brown  still firmly resists new DNA tests, and earlier this week the San Bernardo District Attorney filed opposition to Cooper's clemency petition, as per the story in the San Bernardino Sun which can be read at the link below: "The San Bernardino County District Attorney’s office filed its opposition Wednesday to Kevin Cooper’s petition for clemency and additional testing that’s aimed at overturning his conviction for the 1983 hatchet slayings in a Chino Hills home that took four lives. The Cooper petition was filed with Gov. Jerry Brown in February 2016. Brown has has not taken any action on it, and his final term as governor ends this year. Cooper, sentenced to death, has exhausted all appeals. California’s death penalty remains on hold while its procedures are reviewed in court cases. The 94-page document filed Wednesday states there is no new, unexamined evidence to merit the Touch DNA testing that Cooper’s legal team seeks in their continued fight to overturn his 1985 conviction and death penalty sentence. The opposition filing was preceded by District Attorney Mike Ramos’ statement earlier this week that his office would fight the petition." I cannot understand how Brown can take the risk of killing an innocent man when there are scientific tests available to help determine if he in fact committed the crimes.

https://www.sbsun.com/2018/05/23/san-bernardino-district-attorney-files-opposition-to-kevin-cooper-clemency-petition/...

Harold Levy: Publisher; The Charles Smith Blog.

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PASSAGE OF THE DAY: "Even federal judges have said that Mr. Cooper was framed. (That’s what drew my attention to him: a cri de coeur from the Ninth Circuit appeals judge William Fletcher.) And the “ask” isn’t a pardon or commutation. It’s simply to allow advanced DNA testing of evidence, which the defense is willing to pay for. Yet Mr. Brown has so far resolutely refused to allow that testing. I had criticized Ms. Harris for failing to allow testing when she was attorney general. But she called me after the article appeared online to say that she felt terrible about the case, and then she issued a statement calling on California and the governor to allow the testing. The issue is getting more attention in the California press, and I hope Mr. Brown will similarly reconsider. Likewise, I’m hoping that Lt. Gov. Gavin Newsom, Attorney General Xavier Becerra, Senator Dianne Feinstein and others will call for testing in the case."

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COMMENTARY: "California Today: Should the Case of the Death-Row Inmate Kevin Cooper Be Re-examined?, by Nicholas Kristof and Charles McDermid, published by The New York Times on May 21, 2018.

GIST: "Last week, Nicholas Kristof, an Op-Ed columnist at The Times, published a piece on what he believes to be an injustice in California — a case in which a life hangs in the balance. The New York times  asked Nicholas  Kristof to discuss reaction to his column. "Pressure seems to be growing on Gov. Jerry Brown to allow advanced DNA testing in the case of Kevin Cooper, a black man on San Quentin’s death row for the brutal 1983 murder of a white family. After my in-depth column in the opinion section on the case, Senator Kamala Harris has called on the governor to allow testing and so has John Chiang, the state treasurer and a candidate for governor. As my column notes, I believe Mr. Cooper is innocent and was framed for murder by the San Bernardino County Sheriff’s office. What’s striking about the case is not only that the evidence against Mr. Cooper has mostly been discredited, but also that there’s growing evidence against a particular white man who also happens to be a convicted murderer (he wasn’t happy to hear from me). Even federal judges have said that Mr. Cooper was framed. (That’s what drew my attention to him: a cri de coeur from the Ninth Circuit appeals judge William Fletcher.) And the “ask” isn’t a pardon or commutation. It’s simply to allow advanced DNA testing of evidence, which the defense is willing to pay for. Yet Mr. Brown has so far resolutely refused to allow that testing. I had criticized Ms. Harris for failing to allow testing when she was attorney general. But she called me after the article appeared online to say that she felt terrible about the case, and then she issued a statement calling on California and the governor to allow the testing. The issue is getting more attention in the California press, and I hope Mr. Brown will similarly reconsider. Likewise, I’m hoping that Lt. Gov. Gavin Newsom, Attorney General Xavier Becerra, Senator Dianne Feinstein and others will call for testing in the case."



https://mobile.nytimes.com/2018/05/21/us/california-today-death-row-inmate-kevin-cooper.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, May 25, 2018

Fingerprint analysis (Part 2): Johnny Lee Gates: Georgia; Marshall Project analysis of a murder case which is disturbing for many reasons - including evidence of the state's deliberate exclusion of black jurors from the ultimately all white jury - and the strong likelihood that Gates is innocent. Of particular interest to this Blog is the question as to how the fingerprints used against him at trial got on to a heater: Could the police have effectively enabled him to put them there? A fascinating analysis of an unravelling case, by Andrew Cohen. The Marshall Project..."To emphasize their version of events the police took Gates to Wright’s apartment to videotape his “re-enactment” of the crime. The tape shown to jurors had Gates traipsing around the apartment and, pointedly, touching the heater from which fingerprints ultimately would be taken and used against him at trial."..." Prosecutors also told jurors that Gates’ fingerprint had been found at the scene even though the initial police search of the apartment had not turned up any foreign prints. Did Gates touch something during his police-video performance inside the apartment? Like the heater to which he had been directed? Is that how his prints got there?"


PASSAGE OF THE DAY: "It says something about the changing nature of Georgia justice that there will even be a hearing to discuss whether Gates should get a new trial. The presiding judge, John Allen, a decorated Vietnam War fighter pilot, knows this case well. He presided over Gates’ successful attempt to get out from under his death sentence 15 years ago. It’s hard to imagine the state’s appellate courts overturning a decision he’d make to give Gates a new trial."

