Junk Science Responsible for Wrongful Convictions

BarristerThe Federal Bureau of Investigation and the Justice Department have finally admitted there may be hundreds of wrongfully convicted persons languishing in prison, some on death row because of “junk science”, notably microscopic hair analysis.

They recently revealed that for over thirty years so-called FBI “experts” have provided flawed testimony in almost every criminal case where human hair was found at the crime scene. The government’s review of cases where hair evidence was a central part of the case against an accused has led to a finding that 26 out of 28 FBI microscopic hair experts unwittingly provided flawed testimony in 95% of the 268 criminal trials that have been scrutinized.

Unfortunately, most of the time the experts opined to a scientific certainty that the accused’s hair matched hair found at the crime scene, making hair analysis an important evidentiary weapon relied on by prosecutors around the country.

Assisted by the National Association of Criminal Defense Lawyers and the Innocence Project, thus far the review indicates 32 people were given the death penalty, and of those 32, 14 have already died in prison or been executed.

What is most startling, however, is that the scandal of faulty hair analysis has just surfaced in the United States, although evidence of its problematic nature has been known for years. In 2004 Canada’s Globe and Mail newspaper highlighted a groundbreaking study from Manitoba that arose from the wrongful murder convictions of two innocent men.

James Driskell of Winnipeg was convicted in 1991 of murdering Perry Harder who the Crown alleged was poised to testify against Driskell in a stolen property case. The only evidence linking Mr. Driskell to the crime scene was three hairs found in Mr. Driskell’s truck that were said to belong to Hardy.

While Driskell wasted away in jail, maintaining his innocence, his lawyers finally obtained an order for DNA testing of the hair. The three hairs did not belong to Perry Harder, in fact, they were from three different unknown persons. Driskell spent twelve years at Stony Mountain Prison before his release. He was awarded $4 million dollars in compensation.

In another Manitoba case, 19-year old Kyle Unger was sentenced to life in prison for the murder of Brigitte Grenier, age 16, at a music festival in 1990. The only evidence that damned Mr. Unger was a single hair on Ms. Grenier’s sweatshirt that an RCMP forensic technician testified belonged to Kyle Unger.

Ms. Grenier’s murder enraged the small Manitoba community of Roseisle, particular when the details of her death were released. She was brutally beaten, strangled, had bite marks, and sticks were inserted in her vagina and anus. A despicably deranged murderer had to be responsible.

Despite evidence that Ms. Grenier was last seen with Timothy Houlahan, a minor at the time, with blood and other forensic evidence linking him to the crime, Mr. Houlahan insisted that Mr. Unger was involved.

Later a “Mr. Big Operation” would elicit a confession from Mr. Unger. Both were convicted and appealed. Unger’s appeal was dismissed. Timothy Houlahan’s appeal was successful and a new trial was ordered, however, he committed suicide before the second trial commenced.

Meanwhile Kyle Unger never stopped protesting his innocence and spent 14 years in prison until the Association in Defence of the Wrongfully Convicted stepped in, prompted by their client, James Driskell’s wrongful conviction.

In an admirable and unprecedented move, the Government of Manitoba, under the leadership of Deputy Attorney General Bruce MacFarlane, established the Forensic Review Committee, charged with determining whether there were other cases like James Driskell’s, where DNA testing might shed new light on the validity of previous hair microscopy comparison evidence.

DNA testing proved conclusively that the hair on Ms. Grenier’s clothing did not belong to Mr. Unger and his “confession” made to please “Mr. Big” suffered from the frailties recently identified by the Supreme Court of Canada. In 2009 the Manitoba Crown dismissed the charges against Mr. Unger, but refused to compensate his for the time he spent in prison, alleging that he is responsible for his conviction because of his Mr. Big confession.

In 2011 Mr. Unger filed an action against the government and the RCMP seeking $14 million dollars in compensation, a million for each year of detention. Interestingly, the prosecutor in the Unger case, George Dangerfield, was also involved in the wrongful convictions of James Driskell, Thomas Sophonow, and Frank Ostrowski. Sophonow negotiated $2.3 million in compensation, while Mr. Ostrowski is still waiting for compensation for 23 years spent in prison. The poster child (now man) for wrongful convictions in Canada remains David Milgaard who received $10 million dollars.

