Nobody Could Have Predicted

Though they had no data to support their conclusions, for years cops in lab coats testified that they could match a bullet from a crime scene to a box of bullets owned by a criminal defendant. As it turns out, they were wrong.

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.

Florida Most Corrupt of all 50 states, DC and Territories

An article out today in the New York Times asks, 'With all the recent hubbub circulating recently around Illinois Governor Blagojevich's spectacular scandal, is his state really the most corrupt?' Well, it depends which measurement you use, but, in short, no.

By sheer number of convicted public officials at local, state, and federal levels, Florida takes the ignoble cake. Our home state boasts 824 convictions in the last decade. That's one conviction every four days for the last ten years.

(It's no coincidence, probably, that the largest seven states by population are also the seven most corrupt on this metric. When the measure becomes convictions per capita, Florida is ranked 14th, and Washington, D.C. first.)

If only they would survey convictions by county. I wonder where Brevard would rank nationally...

Question for Norm Wolfinger

Dear Norm:

If everyone now agrees that John Preston and his dog were frauds, how were they able to always "correctly" pick out the suspect?

Love, 

Yankee Interloper

The State Uncharacteristically Admits Wrongdoing in Ates Case

On the heels of Bill Dillon's vacated conviction comes another Florida case about to hopefully see retrial.

Jimmy Ates was convicted in 1998 of killing his wife, Norma Ates. His conviction came seven years after the fact, and after two other prosecutors had refused to take the case because of scant evidence.

Jimmy Ates has been in jail for 10 years. However, on October 31st of this year, the State filed their response to a recent motion by Ates for post-conviction relief. They did something extremely rare, which was to concede two compelling reasons why Ates is entitled to a new trial.

First, the prosecutors at the time relied almost entirely on the analysis of bullet lead found in Ates' home. (The idea being that the bullets that killed his wife matched in elemental composition a batch of bullets that Ates owned, therefore one of his bullets killed his wife, therefore, he killed his wife.) The science behind such analysis has since been abandoned by the FBI, one of its main proponents. Because that testimony, now known to be flawed, was the vital piece of incriminating evidence against Ates, the State agreed that he should receive a new trial. (What the State is left with now is a haphazard patchwork of circumstances that fails to convincingly link Ates to the murder of his wife.)

Magnifying the importance of the metallurgical evidence, then-prosecutor Rod Smith embellished the bullet lead claims until they appeared to be of astounding probative value. In his closing argument, Smith stated,

Of all the millions and billions of bullets that are made by any given company in any given time frame, the bullets that killed Norma Jean were manufactured from the same batch that were found in the box in the back room.

Unfortunately for Smith, the science used at the time has since been discredited, and even the conclusions of the FBI analyst would not have supported a statement as strong as his. Instead, and because of this, his closing argument was misleading and false.

Secondly, the State admitted that a fingerprint lifted from the scene of the crime was not disclosed to the defense during preparations for trial. Even more material to Ates' defense is that the fingerprint did not come from Ates or the victim, or from any of the police officers who could have left their print while investigating the scene, or from two other known suspects.

On top of all this, the FDLE officer who filed the report denied lifting any important prints from the utility room while he was on the stand. We would like to believe that this officer was simply mistaken, that he had not been informed that this particular print came from the utility room, or that he had honestly forgotten since his analysis. Instead, though, we know that the prosecution had tested the print in question against several officers' prints as recently as two weeks before the trial. This leads one to believe that the State did, in fact, know about these prints, and knew they could be a problem for their case. When the FBI analysis came back negative for any matches, they brushed it under the rug.

These both are cogent reasons for Ates to receive a new trial. While the FBI bullet-lead science was contentions at the time, it was widely accepted in courtrooms across the country until recently. We now know it to be bunk. In the case of the mystery fingerprint, it seems to have been purposely concealed by some element of the prosecution. The FDLE officer who took the stand appears to have been either terribly mistaken, or, more likely, lying, when he testified there were no prints of value in the utility room.

