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

Amber Alert No Hindrance to Child Abductor Crossing the Border

DSC00507 (2)A recent child abduction by a father in Colorado, who fled with his three-year-old son to Manitoba, reminded me of the angst and heartbreak these cases bring with them.

Monte Turner, of Colorado, was barred by court order from contacting his former wife and their son Luke Turner. However, as is common in abduction cases, a court order did not get in the away of Mr. Turner last month when he arrived at his former wife’s home while Luke was playing in the backyard.

Turner overpowered Brandy Turner with pepper spray and an electrical stun gun, grabbed his son, and fled on a bicycle. His escape route was planned with the assistance of Luke’s grandfather, who is also under investigation.

An Amber Alert was issued throughout Colorado and the surrounding states, but no one thought to alert the Canadian border crossings because Colorado did not share a border with Canada.

It appears that Luke’s mother was unaware that her son had a passport, thus making it so much easier to be spirited out of the United States. Fifteen hundred kilometers later, Mr. Turner with Luke, checked into a motel in Brandon, Manitoba.

Fortunately, Mr. Turner made a simple mistake by using his credit card to pay for the motel room and within minutes, the motel owner was shocked as lights and sirens converged on his motel, where Turner was arrested.

This story, unlike many others, has a good ending as Luke was returned to his mother shortly thereafter, while Turner remains in jail in Manitoba awaiting deportation to face charges of kidnapping, burglary and menacing.

So, are there steps parents can take to foil the chances of a successful abduction? Of course there are.

In cases like these, the custodial parent is usually well aware that abduction is a possibility. In the Turner case, Monte Turner had taken his son the year before when there was no custody order in favour of his wife, to stand in his way.

Counsel for Brandy Turner ought to have ensured that a copy of the court order awarding her custody and preventing her ex-husband from contacting her or Luke, together with notice of the Amber Alert, was sent to as many border crossings as possible.

One can never be too careful and the fact that Luke had his own passport, albeit without Ms. Turner’s consent, is a reminder that it is prudent in high-risk cases for a parent to contact the Passport Office to determine if a fraudulent application has been made by another person.

Nonetheless, where a parent is determined to commit the ultimate crime they will take whatever steps are necessary, including forging consent letters and travel authorizations so that border authorities have no reason to suspect foul play.

What is really needed in Canada are judges who will mete out appropriate punishment for abducting parents as a general deterrence to others and specific deterrence to the abductor. A slap on the wrist, community service, or a probation order does not cut it. Parents who steal children commit the worst form of child abuse and deserve lengthy prison terms.

I suspect that Colorado will not be shy to ensure that Turner pays for his crimes, as he awaits trial with a $500,000 bail requirement.

Lawdiva aka Georgialee Lang