Several years ago I met and spoke with Mr. Milgaard and was impressed by him, never forgetting that the compensation for his time in prison for a crime he did not commit could never be an adequate replacement for his mental and physical torture.

Thankfully, DNA testing has now overtaken the flawed science of hair analysis, but that still leaves other areas where the science may be more illusory than accurate, including footprint analysis, bite mark analysis and the Canadian cornerstone of difficult prosecutions: Mr. Big.

Lawdiva aka Georgialee Lang

FBI Investigates Rogue Court Employees Who Exchange Favours for Cash

GEO_edited-1There was an unusual gathering of 110 lawyers and former criminal defendants in Santa Ana, California last week, described by the Orange County Weekly as a “hell of a scene… in the West Orange County Municipal courtroom of Judge Thomas James Borris”.

All had been summoned to appear before the Court in light of a FBI investigation that revealed errors in the court records with regards to 600 court files.

“You are here to convince me there is not a mistake in your case,” Judge Borris said to the assembled throng of shocked attorneys and clients, as he began calling forward and questioning defendants and lawyers.

He asked one attorney whether he had represented client X as the court file indicated. He said he had not. Judge Borris immediately issued a bench warrant for X’s arrest.

To a female defendant he queried whether she had completed the three-month jail sentence that was recorded in her file. She replied in the affirmative, but Judge Borris instructed the court clerk to call the institution to confirm she had served her time. An answer came quickly. She had not and was remanded into custody, without bail.

In some cases the Court called both a lawyer and a defendant to approach the bench at the same time and asked whether they had ever met before. Many had not, despite court files that recorded a client/attorney relationship.

As the morning progressed and people were free to leave, they were approached by FBI agents who took them aside to ask what they knew about their own court files and if they could shed any light on the unfolding corruption scandal.

Defendants whose court files did not reflect the actual results of a case’s disposition were given the option of negotiating a settlement with the prosecutor, the presiding judge, or hiring a private attorney.

The FBI alleges that rogue court employees had been paid cash to “fix” impaired driving and other traffic violations by recording fake sentence reductions and dismissals for drunken driving and other misdemeanor traffic offences.

As of late last week, no arrests have been made. The court file audits continue.

Lawdiva aka Georgialee Lang

Former Prosecutor Disbarred Over Wrongful Conviction

GAL & PAL #2jpgIt was a warm August morning in Somerville, Texas when Texas’ elite investigative unit, the Texas Rangers, were alerted to a raging house fire. Once the fire was doused, the investigators entered the collapsed structure stepping over burning embers that sizzled in the hot sun.

What they saw shocked them to their core. Six burned bodies were located throughout the remaining charcoal shell. There were four children under eight-years old and two adults. Once victim had been shot, several were bludgeoned, and all suffered stab wounds, before the home was set ablaze.

At the funeral for the six victims, Robert Carter, the father of one of the deceased children, startled investigators who observed burns on his arms and face that were wrapped in swaths of cloth bandages. Immediately he became a key suspect and after he failed a polygraph test he admitted his involvement and implicated Anthony Graves and a man he knew only as “Red” The Rangers quickly ascertained that Red was actually his wife, Theresa, who also displayed burns that she dismissed as arising from a slip of her curling iron.

Carter was tried for the heinous crimes in 1994, found guilty, and sentenced to death. He now wanted to do a deal with the prosecutor to avoid the death sentence, in exchange for his testimony against Anthony Graves. He continued to insist that Red and Anthony Graves took part in the crimes, and maintained that his wife was not a participant.

As Anthony Graves’ trial approached, settlement discussions accelerated and Texas prosecutor, Charles Sebesta, who had secured Carter’s conviction, met with Mr. Carter and his lawyer the day before Mr. Carter was expected to testify.

During that conversation Carter blurted out that he alone was responsible for the events that resulted in six deaths. Prosecutor Sebesta didn’t believe him and told him to stop playing games. He told him that three weapons, a gun, a knife and a blunt object caused the deaths and that meant there were three assailants.

Carter then explained how the murders occurred, saying that he went to the Davies’ home to speak with Lisa Davies, the mother of his 4-year old son, Jason Davies, to dissuade her from pressing him for child support, and to advise her that despite her entreaties, he would not leave his wife Theresa to get back together with her.