While Ates' case represents a sad miscarriage of justice, the miraculous thing about this case is that the State has disclosed its own wrongdoing.

According to an Individual.com article,

Staff attorney Scott Reagan is reviewing [the State's response]...

Reagan said the prosecutor's request for a new trial is extremely rare and "carries a lot of weight."

Indeed it does, given the adversarial nature of the justice system in which the State in particular is oftentimes most interested in saving face rather than procuring real justice. It's lamentable that this breach of justice occurred in the first place, but refreshing that the State had the moral fortitude to come clean when confronted.

This quote from the end of the State's response is telling:

In the context of the cumulative effect of the errors identified by the defendant, and the circumstantial if not "close" nature of the evidence in this case, no one should be confident in the accuracy of the verdict in this case.

Accordingly, it is the state's belief that the defendant should be granted a new trial. [emphasis added]

We eagerly await the outcome of Ates' hearing on December 17th of this year. Hopefully the State Attorney's office will continue this pattern of behavior, do the right thing, and drop the charges.

Deep Thought

If Bill Dillon had been sentenced to death rather than life in prison, rather than being exonerated right now, he'd just be dead. 

Press Echoes Call for Investigation into Brevard

Florida Today, a newspaper out of Brevard County with a daily circulation of 80,000, echoed our call today for Governor Crist to investigate the systemic corruption in the Brevard County State Attorney's Office and Sheriff's Office. The paper quotes James Russo, the local Public Defender, who is also calling for an inquest:

"I have read the comments of our state attorney and the continued attempt to justify the shameful decision-making in this case," Russo said during an afternoon news conference. "This is a case where lawful evidence never existed in the first place."

Florida Today lists dog handler John Preston's now discredited, but alarmingly prolific, testimony in the County as the main impetus for an investigation. The paper also correctly notes that Preston's chicanery, which came to light in Brevard, stretches beyond the borders of that county to all of Florida. "Preston, proven to be a fraud, testified in hundreds of Florida cases, including three in Brevard County that have been overturned: Dillon, Wilton Dedge and Juan Ramos." (The current State Attorney who is refusing to cooperate with calls for an investigation, Norman Wolfinger, was a former defender who helped to clear Ramos and discredit Preston.)

The Innocence Project of Florida had previously produced this video about John Preston, including footage from a 20/20 exposé that aired in the mid-1980's.

More good reasons to appoint a special prosecutor exist, of course, including "a jailhouse snitch and an investigator who slept with a key witness in the case."

Dillon's case and others like it point to rampant collusion in Brevard County between the Sheriff's Department and John Preston. Gilbert Goshorn, a former Brevard County Judge, designed a test in 1984 to determine whether Preston's dog could do what it purported to do. When it failed the test, Goshorn concluded "that the only way Preston could achieve the results he achieved in numerous other cases was having obtained information about the case prior to the scent-tracking, so that Preston could lead the dog to the suspect or evidence in question." We have every reason to believe a criminal conspiracy exists there, and that innocent people are in jail.

Dillon himself added, "It's not about justice for some people. It's about convictions." Then, tapping a seemingly endless well of empathy, he said, "I feel their pain. I'm not angry. This is compassion, sadness."

Florida Today also ran an editorial today using stronger language and calling for the Governor to investigate. "Prosecutors’ mishandling of the cases along with actions by the Brevard County Sheriff’s Office fol­lows a pattern of possible criminal behavior that can no longer be swept un­der the rug."

Preston had testified in countless other cases in Florida, while we know he was an utter fraud. How many times did his testimony put away an innocent person? Public confidence in the hundreds of other cases in which Preston testified has evaporated. Florida Today conlcudes, "[Governor Crist] must act at once to bring those responsible for this and other such tragedies to justice."

• Florida Today editorial, "Our views: Probe the corruption"
  
• Florida Today article from today, "Defender Demands Probe of Office"
  

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