Category Archives: Featured

New evidence connecting numerous wrongful convictions to serial killer Edward Wayne Edwards

The case of Elizabeth Short ( the “Black Dahlia” ) murdered in January 1947 turns out to be a key piece in a complex puzzle of evidence connecting serial killer Edward Wayne Edwards to seven wrongful convictions. This article gives an overview of ten related cases, and explains significant new evidence discovered since John Cameron’s book on Edwards was published in 2014.

The Ten Cases

1. Josephine Ross, Frances Brown and Suzanne Degnan ( William Heirens convicted )

On June 5, 1945, 43-year-old Josephine Ross was found dead in her apartment at 4108 North Kenmore Avenue, Chicago. She had been repeatedly stabbed, and her head was wrapped in a dress. She was presumed to have surprised an intruder, who then killed her. Dark hairs were found clutched in Ross’ hand, indicating that she had struggled with the intruder before she was killed. No valuables were taken from the apartment.

On December 10, 1945, Frances Brown, a divorced woman, was discovered with a knife lodged in her neck and bullet wound to the head in her apartment at 3941 North Pine Grove Avenue, Chicago, after a cleaning woman heard a radio playing loudly and noted Brown’s partly open door. Brown had been savagely stabbed, and authorities thought that a burglar had been discovered or interrupted. No valuables were taken, but a message in lipstick on the wall of Brown’s apartment was left:LipstickNote20Dec1945

On January 7, 1946, six-year-old Suzanne Degnan was discovered missing from her first-floor bedroom in Edgewater, Chicago. Police found a ladder outside the girl’s window, and a ransom note:

“GeI $20,000 Reddy & wAITe foR WoRd. do NoT NoTify FBI oR Police. Bills IN 5’s & 10’s. BuRN This FoR heR SAfTY.”

A man repeatedly called the Degnan residence demanding the ransom, but hung up before any meaningful conversation could take place.

William Heirens confessed to these three murders, and pleaded guilty, but there are numerous indications that the confessions were false.

2. Elizabeth Short

On the morning of January 15, 1947, Elizabeth Short’s naked body was found severed into two pieces, after being last seen alive on January 9, 1947.

On March 14, an apparent suicide note scrawled in pencil on a bit of foolscap was found tucked in a shoe in a pile of men’s clothing by the ocean’s edge at the foot of Breeze Ave. Venice. The note read: “To whom it may concern: I have waited for the police to capture me for the Black Dahlia killing, but have not. I am too much of a coward to turn myself in, so this is the best way out for me. I couldn’t help myself for that, or this. Sorry, Mary.” The pile of clothing was first seen by a beach caretaker, who reported the discovery to John Dillon, lifeguard captain. Dillon immediately notified Capt. L. E. Christensen of West Los Angeles Police Station. The clothes included a coat and trousers of blue herringbone tweed, a brown and white Y shirt, white jockey shorts, tan socks and tan moccasin leisure shoes, size about eight. The clothes gave no clue about the identity of their owner.

Crime authors such as Steve Hodel (son of George Hill Hodel) and William Rasmussen have suggested a link between the Short murder and the 1946 murder and dismemberment of six-year-old Suzanne Degnan in Chicago, Illinois. Captain Donahoe of the LAPD stated publicly that he believed the Black Dahlia and the Chicago Lipstick Murders were “likely connected”. Among the evidence cited is the fact that Short’s body was found on Norton Avenue, three blocks west of Degnan Boulevard, Degnan being the last name of the girl from Chicago. There were also striking similarities between the handwriting on the Degnan ransom note and that of the “Black Dahlia Avenger”. Both texts used a combination of capitals and small letters (the Degnan note read in part “BuRN This FoR heR SAfTY” [sic]), and both notes contain a similar misshapen letter P and have one word that matches exactly.

See here for more evidence on Elizabeth Short.