When he arrived at the house Lisa was not there, but her mother, Bobbie Davies was. A heated discussion ensued and Carter left the home, angry and offended. He went back to his car where Red and Anthony Graves waited for him. He explained how he felt disrespected whereupon they said they would “take care of things”.

Although there was no evidence linking Anthony Graves to the crimes, except Carter’s testimony, and despite the alibi provided by Graves’ girlfriend and brother, he was convicted and sent to Death Row. He spent 18 years there, much of it in solitary confinement, and came very close to a lethal injection needle on two occasions. Robert Carter was executed in 2000.

Grave’s “angel” was the University of St. Thomas Project Innocent Network and journalist Nicole Casarez, who championed his wrongful conviction and reinstated her law license to join the legal team that obtained his exoneration.

But that’s not the end of the story. All eyes now focused on prosecutor, Charles Sebesta, when the question arose as to whether he informed the court or Anthony Graves’ lawyer of Carter recanting his allegation that Graves acted with him.

With the media heat on him, Sebesta took out newspaper ads describing Graves as “cold-blooded,” in response to media criticism, and he asked those wondering what occurred to look at the evidence, pointing out that Graves was initially convicted after a jury trial.

He also provides a long explanation of the circumstances of Grave’s wrongful conviction on his website, http://www.charlessebesta.net, insisting he did nothing wrong. However, not everyone sees it his way, and this week Mr. Sebesta was disbarred by a State Bar of Texas grievance committee panel who found that Sebesta failed to provide exculpatory evidence to the defense and presented false testimony to win the conviction of Anthony Graves.

After battling the state for compensation for his wrongful conviction, Anthony Graves received $1.4 million dollars. He splurged on a white BMW for himself and bought a house for his mother. However, the main beneficiaries of his largesse is the University of Texas Law School Foundation where he endowed a scholarship in journalist/lawyer Nicole Casarez’ name and funded a foundation that helps the children of wrongly convicted parents.

I doubt if Charles Sebesta will ever admit he stole 18 years of an innocent man’s life.

Lawdiva aka Georgialee Lang

Update on Terrorist Lawyer

49afd8240a58bf0fb97d4a86105572c1In 2010 I wrote about American lawyer, Lynne Stewart, who collaborated with her client, blind cleric and terrorist Sheikh Omar Abdul-Rahman, leading to her arrest and conviction for conspiracy and passing messages to the Sheikh’s followers. Originally ordered to serve 28 months in prison, her sentence was increased to ten years by the appeal court, who were unimpressed with her flippant arrogance after her original sentencing and identified her perjury at trial as a relevant factor in the increased sentence. She was then 70 years old.

Ms. Stewart was retained in the early 90’s to defend Shiekh Omar Abdul-Rahman, spiritual leader of the Egyptian organization The Islamic Group. The Shiekh, who master-minded the World Trade Centre explosions on 9/11 was charged with terrorist acts in relation to the WTC and attempts to blow-up the United Nations, an FBI building, and several tunnels and a bridge in New York City. He was convicted and given a life sentence plus 65 years. It was reported that Ms. Stewart openly wept at his sentencing.

Between 1997 and 2002, Stewart, her interpreter and her paralegal continued to see the Shiekh in prison and were accused of passing messages from the Shiekh to his radical followers, who under his leadership, continued to plot jihadist attacks around the world.

At the core of the government’s case against her were secret videotapes and telephone recordings of her meetings with her client. In one recording she and the Shiekh were laughing at their clever arrangement to continue the jihadist work even while he was in prison.

Additionally, in breach of her agreement with the authorities that only legal matters would be discussed with her client, she made a public announcement on the Shiekh’s behalf which signaled to his followers that they should ignore a cease-fire agreement.

As a hero of the left, prior to her incarceration she was in great demand as a speaker and garnered the support of numerous organizations including the communist Pravda and George Soros’ foundation. Osama bin Laden recorded a video tape wherein he praised Stewart’s actions.

Stewart summarized her political agenda:

“I don’t believe in anarchist violence but in directed violence.
That would be violence directed at the institutions which
perpetuate capitalism, racism, sexism and at the people who
are the appointed guardians of the institutions and
accompanied with popular support.”