STORY: "A Murder Case Unravels," by Andrew Cohen, published by The Marshall Project on May 6, 2018. The Marshall Project tells us : "Andrew Cohen is a senior editor. He oversees the site’s analysis and helps provide daily coverage of legal events and issues. A recovering attorney, he is the legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and a contributing editor at The Atlantic."

SUB-HEADING: "Prosecutors stacked the deck. Forty-one years later, that may be enough to free Johnny Gates."

GIST: "Johnny Lee Gates’ journey through the Georgia justice system already is the stuff of legal legend and one of the longest-running capital cases in the nation’s history. A black man convicted by an all-white jury of murdering a white woman in Muscogee County in 1977, he was quickly sentenced to death. Now, 41 years later, defense attorneys and prosecutors are back in court Monday fighting over some of the most persuasive evidence yet that Gates’ trial was an unconstitutionally prejudiced exercise. Defense attorneys have evidence that prosecutors systematically excluded black prospective jurors in his case. In February, after a bitter public records battle, a judge ordered state attorneys to turn over the notes Gates’ prosecutors took during the jury selection. The notes showed precisely the sort of racial bias the U.S. Supreme Court in 2016 held unconstitutional in another Georgia case involving prosecutorial misconduct and a black defendant, a case involving one of the prosecutors who also helped send Gates to death row. The notes show that in Gates’ case white prospective jurors were labeled with a “W” and black prospective jurors were labeled with an “N.” An expert employed by the defense swears that the probability that all of the black jurors were struck at random is 0.000000000000000000000000000004. That’s 29 zeroes. The math is debatable, but a finding by the judge that the jury selection was transparently racist could mean a new trial for Gates. Why would prosecutors worry about a new trial in a case involving a confession they’ve defended for decades? Because the case against Gates was shaky from the start. On Nov. 30, 1976, three weeks after fellow Georgian Jimmy Carter was elected president, Katharina Wright was robbed, raped, and murdered in her apartment in Columbus in the middle of a weekday. Her body was found, bound, with a bullet wound in her head. One witness promptly told police she saw a white man running away from the building around the time of the murder. Another witness, who lived just below the apartment where the murder took place, told the cops that a black man around 5 feet 10 inches tall and weighing about 170 pounds had come around earlier that day saying he was with the gas company and asking whether the neighbor wanted his gas turned off. A white man named Lester Sanders was questioned by the police after he was found fondling the victim’s body while it lay in its casket at a funeral home. The cops later told a grand jury that Sanders began confessing to the Wright murder, telling the police details about the crime that only the true killer would have known. But Sanders never was charged, and four decades later no one has explained why. Two months after the murder, in January 1977, Gates was arrested with two others and charged with trying to rob a store. And that’s when the investigation into the murder of Katharina Wright took a dramatic turn. An informant told the police that Gates had borrowed a gun, claimed to have murdered Wright, and then given the gun back to the informant who then threw the weapon into a nearby creek. The gun was later discovered, test-fired, and found not to have been used to kill Wright. Nor were any fingerprints other than those of the victim and her husband initially found by the cops at the crime scene. But it didn’t matter because by the time the forensics came back the police had a “confession” from Gates — and not just a typed-up one. For the first time in the history of the police department of Columbus, Georgia, the cops taped one of its “confessions,” taped it at the scene of the crime for added effect, and its use at the trial doomed Gates. Gates’ confession was detailed. He signed a typed document that said he had identified himself as a gas company employee and went to Wright’s apartment dressed as a civilian. Katharina said she had called the gas company because her heater wasn’t working. Why did she let him in? We’ll never know. Gates then allegedly told her he was robbing her to which she responded that she had no money but could give him sex instead. They had consensual sex, according to the confession, and then the story has Gates shooting the woman to death after she said that she would be able to identify him once he left the apartment. To emphasize their version of events the police took Gates to Wright’s apartment to videotape his “re-enactment” of the crime. The tape shown to jurors had Gates traipsing around the apartment and, pointedly, touching the heater from which fingerprints ultimately would be taken and used against him at trial. Gates then, and later, was considered intellectually disabled, and profoundly so. School records showed the extent of his deficiencies in adaptive reasoning, and his background in special education, a history police and prosecutors knew or should have known about in 1977. But it wasn’t until 1992 that post-conviction attorneys first raised that issue on Gates’s behalf after discovering school records and his post-conviction IQ testing, which showed him in the range of “retardation,” as it was called then. The police took that taped and written “confession” and supplemented it with the testimony of that downstairs neighbor, the man who swore that Gates was the man he had seen the day of the murder. He swore to this in court even though Gates was 40 pounds lighter and four inches shorter than the 5-foot-10-inch, 170-pound man the witness had described. Prosecutors also told jurors that Gates’ fingerprint had been found at the scene even though the initial police search of the apartment had not turned up any foreign prints. Did Gates touch something during his police-video performance inside the apartment? Like the heater to which he had been directed? Is that how his prints got there? That was just one of the questions never answered at trial. No surprise, really, since the whole trial took fewer than three days to complete. It took jurors 95 minutes to convict Gates. It took them 58 more minutes to recommend the death sentence against him after a “penalty phase” of a trial that lasted less than two hours. His attorneys raised a number of issues on appeal, trying primarily to get out from under the confession, but they all went nowhere. “We have already noted that the verdict of the jury was not imposed under the influence of passion, prejudice, or other arbitrary factor,” the Georgia Court of Appeals pointedly declared in a 1979 ruling that first upheld Gates’ conviction and sentence. The story fast-forwards now to 2016. By this time Gates had gotten off the state’s death row because of the U.S. Supreme Court’s 2002 decision outlawing the execution of the intellectually disabled. Faced at last with his school records and cognitive testing results Georgia attorneys agreed to revert his death sentence to a sentence of life without parole. But it is another Supreme Court decision, in 2016, that brings everyone back to court on Monday. In Foster v. Chatman, the justices concluded that Douglas Pullen, the same prosecutor who had tried Gates, had illegally discriminated against a black capital defendant by striking all four black prospective jurors from the case. Pullen had tried to explain those choices, saying he had a “race-neutral” reason for each one, but the court didn’t buy it and Timothy Foster was granted a new trial. The Foster decision convinced Gates’ current lawyers to renew their claims that his trial, too, was infected by racial bias. And why not? The Foster case had uncovered a pattern by the two prosecutors who handled the Gates case, Pullen and William Smith, in which virtually all black prospective jurors were eliminated from consideration in capital cases involving black defendants. The record in the five cases in which Pullen struck black jurors from the pool was 27-for-27. In the four cases in which Smith made the call he was only able to strike all the black potential jurors three times because in the fourth case, after using 10 strikes to exclude 10 black people, there were still other black prospective jurors. It says something about the changing nature of Georgia justice that there will even be a hearing to discuss whether Gates should get a new trial. The presiding judge, John Allen, a decorated Vietnam War fighter pilot, knows this case well. He presided over Gates’ successful attempt to get out from under his death sentence 15 years ago. It’s hard to imagine the state’s appellate courts overturning a decision he’d make to give Gates a new trial. The Gates case is notable as another test of how far the courts are going to go to remedy past episodes of racial misconduct by officials in capital cases involving black defendants and white victims. A new trial here, over the objections of prosecutors, could finally tell us what happened to that white suspect, how Gates’ prints suddenly turned up at a crime scene where before they were absent, and why a robbery suspect would start to fix a gas heater in the home of a woman he then shot in the head. Or, it could convince prosecutors to abandon altogether the case against Gates."








