Jason Young Case: Silence can be used against you

Is it really true that one should never talk to police? While many wish to speak to police to “clear” themselves of suspicion, a lot can go wrong, so most attorneys advise their clients to remain silent. Exonerations certainly highlight the need for vigilance to avoid becoming wrongly convicted. We now know that many wrongful convictions are the result of law enforcement’s inaccurate statements from unrecorded interviews, or coerced confessions, or twisted words. There are many strong reasons to remain silent, and popular videos warn people to protect themselves. It’s a basic right that should certainly be exercised.

But, please understand that your silence can be used against you in today’s corrupted justice system. The Jason Young case illustrates this. A mistake on the part of Young’s attorneys resulted in the jury being told that he had ignored two civil complaints launched against him during the course of a murder investigation. Responding would have forced him to waive his 5th amendment right. At the advice of his attorney, he ignored the complaints because he was under investigation for the murder of his wife. Please read here to understand how these legal maneuvers pushed him into a corner. He continues to pay for his choice to remain silent, as he lost his recent bid for a new trial.

History

November 3, 2006 — Michelle Young found murdered in her home

2008 — Michelle’s family filed wrongful death suit, child custody suit against Young. Young did not respond.

December 15, 2009 — Jason Young arrested for the murder of Michelle Young

June 2011 — Trial — Mistrial declared — Jurors voted 8: not guilty, 4: guilty

March 2012 — Trial 2 — State introduced inadmissible evidence per NC statute 1-149 — Guilty verdict

April 1, 2014 — NC Court of Appeals grants Young a new trial citing that Judge Stephens abused his discretion by allowing the civil suit testimony.

August 21, 2015 — NC Supreme Court reverses CoA decision citing that his attorneys failed to preserve his grounds for appeal based on statute 1-149, as they never cited it in court.

June 15, 2017 — MAR hearing for ineffective assistance of counsel for attorneys’ failure to research inclusion of civil case, failure to properly object to its inclusion.

August 29, 2017 — Judge Ridgeway’s decision denying Young a new trial.

There is a lot to the case, but understand that there was no evidence connecting Young to the murder. There was a lot of unsupported circumstantial evidence, (much of which has been completely refuted on this blog site and in my book) and the state’s weak case resulted in an 8-4 vote for acquittal and a mistrial.

The prosecution used unlawful tactics to ensure a conviction in trial two. First, they asserted that Young’s silence was proof of his guilt — that surely he would have responded to the civil complaints if he was innocent. They stated that he had much to lose — custody of his daughter and four-million dollars in life insurance by maintaining his silence. But remember that he was following the advice of his attorney to refrain from talking during an ongoing investigation. Young hoped that police would solve the crime and absolve him of any involvement, and he could then regain custody of his child. He was using common sense and refusing to answer questions, as was his right.

Secondly, the prosecution elicited severely prejudicial testimony from a witness who stated that Judge Stephens (the very judge presiding over the murder trial) had declared Jason Young the slayer in a default judgment after he failed to respond to the wrongful death lawsuit.

Everyone knows that a jury is never to consider silence of the accused as proof of guilt, but the prosecution presented it, the judge allowed it, and the defense failed to properly object to it. Opinions of the judge about the case are also prohibited, yet the jury heard that the judge believed he was guilty of murder in the wrongful death suit.

 

As a result, Young was convicted . . . and is now immersed in a lengthy appeal process to undo the injustice.

The subject of the appeal has been based on a long standing statute that forbids the use of civil case information to assert the truth of the matter presented — to prove that he’s guilty of the murder.

No pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it.

The reason it’s forbidden is because the threshold of proof in a civil case is low. Jason’s trial attorneys failed to cite statute 1-149 in their objection to the prejudicial civil testimony. It was a big mistake that they readily admit. The North Carolina Court of Appeals overturned the conviction citing that the judge abused his discretion by allowing the testimony. Unfortunately, the NC Supreme Court later reversed the decision, stating that the trial attorneys failed to properly preserve Young’s right to appeal since they never cited the statute in their objection. Note: If your attorney messes up, you will be the one to suffer the consequences. How many average citizens would know anything about a statute? Most people simply trust that their attorney has it covered. Chances are they don’t.

The Supreme Court sent the remainder of Young’s appeal issues back to the Superior court. In June, Judge Ridgeway heard arguments based on the same subject, but this time it was about Young’s claim of ineffective assistance of counsel, and now, there’s a loophole that’s being manipulated. There are permissible exceptions to 1-149 which allow portions of civil case records, as long as it’s not used to assert the truth of the matter.

One of the exceptions is impeachment. If for example the accused makes one statement at a civil trial and a contradictory statement at a criminal trial, it is permissible to point out that inconsistency. This would be a permitted exception to 1-149. However, in the Young case, the prosecution never cited that they were presenting the civil testimony to impeach Young. And in fact, they are not able to claim they are using it for impeachment purposes because Young did not testify at the second trial.

So, what was their reason? At the Court of Appeals hearing, the government claimed they brought in the civil testimony because Young testified at his first trial and described specific details about his alibi. They have no way to prove he was being dishonest. They hated that he remained silent all that time . . . that he ignored the civil suits . . . that he waited until he had all the state’s evidence before speaking. But that’s his absolute right to do so. SO, they claim they used the civil testimony to illustrate that “See! If all he had to do was explain those minute details about his alibi, he had NO reason to remain silent by ignoring the civil complaints. His silence must be an indication of guilt!” There is no legal exemption of Statute 1-149 that permits such testimony.

Further, the testimony about the trial judge’s opinion of Young’s guilt in the civil matter IS clearly offered to assert the truth of the accusation. How could it be anything but that?

In my opinion, Judge Ridgeway was wrong in his opinion. He stated ” The admission of the civil pleadings was consistent with the Supreme Court’s explanation of N.C. General Statute 1-149 — the civil pleadings and evidence relating thereto was probative for impeachment purposes of defendant’s testimony at his first trial, to discredit his alibi, and to raise questions concerning defendant’s conduct in the several years following the murder.” Again, they can’t use ones silence as impeachment.

The case will now go back to the North Carolina Court of Appeal. I am hopeful they will find that the ineffective counsel claim is valid, and it’s so disturbing that all of this could have been avoided if public officials would behave in an ethical manner, instead of breaking the rules to “win.”

 

Jason Young’s MAR hearing for ineffective assistance of counsel

Jason Young appeared in court on Thursday for a hearing to discuss a motion for appropriate relief. The claim is that his trial attorneys — Brian Collins and Mike Klinkosum failed to do necessary legal research to counter prejudicial testimony the state planned to present at the second trial in March, 2012.

Timeline

November 3, 2006 — Michelle Young found murdered in her home

December 15, 2009 — Jason Young arrested for murder of Michelle Young

June 2011 — Trial — Mistrial declared — Jurors voted 8: not guilty, 4: guilty

March 2012 — Trial 2 — State introduced inadmissible evidence per NC statute 1-149 — Conviction

April 1, 2014 — NC Court of Appeals grants Young a new trial due to the inadmissible evidence creating an unfair trial

August 21, 2015 — NC Supreme Court reverses CoA decision citing that his attorneys needed to properly object to the evidence citing the statute. They did not.

June 15, 2017 — MAR hearing for ineffective assistance of counsel

After the state was unable to secure a conviction in the first trial, they made a decision to solicit testimony about civil lawsuits filed against Jason by Michelle’s family. Statute 1-149 prohibits the inclusion of civil proceedings, specifically

No pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it.

Young’s trial attorneys knew the state was planning to introduce the evidence. A simple legal search would have shown that the evidence was inadmissible per the above statute, but they failed to conduct research, and simply objected based on rule 403, which was not good enough according to the Supreme Court. They were required to object based on the specific 1-149 statute, according to the decision.

Why was the evidence damaging?

Before Jason’s arrest, his attorney advised him not to respond to the wrongful death and child custody suits because he would have had to submit to a deposition and psychological evaluation — essentially removing his 5th amendment right to remain silent. Please refer to this article for more details about that. His failure to respond to the wrongful death suit allowed a judge to issue a default judgement — basically declaring a win for the plaintiffs. In this particular instance, the signing judge (Judge Stephens) was the same judge who presided over the murder trial. The default judgment declared Jason a Slayer as part of a Slayer statute and the plaintiffs were later awarded $15 million dollars by Judge Smith. The judges stated in the filings that based on the material included in the suit, they believed it was more likely than not that Jason was the killer.

