CBLA conviction overturned in Colorado

After the FBI in 2005 abandoned a faulty scientific procedure called comparative bullet lead analysis, by which they claimed they could match bullets from a crime scene to a specific box of bullets found somewhere else, a joint task force was created consisting of national organizations such as the Innocence Project in New York and the National Association of Criminal Defense Lawyers. The Innocence Project of Florida was appointed as the "point office" for issues related to CBLA in Florida.

Last Sunday, the Associated Press wrote an article about Tim Kennedy, a Colorado man whose conviction has been thrown out, partly because of comparative bullet lead analysis. (You'll recall that Jimmy Ates, a client of the Innocence Project of Florida, was the first person in the nation to have his conviction thrown due to the FBI's disavowal of CBLA.)

During an interview Thursday at the Limon Correctional Facility on the Eastern Plains about 95 miles east of Denver, Kennedy cherished the thought of being a free man. Apart from spending time with his sister and brother, one of the first things Kennedy would do if he is freed is get a steak dinner...

At trial, the only physical evidence linking Kennedy to the crime was the FBI's comparative bullet lead analysis, which purported to be able to trace a bullet from a crime scene to a box of bullets in a suspect's possession. That technique has since been discredited as "exceeding the limits of science" and the FBI stopped the analysis in 2005.

Tragically, both of Kennedy's parents died within the last four years, so they will not get to rejoice in his release. But Kennedy has fond memories and nothing but gratitude for his parents' solidarity and support: "There are times when it brings you to tears when you think about how lucky you are, how things have worked out, how your family stayed with you... You know, I'll never forget my parents. They spent their life savings (on his defense). Even after that you know, they stuck with me through the rest of their lives."

Palm Beach Post coverage of Dillon speaking event

The Palm Beach Post has an article today on Bill Dillon's speaking engagement at the Rotary Club in Wellington, Florida that took place Friday.

Innocence Project in the St. Pete Times: A lifeline for imprisoned innocent

[Mark Wallheiser, Special to the St. Petersburg Times] Innocence Project of Florida executive director Seth Miller and lawyer Bobbi Madonna meet with associates on potential cases. In the background is the whiteboard used in weekly lectures given to law school interns.

The Innocence Project of Florida received some press today in the St. Petersburg Times, Florida's largest newspaper, that explores the arduous process we go through to select our cases.

The process is a lot like sifting for gold. Of the 3,000 inmates who have asked for help since the office opened six years ago, 90 percent have received rejection letters. Rarely do the lawyers find someone like Wilton Dedge or Alan Crotzer, both wrongly convicted of rape.

Ironic turn of phrase – since we certainly don't want to compare innocent people in prison to gold, being a good thing in any way, but sifting and deciphering and contemplating are all appropriate ways of imagining the process.

The entire article is worth a read, and it is somewhat brief.

Update: Our story is on A1 in the St. Pete Times today! Here is a PDF of the front page.

Texas bill allows defendants to challenge their convictions based on junk science

Per the Innocence Project's blog today, "A bill passed by the Texas Senate this week would provide an avenue for prisoners to challenge convictions based on discredited forensic science." They reference a story in the Marshall News Messenger that begins,

Criminals who were sent to prison — or sentenced to death — based on discredited scientific evidence would be given a new way to challenge their convictions under a bill passed this morning by the Texas Senate.

In recent years, an increasing number of arson and gunshot convictions in Texas have triggered alarm as new technology proved earlier evidence wrong, and convictions were cast into doubt — including at least one case in which the prisoner was executed.

The measure by state Sen. John Whitmire, D-Houston, would allow discredited scientific evidence that figured in a criminal conviction to be considered by an appeals court in order to establish the innocence of a defendant...

Advancements in forensic testing — DNA, ballistics and arson — have led to new evidence being uncovered in several cases in Texas. Whitmire said that led him to file the bill, which clarifies how discredited scientific evidence can be used in court appeals.

In December 2008, we worked to overturn Jimmy Ates' conviction, based largely on fraudulent FBI bullet lead analysis. Since then, the National Academy of Sciences has issued a scathing report, decrying the sorry state of forensic science labs around the country.

We know well how junk science can contribute to a wrongful conviction – indeed, the Innocence Project in New York says that junk science contributed to over half of the nation's first 225 DNA exonerations. We applaud steps like these being taken in Texas, and hope that a new incredulity toward and accountability regarding forensic science will spread to other states and jurisdictions.