3. Marilyn Reese Sheppard ( Husband Sam Sheppard wrongly convicted )

Samuel Holmes “Sam” Sheppard (December 29, 1923 – April 6, 1970) was an American osteopathic physician and, toward the end of his life, a professional wrestler. He was convicted of the brutal murder of his pregnant wife, Marilyn Reese Sheppard on July 4, 1954, at their Bay Village, Ohio, home. He spent almost a decade in prison, mostly at the Ohio Penitentiary, before a retrial was ordered, where he was acquitted in 1966.

On June 6, 1966, the U.S. Supreme Court, by an 8-to-1 vote, struck down the murder conviction. The decision noted, among other factors, that a “carnival atmosphere” had permeated the trial, and that the trial judge Edward J. Blythin, was clearly biased against Sheppard because Judge Blythin had refused to sequester the jury, did not order the jury to ignore and disregard media reports of the case, and when speaking to newspaper columnist Dorothy Kilgallen shortly before the trial started said, “Well, he’s guilty as hell. There’s no question about it.”

See here for more evidence on Sheppard.

4. Stephanie Bryan ( Burton Abbott convicted )

Stephanie Bryan (age 14) was last seen on April 28, 1955, walking home from school where she went through the parking lot of the Claremont Hotel. A large-scale search failed to find her. In mid-July, Georgia Abbott, Burton Abbott’s wife, reported finding personal effects which had belonged to the girl, including a purse and an ID card, in the basement of the Abbotts’ home in Alameda. The basement was in the home she shared with her husband, their son Christopher, and Burton’s mother, Elsie Abbott (née Moore).

In interviewing the Abbotts, the police learned that Elsie Abbott had found the purse earlier, but said she did not connect it with the case. She would profess her son’s innocence until she died.

Police subsequently recovered Stephanie’s glasses, a brassiere, and other evidence in the basement. No one in the family could account for how the victim’s personal effects came to be in the basement.

Abbott stated he had been at the family’s cabin 285 miles away near Weaverville, California, in Trinity County, when Stephanie disappeared.

On July 20, 1955, the victim’s body was found by The San Francisco Examiner reporter Ed Montgomery, in a shallow grave, a few hundred feet from the cabin and Abbott was charged with her rape and murder.

Abbott was subsequently convicted, sentenced to death, and executed after a stay from the governor reached the execution chamber too late.

Edwards apparently led Montgomery to the body, using a false name:

burtonabbottdetails
Police report

5. The Robison Family Murders

On June 25, 1968, near Cross Village Michigan, a family of six were executed in their summer cabin. The bodies were not found until July 22.

John Cameron obtained the case file with a FOIA request.

The letters “EBE” are highlighted in two documents, see “It’s Me”, page. 254. Cameron suggests Edwards thought of himself as “Edward Burns Edwards”.

When the prime suspect Scolaro learned of the impending charges and arrest, he committed suicide on March 8, 1973.

6. The Zodiac Killings

The Zodiac killings started on December 20, 1968. The killer targeted four men and three women between the ages of 16 and 29, with two of the men surviving attempted murder. The Zodiac himself claimed to have killed up to 37 victims. The killer originated the name “Zodiac” in a series of taunting letters and postcards sent to the local Bay Area press. See here for more evidence that Edwards was the Zodiac killer.

7. Three boys ( West Memphis Three convicted )

On May 5, 1993, three eight-year-old boys—Steve Branch, Michael Moore, and Christopher Byers—were reported missing in West Memphis, Arkansas.
See here for more evidence that Edwards murdered the three boys.

8. Laci Peterson ( Husband Scott Peterson convicted )

Laci Peterson disappeared while 8 months pregnant with her first child around December 24, 2002. Her husband Scott Peterson was convicted of murder and sentenced to death. An anonymous message was sent to the press soon after Laci and her son Conner’s remains were discovered on the shore of San Francisco bay, hundreds of further messages posted by “I Killed Laci Peterson” were subsequently posted. A cryptic signature apparently encoding “Edward E” ends “1947”, apparently referring back to the murder of Elizabeth Short. See here for more evidence on Laci/Scott Peterson..