One may think . . . Well, that sounds pretty convincing. Yes, but understand that Jason did not have the opportunity to defend himself against the claims because he didn’t respond. Even if he had, it’s unlikely he could have won, which was described in the article linked above. This is precisely why civil outcomes are not admissible in criminal cases. The burden of proof is much lower, and it would prejudice the jurors to hear that the accused was “found guilty” in a civil case. So, in the second trial, Judge Stephens allowed the state to introduce the civil testimony, but ruled

“that the fact that a wrongful death and declaratory judgement action had been filed and that defendant, the primary beneficiary under Ms. Young’s policy of life insurance, elected to be defaulted and in response to the wrongful death action and permitted by law for the Court to enter a judgement disqualifying him from benefiting from the death of Michelle Young may be a factor, that is, might be relevant to any number of matters that the jury has already heard and will hear and are considering, and so I do believe it’s relevant and I do believe that the probative value outweighs any prejudicial effect.”

The jury heard this testimony from the clerk of court, Lorrin Freeman (now District Attorney). They heard that the same judge who was seated at the bench declared Jason the Slayer, and they also heard that the plaintiff’s attorney and Detective Spivey believed Jason was guilty of the murder through testimony about the civil filings. How could one possibly expect the jury to find him innocent after hearing this?! Young’s attorneys failed to object based on 1-149.

At the recent MAR hearing, Jason’s attorney, Robert Trenkle made the argument that they not only should have objected based on 1-149, but there is another statute that applies — NC 15A-1222 — which “prohibits the trial judge from expressing any opinion in the presence of the jury on any question or fact to be decided by the jury.” Certainly the testimony about the declaration of Slayer by the trial judge should have been barred!

Note that 1-149 can permit inclusion of evidence from the civil matters as long as it’s not used as proof of a fact. During oral arguments before the NC Court of Appeal, the state suggested that they brought in the civil testimony to impeach Young’s alibi. They attempted to make the case that since Young refused to respond to the civil summons and disqualified himself from collecting the $4 million life insurance pay-out, that he must have had a strong need to avoid discussion of his alibi . . . that he wanted to wait until he learned the state’s evidence so that he could fully explain his alibi to the jury at his criminal trial. According to them, his failure to respond was the issue. If that’s their assertion, then only evidence describing his failure to respond should have been included in the second trial. That was not the case. Note that the state never stated at trial that they were introducing the civil matters for impeachment purposes, and how could they, since Young did not testify at the second trial? Nonetheless, they got away with it.

At the MAR hearing, Trenkle pointed out that even if civil suit testimony was used as the state asserted — for impeachment purposes, the testimony should have been limited to his failure to respond to the suits, and NOT about him being declared the Slayer and opinions through affidavits that he murdered his wife. This point is so strong, that I can’t imagine how Judge Ridgeway could possibly disagree. Plus it was clear that the civil testimony resulted in a conviction because without it, the jury voted 8 to 4 to acquit Jason.

The judge will need some time to review the materials before making a ruling. To me, the most disturbing part of this is the fact that the prosecution violated long established statutes to win a conviction in a case with very weak circumstantial evidence, at best. Did they not know about 1-149 either? Isn’t it common sense that that type of testimony would be forbidden? If they knew that and intentionally proceeded regardless, that is extremely unethical. This case has been going on for a long time now. Jason Young is in prison because those who should be trusted to conduct themselves ethically and professionally screwed up. It seems to be just a game to them. “Let’s see if we can get away with bringing in the civil matters!” Yep, good strategy. Well, it was in fact a good strategy because it worked, and Jason suffers the consequences, and the case remains unsolved.

For more details about the case that have never been shared with the public, please read Absence of Evidence.

This video provides highlights of the MAR testimony.

 

 

 

The Unimaginable, Infamous Case of Pam Hupp

I’m sharing this outstanding article which was recently published in St. Louis Magazine by Jeannette Cooperman.

As a wrongful conviction advocate, I followed the Russ Faria case closely. Faria was wrongly convicted and ultimately exonerated for the murder of his wife, Betsy. I wrote an article about the case during the second trial, comparing it to the Brad Cooper case in the way that the court dealt with digital evidence.

Before I share the article, I will preface it by pointing out that police and prosecutors often manufacture cases against people when they don’t have evidence, yet feel pressured to “solve” the case. It happens more often than people realize and through the use of “experts” it has become easy to fool jurors into believing the person must be guilty. They are also rather good at convincing jurors that they can vote guilty simply because the accused “could have” committed the crime. Never mind that there is no evidence linking them to it.

So, in the Russ Faria case, prosecutors did just that — they manufactured a case against an innocent man — Russ Faria, and instead of investigating the woman who was with the victim near the time of the murder, they kept all focus on Faria. Normally, they get away with this type of thing. It is difficult to overturn a conviction. Many will never know how sloppy their case was. But this time, their incompetence and maliciousness was revealed. The alternate suspect in Betsy’s death — Pam Hupp was free and she committed a second murder. She killed her friend, Betsy for insurance money, and she killed Louis Gumpenberger to take the heat off herself after Russ Faria was cleared of the murder charges in an attempt to frame him a second time. This time it didn’t work, and Hupp is now facing the death penalty. Blood is on the hands of police and prosecutors who ignored the obvious alternate suspect and built a weak case against an innocent man, but it’s doubtful they will face any consequences for their role in the death of Gumpenberger. This serves as a good example of how many lives are destroyed by wrongful convictions.

The unimaginable, infamous case of Pam Hupp

A tangle of lies, greed, sex, and death—and a surprise arrest

by

January 19, 2017

4:00 AM

 

Disciplinary Outcome of Former Wake County Prosecutor Highlights Severe Flaws in our Justice System

This week, former Wake County prosecutor, Colleen Janssen learned the outcome of the disciplinary hearing to review the level of her misconduct in a criminal case. Though she deliberately withheld critical evidence from the defense and manipulated others to go along with her scheme to hide exculpatory evidence, she did not even lose her law license for a day. Instead, Judge Donald Stephens ruled that she could not practice law with a government agency for a period of two years. This means she can be begin working as a prosecutor again in two years and do private practice until that time. What a punishment for maliciously prosecuting two men — who landed in prison for over two years until her actions were discovered!

I will describe Janssen’s egregious actions in detail, but she was not the only one who participated in the willful act to hide exculpatory information from the defense. She actually had a lot of help from other public officials — which should place all Wake County cases under scrutiny. How often does this type of thing happen? Why is no one held accountable? Why are these people above the law?

2016

Colleen Janssen was asked to resign from her position with the Wake County District Attorney’s office in June, 2016 following the revelation that she withheld critical information in an armed robbery case against Bashiri Sandy and Henry Supris in the fall of 2014. It was an obvious and deliberate Brady violation that prevented the accused from receiving a fair trial. The North Carolina Court of Appeal agreed and reversed the convictions of Sandy and Supris. District Attorney, Lorrin Freeman later dropped the charges against them.

The withheld evidence — the fact that Janssen’s star witness, Marcus Smith was a drug dealer — was the foundation of the entire defense case. This fact supported the story of the accused to such a degree that there could have been no trial without it.

Background

Sandy and Supris told police that they confronted Smith to collect money or drugs because Smith had been shorting them on marijuana purchases. Smith gave them money and jewelry, and then gunshots were exchanged. Smith shot Sandy in the leg. Smith sustained a gunshot wound to the arm. It is unclear who fired that shot, but it is not relevant to this article.

Smith told police that he was a victim of an armed robbery. The State accepted his story, ignoring the statements by Sandy and Supris — that it was a confrontation about a drug deal.

Sandy told Raleigh Police that Smith was a big-time drug dealer. That resulted in police requesting permission from a judge to place a GPS device on Smith’s car.

Smith’s Impending Charges

Janssen continued building her case against Sandy and Supris despite knowledge that Raleigh police were pursuing her “victim” (star witness) in the “armed robbery” case. In the summer of 2013, Janssen contacted detective Battle via a private email address and asked to meet with him. She asked him to hold off on arresting Smith until after her trial because she allegedly didn’t want to “spook” her witness. Never mind that the impending arrest of the witness/drug dealer should have negated the whole need for any trial since it supported the defendants’ stories, not the state’s case.