The Coverdell Grant Program for forensic science

The Innocence Project in New York recently released a report titled, "Investigating Forensic Problems in the United States: How the Government Can Strengthen Oversight through the Coverdell Grant Program." From the executive summary:

In 2004, Congress established an oversight mechanism within the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efficiency of state and local crime labs and other forensic facilities.

[...] Nearly five years after Congress passed legislation to help ensure that forensic negligence or misconduct is properly investigated, extensive independent reviews show that the law is largely being ignored and, as a result, serious problems in crime labs and other forensic facilities have not been remedied. In short, the U.S. Department of Justice’s Office of Justice Programs (OJP), which is responsible for the program, has failed to make sure that even the law’s most basic requirements are followed.

Yesterday, the blog for TheHill.com paraphrased some of the results of this study, and reiterated the Innocence Project's call for increased oversight or, rather, they called for the Obama administration to increasingly take advantage of the grant program that Congress created five years ago. One particularly egregious fact they quote is this: only 13% of designated oversight entities meet the federal law’s forensic oversight requirements. If you were a defendant, would you want to take a 1-in-8 chance that the forensic lab that processed the evidence in your trial was subject to proper oversight?

Finally, "Under new leadership, the Department of Justice can – and should – make sure crime lab problems are properly addressed, which will enhance the public safety and help prevent wrongful convictions." Remember, working to correct problems in order to preclude wrongful convictions is cheaper than housing wrongfully incarcerated individuals.


No sooner had The Hill run this post than Grits for Breakfast published some presentations from the public meetings held by the National Academy of Sciences, meetings held to address the problems plaguing forensic science labs around the country. They link to this presentation in particular that calls for forensic tests "to be as blind as possible, for as long as possible," and which contains the shocking graphic on common error rates linked above.

You'll notice that firearms and fingerprints, while among the most reliable forensic testing methods, still yield erroneous conclusions around 1-5% of the time. Some toolmark and bitemark tests, meanwhile, are reliable less than half of the time. That report also refers to several studies that found that, for example, when a scientist was provided with "context" for certain samples – context such as, "The suspect has already confessed, here's his hair and a hair from the crime scene" – that error rates were much higher. Those who conducted the psychological studies could induce false positives by giving false context, leading the forensic scientist to believe certain conclusions before they came to them independently.

All of these scientific studies point to the sad state of the crime labs in this country. Scientists might think so, but they are not immune to psychological tendencies – such as suggestibility – that afflict every human being. Independent oversight and common-sense reforms are the necessary solution to the problem.

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

UPDATE II: CBLA Amicus Brief

On Tuesday, IPF received the good news that the Florida Supreme Court sent the case of Thomas Wyatt, a death-row inmate, back down to the trial court for a new hearing on the Comparative Bullet Lead Analysis issue and the jailhouse snitch issue in Mr. Wyatt's case.

This was particularly important because they instructed the lower court to have a hearing on whether the CBLA testimony given at trial against Mr. Wyatt sufficiently prejudiced his trial given the fact that the FBI issued a letter recently saying that its testimony was false and not supported by science.

This ruling preserves the case-specific FBI letters as the paramount newly discovered evidence in these CBLA cases.

You can learn more about CBLA by reading this Washington Post article from 2007 or by reading our amicus brief by clicking here.

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

Update: Wyatt v. State Amicus brief

On Thursday, April 2nd, the Innocence Project of Florida, along with The Innocence Network, filed an amicus curiae brief with the Florida Supreme Court in the case of Wyatt v. State of Florida. IPF is urging the court to allow inmates, including Mr. Wyatt, the opportunity to present to the trial court recently received letters from the Federal Bureau of Investigation indicating that its agents gave false and misleading trial testimony regarding Comparative Bullet Lead Analysis (CBLA). The press release we posted earlier is now available for download by clicking here, or you can read the brief we filed by clicking here.

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

What if DNA evidence from a crime scene could tell us what the perpetrator looked like?

That question is the taken from a new post over at the Change.org Criminal Justice blog. The post is inspired by an article in the Wall Street Journal, that explains how researchers at Pennsylvania State University performed a study attempting to link specific genes to "phenotypes," or their physical expressions. What this means, then, is that scientists might be able to tell, roughly speaking, a person's physical characteristics by examining their DNA.

As Matt Kelley, the author of the post points out, there is much reason for alarm here. As he says, and as we have noted before, there is cause for concern over "the propensity of criminal justice agencies to use scientific methods before they're ready." He adds, "The U.K. and the Netherlands are already using some form of these tests, as are some U.S. states. Germany has outlawed the practice, along with Indiana, Wyoming and Rhode Island."