Thursday, May 24, 2018

Fingerprint Analysis ( Part 1): Will a new tool based in a 'numerical' element restore scientific credibility to fingerprint analysis? (It's anyone's guess right now, but 'FRStat' may be a solid first step. HL). Gizmodo story by reporter Nicole Wetsman sheds light on this development..."The program isn’t a perfect solution to the issues with pattern evidence, Kafadar noted. Programs like FRStat can’t create empirical certainty around fingerprint analysis. Fingerprints aren’t like DNA, which only has a certain number of possible combinations at each individual point. One stretch of DNA, for example, might have 200 possible combinations of genetic code, which makes it easier to calculate the probability that two people have the same combination at that particular point. The identifying markers on fingerprints—the ridges, lines, and branches—are more subjective and harder to pinpoint. FRStat still relies on analysts’ subjective identification of the ridges and lines on the print, and again, there’s still no certainty that fingerprints are actually unique to individuals. “It’s a hard problem to solve,” Kafadar said. “But this is the best we’re able to do right now.”


PASSAGE OF THE DAY: "Basic as it may sound, using any empirical or numerical evidence in fingerprint analysis is a major addition to a discipline that typically just relies on the interpretation of an individual expert—which opens it up to criticism. Fingerprint evidence isn’t infallible and, like a lot of forensic science, has led to high-profile false convictions. A landmark report published in 2009 by the National Academy of Sciences highlighted the lack of scientific foundation for fingerprint evidence, as well as other commonly used metrics in forensic science, like bite marks and bloodstain patterns. This isn’t to say that fingerprints aren’t useful in the justice system. But they aren’t entirely reliable, and in the current practice of print analysis, there’s no place to signal that uncertainty to an attorney, judge, or jury. Using statistics and probabilities to help bolster fingerprint results and signal the weight of the evidence isn’t a new idea, but this is the first time a tool has actually been put in the hands of fingerprint examiners. FRStat was developed by Henry Swofford, chief of the latent print branch at the U.S. Army Criminal Investigation Laboratory at the Department of Defense. “We’re the first lab in the United States to report fingerprint evidence using a statistical foundation,” Swofford said."

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SECOND PASSAGE OF THE DAY: "What analysts are looking at is only a two-dimensional impression of the original. “We lose information all the time, from 3D to 2D,” explained Lauren Reed, director of the US Army Criminal Investigation Laboratory and a former fingerprint analyst. Furthermore, it’s never been proven, scientifically, that fingerprints actually are unique to individuals. The few research studies that have been done on fingerprint analysis shows a high rate of false matches, and examiners can be swayed in one direction or another if they’re given contextual information about a case. Despite that built-in uncertainty, though, examiners generally don’t say how confident they are in their conclusions, or how strong their evidence is. “They often give the impression that it’s 100 percent certain,” Reed said. That’s different than things like medical tests or political polls, which report results alongside margins of error to show how conclusive the finding actually is. “While the fingerprint community, as a whole, is pretty good, we’re not perfect,” she said. “We owe it to the people we serve to quantify what the strength of our evidence actually is.” According to the Innocence Project, testimony that doesn’t signal the limitations of a tool like fingerprinting, or overstates the certainty of evidence, is one of the reasons that nearly half of wrongful convictions result from problem with forensic evidence."