Raleigh Police complicit in misconduct

Officer Battle agreed to delay Smith’s arrest. Since police had been watching Smith, they learned the location of his stash house. Upon discovery of this information, Battle gave Janssen a “heads-up” about the probable cause and search warrant of Smith’s drug house. He clearly informed her that Smith would not be named in the search warrant and he would wait until he left the premise to search the property, thus avoiding the need to arrest Smith at that time, since it could jeopardize Janssen’s case! Never mind that taxpayers trust that police will make the appropriate arrests at the time of the known crimes! In fact, over five-hundred pounds of marijuana were found in the stash house. Battle’s cooperation gave Janssen the ability to conceal the fact that her star witness was a drug king-pin at trial!

Impending Federal Charges

Due to the amount of drugs found, this became a federal case. Laurence Cameron with the U.S. Attorney’s office would be handling the case. He became aware of the fact that Raleigh police held off on making the arrest per Janssen’s request. As a former assistant D.A with Wake County himself, he knew Janssen and contacted her to discuss the status of Smith’s impending charges. According to Cameron, Janssen did not want to hear anything about it. Deliberate denial would prevent her from violating discovery rules, and she was fine with that. Prior to that particular call, she had in fact asked Cameron not to arrest Smith until after her trial.

Cameron was concerned enough that he got his supervisor, the U.S. Attorney involved. John Bruce contacted Howard Cummings — Wake County’s First Assistant District Attorney and Janssen’s supervisor. He informed Cummings that he had received information that Raleigh Police were holding off on making an arrest at Janssen’s request. Cummings told Bruce he would “take care of it.”

ADA Cummings testified at the disciplinary hearing that he had a discussion with Janssen and that she informed him that the search of the stash house yielded nothing that could be traced back to Smith, and that his name was not on a single search warrant. That was the end of it. Cummings testified that nothing was discoverable. It’s likely Cummings and Janssen believed the truth would never be revealed . . . and it wouldn’t have been if not for the federal case. It’s extremely bothersome that Cummings was willing to look the other way, despite being contacted by the US Attorney and informed that a fellow ADA deliberately told police to hold off on an arrest. Why did he allow the trial to proceed? Why didn’t he intervene? It is the “win at all cost” mentality of so many prosecutors. Truth doesn’t matter.

Trial of Sandy and Supris

Judicial Misconduct

Just weeks before the trial was scheduled to begin, Detective Battle sent Judge Ridgeway an application for a GPS monitor on Marcus Smith in connection to his drug trafficking, and he signed it. It was also sealed. Since Ridgeway was the trial judge, he became aware of information that impeached the state’s star witness — the mere fact that the witness was being investigated for drug trafficking. This placed the judge in a difficult predicament and also further lessened the defendants’ right to a fair trial.

From the appeal document (pg. 29-30):

On October 21, 2014, one week before trial, Judge Ridgeway considered Raleigh Police Department narcotics detective J.A. Battle’s application to surreptitiously place and monitor a G.P.S. tracking device on a car used by Marcus Smith and belonging to his live-in girlfriend. The application stated that a confidential informant alleged Smith “sells large quantities of marijuana,” and that “the most recent report was made in April 2013 when robbery suspect Barshiri Sandy told the police Marcus Smith was a known drug dealer with over 1 million dollars in product in a stash house. On this basis, Detective Battle stated, “It is believed that a GPS unit attached to Marcus Smith’s vehicle will provide relevant information regarding where Mr. Smith stores illegal drugs.”

In fact, the GPS tracking authorization had already enabled Detective Battle to locate and seize 150 pounds of marijuana from Smith’s “stash house” in August of 2014. Marcus Smith himself had been seen at the stash house before the seizure. On the basis of Detective Battle’s affidavit, Judge Ridgeway signed the authorization, finding there was “probable cause to believe that . . . the placement, monitoring of and records obtained from the electronic tracking device are relevant to an ongoing crimonal investigation. Judge Ridgeway also ordered the application and order to be placed under seal.

None of the information was provided to the defense. The judge should have either unsealed the record OR recused himself from the case. He did neither and presided over the trial.

Prosecutorial Misconduct

The star witness perjured himself as he testified that he hadn’t sold drugs since 2005. The prosecutor knew it. The defense suspected he was lying but had no proof, even though it existed. The judge also knew the witness was lying.

Colleen Janssen was brazen enough to discredit the defense’s attempts to show that Smith was a drug dealer. This was her statement during closing arguments:

There has been absolutely no evidence from the witness stand outside of the defendants’ testimony that this has anything to do with drugs. Nothing that the police found, nothing that Marcus said. The defendants are the only people who’ve been talking about drugs, outside of that small amount of marijuana that Detective Grimaldi found in the garage and that was photographed and you saw. That small baggie of marijuana. From that, the defense wants to make you believe that Marcus Smith is apparently this drug kingpin. If that is the case, that apparently may . . . apparently that’s their position, but please think about whether or not you’ve heard any evidence from the witness stand that would support that contention or whether you just heard it from the lawyers.

The jury found them guilty.  The prosecutor’s unethical behavior is absolutely appalling.

Appeal

The appellate attorney representing Sandy and Supris became aware of Smith’s federal case and also received a copy of a letter that described how Raleigh Police delayed the arrest of Smith at the request of Colleen Janssen. When attorney Paul Green contacted Janssen to try to determine the source of the information, she delayed getting back to him for several weeks. At that point Green contacted Howard Cummings who refused to speak to him about the matter, even though he needed to confirm or deny the allegation about Janssen for his client. Janssen finally informed Green that she had no notes or emails from any such meeting with Detective Battle.

Green did his own research. He reached out to Smith’s attorney and was given the content of the private emails between Janssen and Detective Battle. Days later, Janssen “found” her private emails, likely knowing that Green would end up getting them eventually. She emailed them to Green and he filed a MAR  (motion for appropriate relief) citing prosecutorial misconduct and Brady violations. The Court of Appeals ended up overturning the convictions of Sandy and Supris and the Wake County district attorney had no choice but to address the matter. Janssen was placed on paid leave and eventually asked to resign. The disciplinary investigation followed.

Disciplinary Hearing

Jansen blamed her negligent behavior on the fact that her father had been kidnapped six months prior by an imprisoned gang member she had prosecuted. You can read about that here. Luckily her father was rescued by the FBI and he is fine; however, it is rather pathetic that she used her father’s ordeal as an excuse for her behavior in this case. Evidently it worked, thus the almost non-existent punishment. At a minimum she should have lost her law license and since her deliberate malicious prosecution led to two (very likely) innocent men being sent to prison, she should have faced prison time, but that is never the case. Prosecutors are routinely able to get away with destroying lives with little (or no) consequence.

Jansen testified that she made mistakes, and that she never made the connection that the drug arrest was significant to her case, even though she knew it was certainly crucial to the defense case. I don’t believe her. It was no mistake.

She talked about how she would have never willfully done harm to “the office.” Who cares about the reputation of the office when people are paying a huge price for her actions — prison time.

As well, so many Wake County officials testified on her behalf about how she was so honest, hard-working, etc. Namely, former District Attorney, Colin Willoughby (who fought against Greg Taylor’s innocence claims, Judge Becky Holt (who did a poor job with the Jason Young case, Judge Gessner (you can learn more about his unethical tactics in the Brad Cooper case). They all came to her defense, even knowing how deceitful she was. That’s the reality of our “justice” system.

How many more cases like this exist? How much information has been withheld from defendants? Why is there a mentality to WIN, rather than seeking the truth? Why are public officials (who are paid with our tax dollars) never held accountable for their misconduct? My hope is that the public will become more aware of cases like this.

You can watch the disciplinary hearing here.

If the Evidence is Unfit, You Must Acquit: Prosecutors are fighting to keep flawed forensic evidence in the courtroom

I’m sharing this important article about the reliability of forensic evidence. Link

Much of the forensic evidence used in convictions has been found unreliable. Prosecutors want to use it anyway

by Daniel Denvir

Under fire yet again, law enforcement is fighting back. Facing heavy criticism for misconduct and abuse, prosecutors are protesting a new report from President Obama’s top scientific advisors that documents what has long been plain to see: much of the forensic evidence used to win convictions, including complex DNA samples and bite mark analysis, is not backed up by credible scientific research.

Although the research is clear, many in law enforcement seem terrified that keeping pseudoscience out of prosecutions will make them unwinnable. Attorney General Loretta Lynch declined to accept the report’s recommendations on the admissibility of evidence and the FBI accused the advisors of making “broad, unsupported assertions.” But the National District Attorneys Association, which represents roughly 2,5000 top prosecutors nationwide, went the furthest, taking it upon itself to, in its own words, “slam” the report.