9. Teresa Halbach ( Steven Avery and Brendan Dassey convicted )

Sometime during the day on October 31, 2005, photographer Teresa Halbach was scheduled to meet with Steven Avery, one of the owners of Avery Auto Salvage, to photograph a maroon Plymouth Voyager minivan for Auto Trader Magazine.

On November 11, 2005, Steven Avery was charged and later convicted of the murder of Halbach. Avery protested that he had been framed. Brenda Dassey ( who was an alibi for Avery ) was also convicted after making a confession that has all the hallmarks of being false. Two anonymous notes were left. See here for more on Teresa Halbach.

10. Coleman Family ( Husband and father Chris Coleman convicted )

Chris Coleman was convicted of strangling his wife, Sherri, and their boys Garrett, 11, and Gavin, 9, on May 5, 2009.  Red, spray-painted graffiti messages were left inside the house. The messages apparently reference the 1947 murder of Elizabeth Short. See Opinion: New trial likely for murder of wife, two sons.

The Old Evidence

John Cameron connected the above murders ( with the exception of Teresa Halbach and Laci Peterson ) to Edwards in his 2014 book mostly using various anonymous writings – either discovered at a crime scene, sent to newspapers, or left on the internet, most notably in a website about the Black Dahlia case ( BlackDahliaSolution.org ).

The Peterson case is mentioned in appendices, but without any detail. John Cameron contacted me in 2015, sending me a copy of his book. I started to understand Edwards, and the evidence linking Edwards to the Peterson case, including the “Message from God” and the “I Killed Laci Peterson” messages, I also decoded the “Short Code” signature, see here. I already knew Scott Peterson was innocent on the basis of other evidence.

The New Evidence

In August 2019, I was contacted by Margot Burns ( first name changed ), who explained that she encountered Edwards in 1971, she had been forced to help him prepare one of the Zodiac cards, and he confessed to the murders of Elizabeth Short, Stephanie Bryan, Paul Lee Stine and to directing the planting of the remains of Laci Peterson on the shore of San Francisco Bay using a boat.

In addition, further clues have been discovered in the BlackDahliaSolution website related to the Laci Peterson case, and also in messages left on a message board under the name “I Killed Laci Peterson” which are not only a confession to the murder of Laci Peterson, but also hint that Edwards was involved in the murder of Teresa Halbach.

Finally there is evidence that Edwards and/or his associates was manipulating and mis-directing people who were studying the murders:

  • The  “fratpack” forum on which the “I Killed Laci Peterson” messages were posted was apparently being run by Edwards and/or his associates. This was used to mis-lead people into thinking the author of the “I Killed Laci Peterson” messages was someone who was looking into the case.
  • On April 11, 2003 Steve Hodel’s theory that his father murdered the Black Dahlia in 1947 was announced, on April 13 further rumours in the Black Dahlia case were announced, the very same day that Conner’s body was foundSee here.
  • The final page of the the BlackDahliaSolution website discussed Larry Harnisch, a Los Angeles Times copy editor and writer, who published books about the case.
  • The author of the BlackDahliaSolution  website claimed he was 13 years old in January 1947, after being challenged about knowing an inordinate amount about the case in the  FAQ section ( It’s Me, page 303 ). If Edwards was born June 14, 1933, as he claimed in this autobiography that would be true, but in fact records show he was born May 30, 1928  ). Conclusion : Edwards was using his fake birth date as a cover story.

Conclusion

The evidence linking Edwards to the wrongful convictions of William Heirens, Sam Sheppard, Burton Abbott,  the West Memphis Three, Scott Peterson, Steven Avery, Brendan Dassey and Chris Coleman is extensive and compelling. Edwards committed murders and framed innocent people from 1945 to 2009. See here for more on Edwards.

Tactics for the Trenches

Prosecutorial Misconduct and Negligence : Tactics for the Trenches is a presentation given by Don Rehkopf on April 21, 2017 to give defense lawyers the law and the tools to increase the odds of prevailing against Prosecutorial Error.