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STORY: "Fingerprint Analysis Could Finally Get Scientific, Thanks to a New Tool." by reporter Nicole Wetsman, published by Gizmodo on May 15, 2018. (Nicole Wetsman is a health and science reporter based in New York. Gizmodo, says Wikipedia, is a design, technology, science and science fiction website that also features articles on politics.


GIST: There wasn’t anything particularly unusual about the court-martial at the Fort Huachuca military base in Arizona at the end of February. But when the analyst from the Department of Defense forensic laboratory presented a report on fingerprint evidence, it included an element that had never been used with fingerprint evidence in a courtroom in the United States before: a number.
That number, produced by a software program called FRStat, told the court the probability that the similarity between two fingerprints in question would be seen in two prints from the same person. Basic as it may sound, using any empirical or numerical evidence in fingerprint analysis is a major addition to a discipline that typically just relies on the interpretation of an individual expert—which opens it up to criticism. Fingerprint evidence isn’t infallible and, like a lot of forensic science, has led to high-profile false convictions. A landmark report published in 2009 by the National Academy of Sciences highlighted the lack of scientific foundation for fingerprint evidence, as well as other commonly used metrics in forensic science, like bite marks and bloodstain patterns. This isn’t to say that fingerprints aren’t useful in the justice system. But they aren’t entirely reliable, and in the current practice of print analysis, there’s no place to signal that uncertainty to an attorney, judge, or jury.
Using statistics and probabilities to help bolster fingerprint results and signal the weight of the evidence isn’t a new idea, but this is the first time a tool has actually been put in the hands of fingerprint examiners. FRStat was developed by Henry Swofford, chief of the latent print branch at the U.S. Army Criminal Investigation Laboratory at the Department of Defense. “We’re the first lab in the United States to report fingerprint evidence using a statistical foundation,” Swofford said. Swofford has been developing and validating his program for about four years, and the Fort Huachuca case marked the first time in the US that the program—or any statistical tool—had been deployed for use in a courtroom. A paper describing the statistical model behind the software was published at the beginning of April. The team at the Defense Forensic Science Center is looking for the best way to distribute the program, but for now, it’s freely available to labs that are interested in testing it out. Adding a element of quantitative analysis to fingerprint identification is positive progress for forensic science, which struggles, overall, to live up to the “science” side of its name. Implementing the program, though, requires a significant culture change for a field that’s remained largely the same for decades, if not a century—posing additional challenges for people like Swofford who pushing for progress.  Fingerprint analysts, tasked with collecting and analyzing evidence from crime scenes, work in police departments and state forensics labs across the country. Some are officers and detectives pulling double duty as forensic scientists; others are specialists, employed by dedicated crime labs. Faced with two prints, analysts determine if they came from the same source by marking small features in the loops and ridges of a fingerprint, called minutiae, and then deciding if the features correspond well enough to report a match. The result is often reported as a yes or no binary: either the prints came from the same source, or they didn’t. But fingerprints are messy. They can be smudged, or only partially left on the edge of a doorknob or countertop. Fingerprints are also on actual, three-dimensional skin. What analysts are looking at is only a two-dimensional impression of the original. “We lose information all the time, from 3D to 2D,” explained Lauren Reed, director of the US Army Criminal Investigation Laboratory and a former fingerprint analyst. Furthermore, it’s never been proven, scientifically, that fingerprints actually are unique to individuals. The few research studies that have been done on fingerprint analysis shows a high rate of false matches, and examiners can be swayed in one direction or another if they’re given contextual information about a case.
Despite that built-in uncertainty, though, examiners generally don’t say how confident they are in their conclusions, or how strong their evidence is. “They often give the impression that it’s 100 percent certain,” Reed said. That’s different than things like medical tests or political polls, which report results alongside margins of error to show how conclusive the finding actually is. “While the fingerprint community, as a whole, is pretty good, we’re not perfect,” she said. “We owe it to the people we serve to quantify what the strength of our evidence actually is.” According to the Innocence Project, testimony that doesn’t signal the limitations of a tool like fingerprinting, or overstates the certainty of evidence, is one of the reasons that nearly half of wrongful convictions result from problem with forensic evidence. It was aggravating to Swofford that the purported “science” he worked in had so many scientific gaps. He started building FRStat to address those concerns, and put the evidence coming out of the lab on an empirical foundation. “I want to strengthen the foundations of our science,” he said. “I also want to make sure the evidence is presented in a way that the guilty people are convicted, and the innocent are exonerated.” To use FRStat, fingerprint examiners still mark up the minutiae of an unknown and known fingerprint. Then, they feed the images into the program, which compares those flagged points on the images to a database of similarly marked, known matches. The software reports the likelihood that you would see that level of similarity in a prints that it knows came from the same source. Importantly, Swofford said, the numerical score allows analysts to report the strength of the evidence in results. It removes the sense of all or nothing from the process, and is a more realistic picture of the value of the evidence, he said. Swofford partnered with statisticians and other experts to develop and test his program, a highly unusual move for a forensic analyst, said Karen Kafadar, chair of the American Statistical Association’s Advisory Committee on Forensic Science, who consulted on the project. Fingerprint examiners are trained to view what they do as extremely specialized, and not something that they should discuss with outsiders, even though chemists, biologists, and statisticians can lend a lot of value, she said. “To Henry’s credit, he appreciated the contributions that we could make.” This program isn’t the first