Prosecutors actual problem with the report, produced by some of the nation’s leading scientists on the President’s Council of Advisors on Science and Technology, seems to be unrelated to science. Reached by phone NDAA president-elect Michael O. Freeman could not point to any specific problem with the research and accused the scientists of having an agenda against law enforcement.

“I’m a prosecutor and not a scientist,” Freeman, the County Attorney in Hennepin County, Minnesota, which encompasses Minneapolis, told Salon. “We think that there’s particular bias that exists in the folks who worked on this, and they were being highly critical of the forensic disciplines that we use in investigating and prosecuting cases.”

That response, devoid of any reference to hard science, has prompted some mockery, including from Robert Smith, Senior Research Fellow and Director of the Fair Punishment Project at Harvard Law School, who accused the NDAA of “fighting to turn America’s prosecutors into the Anti-Vaxxers, the Phrenologists, the Earth-Is-Flat Evangelists of the criminal justice world.”

It has also, however, also lent credence to a longstanding criticism that American prosecutors are more concerned with winning than in establishing a defendant’s guilt beyond a reasonable doubt.

“Prosecutors should not be concerned principally with convictions; they should be concerned with justice,” said Daniel S. Medwed, author of “Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent” and a professor at Northern University School of Law, told Salon. “Using dodgy science to obtain convictions does not advance justice.”

In its press release, the NDAA charged that the scientists, led by Human Genome Project leader Eric Lander, lack necessary “qualifications” and relied “on unreliable and discredited research.” Freeman, asked whether it the NDAA was attempting to discredit scientific research without having scientists evaluate that research, demurred.

“I appreciate your question and I can’t respond to that,” he said.

Similarly, Freedman was unable to specify any particular reason that a member of the council might be biased against prosecutors.

“We think that this group of so-called experts had an agenda,” he said, “which was to discredit a lot of the science…used by prosecutors.”

The report, “Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” was the result of a comprehensive review or more than 2,000 papers and produced in consultation with a bevvy of boldfaced names from the legal community. It found that there is no solid scientific basis to support the analyses of bite marks, firearms, biological samples containing the DNA of multiple individuals and footwear. The report also found that the certainty of latent fingerprint analysis is often overstated, and it criticized proposed Justice Department guidelines defending the validity of hair analysis as being grounded in “studies that do not establish [its] foundational validity and reliability.”

The new report is comprehensive but hardly the first time that scientific research has cast doubt on the reliability of evidence used in trials — everything from eyewitness identification to arson investigations. The report cites a 2002 FBI reexamination of their own scientists’ microscopic hair comparisons and found that DNA testing showed 11 percent of the samples that had been found to match in reality came from different people. A 2004 National Research Council report cited found there was an insufficient basis upon which to draw “a definitive connection between two bullets based on compositional similarity of the lead they contain.”

One of the most important developments in recent decades has been DNA science, which has not only proven that defendants have been wrongfully convicted but also raised questions about the forensic evidence used to win those convictions.

In the Washington Post, University of Virginia law professor Brandon L. Garrett describes the case of Keith Harward, who was exonerated on April 8 for a Newport News, Virginia rape and murder that DNA evidence later showed someone else committed. His conviction, for which he spent 33 years behind bars, hinged on the false testimony of two purported experts who stated that his teeth matched bite marks on the victim’s body.

“Of the first 330 people exonerated by DNA testing, 71 percent, or 235 cases, involved forensic analysis or testimony,” Garrett writes. “DNA set these people free, but at the time of their convictions, the bulk of the forensics was flawed.”

In an interview, Garrett called the NDAA response “juvenile.”

“The response seems to be you say that certain forensic sciences are unscientific, well you’re unscientific,” said Garrett. “To call a group of the leading scientists in the world unscientific, it’s just embarrassing….I really doubt that they speak for most prosecutors.”

Many cases, the report found, have “relied in part on faulty expert testimony from forensic scientists who had told juries incorrectly that similar features in a pair of samples taken from a suspect and from a crime scene (hair, bullets, bitemarks, tire or shoe treads, or other items) implicated defendants in a crime with a high degree of certainty.”

Expert witnesses have often overstated the certainty of their findings, declaring that they were 100-percent certain when in fact 100-percent certainty is scientifically impossible.

Forensic science has largely been developed within law enforcement and not by independent scientists, said Medwed. In the case of bite mark analysis, the report concludes that the method is basically worthless. But by and large, the report calls not for the science to be thrown out forever but to be improved so that it is in fact reliable.

“The NDAA response strikes me as a bit defensive to say the least and puzzling because my hope is that in looking at this report the reaction of prosecutors would be, how do we improve the system,” said Medwed. “Even if they believe that some of these disciplines are legitimate, how do we further test them, and refine them so they can be better?”

The NDAA, however, not only dismisses the scientific research in question but asserts that scientific expertise has no role to play in determining what kind of evidence judges decide to admit into court. They accuse the council of attempting “to usurp the Constitutional role of the Courts” by “insert[ing] itself as the final arbiter of the reliability and admissibility of the information generated through…forensic science disciplines.”

The council acknowledges that judges make these decisions. But since judges are typically not scientists they must make them under the guidance of scientific expertise.

“Judges’ decisions about the admissibility of scientific evidence rest solely on legal standards; they are exclusively the province of the courts and PCAST does not opine on them,” the report states. “But, these decisions require making determinations about scientific validity. It is the proper province of the scientific community to provide guidance concerning scientific standards for scientific validity.”

When prosecutors use scientific evidence to prosecute a defendant, that evidence should be scientifically valid. It’s clear, however, that it is often bogus or unreliable. There is a growing consensus that the United States locks up far too many people, and it’s increasingly clear that an untold number of those people haven’t even committed a crime. Many prosecutors might be unwilling to solve this problem. Voters, who have recently tossed out incumbents in Chicago, Cleveland and Jacksonville, might have to take the lead, said Garrett.

“The American public today doesn’t want prosecutors to win at all costs,” said Garrett. “They don’t want prosecutors using fake evidence.”

Link to article: http://www.salon.com/2016/09/23/if-the-evidence-is-unfit-you-must-acquit-prosecutors-are-fighting-to-keep-flawed-forensic-evidence-in-the-courtroom/

 

 

When the Government Abuses Its Power to Win Convictions

Exonerations are at an all time high as more wrongful conviction cases continue to surface. While some are due to mistakes, an overwhelming number of them involve abuses of power —  fraud and corruption — coerced witnesses, jailhouse snitches, junk science, fabricated evidence, perjury, prosecutorial misconduct and unfair judges.

In two Wake County, North Carolina murder cases — Michelle Young and Nancy Cooper — civil lawsuits were used to influence the outcome of the criminal cases. Brad Cooper and Jason Young were convicted for the murders with no real evidence of guilt. In both cases, civil lawsuits set things in motion that ultimately contributed to their (wrongful) convictions.

It is perfectly legal for a party to file a civil suit against a person during a criminal investigation — for custody or wrongful death or whatever. However, these cases are unique because police and the district attorney’s office assisted the plaintiffs by sharing the case files and filing affidavits in support of their claims. The district attorney was Colin Willoughby who stepped down in 2014 to go into private practice.

Legal Extortion / 5th Amendment Rights Violated

 

Cooper Case:

1028081001_m_2It’s common sense to avoid talking to police if you’re under investigation . . . police have been known to twist things. It’s advised to have an attorney present if you do wish to answer questions, but it’s also okay to completely refuse to speak to them. Well, when a civil suit is filed against a person, things become complicated because remaining silent is no longer an option, unless the suit is ignored. There are major consequences either way.

First consider the Cooper case. Brad was under investigation for the murder of his wife, Nancy in 2008. You can read more about the case here. Nancy’s parents filed for custody of the Cooper children immediately after Nancy was found dead. Naturally the spouse is always investigated in a murder case, but the person is presumed innocent barring proof of their involvement.

Two days after Nancy was found dead, Judge Sasser granted emergency temporary custody of Brad’s daughters (via an ex-parte meeting with Nancy’s family, their attorney, and the police) to Nancy’s parents, Gary and Donna Rentz. Police took the girls (ages 2 and 4) from Brad in a traumatic scene as the children were crying. In order to regain custody, Brad would have to submit to a deposition (and later go to court to fight to maintain custody of his own children).

A deposition is a very detailed interview. The person is under oath and must answer all questions. During the Cooper investigation, the law firm representing the Rentzes (Tharrington-Smith) was working directly with the Cary police department who were investigating the murder. Many witnesses wrote affidavits in support of the Rentz family winning custody. Police told the witnesses that they could assist the investigation by speaking with the Rentzes’ attorney.

