Henning and Birch Cases in CT

The Connecticut Supreme Court heard oral arguments last week in the cases of Shawn Henning and Ralph Birch. The two men, convicted of murder in 1989, seek vacatur of their convictions based on (1) recent DNA test results that exclude them and (2) evidence that the testimony of a forensic scientist, Henry Lee, was false.  Lee had concluded that a stain on a towel found at the crime scene contained blood – and a State Attorney then used this conclusion to support a claim that the two men used it to wipe blood off themselves after the killing.   Post-trial testing indicated that no blood was present on the towel.  None of the new DNA results were consistent with Henning or Birch’s DNA profiles. Connecticut State Attorneys, however, caution that the results might have been corrupted by contamination either before testing or at the crime lab itself.  Dave Altimari of the Hartford Courant describes the two issues regarding the DNA and the blood evidence as “whether someone seeking a new trial based on newly discovered DNA evidence can present other non-DNA evidence that was not available at time of the trial, as well as non-DNA evidence that wasn’t presented in the original trial.” Third, the inmates would also like to present expert testimony that footprints found at the crime scene were too small to come from either of the two.  Read Altimiari’s article about Henning and Birch at http://www.courant.com/news/connecticut/hc-news-new-milford-murder-appeal-20181012-story.html.

Dangers of DNA Testing Op-ed

Last month, Professor Greg Hampikan of Boise State University wrote an op-ed in the New York Times titled “The Dangers of DNA Testing.” Hampikan described a recently-published NIST study of US and Canadian crime labs that gave them a fictionalized crime and DNA mixture to analyze that contained DNA from two of three suspects. Over two thirds of labs surveyed sent back DNA results implicating a suspect whose DNA was not present in the mixture.  Hampikan writes that among the lab results from the NIST study, “the match statistics varied over 100 trillion-fold.” He explains that such variable statistics have the potential to mislead jurors.  He also notes that four wrongful convictions have been overturned in situations in which labs have run previous results through new computer programs that reinterpreted the data. He is hopeful that such programs can help labs remedy prior mistakes.  Hampikan’s op-ed is available at https://www.nytimes.com/2018/09/21/opinion/the-dangers-of-dna-testing.html.

 

Amicus Brief in Long v. Hooks

Today, a group of amici scholars representing a variety of disciplines, including law, ethics, forensic science, medicine, and statistics, filed an amicus brief in the Fourth Circuit Court of Appeals case of Long v. Hooks.  The brief can be read here: 18-6980, Long v. Hooks, Amici Curiae Brief in Support Appellant

Summarizing the argument, the brief states:

Forensic analysis is oftentimes a significant factor in determining the course of criminal investigations and, when admitted into evidence, the outcome of criminal trials…. exculpatory results are highly probative to fact-finders at criminal trials… concealed exculpatory forensic results have played a devastating role in enabling wrongful conviction cases nationwide, including in cases where DNA testing ultimately proved an individual’s innocence… For these reasons, it is crucially important that exculpatory forensic analyses be disclosed to counsel and to the court.

The Wisconsin State Department of Justice received a report from the National Forensic Science Technology Center at Florida International University examining the Wisconsin State Crime Lab. The issues identified include employee turnover that disrupts lab timeliness in testing and incidences of failure for the crime lab to follow procedures about which samples to accept. The report cites the National Research Council’s 2009 conclusion that lab association with law enforcement produces “potential for creating bias and conflicts of interest” and that lab independence is necessary because “the best science is conducted in a scientific setting as opposed to a law enforcement setting.” The report also suggests reforms to the laboratory pay scale in order to boost employee morale. Additionally, the report emphasized need for consistency in submission of items to the lab. The Wisconsin Attorney General, in response, has requested more funding from the state to hire additional analysts and change staff compensation.

Todd Richmond of the Associated Press wrote an article on September 18th about the report and its findings, available at: https://www.apnews.com/fa89becdff234d0eb38c21fb7e454db8. The report itself is available from the Wisconsin State Department of Justice at https://www.doj.state.wi.us/sites/default/files/news-media/9.18.18_WSCLB_Assessment.pdf.

 

DNA Transfer

Marina Medvin published a new article Thursday titled “Framed By Your Own Cells: How DNA Evidence Imprisons The Innocent.” Medvin argues that new technologies that allow DNA to be analyzed from increasingly small samples present a risk of error due to transfer. She warns that current FBI standards for DNA analysis do not safeguard against the transfer of small amounts of DNA between samples through contact with lab surfaces, and that DNA left though secondary transfer is sometimes confused by juries, DNA analysts, and prosecutors as DNA left through direct contact.  Medvin focuses on three cases in secondary transfer issues were important: the cases of Amanda Knox, Lukis Anderson, and Daniel Holtzclaw. Medvin says: “As of now, anytime we touch a public surface, we remain fair game for criminal suspicion based on touch-transfer DNA.”

Read Medvin’s article athttps://www.forbes.com/sites/marinamedvin/2018/09/20/framed-by-your-own-cells-how-dna-evidence-imprisons-the-innocent/#63437af94b86.

 

Motherisk Lab in Toronto

Rachel Mendleson of the Toronto Star published an investigative article last week detailing how the Motherisk scandal is still affecting the life of a mother whose child was wrongfully removed from their home. In 2015, the Motherisk Drug Testing Laboratory was closed because its tests were being conducted by analysts without forensic training and it was producing unreliable results. Mendleson specifically focuses on a mother named Joyce (who had her last name withheld), who in 1998, was sentenced to almost two years of jail and had her son taken from her after a Motherisk hair test of her son supposedly showed that he had ingested cocaine.