Lastly,

The WSJ reports that researchers are able to predict eye color 70-90% of the time and skin color 46% of the time. These numbers aren't strong enough to rely on. Wrongful convictions happen - and real perpetrators get away - when faulty or limited science puts police on the wrong track in those crucial first few days after a crime. I agree that these tests could be helpful in some cases to confirm other evidence, but can we guarantee that genetic composite sketches won't be become simply another form of unreliable forensic science?

The question is when and whether this will become more accurate than other methods of identification, and whether this technique can be used without any illusions of its accuracy. The worry is that juries might hear DNA evidence and assume the practice is close to 100% accurate, rather than the more pitiful, but more truthful, measure of its accuracy.

Bill Dillon speaks publicly in Melbourne, Florida

On Saturday night, William Dillon spoke to a crowd at the Space Coast Progressive Alliance's "Audacity of Hope" event at the Florida Institution of Technology. Florida Today covered the event.

"Many years, I waited for something to happen," he said. "I wrote anyone I could; anybody that I thought would listen, and I got no replies. Nobody was listening."

He cited the manipulation of witnesses, the lack of DNA testing at the time and unreliable sources for his conviction and credited the Innocence Project of Florida for his freedom.

You can read about William Dillon's case on our website here.


The Innocence Project of Florida's Assistant Director, Toni Shrewsbury (right) was in attendance.

Update: Some coverage in the blog of John Simpson, an attendant at the Progressive Celebration event:

[Bill Dillon is] tall, maybe six-two, and speaks clearly and plainly in a laconic voice of his experiences behind bars and in the courtroom, of his life in general. His speech is marked by candor, not rancor. He does not appear to be bitter. He’s adapted readily to the use of cell phones, devices which didn’t exist (except in crazy inventors’ feverish imaginations) when he went in. At a restaurant or among a crowd of people, he’s always looking around, alert, amazed. That he can find his way around Brevard County, where he still lives, is another source of constant surprise: whole neighborhoods have sprung up in his absence; new shopping malls exist where, a quarter-century ago, the wind blew across empty fields and marshes.

What he’s been through (and how well he went through it) boggles the mind. That he’s nowhere near the first — and certainly not the last — to have gone through it feels, well, impossible.

Visit IPF's Website here; sign up to volunteer here; contribute to our work here.

Wrongfully incarcerated, recently exonerated Brevard resident William Dillon to address public for the first time this Saturday

Brevard resident William Dillon, who served over 27 years for a crime he did not commit, will make his first address to the public since his exoneration in November 2008, joining the Innocence Project of Florida (IPF) on stage at the Gleason Center, Florida Tech campus, 6:00pm, Saturday, March 7, 2009 at the 5th Annual Progressive Celebration hosted by the Space Coast Progressive Alliance and co-sponsored by WFIT 89.5FM.

Dillon will join IPF Assistant Director Toni Shrewsbury during an award ceremony recognizing the work that IPF has done since their inception in 2003, resulting in the release of ten wrongfully incarcerated Floridians who, through DNA testing, were proven factually innocent of the crimes for which they were convicted. In addition to obtaining the freedom of these individuals, IPF's work has resulted in widespread recognition of the need to reform the state criminal justice system, where fundamental problems have been identified in the areas of eyewitness identification, false confessions, evidence preservation, crime lab oversight, access to DNA testing, and exoneree compensation. IPF has received over 2000 inquiries/requests for assistance in proving the innocence of individuals currently incarcerated.

Dillon's 27 years in jail represent the longest time served by any of the 232 individuals exonerated nationwide as a result of DNA test results. Dillon was exonerated when his innocence of a 1981 murder was proved by DNA evidence that came as a result of a 2007 motion filed by IPF and attorney Mike Pirolo. Dillon was subsequently released November 18, 2008.

The state's case against Dillon was based largely on the testimony of an admitted perjurer who had a sexual liaison with the case's lead investigator during the investigation, a fraudulent dog scent expert, a partially blind eyewitness and an individual whose own charges in a rape case were dropped in exchange for his testimony, which included numerous details at odds with known facts in the case.