time statistical modeling has been proposed or developed for fingerprinting. However, past work has primarily remained in academic circles, and building a tool for practical use wasn’t the objective of most researchers; the projects were just scholarly exercises. FRStat is the first crossover from theory to practice, made possible by the flexibility, funding, and relatively low caseload at the Department of Defense lab. “As an organization, we’ve been pretty committed to doing research and development,” Reed said. “This was kind of a no-brainer—if we could work on it, we feel obligated to.” The DoD lab sees about 3,000 fingerprint cases a year, Reed said, and they saw the project as an opportunity to make their methods for those cases more transparent and scientifically honest. The program isn’t a perfect solution to the issues with pattern evidence, Kafadar noted. Programs like FRStat can’t create empirical certainty around fingerprint analysis. Fingerprints aren’t like DNA, which only has a certain number of possible combinations at each individual point. One stretch of DNA, for example, might have 200 possible combinations of genetic code, which makes it easier to calculate the probability that two people have the same combination at that particular point. The identifying markers on fingerprints—the ridges, lines, and branches—are more subjective and harder to pinpoint. FRStat still relies on analysts’ subjective identification of the ridges and lines on the print, and again, there’s still no certainty that fingerprints are actually unique to individuals. “It’s a hard problem to solve,” Kafadar said. “But this is the best we’re able to do right now.” There are also multiple ways to establish probability scores for prints, and people may disagree on the best approach to take, said Cedric Neumann, a professor of mathematics and statistics at South Dakota State University, who published his own model in 2012. However, he said that building a program that puts the statistical tools into the hands of fingerprint analysts is a positive step, regardless. “That way, the community can start playing with it, and figuring out the best way to use the results,” Neumann said. “These are discussions the community needs to have, and it’s very good that the software exists to enable those discussions. The forensic laboratory in Connecticut, which handles all forensic testing, including fingerprints, for the state, is one of the first labs trying out the program. “We’re always looking for ways to improve our reporting,” said Cindy Lopes-Phelan, deputy director of identification in the Division of Scientific Services at the lab. “Especially with the critiques out there, we want to find ways our conclusions can be supported with technology.” The lab is validating FRStat, making sure that it actually does what it says it does. So far, Lopes-Phelan said, it looks good. Throughout the process, she’s making sure that all of the analysts are exposed to the program. “It’s a culture shock, to start using mathematical computations,” Lopes-Phelan said. “We want to give them a comfort level, and show that this is not a scary thing, and that it’s math, but it’s supporting what they’re doing.” Fingerprint examiners often have a degree in a science (though it’s not required) and take training courses focused on pattern recognition and courtroom testimony. Statistics aren’t part of that training, so an element of discomfort was expected, Swofford said. “You just needed to differentiate patterns. Integrating something like this, that sounds complex, can be overwhelming.” To preempt the problem at the Department of Defense labs, they rolled out the software over two years, gradually introducing analysts to the statistical language. Analysts also might balk at the idea that statistical programs could limit their decision making power, Reed said. “It’s a major point of tension,” For example, there’s a gray area, Reed said, where some examiners might make a decision on a set of prints, and others might say that they’re inconclusive. Examiners might push back against a system that removes the choice. “But science isn’t just the particular analysts opinion,” she said. Implementing FRStat also doesn’t make fingerprint examiners obsolete, or take away their jobs, Reed stressed—they still compare prints, analyze minutia, and come to a decision. The program is just an added step to give them more information on the strength of their conclusion. Neumann thinks that software like FRStat is the natural next step in fingerprinting, and eventually, it’ll be the standard of practice. There are two ways examiners are going to approach the change, he said: “There are those who are accepting it as inevitable, and then the older generation, who think that they’ll be able to retire before they have to deal with it.” A key hurdle for the transition, though, is ensuring that the software will be admissible in court. The evidence reported by FRStat wasn’t challenged in the Fort Huachuca court-martial, and the program will be in a bit of judicial limbo until it is. Expert testimony and forensic science presented in court can be scrutinized under either the Frye test or the Daubert standard, which establish if a piece of evidence, in the case of Frye, or an expert testimony, for Daubert, is based on generally accepted scientific knowledge. Lopes-Phelan, for one, said that the Connecticut lab will probably wait for that precedent before trying to report evidence using FRStat themselves. That element is frustrating to Swofford, who thinks that forensic analysts are often too focused on the litigation, and not enough on the science. “People in forensics often still prioritize admissibility in court, and forget to ask if it meets the tenets of science.” The slate of roadblocks are why, even if the program is available, and even though it improves the scientific validity of fingerprint analysis, analysts may be slow or reluctant to adopt it. “Ultimately, lab directors have to be willing to have this forward-thinking mindset,” Swofford said. That a statistical tool will be available as an easy-to-use software program, though, means that the field will be forced to debate and grapple with it, he said. The US Army Criminal Investigation Laboratory is still trying to determine the best way to release and distribute the software. “We’re not software developers,” Reed said. They might partner with a software company, who would take over the program and market it. “With that, one thing we would push for is for it to be affordable,” Reed said. Cost is an issue for forensic labs, many of which don’t have large budgets. Another option, Swofford suggested, would be to release the program for free, with the code open and available. But despite all the challenges, Swofford is confident that FRStat can lead to progress. “It’s an odd feeling, being done. It feels like we’re safe now. I’ve done my job in strengthening the results we’re putting out of our lab,” he said. “Now, it’s about bringing the rest of the community on board.”"