It covers four areas:

1. A linguistic suggestion that is perhaps less psychologically antagonistic than the phrase “prosecutorial misconduct;”

2. A synopsis of the various sources of discovery that must be asserted pretrial in an effort to prevent, but if not, preserve, these discreet issues;

3. A discussion of how to determine just what constitutes prosecutorial error; and

4. Suggestions on how to properly preserve issues of prosecutorial misconduct or error, pretrial and during trial.

“Prosecutors are far less likely to try and take advantage of a defense attorney who is ready to pounce on misconduct by objections and calls for sanctions.”

Full Presentation Here.

Rate of false convictions

A 2013 study of false convictions says that Justice Scalia’s estimate was “silly”, conservatively, 4.1% of people sent to death row are innocent,  and the majority of innocent but convicted capital defendants are neither executed nor exonerated.

The report concludes:

“We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”

“We do know that the rate of error among death sentences is far greater than Justice Scalia’s reassuring 0.027% (6). That much is apparent directly from the number of death row exonerations that have already occurred. Our research adds the disturbing news that most innocent defendants who have been sentenced to death have not been exonerated, and many—including the great majority of those who have been resentenced to life in prison—probably never will be.”

“This is only part of a disturbing picture. Fewer than half of all defendants who are convicted of capital murder are ever sentenced to death in the first place (e.g., 49.1% in Missouri as in ref. 24, 29% in Philadelphia as in ref. 25, and 31% in New Jersey as in ref. 26). Sentencing juries, like other participants in the process, worry about the execution of innocent defendants. Interviews with jurors who participated in capital sentencing proceedings indicate that lingering doubts about the defendant’s guilt is the strongest available predictor of a sentence of life imprisonment rather than death (27). It follows that the rate of innocence must be higher for convicted capital defendants who are not sentenced to death than for those who are. The net result is that the great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten.”

Read the Study in full here : Rate of false conviction of criminal defendants who are sentenced to death – Proceedings of the National Academy of Sciences of the United States of America.

 

 

Brendan Dassey: A True Story of A False Confession

Published on 9 May 2016

Featured in the smash hit Netflix documentary series Making a Murderer, Brendan Dassey’s post-conviction attorneys, Northwestern Law Professors Steven Drizin and Laura Nirider, discuss powerful psychological techniques used in police interrogations that can lead juveniles to falsely confess. Learn more about Brendan’s case, complete with additional footage from his interrogation that wasn’t seen on Making a Murderer.

Petition to reform the AEDPA

According to Judge Alex Kozinski, “Federal judges have been pretty much shut out … from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred. We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

See Gutting Habeas Corpus : The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain The Intercept, May 4, 2016, for how this came about.

Please sign this petition calling for the President of the United States and Congress to act to correct this situation, and to allow Federal judges to act when they believe a miscarriage of justice has occurred.

News Post

Steve Moore on Making a Murderer

Retired FBI detective Steve Moore has written an excellent series of blogs on the “Making a Murderer” film, concerning the convictions of Steven Avery and Brendan Dassey. I strongly recommend reading his blogs, in addition to or instead of watching the film, as they are a mine of interesting information and observation. An index:

Wrongful Convictions around the World

Last night I had an hour-long talk with exoneree Gloria Goodwin-Killian on “blog talk radio”.

We discussed how the Wrongly Convicted Group came about, the wrongful convictions caused by serial killer Edward Wayne Edwards and several individual cases such as Jodi Arias, David Camm, Debra Milke,  Kirstin Blaise LobatoDarlie Routier, Hannah Overton, Scott Peterson, Christopher ColemanStobert Holt, Sam SheppardRichard Glossip, Steven AveryBrendan Dassey and Diane Downs .

Link: http://www.blogtalkradio.com/acwip/2016/02/19/wrongful-convictions-around-the-world

Discussion

The presumption of innocence exists in theory, not reality

What is to be done?