Both Dillon and Shrewsbury will be joining Progressive Celebration attendees at a pre-event reception greeting Bob Edgar, President and CEO of Common Cause, a 400,000 member nonprofit, nonpartisan citizen lobby for reforms that make government at all levels more open, honest, and accountable, and re-engages citizens with civic responsibility. Edgar will then keynote the celebration with a talk addressing the challenges facing the Obama administration in meeting its promises for education, health care and energy policy. Edgar will specifically address key reforms that have taken hold in other states and how such reforms can be pursued in Florida. Celebration attendees will have the opportunity to question Edgar about Fair Districting, public campaign financing, and other fundamental reforms directed toward government accountability and the campaign/election process. Edgar's talk will follow a live music performance by Evan Greer, RiotFolk musician, performing original songs of citizen empowerment, sustainability and social justice. Concerned citizens of all ages are invited and urged to attend.

Doors open at 6pm to the event, which benefits both WFIT 89.5FM, a public radio station serving South Brevard and Indian River County, and the Space Coast Progressive Alliance, a local grassroots citizen lobby for progressive public policies.

Tickets are available from WFIT 89.5FM (321-674-8950 or www.wfit.org).

# # #

Event Info
5th Annual Progressive Celebration
an evening of inspiration and information
hosted by Space Coast Progressive Alliance
co-sponsored by WFIT 89.5 FM

Saturday, March 7, 2009 on campus, Florida Institute of Technology, 150 W University Blvd, Melbourne FL 32901

5-6:30pm - Pre-event Party, Meet & Greet Reception in Hartley Room, Student Union Building. Limited attendance, tickets required.
6:00pm - Doors open at Gleason Performing Arts Center for Progressive Celebration
6:15pm - Live Music with Evan Greer, RiotFolk Music Collective
7:00pm - Welcome and Award Presentation to Innocence Project of Florida, followed by keynote speech by Bob Edgar, President & CEO of Common Cause
Presentation title: "The Audacity of Hope vs. Pay-to-Play Politics: Obama's Challenge
8:45pm - Edgar book signing, progressive information tabling, music resumes

Tickets available from WFIT (online at wfit.org or call 321-674-8950)
$20 advance / $25 at the door, if available
$10 students
$60 tickets

MEDIA welcome with press credentials/identity.

MORE EVENT INFO HERE

CONTACTS
ALL AVAILABLE FOR INTERVIEW

Innocence Project of Florida Assistant Director Toni Shrewsbury: 850-561-6767 or tshrewsbury@floridainnocence.org

Common Cause: Mary Boyle, VP Communications, via Mike Surrusco 202-736-5788 or msurrusco@commoncause.org, or John Briscoe, VP Development, 202-841-4507 or jbriscoe@commoncause.org

Common Cause Florida: Alex Chavez, 941-706-1877 or 941-737-1447, achavez@commoncause.org

Evan Greer, RiotFolk Musician: respectyourmama@gmail.com or evangreer@gmail.com or 978-852-6457

Local event co-chair: Cammie Donaldson, 321-917-1960 or cammiedonaldson@earthlink.net
Local event co-chair & pre-event reception chair: Susan Martin, 321-773-1276 or zulu2@cfl.rr.

# # #

Space Coast Progressive Alliance (SCPA) is a Florida nonprofit corporation supported by membership dues, donations, and event ticket sales. Nonpartisan by strongly progressive and politically active, SCPA encourages citizen engagement in the political process and seeks to advance progressive public policy at the local, state and national level. Click here to visit their website.

Arson convictions "feeling the heat"

The recent report from the National Academy of Sciences tore into traditional forensic techniques used to analyze cases of arson, among other sciences. But it is not the first time that fire science has met resistance from experts in the field, or scientists outside it. An article in Miller-McCune magazine has a lengthy article detailing arson science's somewhat troubled history.

Even though much of the science has been discredited, Phoenix Attorney Larry Hammond points out the difficulties of getting a conviction overturned.

"Our legal system is designed to foreclose post-conviction review," [Hammond] noted, "and it does frustrate, and has frustrated, many of these cases." Attorney Walter Reaves, who works with the Innocence Project of Texas, agreed: "You have to convince a court that it is (newly discovered evidence), and then you have to convince them to actually listen and hear it."

DNA is the undisputed gold standard for exonerations, a virtually unassailable magic bullet. But arson convictions are a new frontier for exoneration work, and they are qualitatively different. If you find a bullet or knife in a dead man's back, no one disputes that a crime has taken place. Fires, however, are not so simple.

I found this following quote especially egregious:

Arson is the only crime for which someone can receive the death penalty based on the testimony of an expert witness whose education ended with high school.

And the article discusses possible suggestions for fixing the problem.

