Thursday, August 27, 2009

News Release: Faulty fire investigation led to execution

The following news report was written byu Jamie Stengle and published by the Associated Press on August 27, 2009.

Report: Faulty fire investigation led to execution

August 27, 2009

DALLAS — A fire investigation that led to the execution of a man in the deaths of his three young children was so seriously flawed that its conclusion of arson can't be supported, a fire expert hired by the state said in a new report.

In a report to the Texas Forensic Science Commission released Tuesday, Craig Beyler said the fire investigation in Cameron Todd Willingham's case didn't adhere to the standards of care in place at the time, nor to current standards.

Beyler, chairman of the London-based International Association for Fire Safety Science, said in the report that the opinions of a state fire official in the case were "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."

The commission, created in 2005 to review forensic misconduct allegations, requested the independent analysis after the Innocence Project submitted claims of questionable evidence in the cases of Willingham and another man who was convicted in a similar case but was later released.

Commission Chairman Sam Bassett called Beyler's report "a major step" in the panel's review of both cases.

Before issuing its final report, the commission will seek responses from the State Fire Marshal's Office and other parties, and will interview Beyler in October, Bassett said.

He said he expects the commission to release its report next spring.

Beyler said that in both cases, "The investigators had poor understandings of fire science ... Their methodologies did not comport with the scientific method or the process of elimination."

He said Manuel Vasquez, a deputy state fire marshal who investigated the Willingham case, appeared "wholly without any realistic understanding of fires and how fire injuries are created."

Beyler said witnesses contradicted Vasquez's arson hypothesis and that Vasquez admitted he had not eliminated other possible causes.

Eric Ferrero, spokesman for the Innocence Project, a New York-based organization dedicated to exonerating wrongfully convicted people, said Beyler's findings on the Willingham case "confirms what several experts have found over the last five years after reviewing thousands of pages of evidence."

"Every expert who has looked at this case has determined there was no reason to call it arson," he said.

Willingham, 36, was executed in 2004. He was convicted of setting the fire that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron two days before Christmas 1991 in their Corsicana home.

He told The Associated Press before his execution that he was innocent, calling his 1992 trial "a joke." "The most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake," he said.

Willingham's cousin, Patricia Cox, of Ardmore, Okla., said she has never doubted her cousin's innocence. Family members tried for years to free him.

"I would definitely like the state of Texas to take responsibility and admit in fact they wrongfully executed Todd Willingham," she said. "Is that going to happen? Probably not. I'm not optimistic."

Vasquez investigated the case with Douglas Fogg, the assistant Corsicana fire chief. The report said both cited burn patterns on the floor of the children's room, hallway and porch, indicating an accelerant spill. Beyler said those determinations have no basis in modern fire science.

Ben Gonzalez, a spokesman for the Texas Department of Insurance, of which the State Fire Marshal's Office is a part, said he had no comment on the report, adding that officials there had not yet seen it. He said Vasquez died in 1994.

A call to a Douglas Fogg in Corsicana was not immediately returned Wednesday.

In the other case cited in the report, Ernest Ray Willis was convicted in 1987 in a fatal house fire in Iraan, but was freed after 17 years on death row when a federal judge ruled that authorities concealed evidence and needlessly drugged him during his trial.

Tuesday, August 11, 2009

LA Times Editorial: Wrongful convictions: California is guilty of injustice

The following editorial was originally published by the Los Angeles Times on August 11, 2009.

Wrongful convictions: California is guilty of injustice
The Bruce Lisker case is a reminder that state officials have made little progress in dealing with the problem.

Twenty-four years after being sent to prison for murder, Bruce Lisker has finally had his conviction overturned. In her ruling Friday, U.S. District Judge Virginia A. Phillips concluded that Lisker, a San Fernando man who was serving a life sentence for the murder of his 66-year-old mother, had been convicted as a result of "false evidence" and inadequate representation by his attorney.

The judge's findings matched those of Times reporters Scott Glover and Matt Lait, who four years ago retraced the police investigation and found significant errors. On Monday, Phillips said she intended to release Lisker on bail while prosecutors decided whether to appeal her decision, retry Lisker or drop the case against him.