Brad agreed to the terms set by the Rentzes’ attorney and submitted to both a psychological examination and deposition as he desperately fought to keep his children. The deposition was essentially a seven hour interrogation. Police supplied the firm with questions to ask Brad Cooper, so the attorney (Alice Stubbs) essentially became an arm of law enforcement. The deposition was then aired by a local news station and of course police scrutinized it, trying to find anything they could use against Brad Cooper. They really didn’t come up with anything (but they altered their notes to make it appear that they had). I won’t get into the details about that here.

The main focus of this article is the unethical active participation of public officials in this process. Lead detective George Daniels filed an affidavit in support of the plaintiffs stating that he believed Brad killed Nancy, though he didn’t specify a single piece of evidence to support his belief. In doing so, it made it extremely unlikely for any court to rule in Brad’s favor. Losing the custody case would bolster the state’s case against Cooper. Motions were filed by Cooper’s attorneys to have the affidavit thrown out, but the judge denied them.

This alliance between the civil attorneys and those conducting the criminal investigation seems highly unethical and should not be permitted. In my opinion, the detective overstepped his bounds by involving himself in the civil matter. Police even supplied the plaintiff with the official 911 recording, while the defense only had the version shared with the media. The detective also gave a witness a copy of her cell phone records so she could prepare for her deposition with Brad’s custody attorney. This was unethical and an interference. The incentive for police to become involved in the civil matter was obvious — They would force their suspect to talk and the public airing of the deposition — in which Cooper was forced to describe intimate details about sexual encounters was prejudicial enough to influence the case in their favor — trial by media.

It didn’t stop there. Since police were involved in the matter, Brad’s attorneys should have been given access to discovery. The prosecution refused, citing that it was still an ongoing investigation. Brad’s attorneys filed motions for discovery, they were denied.

Before moving on to the Young case, I want to point out that this isn’t about innocence versus guilt in the murders, it’s about officials removing ones constitutional rights to make their jobs easier. “Weak criminal case? We can always push a civil case through to clear a path.” This is wrong.

Brad was indicted for murder on October 27, 2008 — approximately two weeks after the custody trial and before Judge Sasser had ruled on the case. Naturally he lost custody of his children as he was denied bail since he wasn’t a U.S. citizen. The criminal trial — which didn’t take place until the spring of 2011 would end up being a repeat of the custody trial, though none of the testimony revealed any indication that he had any involvement in the murder. It was all about character assassination. Brad was convicted but went on to win his appeal. The court of appeal found overwhelming evidence that the judge had abused his discretion. Brad later accepted a plea deal rather than face the same judge in a new trial. He will be released in 2020.

Young Case:

arrestAround the same time as Brad’s arrest, on October 29, 2008 a civil lawsuit was filed against Jason Young. Young was also under investigation for the murder of his wife, Michelle (also in Wake County). You can read more about the case here. This time the victim’s family filed a wrongful death suit against Young. It is very rare for a wrongful death suit to precede a criminal trial. Similarly, the police detective — Detective Richard Spivey of the Wake County Sheriff’s Office filed an affidavit citing his opinion that Young was responsible for his wife’s death.

This case differs from the Cooper case in that Young did not respond to the civil action. He was advised by his attorney to maintain his silence since he was under investigation. And again, the affidavit did not specify any evidence of his involvement in the murder. It was simply the detective’s opinion. Police in both cases should have stayed out of it. The investigation was still underway. If they had enough evidence, they should have charged them, rather than waiting for the civil cases to play out.

The case also differs from the Cooper case in a very interesting way. Remember that the prosecutor refused to share discovery with Brad’s attorneys since the investigation was ongoing. Well, the investigation into Michelle Young’s death was also ongoing; however the same prosecutor shared the discovery files with the plaintiff’s attorneys — further strengthening the civil case against Young — essentially making it unwinnable. When it suited them, they were more than happy to share the files. This is unacceptable and another reason why there needs to be a law forbidding the government from becoming involved in civil cases when there is an ongoing criminal investigation and they have much to gain from a civil judgement against their main suspect.

Since Jason didn’t respond, the plaintiffs pushed for a default judgment. Judge Donald Stephens did in fact declare Jason Young the slayer as part of a Slayer Statute, even though he could have deferred judgment pending the outcome of the criminal case.

Two weeks later Michelle’s family filed for custody of Young’s four year old daughter. Again, the police affidavit was part of the filing, as well as the discovery files from the prosecution. Young didn’t respond at the advice of his attorney. Again, he chose to maintain his silence. He did so with the understanding that once the investigation was over, custody could always be revisited.

In March, 2009 Michelle Young’s mother, Linda Fisher was awarded $15.5 million in damages in the wrongful death suit. Jason Young would be responsible for this. The lawyers received a million dollars of the life insurance as their fee. Notice how costly Jason’s silence had become. Was it fair that he was put into that situation? “Talk or you will be declared a slayer . . . talk or you will lose your daughter.”  Don’t talk and you will lose anyhow because the government has aligned with the plaintiff.

The Young case gets much worse. Jason Young was charged with the murder in the winter of 2009. Consider how damaging the media attention over the civil suits must have been. He was tried in the spring of 2011, which resulted in a mistrial as the jury was deadlocked at 8-4 in favor of innocence. The state decided to try him again and this time they used his silence to win a conviction. The jury heard that the same judge presiding over the criminal trial declared him a slayer in the civil lawsuit. Prosecutors got away with it even though there is a long standing statute that forbids it. Jason’s attorneys didn’t properly object to the civil suit testimony. Jason was slammed repeatedly by prosecutors throughout the trial for not fighting for his daughter and for not responding to the wrongful death suit . . . even though they knew he would have had NO chance of winning because they themselves were participating in it.

The case is still ongoing. The Court of Appeals ruled that the judge abused his discretion by allowing the testimony. They reversed the conviction, however, the NC Supreme Court reversed the CoA decision, removing Jason’s chance to have a fair trial. The Supreme Court ruled that the defense was at fault for not properly objecting to the admission of the civil suit testimony. There are other issues of the appeal still pending.

Update: In June, 2017 there was a hearing to discuss Young’s ineffective assistance of counsel claim. At this time, we are awaiting Judge Ridgeway’s decision. He is deciding if Young deserves a new trial because his attorneys failed to properly object to the civil case testimony.

Collusion?

Is it possible there was collusion between the district attorney’s office and the families and their attorneys who launched the civil lawsuits? (We would never know.) Is it not a coincidence that both occurred around the same time and in the same county? And in both cases police were willing to write affidavits. The same attorneys were involved as well. The firm that filed the suit against Brad Cooper represented Jason Young with his custody case.

A lose/lose scenario

These cases reveal that both Young and Cooper were pushed into a corner — submit to an interrogation (deposition) or give up your children. With the government’s involvement, there was no way for either of them to survive. It was impossible to win and this was an abuse of power.

Young and Cooper each took a different path and it didn’t work out for either of them. There wasn’t any evidence connecting either of them to the murders, so the civil suits helped the government gain a foothold. Public opinion is a powerful tool and these civil cases certainly influenced public opinion about both men who ultimately were convicted of the murders.

The government should not be permitted to either align with civil attorneys or actively assist them in winning cases against those they are investigating for a crime. I am going to send this article to the NC General Assembly to request that they pass legislation prohibiting governmental involvement in civil matters when a criminal investigation is ongoing so that rights of the accused can be maintained.

What if the government hadn’t been involved in the civil actions?

No court would have ruled for the removal of the children from their fathers. There simply wasn’t cause. Both were good fathers. There was no testimony in either case that disputed that.

I published books about each case and go into much more detail about exactly what occurred with the civil actions and how unfair it was. It is unacceptable, and if nothing changes the government will repeat this same maneuver over and over.

 

 

9-13-16-framed-cover-for-kindle-larger-text

Can the government withhold evidence that could prove your innocence? In this shocking case, the state of North Carolina cited national security reasons for doing just that. It crippled any possible defense case for Brad Cooper who was charged with the murder of his wife, Nancy in 2008.

Nancy left home to go jogging and never returned. She was later found murdered. A shoddy and corrupt investigation followed, as evidence was destroyed and mishandled; witnesses were coached and evidence of innocence was ignored.

Learn the facts about this tragic case that will leave you appalled at the state of our justice system.

