Something to think about

I know I've mentioned the Small Town Murder podcast on here once or twice over the last year. Did I mention that thanks to a friend of mine, attorneys who attended the live show in Houston this past October received CLE credit from the State Bar? Easiest two hours of credit ever.

The show is a riot to listen to and James does a hell of a job researching the cases they cover. I listened to an episode from a couple of weeks back the other day and heard something I've never heard before on the show.

Generally after they make fun of the small town the case is set in, and the murderer, they cover the appeals process which usually ends with the defendant being sent to prison for a long stretch. Not so with the episode entitled Yes, No, I Don't Know... in Oskaloosa, Kansas. The story contains a twist at the end which you probably won't see coming.

*** SPOILER ALERT ***


Floyd Bledsoe, who had been convicted of the murder of 14-year-old Camille Arfmann was released from prison after serving 15 years for a murder his brother, Fred Bledsoe, committed. Mr. Bledsoe was released after the Midwest Innocence Project had DNA testing performed on semen found in the victim's body. Testing revealed that Ms. Arfmann had been raped by Fred Bledsoe. Two weeks later, Fred Bledsoe was found dead - his death was ruled a suicide. Fred Bledsoe left three suicide notes including one in which he confessed to the rape and murder of Ms. Arfmann. He claimed he was told to keep his mouth shut by the prosecutor after confessing to the crime.

That revelation brings a somber end to the story that makes you really think about the way our criminal (in)justice system works and what protections we have in place to protect the wrongly accused.

Hardly Solomonic

In 2002, Jeffrey Havard was charged with the killing of a 6-month-old baby. The state alleged it was a clear case of shaken baby syndrome. Mr. Havard insisted he had accidentally dropped the infant.

At trial, Dr. Stephen Hayne testified that Chloe Madison Britt had clearly been shaken to death. He compared the injuries to those one would receive in a car crash or from a fall from a significant height.

If that name sounds familiar it's because he was the subject of Radley Balko's excellent book The Cadaver King and the Country Dentist (click here for my review). Dr. Hayne made his bones in Mississippi by claiming to have performed an obscene number of autopsies and giving police and prosecutors what they needed in order to obtain convictions.

This case was no exception.

Mr. Havard was found guilty and was sentenced to death. However, on Friday, Mr. Havard's motion for new trial was partially granted by Adams County Circuit Judge Forrest Johnson (a former prosecutor also mentioned in Mr. Balko's book). Judge Johnson stated that the evidence presented at the hearing wasn't sufficient for him to question the validity of the jury's verdict but, it caused him to question whether the death sentence was appropriate. As a result, Mr. Havard was removed from death row and a new punishment trial was ordered.

Last year Dr. Hayne had a change of heart. He testified at a hearing on Mr. Havard's motion for new trial and changed his opinion. He now says that the injuries to Chloe that he observed could have been generated from a short fall if the baby fell on its head.

In 2009 the American Academy of Pediatrics recommended that the use of the term shaken baby syndrome be stopped and replaced with the term abusive head trauma. This was in response to a series of studies that discredited the diagnosis.

Renowned pathologist Michael Baden reviewed the evidence and came to the conclusion that the baby's injuries were the result of a fall on her head and not from being shaken to death.

This case raises some important questions, however. While it is good that Mr. Havard's death sentence was vacated because of the testimony at the hearing on the motion for new trial, it is confounding that the original conviction wasn't vacated as well.

The state's chief witness has recanted his original testimony. He changed his theory from the baby being shaken to death to the baby dying of injuries suffered in a fall. Shaking a baby to death is clearly an intentional or knowing act -- that is murder. However, dropping a baby isn't evidence of a deliberate act. If Judge Johnson believes a death sentence is inappropriate, how does he square that with leaving the conviction in place?

It's almost as if the judge is somehow considering the change in Dr. Haynes' testimony as more of a mitigating factor. And that's just plain wrong. When the state's chief medical witness changes his opinion of the cause of death, that casts doubt upon the jury's verdict regarding Mr. Havard's guilt. Take away that medical opinion and you are left without a single witness who can testify that Mr. Havard shook the baby to death.

The only reason I can surmise for Judge Johnson's actions is that he's afraid that other convictions based on the theory of shaken baby syndrome could be placed in jeopardy if Dr. Hayne testified on behalf of the state. Maybe he's right.

But it doesn't fucking matter. Judge Johnson's job was to make a decision in this specific case based upon the evidence presented at a hearing on a motion for new trial. It was not his concern whether any other convictions could be challenged on the same grounds.

Judge Johnson's half-assed ruling just goes to show that he's more interested in politics than he is in justice.

Blood spatter backlash

Before we begin, let us never forget that the foremost ethical duty of a prosecutor is to see that justice is done (whatever that means), not to obtain convictions.

Adam Sibley, the Bosque County District Attorney, is the latest prosecutor in a high-profile case involving flawed forensic evidence to have to make a choice to do what's right or what's necessary to maintain a conviction.

Joe Bryan, a high school principal in Clifton, Texas, was charged with murdering his wife, an elementary school teacher, back in 1985. Mr. Bryan steadfastly claimed he was at a conference in Austin at the time of the killing.