 
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, May 23, 2018

John Kunco: Pennsylvania: (Great news. HL): Unreliable bite mark testimony and lots more! Trib Live (reporter Rich Cholodofsky) reports that he has been granted a new trial based on new DNA findings as well as unreliable bite mark testimony and voice identification used to convict him."


PASSAGE OF THE DAY: "Prosecutors said Kunco broke into the woman's apartment, blindfolded her with her underwear, shocked her with a frayed electrical cord, then raped her and forced her to perform sexual acts. According to court records, the woman identified Kunco by his lisp. At trial, prosecutors showed jurors photographs of a healed bite mark on the woman that experts said matched a dental imprint of Kunco's mouth. The defense has since maintained the bite mark evidence used to convict Kunco was based on faulty science. DNA testing last year of a blanket believed to have been present during the rape found no traces of Kunco's genetic material, according to the defense. DNA evidence was not presented during Kunco's trial."

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QUOTE OF THE DAY: ""To me, this is overwhelming."

Judge Christopher Feliciani.

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STORY: "DNA evidence gets new trial for man convicted in 1990 New Kensington rape case," by reporter  Rich Cholodofsky, published by Trib Live  on May 23, 2018.

GIST: "A Westmoreland County judge on Wednesday granted a new trial for a man convicted of raping a New Kensington woman in 1990 after lawyers argued testing revealed the man's DNA was not found on evidence collected at the crime scene. Common Pleas Court Judge Christopher Feliciani ordered a retrial based on the DNA findings as well as unreliable bite mark testimony and voice identification used to convict John Kunco, 52, formerly of Harrison. "To me, this is overwhelming," Feliciani said. Assistant District Attorney said the prosecution will appeal the ruling. Feliciani ruled that Kunco can be freed from prison while he awaits the new trial. A jury in 1991 convicted Kunco of rape and other offenses for the brutal sexual assault of a 55-year-old woman in her home. He was sentenced in 1992 to serve 45 to 90 years in prison. The Innocence Project in New York has been working on Kunco's behalf."

The entire story can be found at:
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.

Kevin Keith: Ohio: He is expected to find out tomorrow - Thursday May 24, 2018 - whether the U.S. Supreme Court will grant a new trial based on evidence never heard by a jury - the personnel file of Michele Yezzo - a state forensics investigator who worked on his case. The file contains allegations she had a habit of providing police departments answers they wanted in cases.”..."Still fighting, Keith, now 54, has asked the U.S. Supreme Court to grant him a new trial based on evidence never heard by a jury. Keith’s lawyers say the personnel file of a state forensics investigator who worked on his case contains allegations she had a habit of providing police departments answers they wanted in cases. Attorneys for Keith, who is black, also say the file shows the investigator was mentally unstable and used racial slurs against co-workers."


 PASSAGE OF THE DAY: "This evidence, attorneys argue, is among several allegations uncovered years later that a jury never heard, including:
— An alternative suspect’s statement he was paid to “cripple” the informant responsible for the drug raid just weeks before the shootings.

— Documents showing the same suspect was known during crimes to wear a mask similar to the one Keith was alleged to have worn that night.

— The location of a bullet casing used to implicate Keith may have been wrong.

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SECOND PASSAGE OF THE DAY: "In 2010, then-Gov. Ted Strickland commuted Keith’s sentence to life without parole, citing questions about the evidence and a “troubling” failure to investigate other suspects."

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THIRD PASSAGE OF THE DAY: "The Supreme Court is expected to decide on Thursday whether they will hear Keith’s arguments, with an announcement next week. Both sides know it is a long shot: the court takes a fraction of such petitions. Keith also has cases pending in lower courts."

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STORY: "Ohio Inmate Claims Innocence in Slaying of 3, Wants Retrial," by reporter Andrew Welsh-Huggins, Associated Press as published by  Forensic Magazine on May 23, 2018.



PHOTO CAPTION: “This July 14, 2010, file photo, shows Kevin Keith, at the Ohio State Penitentiary in Youngstown, Ohio. Keith, an Ohio inmate who has long maintained his innocence in the 1994 slaying of three people is asking the U.S. Supreme Court for a new trial based on evidence never heard by a jury. Lawyers for Keith say the personnel file of a state forensics investigator who worked on his case contains allegations she had a habit of providing police departments answers they wanted in cases.”



GIST: “From the day of his arrest in 1994 for fatally shooting three people, Kevin Keith has proclaimed his innocence. He pointed to alibi witnesses who placed him elsewhere, an alternative suspect and a host of inconsistencies in the evidence against him. Keith’s arguments did not stop his conviction and death sentence for killing two women and a 4-year-old girl in what prosecutors said was retaliation for his arrest in a northern Ohio drug sweep. In 2010, then-Gov. Ted Strickland commuted Keith’s sentence to life without parole, citing questions about the evidence and a “troubling” failure to investigate other suspects. Still fighting, Keith, now 54, has asked the U.S. Supreme Court to grant him a new trial based on evidence never heard by a jury. Keith’s lawyers say the personnel file of a state forensics investigator who worked on his case contains allegations she had a habit of providing police departments answers they wanted in cases. Attorneys for Keith, who is black, also say the file shows the investigator was mentally unstable and used racial slurs against co-workers. This evidence, attorneys argue, is among several allegations uncovered years later that a jury never heard, including:

— An alternative suspect’s statement he was paid to “cripple” the informant responsible for the drug raid just weeks before the shootings.