After her arrest in 2002 she told the New York Times that the Pentagon would have been a better terrorist target than the World Trade Towers on 9/11 because people in the Towers “never knew what hit them”.

In December 2013 U.S. District Judge John Koeltl ordered the “compassionate” release of Ms. Stewart, on account of terminal breast cancer and medical opinions that she had at best 18 months to live.

While she was to live quietly in her last months, her disease suddenly improved to the point where she began openly proselytizing to a variety of left-wing organizations and her adoring followers.

Giving a recent speech to an antiwar coalition, Stewart acknowledged receiving a letter from convicted felon Mutulu Shakur, imprisoned for participating in a 1981 Brinks robbery that left three people dead. Stewart’s terms of release prevented her from associating with felons, so she quickly corrected herself, saying her husband had received the letter from Shakur, who was once involved with the Black Liberation Army. She apparently smirked as she said:

“I don’t communicate with political prisoners because that’s a part of my probation.”

What I don’t understand is why convicted terrorists are even eligible for compassionate release? Ms. Stewart’s release on medical grounds reminds me of Libyan Lockerbie terrorist Abdelbaset al-Megrahi who was released from a Scottish prison in 2009 on compassionate grounds, based on evidence he had only three months to live. He served a mere 8 1/2 years on a life sentence and became a national hero in Libya. He lived an additional three years in his family’s villa, lauded and honoured in his native country.

There certainly are cases where compassionate release is warranted, but in cases of terrorism, early release is a travesty that ought never to occur.

Lawdiva aka Georgialee Lang

Big Law Partner Bears the Brunt of Madoff Fraud During Divorce

10950859361151CDPIn 2011 I wrote a story about Steve Simkin, a prominent real estate lawyer at New York mega-firm Paul, Weiss. An unwitting victim of Bernie Madoff’s ponzi scheme, Mr. Simkin signed an agreement with his wife, lawyer Laura Blank in 2006, before Madoff’s massive fraud unravelled, dividing their family assets between the two of them. Part of the deal saw Ms. Blank receive compensation for her one-half interest in Mr. Simkin’s investment portfolio valued at $5.4 million dollars and held by Bernie Madoff.

In 2008 Mr. Simkin realized he was a victim of Madoff’s criminal scheme. The truth was there was no account with Madoff’s company and the monthly statements were forgeries. Simkin filed a lawsuit against his ex-wife seeking to recover the funds he paid her for her share of the portfolio. Simkin’s lawyer argued that Ms. Blank had received a “windfall” on the basis of a “mutual mistake”. He sought a variation of the agreement and reimbursement from his ex-wife.

A Manhattan trial judge didn’t see it that way and tossed out Simkin’s lawsuit. She ruled there had been no mistake, because at the date of the separation agreement the account held funds. The fact the account was later worth nothing was not a “mutual mistake”.

Mr. Simkin immediately appealed and in a 3-2 decision in his favour, the Appeal Court ruled that Simkin’s claim was legitimate and ought to proceed in the lower court.

In a stinging dissent Justice Karla Moskowitz held that the majority decision trampled on years of well-settled law that “a deal is a deal”. She opined that when the agreement was signed the account had value and to adjust the division of assets because one asset had declined in value was “divorced from reality”.

The legal concepts set out in the dissenting opinion, mirror the laws in British Columbia with respect to a Court’s hesitancy to overrule or set aside a separation agreement negotiated by the parties in good faith and with independent legal advice.

The reason why separation agreements should not be easily varied is exemplified by the Simkin case. Another example? If a couple divorced, with the wife retaining the family home and the husband retaining other assets of equal value, it would be ridiculous for the wife to come back two years later and say, “The real estate market has dropped and my home is now only worth half the value it was at the date of the separation agreement, please pay me more money to account for this change in value.”

Of course, Ms. Blank appealed the Court of Appeal decision and in 2011 I made the following prediction:

“I believe at the end of the day, which could be years away, the pain caused by Madoff’s swindle will be suffered only by Mr. Simkin. Do I believe that is fair? Not really, but the law set out in the fourteen page dissent is compelling.”