The case is deeply disturbing; there is strong reason to fear that an innocent man spent more than two decades behind bars. What is certain is that Lisker, who was a troubled 17-year-old at the time of his mother's murder, did not get a fair shake at his trial. Even if he does eventually go free, the righting of this one wrong is not reason to celebrate.

What's even more disturbing is that such miscarriages of justice are being uncovered with troubling regularity these days, especially now that DNA evidence is being used to reopen old cases. The public appears to be shocked with each new revelation, but perhaps it is time to get over that. The truth is that this is an ongoing problem in California. And thanks to knee-jerk obstruction by district attorneys and Gov. Arnold Schwarzenegger, the state has made little progress in fixing it.

Last year, the California Commission on the Fair Administration of Justice issued a 196-page report outlining procedural and structural flaws in the state's criminal justice system, along with recommendations to ameliorate them. The Legislature responded by passing bills in 2006 and 2007 regarding eyewitness identification and the video recording of police interrogations, but Schwarzenegger vetoed both. Legislation regulating the use of jailhouse informants passed as well, but met the same fate as did a bill increasing compensation for wrongfully convicted people.

The state's unwillingness to provide meaningful compensation and social services to help the wrongly convicted is particularly galling; it means that even if he is set free, Lisker's only compensation may be a handshake and $200. And don't count on the handshake.

Given California's unwillingness to take the necessary steps to reduce wrongful convictions -- or to pay the price when it errs -- it's a sure bet we'll be hearing about more Bruce Liskers. Perhaps next time we won't be so shocked.

Sunday, August 09, 2009

Guest Shot: Once rock-solid child abuse signs now uncertain

The following op-ed was originally published on August 7, 2009 in the Las Vegas Sun.

Once rock-solid child abuse signs now uncertain

By Abigail Goldman

Friday, Aug. 7, 2009

Audrey Edmunds was charged with murdering an infant in her Wisconsin day care center in 1995. At trial, medical experts testified the child’s injuries were pathognomonic — meaning exclusively characteristic — of shaken baby syndrome: retinal bleeding, brain bleeding and brain swelling, conditions sometimes called “the triad.”

Edmunds pleaded not guilty, went to prison and remained there until last year when her conviction was overturned. A court ruled medical and scientific opinions on shaken baby syndrome had changed so much that a new jury might have reasonable doubt about Edmunds’ guilt.

In fact, one of the doctors who initially testified against Edmunds told the judge he was no longer certain she shook the child.

This is a remarkable development, not just for the accused, but for thousands similarly charged. It’s also, some argue, an indication the legal system lags the science. If one-time medical certainties have been undermined, then why are an estimated 95 percent of people prosecuted on the basis of shaken baby syndrome symptoms still being convicted? Was Edmunds an exception to the rule, or has the science expanded such that other wrongly accused people must now be freed, like death row inmates in the wake of DNA evidence?

As is true just about everywhere, the revelation of the Edmunds case has yet to fully play out in Nevada’s courts.

What remains clear, though, is that absent witnesses, shaken baby syndrome is a medical diagnosis of homicide. The victim’s injuries are the evidence, which is complicated when our understanding of those injuries changes. It’s now understood that the triad may indicate something other than child abuse. Some scientists say short falls can cause retinal or brain bleeding. Some doctors say medical disorders, such as blood or infectious diseases, mimic parts of the triad.

And even if it were possible to prove shaking occurred, techniques used to identify who did it may be flawed. Usually, it’s the last person with the baby who is accused of shaking the child. The belief is such violence quickly renders a victim unconscious or worse.

But new studies suggest children who suffer fatal head trauma can appear lucid for up to 72 hours before death. This expanded time line raises a serious question: Did the trauma happen a day or two earlier?

In recent years physicians have replaced “shaken baby syndrome” with other phrases — “abusive head trauma,” for example. The Clark County coroner prefers “blunt force trauma” or “inflicted abusive injuries.” These changes reflect an expanded understanding of the injury, although some note that replacing too-rigid definitions with loose phraseology isn’t really a refinement.