Common themes emerge when discussing reforms. One hot topic is the routine dependence on negative corpus evidence —simply put, investigators rule out electrical faults and exploding coffee pots, for example, rather than rule in evidence of how a fire did in fact start. So rather than a more accurate description of "cause undetermined," fires are often called arsons based on investigation by exclusion.

To veteran investigator Patrick Kennedy, that practice is unethical and immoral. "I don't know what it is, so it must be arson?" he said. "That is a pretty poor reason to kill somebody."

Besides bad forensic science

The National Academy of Science's report on the sorry state of forensic science in America continues to garner attention in the press, but two other articles caught my attention today. The first is about the use of jailhouse snitches in the Virginian-Pilot in Hampton Roads.

Police in Norfolk labeled Timothy W. Gurley unreliable and a liar, according to court documents. But his long criminal history didn't prevent him from helping authorities in several high-profile cases including the prescription drug trafficking case of Dr. Sidney Loxley and the double murder trial of Eddie Makdessi, extradited from Russia to face charges that he killed his wife and her lover. In December, Gurley testified in the trial of Navy Lt. Michael Lee Everage, who was convicted of murder in the bludgeoning of his wife with a truck mirror.

Gurley hopes a judge will slash his 25-year sentence as thanks for his cooperation.

And then this hilarious money-quote. Kudos to the author for this juxtaposition of facts:

"It is our duty to put forth only the credible witnesses who have valuable testimony to provide, no matter who they are," said Norfolk's Commonwealth's Attorney Robert C. Slaughter III.

[Jailhouse snitch] Jamaal Skeeter has lied about his own name.

Second, there's a piece on Grits for Breakfast about the unreliability of polygraph tests, "no matter who uses them, or why." In particular the blog refers to the common use of polygraphs to screen job applicants.

Equally unfair would be to rely on polygraph testing, which amounts to junk science at its worst, to deny potential troopers employment. I don't know why anyone still thinks these things are reliable. As one critic put it, "There's something about us Americans that makes us believe in the myth of the lie detector. It's as much of a myth as the Tooth Fairy."

Lie detectors were ruled to be generally inadmissible in court in the landmark 1923 case Frye, but played a part in police investigations far into the late 20th century, and therefore might have contributed to wrongful convictions which are being served today.

Judge Overturns Jimmy Ates’ Conviction: Use of Junk Science Leads to Release

Press Release
December 17, 2008

Today, pursuant to an agreement between the State and defense, First Judicial Circuit Judge William Stone vacated the conviction of Jimmy Ates. Mr. Ates will walk out of the Okaloosa County Jail later today after serving ten years in prison for the 1991 murder of his wife, Norma Jean Ates, in Baker, Florida. He is the first person in the nation to have a conviction overturned based on the FBI’s disavowal of Comparative Bullet Lead Analysis (CBLA).

“We’re thrilled that the State is finally recognizing the mistake that it made and taking this first step towards justice for Jimmy Ates,” said Bobbi Madonna, Staff Attorney for the Innocence Project of Florida (IPF).

Jimmy Ates is just one of roughly 1500 individuals nationwide whose cases were tainted by CBLA, which the FBI now concedes is a junk science. An FBI review of about 115 of those cases has found that CBLA testimony compromised the integrity of at least 80 trials—16 in Florida alone.

CBLA is a procedure by which scientists claim to be able to link bullets to a particular batch or box on the basis of their chemical composition. In Ates’ trial, FBI Analyst Kathleen Lundy testified that the bullets retrieved from the victim’s body matched the bullets found in the Ates’ family utility room, and therefore they came from the same batch. This testimony had no scientific basis. “Lundy was a fraud peddling a junk science and without that testimony, Jimmy Ates would never have been convicted,” said David Menschel, Legal Director of IPF. Lundy testified about CBLA in at least six other Florida cases.

The State’s case against Jimmy Ates has been suspect from the beginning. Initially, Okaloosa County State Attorney, Curtis Golden, refused to prosecute because the case lacked sufficient evidence. In a highly unusual move, Gov. Lawton Chiles assigned the high-profile case to Duval County State Attorney Harry Shorstein, who also refused to prosecute. Six years after the murder, armed with the FBI’s new CBLA analysis, a third State Attorney prosecuted Jimmy Ates.

Based on the new evidence that has emerged since trial, William Cervone, the special prosecutor assigned to the case, conceded that Ates’ conviction cannot stand. “Bill Cervone deserves praise for righting this wrong, and we hope and expect that other Florida prosecutors will follow his example in other CBLA cases,” said Seth Miller, Executive Director of IPF.