Sure enough, with all appeals now completed, Mr. Simkin alone bears the burden of Madoff’s fraud, while Ms. Blank is permitted to retain the “overpayment” of $2.7 million.

It is likely that Steve Simkin’s plight will attract little sympathy, given the enormous salaries earned by “biglaw” partners in New York City. Website abovethelaw.com suggests a salary range of $600,000 to $900,000 per annum. Nice work if you can get it!

5 Reasons to Fire Your Divorce Lawyer

10950859361151CDPWhy do clients of divorce lawyers change lawyers so frequently? It’s because they are caught in an emotional vortex, facing the unknown and dreading the journey. However, there are legitimate reasons to fire your divorce lawyer. Consider the following:

1. YOUR LAWYER PULLS A BAIT AND SWITCH

This occurs when you hire a lawyer with a big reputation and never see him or her after your first consultation. Many busy, successful lawyers work with junior lawyers and paralegals and this is beneficial for a client. The usual, mundane paper-pushing can easily be done by a junior and at a far cheaper rate than “big lawyer’s” rate.

However, if this is the way your lawyer works you need to know up front. I always tell my clients that what they need from me is strategy and courtroom presence. The rest can be done by others with my supervision. Far better to have basic family law forms filled out by a junior who bills $250.00 an hour than by “big lawyer’s” charge-out rates. If you can’t accept your lawyer’s work style, time to find a new lawyer.

2. AFTER MANY MONTHS YOU HAVE NO IDEA WHAT YOUR BEST AND WORST CASE SCENARIOS ARE

After a few months your lawyer should have received from you or your spouse’s lawyer certain financial documents and information and if you have children, details about your kids and the parenting arrangements during the marriage. You have every right to expect that once a clear picture of the family finances emerges and the roles of each spouse in the marriage is elucidated, your lawyer will tell you the good, the bad and the ugly.

I am often asked to provide a “second opinion” and am always surprised when the client cannot tell me what their lawyer’s plan is to resolve the case. If four months have passed and you have no idea of where you stand, it may be time to challenge your lawyer.

3. YOUR LAWYER HAS NEVER DONE A COSTS/BENEFIT ANALYSIS

Unless you are a multi-millionaire and money is not an issue, you will want your lawyer to consider the financial viability of unleashing the hounds of hell on your spouse. By now, everyone knows how expensive court is and not just court, but the cost of two business valuators, two property appraisers, two child development experts, two accountants and the list goes on and on.

If you are fighting over a sum of $100,000 but it will cost you $150,000 to litigate, you would be a fool to proceed to court. Ah, but what about custody of kids? You can’t put a price tag on that. Yes, you can and you should. The worst battles of all are over children and usually the outcome does not justify the “go to war” tactics and accompanying costs.

A good lawyer will do everything he or she can to find a way to compromise on children’s issues, short of court proceedings. If you have not had a realistic “money” talk with your lawyer, beware.

4. YOUR LAWYER PROMISES BIG, BUT DELIVERS SMALL

An experienced, competent lawyer should be able to give you the odds of success for any court application he or she brings on your behalf. Legal cases are decided on decisions made in earlier legal cases, called precedents, and your lawyer should be fully aware of how cases like yours have been decided.

While you cannot expect lawyers to guarantee a particular outcome, before you can make an informed decision as to whether to proceed to court you need some idea of the lawyer’s opinion of the likelihood of success. If your lawyer promises the sun, the moon and the stars, but delivers space junk you may want to think twice.

5. YOUR LAWYER NEVER SENDS YOU A BILL

While at first blush this may sound like the perfect lawyer, it is not. A lawyer who is unable to bill you is a lawyer that is likely highly disorganized, overworked, has taken on too many clients and is generally overwhelmed. No one likes surprises, and when you finally receive your bill, and you will, it will come as a big shock. Insist that your lawyer bill you monthly so you can see how much this is costing you. Usually lawyers who fall behind on their billing, also avoid conversations about cost and benefits obtained. Not a good combination.

A divorce lawyer’s day is never boring and yet most other lawyers agree that divorce lawyers do the hardest work of all, they work with clients who are emotionally devastated who may become financially spent in the process. It’s a tough job, but someone has to do it.