— Documents showing the same suspect was known during crimes to wear a mask similar to the one Keith was alleged to have worn that night.

— The location of a bullet casing used to implicate Keith may have been wrong.

“There is no way what he got in 1994 is anything close to a fair trial,” said Rachel Troutman, supervising attorney of the State Public Defender Office’s death penalty division. Killed in the shootings were Marichell Chatman, 24; her 4-year-old daughter, Marchae; and Marichell’s 39-year-old aunt, Linda Chatman. Richard Warren, Marichell Chatman’s boyfriend, survived his injuries and fingered Keith as the shooter. Keith’s attorneys say he was led by investigators to improperly identify Keith. Two children survived: Linda Chatman’s niece, 6-year-old Quanita Reeves, and nephew, 4-year-old Quinton Reeves. The prosecution says a jury already heard much of the information and came to its own conclusion, one upheld by dozens of courts over the years. “There is overwhelming evidence of guilt in this case,” said Matthew Crall, the elected prosecutor for Crawford County, about 70 miles (113 kilometers) north of Columbus. The Supreme Court is expected to decide on Thursday whether they will hear Keith’s arguments, with an announcement next week. Both sides know it is a long shot: the court takes a fraction of such petitions. Keith also has cases pending in lower courts. At the heart of Keith’s latest arguments is the personnel file of Michele Yezzo, a now-retired forensics analyst with the state Bureau of Criminal Identification. Keith’s attorneys first learned of the file two years ago. Yezzo’s “findings and conclusions regarding evidence may be suspect. She will stretch the truth to satisfy a department,” according to a 1989 memo in the file. Yezzo also had a reputation of giving police answers if they “stroke her,” according to an investigator’s handwritten notes elsewhere in the file. Prosecutors say lower courts properly ruled nothing in Yezzo’s personnel file would have made a difference in the outcome. They also say Yezzo was placed on administrative leave until she met with a counselor about her interactions with colleagues, but that was unrelated to her proficiency as an analyst. They also say Yezzo provided key evidence favoring Keith, that footprints from the scene did not match his shoes. Strickland, a Democrat, stopped short in a recent interview of saying Keith is innocent. But there is no question he deserves a new trial based on problems with the defense, prosecution and investigation, the former governor said. “Certainly the way I view this case now, it would have been tragic if Ohio had taken this man’s life,” Strickland said."


The entire story can be  read at:


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.

Alfred Swinton; Connecticut; Flawed bitemark science: John Stossel's timely reminder in 'Reason' that junk science sends innocent people to jail - and that reform is long overdue..."The TV show Cold Case Files covered the trial of Alfred Swinton. He was convicted of murder because a bite-mark expert said his teeth matched a bite on the victim. "A perfect match!" said Dr. Gus Karazulas, the "forensic odontologist" whose testimony clinched the conviction. Karazulas sounded impartial and objective. "A forensic scientist is not on the side of the prosecutor or defense," he said on Cold Case Files. "We look at the evidence." But Swinton was innocent. Lawyer Chris Fabricant helped get him released from jail by doing a DNA test, a much more reliable, less subjective form of science. Fabricant scoffs at bite-mark testimony: "The doctor was just wrong. It's an unreliable technique."


PASSAGE OF THE DAY: "Bite marks are just one dubious method police and prosecutors use. FBI researchers claim fingerprints are right more than 99 percent of the time. But that still leaves plenty of wrongful convictions. After terrorists killed 193 people in Madrid, the FBI matched a fingerprint on a terrorist's bag to a man in Oregon named Brandon Mayfield. They arrested him. But Mayfield was innocent. Weeks later, Spanish investigators compared the prints more carefully and found the real terrorist. Other techniques are even less accurate: carpet-fiber evidence, gun tracing, use of psychics, hair matching. "A dog hair was associated wrongfully with a human hair," says Fabricant. "Since the turn of this century, there have been 75 wrongful convictions (based on hair matches)."

QUOTE OF THE DAY:  "Why do judges and lawyers accept such dubious evidence? "We all went to law school because we don't know science, we don't know math," he replied. "If somebody comes in in a white lab coat, and says, 'I've been accredited by the American Board of Forensic Odontology,' that's good enough for government work." That shouldn't be. Too much is at stake. Jurors tend to believe people who call themselves "scientists." Judges should be more skeptical. They should ban junk science from courtrooms."

POST: "Junk Science Sends Innocent People to Jail," by John Stossel, published by Reason on May 23, 2018. Reason informs us that the former host of Fox Business' Stossel and ABC's 20/20 - who joined Reason in 1917 -  has won 19 Emmys and authored several best-sellers."