But with the help of some voodoo, I mean, blood spatter analysis, by a police detective who barely understood the principals of the so-called forensic science, Mr. Bryan was convicted. Despite the fact he had but 40 hours training in the discipline, Robert Thorman took the stand and testified that the blood found on a flashlight in the trunk of Mr. Bryan's car showed evidence of back spatter which, according to Mr. Thorman, was a telltale sign that the flashlight was used in a close range shooting.

Let's forget for a second that no one ever tied the flashlight to the murder. Let's further forget that the blood found on the flashlight was Type O which is found in approximately half the population. And let's not forget that no DNA testing was conducted on the blood specks found on the flashlight.

Last Friday, Celestina Rossi, a crime scene investigator for the Montgomery County (Texas) Sheriff's Office Crime Lab, testified before the Texas Forensic Science Commission and testified that Mr. Thorman's testimony was "egregiously wrong" in the Bryan case.

Ms. Rossi spent some 60 hours researching the case and concluded that Mr. Thorman "misstated scientific concepts, used flawed methodology and incorrectly interpreted evidence." She said Mr. Thorman's analysis was not scientifically accurate and could not be supported by any published data.

Driving another nail into the state's coffin, Ms. Rossi testified that the back spatter Mr. Thorman testified indicated the flashlight was used in the murder wasn't back spatter at all and that there was no evidence that the flashlight had been present at the murder scene.

Another problem for the state was a state crime lab technician by the name of Patricia Almanza who was allowed to give opinions during direct examination that exceeded the scope of her expertise.

Mr. Bryan's attorneys have been seeking to have DNA testing performed on the untested evidence for years. In 2017 a court ruled that the items were to be tested. Mr. Sibley appealed that decision.

And why would Mr. Sibley do everything in his power to block that testing? Simple. He wants to maintain the conviction and doesn't care who or what gets in his way. He will stand up on a table and shout to the rafters that it's about finality and respecting a jury's verdict - but that's bullshit.

Mr. Sibley, and most prosecutors, don't get their ethical duty. A defense attorney, by contrast, has no ethical duty but to provide a vigorous defense for his client and maintain his confidences. That's a lot different that seeing that justice is done.

If Mr. Sibley were really interested in seeing that justice is done, he would withdraw his appeal and allow the items to be tested. If the tests confirm that Mr. Bryan is the killer, so be it, but, if they don't, then someone got away with murder and walked around free for more than 30 years. Is that justice?

Next month, Mr. Bryan's attorneys will argue in an evidentiary hearing for a new trial for their client. The presiding judge will then send his recommendation to the Court of Criminal Appeals which will be the final arbiter.

When winning is the only thing

This month's cover story in Slate is about three prosecutors who kept pushing and refusing to give up the fight against men who were proven innocent. The stories and circumstances are all different but the story in each case is equally chilling.

In an adversarial system, both prosecutors and defense attorneys are trying to win their case. The theory (faulty at best) is that through the crucible of a trial, the facts will come out and a jury made up of local citizens will be able to determine whether or not a crime occurred.

Nice in theory - but that's not how it works in real life. In many cases of exoneration there are items with biological material that were never tested. In the end when this evidence was tested the results proved that someone else committed the crime. The items weren't tested in the original proceeding because the defense attorney would be taking a big gamble in having the tests carried out. Let's think about it, we all assume the worse case scenario for our clients. If there is a rag, or a shirt or some other item with blood or other bodily fluid on it, it's often better to hold up that evidence as an example of reasonable doubt. You see, jurors, the state didn't test it because they didn't want to know their theory of the case was wrong. If the defense attorney asks for the items to be tested and they don't exclude her client, now that's a serious problem.

Thanks to our modern day love fest with all things police, and the right-wing "Blue Lives Matter" campaign, jurors come into the courthouse believing that the police are all hard-working servants of the people who are honorable and would never coerce a confession or tamper with evidence. In truth, as we all know, once the police hone in on a suspect, everything they do is geared toward proving that person committed the crime - and if the evidence doesn't fit that model then it never gets mentioned.

As a result, innocent people get convicted. They get convicted of traffic offenses, they get convicted of petty crimes, they get convicted of heinous crimes.

These men and women serve years behind bars. Their lives are destroyed. Their families are torn apart. And then, if they get lucky, when evidence demonstrating their innocence is prevented, the courts and prosecutors continue to fight to keep them behind bars. It's almost as if admitting that a mistake was made would cause the entire system to collapse upon itself.

Of course I prefer to think that it would shine some light on the problems with our criminal (in)justice system. It would be a good thing for jurors to walk into the courthouse a little more skeptical than they are now.

But that's another story for another day.

While prosecutors and defense attorneys fight to win cases, the duty of the attorneys is different. The duty of a criminal defense attorney is to defend his or her client by all means possible. But a prosecutor has a different task. While the prosecutor's goal is to win, because of the power the state has to take away a person's life or liberty, the prosecutor must temper their goal to win with the duty to see that justice is done. And sometimes that duty means having to stand up and say we got it wrong this time.

That is a quality that the prosecutors mentioned in this article did not demonstrate. Their primary concern was to win, justice be damned.