Wrongful Convictions Blog

By: Keith Findlay

Keith Findley is an assistant professor of law at the University of Wisconsin Law School, where he is co-director of the Wisconsin Innocence Project. He represented Steven Avery, subject of the “Making a Murderer” documentary, in the 2005 proceedings that produced DNA evidence to prove Avery’s innocence and exonerate him of a 1985 sexual assault conviction.

If, as the Supreme Court has consistently declared, the presumption of innocence is among the most fundamental principles in our criminal justice system, it is also among the most fragile.

The presumption is under constant assault from jurors’ natural assumption that if someone is arrested and charged with a crime, he or she must have done something wrong. It is also vulnerable to the media frenzy around high-profile cases, the fear-driven politics of crime, the highly punitive nature of our culture and the innate cognitive processes that produce tunnel…

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Judge Kozinski on the need for reform

Judge Alex Kozinski writes about the need for reforms in America’s criminal justice system. I won’t try to summarise the long review here, instead I suggest that everyone download and read the article in it’s entirety. I strongly agree with most everything he says.

Via The Wall Street Journal

Commentary by Matt Kaiser Why Judges and Prosecutors Don’t Care If They’re Right July 9, 2015
“After reading the first 11 pages of Kozinski’s piece, one gets the strong feeling that our criminal justice system isn’t that much better than trial by ordeal. Instead of drowning people, making them drink poison, or setting them on fire, we subject them to other rituals that are not much more tethered to actual guilt or innocence.”

Serialisation at Washington Post by Eugene Volokh.

Summary at DPIC

Another summary ( reason.com, via the Innocence Project, July 24 ).

Judge Alex Kozinski and Barry Scheck Discuss Criminal Justice Reform at Cardozo Law School August 28, 2015

Summary by Phil Locke at the Wrongful Convictions Blog September 2, 2015.

‘Troublemaker’ Kozinski Unafraid to Advocate for Change December 2015

 

The Innocent Citizen’s Justice System Survival Guide

Excellent, brilliant and well overdue.

Wrongful Convictions Blog

“Ours is a world in which justice is accidental, and innocence no protection.”     Euripedes, 400 BC.

———————————————————————————————–

I come from a legal family, so even though I did not go into law, I’ve had a closeup view of the justice system my entire life, which is, I think, one of the reasons I decided to devote my post-corporate life to innocence work. I saw too many things happening that were not congruent with my view of what a fair and just system should, and must, be. For the past seven years, I’ve been deeply involved in innocence work, and have become knowledgable about the details of many, many cases (100’s) of wrongful conviction and wrongful imprisonment. Consequently, I’ve seen many ways in which actually innocent people become tragic victims of what we call “justice.” There are just so many ways the justice system can get it wrong. This…

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Bad Lawyering

by Don Rehkopf. First published 31 July, 2014

“The Elephant in the Room” Scenario. Much space has been spent on this thread (and related ones) about the injustices caused by prosecutorial misconduct – something that I have been fighting for years. But, there is also, albeit largely unmentioned or discussed, the flip-side of the “prosecutorial misconduct” coin, i.e., the ineffective assistance of counsel issue. Many (but certainly not a majority) of wrongful convictions have their origins in – for lack of a better term – bad lawyering.

“Bad lawyering” takes many forms – failing to investigate properly; failing to factually, legally and scientifically challenge the prosecution’s evidence; and what I call “The Elephant in the Room” scenario, i.e., the simple failure to sit down with the known evidence as well as the LACK of evidence and to just think about it. Yes, the old “thinking cap” approach or in more modern linguistics, cerebration.

This lack of cerebration may have multiple causes, e.g., lack of time to do so (which may or may not be attributable to the defense); the failure to realize that intense cerebration is necessary to “think through” certain issues, especially where there are complex factual scenarios and permutations; or quite frankly, the lawyer simply is not smart enough to cerebrate properly in a given case.