Despite uncovering the Motherisk closing in 2015, Mendleson reports that Joyce was not informed that her case may have been impacted by the Motherisk Drug Testing Laboratory’s inadequate testing. Mendleson also notes that issues with Motherisk testing were apparent as early as 1993, when Motherisk hair test results were excluded from the murder trial of Allen Thomas Jr. in Colorado. Joyce’s conviction occurred in 1998 – five years after the results of Thomas’s hair test were excluded because of the shortfalls of the Motherisk lab.

Mendleson’s article is available at https://www.thestar.com/news/investigations/2018/09/14/she-was-convicted-of-feeding-her-son-cocaine-no-one-told-her-the-hair-tests-were-flawed.html.

 

Exoneration in Arkansas

On Wednesday, John Brown was released from prison in Arkansas after his convictions were overturned by a Federal District Court in Arkansas last month. Brown had been convicted of aggravated robbery, rape, and murder in 1988. He had served twenty-eight years of a life sentence. Although prosecutors in Arkansas have appealed the overturning of the conviction, Arkansas’s request for Brown’s release to be stayed was denied.
Brown had been convicted in part because of a supposed confession by a co-defendant, Charlie Vaughn, even though Vaughn testified at trial that he was innocent, and the recording of Vaughn’s jailhouse statement was destroyed and never shown to defense attorneys. Vaughn had allegedly confessed after a previous informant had been made his cellmate.
Brown was also a victim of the withholding of exclusionary DNA evidence by prosecutors. After Brown’s original trial ended in a mistrial, prosecutors in the second trial, which resulted in Brown’s conviction, withheld DNA test results from the murder victim that connected only one of Brown’s co-defendants, Reginald Early, to the crime, and excluded Brown and another of his co-defendants. In 2015, Early confessed to having committed the crime alone.
Brown has been represented by, amongst others, the Midwest Innocence Project. Price McKeon and Caitlin Rearden published an article for KARK about the overturning of Brown’s conviction, available at: https://www.kark.com/news/local-news/update-man-released-from-prison-after-murder-conviction-overturned/1392149322

Revisiting Breath Test Evidence in Mass.

A Massachusetts judge has accepted an agreement, signed by all eleven of the state’s District Attorneys, to exclude breath test machine evidence obtained between 2011 and 2017 in tens of thousands of DUI cases. These convictions have been called into questioned because of litigation in Commonwealth v. Ananias, which showed that the Massachusetts Office of Alcohol Testing improperly calibrated the Draeger 9510 breath test machine. The improper calibration affected more than 35,000 breath test results, and the new agreement will result in the exclusion of these improper results from DUI trials and retrials.
This agreement will not automatically result in the dismissal of all DUI convictions from the affected period. Instead, retrials are only to be granted if a judge believes tainted breath test results were the only reason that a person was convicted or decided to plead guilty. Although Prosecutors have agreed to stop using breath test results obtained through this machine between 2011 and 2017, defense attorneys in the litigation are arguing that breath test machine results should not be accepted until the Massachusetts Office of Alcohol Testing obtains nationally recognized accreditation.
The Salem News published an overview of this agreement and the Massachusetts breath test machine scandal, available at http://www.salemnews.com/news/local_news/tainted-breathalyzer-results-could-force-new-trials/article_1488e9d0-fde7-5380-a8b9-3dde85dbdd3a.html.

DUI Reversal

The Texas 14th Court of Appeals recently granted relief in a DWI case for a Brady claim based on mistakes by an analyst in the Houston Forensic Science Center in the handling of a blood sample.
At the trial, an analyst testified that she had analyzed the blood sample and found a BAC of .193. The Prosecutor conceded that the blood sample testimony was important to secure the conviction because the arresting officer, according to the Prosecutor, was “probably not a very good officer” and “not good at testifying”. The defendant was convicted by the jury of DWI with a BAC above .15, which is a Class A misdemeanor.
The analyst, however, had at that time been removed from casework having analyzed blood samples in a different case known to have been mislabeled. The analyst was then suspended by her supervisor, who did not inform the District Attorney’s Office of the disciplinary action. The analyst testified without disclosing the suspension.
The petitioner filed a habeas application, and argued that the withholding of Gooden’s discipline was Brady material. The trial court denied the application, stating the evidence did not meet the materiality or favorability prongs of the Brady test. The Texas 14th Court of Appeals, however, reversed. It found that the arresting officer had made several mistakes in his handling of the case and that the analyst’s testimony was necessary in establishing the conviction.
A Houston Chronicle article by Brian Rogers about the Texas 14th Court of Appeal’s decision is available at: https://www.chron.com/news/houston-texas/houston/article/Conviction-reversed-because-Houston-crime-lab-13221897.php.

Ohio Ruling on Bitemark Evidence

Earlier this week, the Ohio 9th District Court of Appeals upheld a trial court judgment preventing Douglas Prade from getting a new trial to contest his conviction for the murder of his ex-wife in 1997. Prade contended that scientific advances have revealed new evidence in his case that could cast doubt on his conviction. For example, Prade cited the American Board of Forensic Odontology’s current guidelines, which would have prevented analysts from claiming that the bitemark matched to him, if they had been in force during the original trial. Prade also provided DNA test results that exclude him from contributing to the DNA found on the bite mark in question.

The court held that no single piece of evidence alone led to the guilty verdict, despite a television interview where three trial jurors stated that the bite mark testimony led them to believe in his guilt. The court also upheld the trial court’s ruling that DNA testing of the bite mark sample during the original trial and the passage of time would impact the ability of new testing to produce accurate exclusionary results.  The court ruled that the evidence that Mr. Prade provided to seek a new trial was not “new evidence” and thus there was no basis for a new trial to be granted. The court also suggested that if the evidence could be considered new evidence, that “it was unlikely to change the outcome here.”

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