GIST:  "On TV crime shows like CSI, NCIS, and Law & Order, science gets the bad guys. In real life, "science" often ensnares the innocent. Former NYPD Detective Harry Houck gets annoyed when TV shows make forensic science look infallible. "You watch a detective get down and look at a body (and say), 'He's been dead for three hours now... (H)e ate dinner four hours ago,'" scoffs Houck. "I can't do that." On TV, experts identify killers by their bite marks. In real life, experts claimt hey can do that. The TV show Cold Case Files covered the trial of Alfred Swinton. He was convicted of murder because a bite-mark expert said his teeth matched a bite on the victim. "A perfect match! said Dr. Gus Karazulas, the "forensic odontologist" whose testimony clinched the conviction. Karazulas sounded impartial and objective. "A forensic scientist is not on the side of the prosecutor or defense," he said on Cold Case Files. "We look at the evidence." But Swinton was innocent. Lawyer Chris Fabricant helped get him released from jail by doing a DNA test, a much more reliable, less subjective form of science. Fabricant scoffs at bite-mark testimony: "The doctor was just wrong. It's an unreliable technique." The more room there is for an expert witness's unique interpretation of the data, the more that can go wrong, says Fabricant. "Bite mark is similar to you and I looking at a cloud. I say to you, 'John, doesn't that cloud look like a rabbit?' And you say, 'Yeah, Chris, I think that does look like a rabbit.'" That kind of junk science puts innocent people in jail. I told Fabricant that I assumed most people in jail are guilty. Also, many people say crime is down because aggressive law enforcement has locked so many people up. "If you think that maybe even 1 percent of convicted defendants may be innocent," replied Fabricant, "we have 2.6 million people in prison today, (so) we are talking about tens of thousands of (innocent) people!" Fabricant works with the Innocence Project, a group that works to get innocent people freed from prison. Through DNA evidence, the project's lawyers have helped free 191 people. That confident bite-mark expert who got Swinton convicted now admits he was wrong. "Bite mark evidence is junk science," he told us via email. He resigned from the American Academy of Forensic Sciences. But police still trust bite marks. "Let's say one tooth is missing in the front" of a bite mark, explains Houck. "You've got to go, well, our suspect's got one tooth missing in the front. That's pretty good!" Houck says he'd demand other evidence. But not all cops do—especially when scientific "experts" say someone's guilty. Bite marks are just one dubious method police and prosecutors use. FBI researchers claim fingerprints are right more than 99 percent of the time. But that still leaves plenty of wrongful convictions. After terrorists killed 193 people in Madrid, the FBI matched a fingerprint on a terrorist's bag to a man in Oregon named Brandon Mayfield. They arrested him. But Mayfield was innocent. Weeks later, Spanish investigators compared the prints more carefully and found the real terrorist. Other techniques are even less accurate: carpet-fiber evidence, gun tracing, use of psychics, hair matching. "A dog hair was associated wrongfully with a human hair," says Fabricant. "Since the turn of this century, there have been 75 wrongful convictions (based on hair matches)." Why do judges and lawyers accept such dubious evidence? "We all went to law school because we don't know science, we don't know math," he replied. "If somebody comes in in a white lab coat, and says, 'I've been accredited by the American Board of Forensic Odontology,' that's good enough for government work." That shouldn't be. Too much is at stake. Jurors tend to believe people who call themselves "scientists." Judges should be more skeptical. They should ban junk science from courtrooms.""


William Amor. Illinois. (Flawed arson 'science'); Man cleared in 1995 Naperville murder/arson he is seeking compensation from a very unwilling state..." Prosecutors maintained throughout the trial that Amor ignited the fatal fire to collect insurance money so he and his bride, Tina Micelli, could start a new life together. In vacating the convictions, Brennan ruled that advances in fire science proved the description of the crime Amor gave in his confession to police -- that he started the fire with a cigarette and a vodka-soaked newspaper -- was impossible."..."Paul Darrah, spokesman for DuPage State's Attorney Robert Berlin, said Friday prosecutors are "strenuously opposing (Amor's) petition for his certificate of innocence."


STORY: "Man cleared in 1995 Naperville murder seeks compensation from state,"  by reporter Justin Kmitch, published by The Daily Herald on May 19, 2018.

GIST:  "William Amor spent 22 years in an Illinois prison for an arson and murder a judge later acquitted him of. After his February retrial and subsequent acquittal in DuPage County, the former Naperville man now wants his record expunged and a certificate of innocence from the state that could be redeemed under the state's wrongfully convicted compensation statute. According to the formula in the statute, Amor, who turns 62 on Sunday, could qualify to receive the maximum compensation of roughly $220,000. Amor's new attorney, Kathleen Zellner, filed the petition in DuPage. A representative for Zellner, however, said she will not discuss the case until May 25.
Paul Darrah, spokesman for DuPage State's Attorney Robert Berlin, said Friday prosecutors are "strenuously opposing (Amor's) petition for his certificate of innocence." A June 18 court date has been set for prosecutors to officially file their objection. Judge Liam Brennan found Amor not guilty of all arson and murder charges in the 1995 death of Amor's mother-in-law, Marianne Miceli, in a fire at a condo on the 1800 block of Bailey Road in Naperville. The Feb. 22 ruling came nearly three weeks after Amor's bench trial concluded and roughly 10 months after Brennan vacated Amor's 1997 arson and murder convictions related to the case.Throughout his trial and pretrial hearings, Amor was represented by attorneys from the University of Illinois at Springfield's Illinois Innocence Project."
The entire story can be found at:

http://www.dailyherald.com/news/20180518/man-cleared-in-1995-naperville-murder-seeks-certificate-of-innocence
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.