In all honesty – having observed and studied this issue for 25+ years of my career – much of the blame falls upon the American Law School model, i.e., use of the “Socratic Method” of teaching.http://www.socraticmethod.net/ One can debate ad nauseam whether or not in the law school context that is effective, but assuming for purposes of argument it is, it is missing critical components necessary for being a TRIAL lawyer. Specifically knowing the differences between deductive and inductive reasoning and how to use them in cerebrating about a case is not something most lawyers are ever taught, especially in law school. Those who have been educationally exposed to the “hard sciences” and the scientific method [http://www.bio.miami.edu/dana/dox/scientific_method.html ] will generally be far better in their approach to defending someone than those who haven’t, simply because a cerebral approach to problem solving must be a multi-faceted endeavor. This is especially true in defending cases where forensic science disciplines are at the heart of proving or establishing the evidence.

But, what is also missing from the quiver of many defense lawyers is skill in the art of critical thinking: http://www.criticalthinking.org/pages/critical-thinking-where-to-begin/796 And as the stakes go up, i.e., the charges become more serious in criminal cases, the need for critical thinking by the defense must exponentially expand as well.

Why am I writing this little essay you rightfully ask? There are two reasons – one general, one specific. In general, I’m trying to get people to think about things before they post here and on related threads. To think about the evidence OR LACK OF SPECIFIC EVIDENCE in a case as opposed to emotions, or anecdotes, or even worse, media “commentary” — none of which is particularly helpful in addressing the topic of wrongful convictions.

The other, more specific reason, is a criticism about my “attack” on the performance of defense counsel in an on-going case on these threads – an attack that some, if not many feel unjustified. I accept the criticism as an invitation to review, re-analyze and re-think my position – but for the reasons that I posit below, retain my original opinion that the defense was weak and by-and-large ineffective because of the aforementioned lack of critical cerebration, which in the end, prejudiced the defendant.

September will be the 40th anniversary of my first jury trial as a defense lawyer, so I’ve been banged around and about in many courtrooms. I’ve also done two stints as a prosecutor, so I’ve been on that side of the aisle as well. I have a background in physics and to a lesser degree, regular chemistry (as opposed to organic), and thus familiar with the scientific method.

Before calculators and personal computers, I carried a “slide rule” for those of you old enough to remember what they are. But, I am not a scientist – I am a criminal defense lawyer who can understand and use science, especially forensic science to my clients’ advantage or to expose “bad” or “junk” science used by the prosecution.

Now, let me get to my point. There is a recognized approach to defending a case generally known as the “reasonable doubt” approach. That consists of attempting to discredit the prosecution’s case via cross-examination and tying up the “loose ends” in summation. But, of all possible defenses, most experienced cerebral-thinking and experienced lawyers and social scientists who study jury dynamics, will tell you, that, by itself, is a very WEAK defense. Sometimes it’s all you’ve got and thus, necessary. But, in this day and age of advanced forensic technology, it rarely is – rather, it is the product of sloppy (or non-existent) thinking.

EXAMPLE: The prosecution calls a scientist who by education, training and experience is a qualified forensic scientist. But, that does not mean that her testimony is either scientific or valid. Cross-examination should be the beginning of exposing her “fuzzy” (but pro-prosecution biased) testimony. But, that needs to be preceded by investigation, research and much cerebration to be effective. Merely bringing out that she didn’t do this, didn’t do that, or didn’t follow-up on why – as most experienced practitioners will tell you – does little to the average juror. The reason being is that if that is the defense’s tactic, the defense MUST be prepared to demonstrate that had the prosecution’s scientist done X, done Y, applied the “scientific method” etc., would have (versus MIGHT have) produced a differing verdict. Jury consultants and psychologists will tell you what experienced defense counsel already know – raising those issues on cross-examination, i.e., she didn’t do this, she didn’t do that approach, almost always backfires because the average juror thinks: “OK dumb-ass, if it was so important for this case, why didn’t you – after finding out about the prosecution’s theory – go out and do it for your client?” By-and-large, jurors ignore the “presumption of innocence.”

“Why didn’t you, Mr. Defense Counsel, insist that they do this? And if they refused, and if it’s so damn important to your case, why didn’t you do it yourself, then we’ve got something to ‘hang our hat’ on?”