**Note that this book was previously published as Framed With Google Maps**

(Click on the image to read a sample)

 

 

 

front-cover-8

Michelle Young was living the American dream. The former NC State cheerleader was married to Jason. They had a beautiful two year old daughter and a son on the way. The couple enjoyed a comfortable life in the quiet Enchanted Oaks community of Raleigh, North Carolina.

It was autumn—a time for football games and holiday plans, but on November 3, 2006 Michelle was found beaten to death in her home. It shook the community and quickly attracted national attention.

Police immediately began investigating Jason . . . but he was out of town at the time of the murder. Would they discover enough evidence to solve the crime? Discover the facts about this fascinating and controversial case.

(Click on the image to read a sample)

Steven Avery Case: Were the Remains Identified via Junk Science?

Everyone accepts the assertion that Teresa’s remains were found on the Avery property, but I wouldn’t be so quick to accept that conclusion. Remember that there is no evidence there were ever any bones found on the Avery property. Investigators can say what they want, but not a single photo captured this very important evidence. We are to blindly trust that they found bones where they claimed — in the burn pit and the burn barrels. It would be simple to fabricate this evidence. Agent Pevytoe even testified that the alleged bone fragments were smaller than half a pinky nail and that much of what was found was actually burnt insulation.

How were the remains identified?

The bones were so badly burned that only a single testable bone — reported to be a 2 1/2 inch section of a shin bone survived. The bone allegedly still had remaining tissue intact. How is it possible that a bone survived? The teeth were burned beyond any identification. Teeth are supposed to outlast bone when exposed to fire. Dr. Simley testified that he could crush the dental fragments with his fingers. They were consistent with cremains, not a body burned in an open fire.

Dr. Simley did not find a single tooth suitable for comparison to Teresa’s dental x-rays. He had never seen such an extensive amount of damage. He found root fragments. In fact he super-glued two sections of a root together and stated that they were “consistent” with one of Teresa’s roots. I have searched and have been unable to find a single case where remains were identified from a root. It’s likely because roots are pretty plain. They do not have unique enough identifiers to conclude that they belong to any certain person. That is likely the reason he could not make a positive identification.

Consider what a root looks like.

roots-image

This is how the roots appear on a dental x-ray

root-x-ray

How is it possible that burned-up super-glued root sections were even stated as “consistent” with Teresa’s?! Were they consistent simply because it was identified as a root? This seems like junk science. Forensic bite mark evidence has recently been discredited and this type of evidence should probably be discredited as well. Many are under the mistaken impression that Teresa’s teeth were found in the burn pit. There is NO evidence that is true!

Dr. Simley’s testimony, Brendan Dassey trial

Q: Would you tell us or describe for us the condition of – – uh, these — the 24 tooth fragments and the three bone fragments that you examined?

A. They were all burned. They were all charred. Uh, they were very brittle. Um, again, they didn’t look like normal tooth like we would normally see, and essentially, the crowns were all gone. What we were looking at was just the root structure, which was, um, part of the tooth that’s buried in the bone. There was one portion of a crown, um, but that portion was from a — cuspid or an eyetooth and was not able to be identified.

Is it possible investigators gave him a box of random cremains? I think it’s very possible, in fact likely.

Next, consider the DNA from the shin bone that miraculously survived. There were major problems with this as well. Both Dr. Eisenberg and Sherry participated in the process of identifying the remains with this same bone. Sherry tested the tissue; Eisenberg sent the bone to the FBI.

  • Sherry reported that she only obtained seven of sixteen markers in her STR DNA test because the tissue was too degraded; yet her results were accepted as a MATCH to Teresa’s DNA.

DNA pic

  • Eisenberg sent the bone to the FBI who reportedly tested “charred remains” using Mitochondrial DNA testing and reported that Teresa couldn’t be ruled out as a contributor. If they had a suitable bone for testing, why didn’t they use that for the mitochondrial DNA testing?
  • A year later the FBI received dozens more bone fragments, none of which were suitable for DNA testing.

shin-bone3

I am not convinced that the remains (from who knows where) matched Teresa Halbach. In fact, there is no chain of custody to reflect how Culhane even received the bone into her lab. Dr. Eisenberg testified that she shipped it directly to the FBI after identifying it as human remains. Sherry wouldn’t have received it before Dr. Eisenberg, as it wouldn’t have been identified as human at that point.  If there is no proof there were remains on the property (there isn’t) and there is no conclusive identification of the remains (there isn’t), how can Avery be responsible for Teresa’s death? We’re left with nothing but the car on the property and the (very questionable) blood inside. Is that enough evidence to prove a person was murdered there? Or anywhere for that matter?

It doesn’t add up. IF a shin bone survived, the teeth should have survived! It is impossible to trust any of this evidence.

Scrutinizing the DNA Evidence – Teresa Halbach Investigation

Updated for clarity 8/30/16

My previous article addressed the issues with chain of custody and documentation of the bone evidence. The issues don’t stop there. The testimony and DNA reports contain even more serious concerns about the validity of the bone evidence. Recently Reddit contributor, Amber Lea pointed out major red flags with the way the DNA evidence was presented at trial. Her research indicates that the only bone fragment found with intact tissue was purportedly processed simultaneously in two separate locations at the same time.

Special Prosecutor Ken Kratz displayed this photo during opening arguments and stated that Teresa Halbach’s shin bone was the large bone on the left.

bone fragments

That’s what Kratz asserts, but is there proof that this shin bone was identified as Teresa’s? Two witnesses testified about this key piece of evidence — Dr. Leslie Eisenberg (Forensic Anthropologist) and Sherry Culhane, lab analyst with the Wisconsin crime lab. The photo above was referenced as Exhibit #150 during the Brendan Dassey trial.

First, let’s begin with Dr. Leslie Eisenberg’s testimony about Exhibit #150. Dr. Eisenberg testified that she examined the bone specimens at the Dade County Morgue on November 10, 2005 and discovered the bone with the tissue.

Q All Right. And what is, um, Exhibit 150?

A One-five-zero is a portion of burned human bone that was recovered with other smaller burned human bone fragments and fragments of dried or desiccated human muscle tissue.

Q All right. And is the a fragment that you transferred to the crime lab for DNA analysis?

A That is one of the fragments that I transferred to the Federal Bureau of Investigations for DNA analysis.

During the Avery trial, Dr. Eisenberg testified more affirmatively that she packaged and sent the items directly to the FBI when asked if she sent the items to the crime lab.

Q Now the one we’ve been examining more closely here, is that the bone that you arranged to be sent to the FBI, or excuse me, to the crime lab for further analysis?

A No, the contents of all of the items you see on this screen, this larger bone, which is about two and a half inches long, and some of these other bone fragments and this muscle tissue was packaged by me and transferred directly to the FBI in November of 2005.

So she was clear that the specimens did not go back to the crime lab and that is important.

Note that the FBI referenced the specimen as “charred remains“, rather than “bone fragments“, even though they referred to several subsequent samples that were sent by Dr. Eisenberg as bone fragments.

**Also very important is the evidence that the shin bone referenced in exhibit #150 is referenced as Q1 Charred remains in the FBI document.**

FBI report Q1The trial testimony revealed a contradictory claim about the shin bone fragment. Sherry Culhane testified that she received the bone fragment into her lab on November 11, 2005 and removed a portion of  tissue that she believed was suitable for DNA testing.

A Item BZ was taken into the laboratory on November 11th, 2005.

Q And when you examined this, was it a combination of bone and tissue?

A It appeared to be, yes.

She referenced it in her report as “charred tissue” and labeled it BZ.

Item BZ

Item BZ was the same specimen that Dr. Eisenberg claimed to have shipped to the FBI. How do we know that? This PowerPoint slide which was shown to the jury during Sherry Culhane’s testimony is proof.

Culhane powerpoint bone

Q When you examined this, was this a combination of bone and tissue?

A It appeared to be, yes.

Q And what is shown on the big screen here, which we will later get an exhibit for and mark it, is that the bone and tissue fragment that you examined?

A Yes, it is.

 

 

Sherry Culhane testified that she removed tissue from the very bone that Dr. Eisenberg packaged and shipped directly to the FBI.

A Um, this is a bone fragment here with a piece of charred tissue attached to it. When I sampled this, I took a portion of the tissue that appeared to be least burned towards the bone and that’s what I used for my examination.

Q And did you assign a crime lab designation to this?

A Yes, I did.

Q And what was that?

A Item BZ.

Q And did you conduct DNA testing on this tissue portion of this burned bone fragment?