Although the media are raising questions in the wake of a recent study by DePaul University law professor Deborah Tuerkheimer, Clark County Medical Examiner Alane Olson notes that the debate has been ongoing for some time. What is different is Edmunds’ story. Observers such as Tuerkheimer hope it forces the justice system and well-meaning people eager to identify child abusers to recognize their absolutes may be eroding.

Clark County Deputy Public Defender Scott Coffee has been handling “inflicted abusive injury” cases for about eight years, but only gets one about every 18 months. He has never taken one to trial. The defendants usually strike a plea bargain with prosecutors.

Shaken baby syndrome is a loaded issue and the new research is far from perfect. Experts who testify against shaken baby syndrome diagnoses are ostracized and outnumbered by those who defend them, even when there is evidence to the contrary, Coffee says. Defendants would rather spend a few years than risk a lifetime in prison.

Those convictions, Coffee says, even the no contest pleas, where defendants admit nothing, are seen as proof of guilt, when all we really know is that at least one tragedy occurred — and maybe two.

Tuesday, August 04, 2009

Guest Shot: Forensic science institute could spare future victims

The following op-ed article was published in the Houston Chronicle on July 31, 2009.

Forensic science institute could spare future victims
July 31, 2009, 9:02PM

It's been more than two decades, but it is still as fresh and as vivid in my mind as it was that night in 1985.

I was a sophomore at Texas Tech, coming back to my dorm on a Sunday night after visiting my family. A man forced his way into my car and put a knife to my throat. He pushed me into the passenger seat, began to drive, and told me he would kill me if I didn't stop screaming. I believed him. He drove to a field in a remote part of town, where he raped me.

Later, I learned that I was the fifth victim of a serial rapist on campus. A man named Timothy Cole was convicted of raping me and sentenced to 25 years in prison. I was relieved that he had been apprehended, that he would pay for what he did to me, and that our criminal justice system had gotten him off the streets. But I also knew my life would never be the same again. I spent years in counseling and tried to move on with my life.

Then, last summer, I was forced to relive the entire nightmare — this time with the added tragedy of knowing that Timothy Cole had been innocent and died in prison before he could be exonerated. New DNA testing proved that another man, not Cole, raped me. I was stunned. And I was determined to get answers.

I put my faith in the criminal justice system, and it failed me. I am back in counseling to grapple with the renewed trauma of the rape and the knowledge that I played a role in Cole's wrongful conviction by identifying him as the man who attacked me.

I have learned a great deal over the last year — about myself, about Cole and about our system of justice. One of the most troubling things I've learned is that juries often hear evidence that is not as solid as it sounds.

In case after case, scientists testify that a hair from a crime scene is similar to the defendant's hair, or that markings on a bullet match a particular gun. These and other forms of forensic science can be persuasive to a jury, but nobody knows how accurate the science is (including the forensic analyst who conducted the tests).

Earlier this year, the National Academy of Sciences released a major report finding serious problems with much of the forensic science that our criminal justice system uses every day. The report urged Congress to create a National Institute of Forensic Science to oversee research that can determine how accurate these scientific disciplines are, set standards for what kind of science should be used and how it should be presented, and oversee the enforcement of those standards.

I hope Congress takes action on this soon, and I hope members of the House and Senate from Texas take the lead, in the name of everyone in our state who has been touched by this issue.

Cole and I weren't the only ones whose lives were forever changed by what happened in 1985. We now know, through DNA testing and his own confession, that Jerry Wayne Johnson raped me. After Cole was convicted, Johnson abducted a couple and raped the woman in a cotton field. When he was out on bond awaiting trial for that rape, he raped a 15-year old girl at knifepoint.

Eventually, Johnson was convicted for those crimes. But they could have been prevented entirely if he had been apprehended after he raped me. It's hard for me to think about that woman and her husband, or that 15-year-old girl. I know what they went through — and, today, we know that they could have been spared the unspeakable horror.

We need to make sure our criminal justice system uses reliable, solid evidence to accurately identify suspects and convict criminals. Right now, forensic science is badly lacking, but creating a National Institute of Forensic Science can start to change that. The stakes are too high to do anything less.

Mallin was born in Houston and raised in Baytown. She resides in Baytown with her husband of 19 years, Jim Mallin.