Rather than that approach accompanied by trashing her during closing arguments, would not a better approach to “impeaching” her be thus:

Q: Ms. X, you hold yourself out to being a scientist, correct?

A: Yes

Q: As a scientist, you are of course familiar with the ‘scientific method’ correct?

A: Yes

Q: The ‘scientific method’ requires you to rule out alternative hypotheses before you reach a conclusion, does it not?

A: Yes, it does.

Q: And to “rule out” something, means applying science to it just like you applied it to the samples given to you by the prosecution, correct?

A; Yes.

Q: But, in this case, you did not rule out soil samples taken from other areas than where the DA wanted, potentially relevant to your conclusions, did you?

A: No.

Q: And without testing those soil samples from those other areas, you have no way of scientifically knowing whether or not those untested areas, COULD be relevant to your conclusions here, do you?

A: Not really.

Q: In other words, you did not apply the scientific method in this case, did you?

A: Not exactly.

Q: In other words, your ‘scientific conclusions’ you gave to the jury a few minutes ago, was based upon pure speculation that those other areas contained no relevant evidence, correct?

A: If you say so.

Thus, from the field of jury dynamics, the first example [i.e., what was actually done at the trial] was merely the defense blowing smoke, meaning simply getting the scientific witness to admit not having done things and then later arguing that such failure created reasonable doubt, almost never works – something that experienced defense counsel know and appreciate. But, in the hypothetical second example, you “turn” the witness; you take her scientific credentials and experience to show that she didn’t use “good” or accepted scientific procedure; she did what any shill would do, what the prosecutor asked her to do; demonstrated beyond all doubt that the proper application of science BEFORE reaching any conclusions was to rule out alternative hypotheses or theories, and then argue that she has proven herself both scientifically unreliable by her own admissions and a biased, prosecution “smoke-blower.”

Alternatively, this particular witness should never have been allowed to testify as an “expert” witness. Some 20 years ago, the US Supreme Court decided a case by the name of Daubert.

That case stands for the proposition that trial judges should exclude “junk science” from trials, and goes on to show that to be admissible, the testimony must be based upon sound scientific principles, been subject to peer review and done in a manner that others in the field can duplicate. To do this, the defense must object in advance of the trial, the judge is supposed to hold a Daubert hearing and make a ruling and if the defense loses, they need to again object to the testimony at trial to ensure that it framed / preserved for appellate review.

In the case at issue, that did not happen as far as I could ascertain – certainly there was no objections at trial, and the questioning by the defense was imo, demonstrative that no Daubert analysis / objections had been made. Why is this important? Because, in the case at issue, the ultimate testimony before the jury was misleading speculation, speculation that the defendant was “most likely” at the scene of the crime, when in fact, the evidence did not and could not show that. Furthermore, the so-called “scientific analysis” was not subjected to peer-review [i.e., review by other qualified scientists in the relevant field] until much later and SURPRISE, resulted in a significant change in the ultimate conclusion – one quite different than the impression given to the jury. But, there was no objection . . . .

WHY am I arguing about this? Social Science research has validated what good defense lawyers have long-known: “Providing a (single) very weak defense can raise confidence in the prosecution’s case because jurors might think, ‘‘if this is the best the defense can do, he must be guilty’’ But, add to this a SODDI [or TODDI] defense, i.e., “Some [This] Other Dude Did It” and point to the suspect, and the odds of a “not guilty” verdict increase dramatically. The BEST example of all of this in many, many years was Rick Kammen and Stacy Uliana’s brilliant defense of David Camm, e.g., exposing the charlatan prosecution “experts,” and establishing the SODDI defense that Bonehead was the perpetrator. Or, “the Plan B defense tactic of introducing an alternative suspect, even without changing evidence against the defendant, can make convictions held ‘‘to a moral certitude’’ crumble.”

See: http://faculty.haas.berkeley.edu/tenney/Tenney09BASP.pdf

and

http://faculty.haas.berkeley.edu/tenney/Tenney09ThisOtherDude.pdf