A Yes I did.

 

What does this mean?

  • The shin bone photograph was used twice at both trials to illustrate how they were able to obtain testable material from a fire that caused such extensive damage that the crowns of the teeth were completely burned; yet the timeline and circumstances of the handling of the only tissue found on that single bone do not add up. Dr. Eisenberg stated that she sent it directly to the FBI. How could that be? Did Culhane receive the tissue/bone specimen before Dr. Eisenberg even identified it as human? If Culhane removed a section from it before Dr. Eisenberg received it, she would have been doing so with no confirmation that the bone was even human. She would have also been altering evidence before Dr. Eisenberg would have had a chance to examine it. It wouldn’t make sense.
  • Both the Wisconsin Crime Lab and the FBI characterized the specimen as  “charred tissue/remains,” even though it was described by Dr. Eisenberg as a “two-and-a half inch fragment of shin bone with intact tissue”. This is very suspicious in light of the fact that there are already obvious issues with the handling of the bones alleged to have been discovered on the Avery property.
  • Once again we are left with an enormous question mark related to the bones, the DNA and the identification of the victim. In fact, the absence of any characterization of a bone fragment in the lab reports could indicate that there were no bones at all! Perhaps the prosecution felt they needed to present solid proof that a bone from the pit was definitively identified as Teresa’s, and if there were no bones, maybe they had to get creative. Maybe there is nothing more than the photo of the shin bone of unknown origin and the box of bones, which by the way look very similar to pig bones.
bones3
Bones in Halbach investigation
Pig bones
Pig bones
  • One has to wonder where the tissue came from. Did the crime lab and FBI in fact test sections of the golf ball sized tissue alleged to have been discovered by Agent Pevytoe?

Pevytoe charred tissue

Summary of the bone discovery, collection and processing:

MTSO Deputy Jost finds 1 inch object believed to be a bone (11/8/05) 

Investigators dig up the burn pit, transfer everything to the Calumet SO (11/8/05)

Box of bones are transferred to Dr. Eisenberg (11/9/05)

Agent Pevytoe finds golf ball sized piece of charred tissue while examining debris at Calumet Sheriff’s Office (11/10/05)

Dr. Eisenberg examines bones at Dade County Morgue, identifies shin bone with charred, attached muscle – sends it to FBI (11/10/05)

Sherry Culhane claims to somehow receive same shin bone with charred, attached muscle, labels it item BZ (11/11/05) and reports that a partial profile was obtained and that seven markers matched Teresa Halbach’s profile.

 

There’s a lot of confusion and misinformation about the bone/tissue DNA evidence and exactly which types of tests were performed. There were three separate sets of specimens submitted for DNA identifications — one went to the Wisconsin crime lab, and two separate sets of specimens went to the FBI.

  1. We really don’t know where item BZ came from. We do however know that the reported result of the STR DNA test was grossly misstated. The reported “partial profile”  — 7 of 16 locations should have been recorded as “inconclusive” because it was an indication that the test didn’t work — the sample was too degraded to trust the result. Instead, it was reported that since seven alleles matched the standard profile, statistics indicate that only one person of a billion would have that partial profile in a Caucasian population. It was suggested that although it was not a conclusive match, it was very unlikely that the specimen could have originated from anyone beside Teresa. This was very misleading, but the defense never refuted it.

DNA stat

DNA pic

2. The FBI received charred remains purportedly from the shin bone on 11/16/05 and performed mitochondrial DNA testing. They compared it to DNA from Karen Halbach’s buccal swab. It is unclear why no one sent the FBI Teresa’s DNA to compare to the charred material (designated as Q1 by the FBI). Since the MtDNA database is small, the report only concludes that Teresa cannot be ruled out as the contributor. No one from the FBI testified at either the Avery or Dassey trials.

FBI DNA MT

To avoid confusion, the designation of the same shin bone/charred tissue specimens from Exhibit #150:

  • BZ – Wisconsin Crime Lab
  • 1B2 – Dr. Eisenberg
  • Q1 – FBI

3. In January, 2006 Calumet County Sheriff Jerry Pagel incorrectly informed the media that the FBI confirmed the bones were Teresa’s, even though the FBI report clearly stated simply that she could not be ruled out.

On January 19, 2006, Calumet County Sheriff says bones found at the family auto salvage yard of a man charged with murder match those of a freelance photographer.Sheriff Jerry Pagel says the FBI confirms that the bones found at Steven Avery’s family salvage yard are those of 25 year old Teresa Halbach. The report from FBI headquarters in Quantico, Virginia says Mitochondrial DNA analysis of evidentiary remains found in a burn pit match the DNA sample of Halbach’s mother.

Prosecutor Ken Kratz referenced this in an email to Sherry Culhane. Apparently the media was never instructed to edit their misleading articles about the FBI “match” so the public believed there was conclusive proof that Teresa’s remains were found on the Avery property.

Kratz Culhane email

4. In November and December of 2006, several additional bone fragments were sent to the FBI.  They reported that none of them were suitable for mitochondrial DNA testing.

DNA fragments FBI

This is not surprising, as many studies have shown that DNA cannot withstand high heat exposure — such as the heat alleged to have been generated in the raging bonfire.

Recent progress of DNA analysis techniques is improving its discrimination power and sensitivity on an ongoing basis and now this technique is routinely applied to the identification of skeletal remains.7476 DNA profiling was expected to be a useful tool for identifying severely burnt bones when morphological tests would fail because of the deformation and fragmentation. However, casework we have encountered and studies published on burnt bone DNA typing show the harsh reality of this application. As mentioned earlier, the organic matrix disappears at a comparatively early phase in the burning process, and DNA is no exception.

Several studies have reported the applicability of DNA typing to the investigation of burnt bones.28,33,36,45,52 As a pioneer of experimental study in this area, Cattaneo et al assessed the amplification of 120 bp products of the human mitochondrial DNA region V in experimentally burnt human compact bones (800°C–1,200°C, for 20 minutes) as well as in charred bones obtained from actual forensic cases.52 They found that none of these burnt specimens retained DNA that was amplifiable and concluded that DNA typing cannot be used successfully with charred bones. (source)

 

There is simply no evidence that bones were found during the investigation. No one documented the bones on site at any of the three locations where they were allegedly found. Not a single photo exists. No one documented the “charred material” — not a single photo is in evidence. The FBI and crime lab reports didn’t even designate the shin bone as bone. If true that no bones were found, one can only speculate about the origin of the tissue sent to the labs. Clearly there were problems identifying the remains as Teresa Halbach’s, though one wouldn’t  know that from trial testimony or media reports. The defense accepted Culhane’s report as proof that Teresa’s body was found. How can it be trusted when there is a huge problem with the chain of custody? If Dr. Eisenberg shipped it directly to the FBI as stated, how did Culhane test it at all?

The fact is the remains (if there were any found to begin with) were never conclusively identified and that means the fraud in this case may be much bigger than anyone could have imagined. Hopefully at some point Avery’s attorneys will look into this matter. It is too important to overlook.

 

 

 

 

Scrutinizing the Bone Evidence – Teresa Halbach Investigation

There’s undoubtedly a lot of questionable evidence in this case – the magic key, the magic bullet and the possibility that Steven Avery’s blood was planted in the RAV 4. Should the bone evidence rise above similar scrutiny or can we consider the possibility that the bone evidence was also fabricated?  The suspicious mishandling of the bones is described in this article.

Summary of discovery and handling of bone evidence

  • Teresa’s ’99 Toyota RAV 4 was found at approximately 10:30 the morning of Saturday 11/5/05 on the Avery salvage yard. Investigators arrived at the scene and remained on site for eight days — searching for Teresa and/or evidence of foul play.
  • Bone fragments were allegedly found in the burn pit behind Avery’s garage on Tuesday 11/8/05.
  • Special Agent Tom Sturdivant requested sifting equipment from the Wisconsin crime lab (John Ertl).
  • No one photographed the bones or the collection process.
  • The (alleged) bones were placed into boxes and removed from the site.
  • Dr. Leslie Eisenberg, a Forensic Anthropologist with the crime lab received a box of bones on Wednesday 11/9/05.
  • Since Dr. Eisenberg often worked at the Dane County morgue, she carried the box to the morgue for examination on 11/10/05. She concluded that the bones were human. Specimens were submitted to the crime lab and the FBI for identification.
  • Special Agent Pevytoe allegedly discovered bones in the Janda burn barrel at the Calumet sheriff’s office on 11/12/05. No photos documented this discovery either.
  • Lab analyst Sherry Culhane issued a report on 12/5/05 stating that a partial profile was obtained from a charred piece of tissue and that seven of sixteen markers matched Teresa’s standard profile. The other markers were not present due to the condition of the sample.
  • On December 5, 2005 Dr. Eisenberg, Special Agent Pevytoe, John Ertl, Detective Wiegert and Special Agent Fassbender gathered at the crime lab (basement?) to sift through more of the ash and debris. They allegedly found metal grommets consistent with what would be common on blue jeans.