Lawdiva aka Georgialee Lang

No Gender Bias in Family Courts Says Irish Academic

GEO CASUALA key finding in a new report on gender bias in family courts declares there is no indication of gender bias in contested cases about where a child should live.

The May 2015 report authored by Dr Maebh Harding, from the University of Warwick and
Dr Annika Newnham of the University of Reading is based on a document analysis of a retrospective of 197 case files from five county courts in England and Wales over a six month period in 2011. Of the 197 cases, 23 were custody disputes between a parent and another relative, usually a grandparent.

In the “two parent cases”, fathers initiated 70% of the applications, whereas only 30% of the cases started with an application by a mother.

The most common type of court application was for an order to allow contact or access, making up 41% of their sample. Fathers brought 96% of all access applications. The majority of these applications were made in order to initiate or restart contact.

Applications which sought a sole residence order made up 43% of the sample. Similar numbers of applications for sole residence were made by fathers (32) and mothers (30) but their reasons for going to court differed.

Joint custody and joint residence applications amounted to only 7%.

Notably, in 2011 there was no presumption in the British law that the involvement of a non-resident parent would further a child’s welfare. In 2014 this presumption was added to the governing statute, the Children Act 1989.

In my view, the analysis of the data in the report suffers from the absence of real-life experience in the family law trenches. Let me give you some examples:

1. The authors discovered that in 51% of cases the father had been cut off from contact with the child and that in almost half of the parent cases (86 out of 174) mothers had made allegations of domestic violence against fathers. However, in only 45 of the 86 cases was their sufficient evidence of family violence.

The report reads “Court investigations into the truth of domestic violence allegations were rare and took place in only 21 of the 86 cases in which allegations of domestic violence were made.

Where fact-findings were held, few ended in a clear determination on the alleged facts. Instead, the question of domestic violence tended to be reconceptualised as being primarily about reducing the risk to the child and facilitating as much contact as was possible in the circumstances.”

In other words, even unproven domestic violence was used to minimize a father’s role in parenting.

THESE FACTS ACCORD WITH MY EXPERIENCE THAT MANY FATHERS ARE MARGINALIZED AFTER MARRIAGE BREAKDOWN AND ALLEGATIONS OF DOMESTIC VIOLENCE ARE USED AGAINST GOOD FATHERS TO THWART A CHILD/PARENT RELATIONSHIP.

2. The authors found that many of the cases took two years to resolve but expressed little concern about the delay saying:

“Time taken in the court process should not always be viewed as unnecessary delay. Cases need time to build trust between the parties and reach a workable child-centred conclusion ensuring contact was safe.”

THE REALITY IS THAT IF FATHERS BRING MOST OF THE APPLICATIONS FOR RESIDENCE OR ACCESS AND A RESOLUTION IS TWO YEARS AWAY, THE STATUS QUO CARRIES ON TO THE DETRIMENT OF THESE FATHERS AND THEIR CHILDREN.

3. The authors opine that going to court did not amplify or entrench the conflict between the parties finding that the vast majority of cases were resolved by consent orders. Only 25 of the 174 parent cases ended in a contested final hearing.

THE NAIVETY EXPRESSED IN THE AUTHOR’S FINDINGS ABOUT CONSENT ORDERS IS DISAPPOINTING. THE TRUTH IS THAT FATHERS ARE COMPELLED TO GO TO COURT TO OBTAIN RESIDENCE OR CONTACT ORDERS, AND MANY FATHERS SETTLE FOR WHAT THEY CAN GET AFTER YEARS OF FAILED NEGOTIATIONS WITH ADVICE FROM THEIR LAWYERS THAT FAMILY COURT JUDGES WORSHIP AT THE ALTER OF THE STATUS QUO.

Perhaps if academics conferred with family law lawyers when analyzing court data they would gain insight into the dynamics between feuding parents; understand the nuances and strategies employed by parents who seek to discount or eliminate the other parent; understand that children need both parents in their lives; and resist the attraction of the “primary parent” philosophy that is no longer relevant in today’s world.

The report is titled “HOW DO COUNTY COURTS SHARE THE CARE OF CHILDREN BETWEEN PARENTS?” and can be found at http://www.nuffieldfoundation.org.

Lawdiva aka Georgialee Lang