 

Sifting through ash and debris 12/5/05
Sifting through ash and debris 12/5/05

Exhibit-274-processing-debris-1024x676

The absence of a chain of custody of the bones is critical because it could very well have rendered it inadmissible. What happened? They brought in the state officials right away to ensure that everything would be properly handled. Who dropped the ball? It is very suspicious given everything else that happened in this case.

Since the scene wasn’t documented, there is no proof that any bones were ever on the Avery property. As well, the Manitowoc County coroner was forbidden from entering the scene and none of the forensic experts were summoned until after the bones had been removed. We are to simply accept the word of the state witnesses who claimed to see the bones.

Interestingly, the descriptions of the bones were inconsistent. Dr. Eisenberg claimed to have pieced together fifty-eight fragments of skull bones from the burn pit. That is consistent with them finding a considerable number of fairly large pieces; yet Agent Pevytoe described seeing very small pieces of bone fragments.

  “Yes, the fragmentation that I was finding from the burn pit was very small. Much of it was — in some cases was the size of half your little fingernail, if you will. Most of the bones were very fragmented there.” (Pevytoe testimony, day 18)

Pevytoe testified that three to four larger bones were found in the Janda burn barrel. If only a few bones were found in the barrel and tiny fragments were found in the burn pit, where did all the larger bones originate? This is a box of bones in evidence. Note that non-human charred bones were also found in each of the locations – burn pit, Janda barrel and quarry. Burnt insulation that appeared to be bone fragments was also found in the burn pit.bones3

 

Exhibit 391 skull bones
Exhibit 391 skull bones

DNA Testing

Crime lab analyst, Sherry Culhane reported that a partial DNA profile was obtained from a charred piece of tissue (item BZ) alleged to have been found in the burn pit ash. She used the STR Promega 16 amplification kit where fifteen markers are compared, with one gender marker. Culhane testified that since the specimen was degraded (likely due to extreme heat) she only obtained peaks for seven markers of the fifteen plus the gender marker, so less than 50%. The FBI CODIS database does not even record DNA profiles with less than nine identified markers.

The partial profile matched Teresa Halbach’s standard, but since it’s a partial profile it can’t be conclusively reported as matching Teresa’s DNA. What is the degree of certainty? Culhane reported that the probability of a random unrelated person matching the same seven (eight if including the gender loci) markers is 1 in a billion in the Caucasian population.

DNA stat

 

DNA pic

It’s unclear how she arrived at that statistic. Arizona is the only state that made their DNA database publicly accessible. Interestingly, based on the available DNA information from Arizona, it appears that the partial profile of item BZ would in fact be much more common than 1 in a billion. These are the actual matches based on a total of approximately 65,000 profiles:

  • 122 pairs match at 9 of 13 loci
  • 20 pairs match at 10 of 13 loci
  • 1 pair matches at 11 of 13 loci (full siblings)
  • 1 pair matches at 12 of 13 loci (full siblings)

(source)

This means that even with 12 of 13 markers matching there would be an occurrence of 1 in 65,000 — much more common than 1 in a billion. The less markers compared, the more common the occurrence. 122 pairs matched at 9 of 13 markers. Clearly a match of 7 of 15 would be considerably more common than the reported 1 in a billion at trial. The DNA evidence should have been reported more generally as “Teresa Halbach can not be excluded as source.”

FBI DNA Analysis

A section of the charred specimen (BZ) was also sent to the FBI in November, 2005. They conducted a mitochondrial DNA test and reported that Teresa could not be excluded as the source of the charred remains.

In 2006 investigators sent the FBI thirty-one additional samples – bone fragments. The FBI reported that no mitochondrial DNA testing was conducted due to the condition of the fragments but interestingly they also reported that some DNA was obtained and they were returning the processed DNA samples.

DNA fragments FBI

It is puzzling that they obtained DNA yet were unable to perform the mitochondrial testing. Is it possible it excluded Teresa Halbach as the contributor? Contrary to the DNA report, Calumet County Sheriff Jerry Pagel incorrectly informed the media that the FBI confirmed the bones were Teresa’s.

The Calumet County Sheriff says bones found at the family auto salvage yard of a man charged with murder match those of a freelance photographer.Sheriff Jerry Pagel says the FBI confirms that the bones found at Steven Avery’s family salvage yard are those of 25 year old Teresa Halbach. The report from FBI headquarters in Quantico, Virginia says Mitochondrial DNA analysis of evidentiary remains found in a burn pit match the DNA sample of Halbach’s mother.

Prosecutor Ken Kratz referenced this in an email to Sherry Culhane. Apparently the media was never instructed to edit their misleading articles about the FBI “match” so the public believed there was conclusive proof that Teresa’s remains were found on the Avery property.

Kratz Culhane email

Why question this?

Everyone accepts as fact that Teresa’s remains were found in the burn pit. Obviously it appears to be very incriminating, but what is going on with this evidence? Why weren’t protocols followed?  No coroner, forensic anthropologist, arson investigator or photographer was called to the scene when the evidence was discovered. They had all of these high paid experts at their disposal and didn’t call on them until after the evidence had been shoveled up and taken to the sheriff’s office.

The DNA evidence described above is not conclusive. How is it even possible for tissue to survive a fire that disintegrated 60% of the bone mass? The teeth which are commonly used to identify a body because they outlast bone didn’t even survive the fire. Something’s wrong and it becomes difficult to accept this evidence as presented.

Since there’s circumstantial evidence that all of the other evidence was fabricated, is it such a stretch to consider that the bone evidence doesn’t hold up either?  If we can accept that the RAV4 was placed on the property, key planted in his residence, blood planted in vehicle, bullet planted in garage, should we blindly accept 100% that the bones were Teresa’s just because Culhane reported the partial profile as a “match?”  It’s difficult to trust it when proof of the bones on the property doesn’t even exist!

Is it possible that police were unable to find a body but wanted to secure a conviction so they fabricated the bone evidence?

A Similar Case

Around the time of Teresa Halbach’s disappearance, Kristine Rudy of Clark County, Wisconsin also went missing. She was last seen November 12, 2005.  She was twenty-one years old and six months pregnant, married to Shaun Rudy. Search efforts were unsuccessful and in December, 2005 investigators discovered a burn pit — sound familiar?

In December, detectives piecing together a case against Christine’s husband Shaun were led to the suspect’s mother’s home in northwestern Clark County. According to court documents, they found a burn pile they believe Shaun used to destroy evidence of the crime. In that burn pile, they found what a well-respected forensic anthropologist determined were fetal remains.

Court documents show Dr. Leslie Eisenberg of the State Crime Lab in Madison wrote investigators asking them to consider the mechanisms by which the fetal remains, yet very few adult remains, made their way to the burn pile, and says it’s possible the fetus was deliberately removed and burned independently of the majority of the adult remains. (link)

The really interesting thing is that the victim’s body was found a few months later – fetus intact.

But investigators were surprised when what’s believed to be Christine Rudy’s body was found last month in the Chippewa River – the fetus was still intact.

It kind of throws us for a loop. It raised a couple questions, says Clark County Sheriff’s Department Chief Deputy Jim Backus.

The bones found in the burn pile were severely charred, but Dr. Eisenberg has an excellent reputation and it’s seen as somewhat unlikely that her analysis was wrong, Backus says.(audio)

Dr. Eisenberg incorrectly identified bones as human. Though it may be possible to make a mistake like that, it certainly calls her credibility into question. Had they not found the woman, would they have prosecuted Shaun Rudy with the bone evidence?

We must consider the possibility that Dr. Eisenberg may have been mistaken with the Halbach case as well. We know there were charred animal bones mixed in. Is it possible there was nothing but animal bones?

We can also consider that maybe the state revealed just enough to convince the public that Teresa’s remains were found — photographs of random bones in a box and high priced experts sifting through debris. If true, it’s possible Teresa’s body was never found because it wasn’t on the Avery property. Police were searching in the wrong place.

 

 

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