Rally Fri. June 17 8 a.m. Frank Murphy Hall, St. Antoine and Gratiot
- Remove Worthy from crime lab review
- Forensic investigation of lab evidence independent of city and state
- Freedom for wrongfully convicted prisoners with no time limits
- DPD, MSP, prosecutors, corrupt lab staff be disciplined and charged
New revelation: Prosecutor’s office destroyed all pre-1995 files in violation of state law
By Diane Bukowski
DETROIT – The Detroit People’s Task Force to Free the Wrongfully Convicted believes that not only the Detroit Police, but Wayne County Prosecutor Kym Worthy and the state police are liable for crimes related to falsification and destruction of forensic evidence that go far beyond the recent expose of materials left behind at the shuttered Detroit police crime lab.
The lab was completely closed in 2008 after a forensic audit of its firearms and ballistics testing unit found a 10 percent error rate. The Michigan State Police Crime Lab found that Detroit firearms technicians, all of whom were Detroit police officers, bordered on “misconduct” when they produced false lab results.
“The task force has been fighting for three years for an independent audit into the investigations of adjudicated cases of wrongful convictions,” the group said in a release. “With the recent revelations of yet more scandals involving the Detroit Police and the Prosecutor as it concerns these cases, enough is enough.”
The Task Force includes prisoners, their families and advocates. The lives of thousands of men and women currently behind bars, many for decades, are at stake, they say.
“We are demanding a federal investigation,” Task Force Vice-President Kevin Carey said. “We also want Prosecutor Kym Worthy to be removed from handling the crime lab review because of conflict of interest, that she return the $2.7 million she obtained from the city for it, that prisoners wrongfully convicted be set free, and that the police, the prosecutor and crime lab staff who falsified evidence be disciplined and charged.”
Task Force President Marilyn Jordan is the mother of prisoner Kelly Nobles, who says ballistics evidence in his case was falsified. Task Force paralegal Roberto Guzman said Worthy refused to review his case, saying it fell a few months short of the 2003-2008 limit she placed on cases subject to review.
“We are not going anywhere until our demands are met,” Jordan asserted. “When Worthy asked for the money from the city, she said nothing about time limits, and she has no jurisdiction anyway. Now she suddenly says it is impossible to review 31,000 cases, when she hasn’t even reviewed all the original 147 cases specified by the audit.”
The City Council passed a resolution granting funds to Worthy in Feb. 2010, but nothing in the resolution itself specifies a time limit on cases reviewed. (Click on CC lab resolution, MOU to read resolution.)
An exhibit entitled “Forensic Evidence Review Unit” which did include that time limit was attached to a three-page Memorandum of Understanding (MOU) signed by Worthy, the city’s executive staff, and on behalf of the Council.
“I want members of the City Council to be held accountable as well,” Jordan said. Task Force members say the Council should have exercised due diligence prior to voting on the matter, as well as recognizing that Worthy had no jurisdiction.
After hearing testimony from the People’s Task Force, the previous Detroit City Council, chaired by President Pro-Tem Monica Conyers during Pres. Maryann Mahaffey’s illness, voted unanimously on May 11, 2009 for a federal investigation of the lab, instead of a review conducted by Worthy. Council member JoAnn Watson made the motion.
Meanwhile, Worthy’s office recently revealed that a massive amount of their own records, essential to the continued appeal of prisoners’ cases, have been destroyed.
In February, VOD made a Freedom of Information Act request for the prosecutor’s file on Edward Sanders, incarcerated since 1975.
“It appears the file you requested has long since been destroyed in a routine purge of files,” said FOIA officer Barbara Brown in a letter in response. “An administrative decision was made to destroy all pre-1995 files, as a remedy to a shortage of shelf space for our office as the archives.” (Click on Worthy files before 95 to read letter.)
Sanders, who was sentenced to life without parole as a juvenile at 17, has been fighting to re-open his case for the 36 years he has been imprisoned. He contends among other matters that shell casings involved in his case, and the condition of the gun, will show that the shooting, committed by a man riding in his car, was unintentional.
According to the State of Michigan’s General Retention Schedule #19 for prosecuting attorneys, files in capital cases (any crime with a life sentence) must be retained “until final disposition of the case plus 50 years, or the felon dies, whichever is sooner.”
(Click on http://www.michigan.gov/documents/hal/mhc_rm_gs19_195723_7.pdf to read document.)
Wayne County Prosecutor Kym Worthy’s spokesperson, Assistant Prosecutor Maria Miller, said the destruction of files did not happen under Worthy’s administration.
“Since she has been the elected prosecutor we do not destroy any capital felony files,” Miller said. “In fact, we keep indefinitely all homicide cases, and any cases in our Special Victim’s Unit (which handles child abuse, domestic violence , criminal sexual conduct and homicides). Our appellate division keeps all homicide cases indefinitely as well under the file retention policy.”
(Further comments from Miller in response to this article are included in an addendum at its conclusion.)
Many of the prisoners who are part of the People’s Task Force were also incarcerated prior to 1995, for life terms.
Darryl Dulin-Bey, incarcerated in 1988 for life, says the gun produced at his trial was not the gun used in the killing involved, and that he did not shoot either gun. He says the police and prosecutor were fully aware of this.
“During my trial, there was no actual murder weapon presented but there was an unrelated 9 mm handgun and shotgun shells presented, also bullets that were on display on the prosecutor’s table in front of my jury and the and the prosecutor presented and waved this evidence like a flag,” Dulin-Bey wrote.
Michael Harris, a founding member of the People’s Task Force, has been in prison since 1983 and says the Michigan State Police (MSP) crime lab falsified evidence in his case, as well as many other cases.
“My attorney helped to expose two Michigan State Police DNA experts in 2004, Lynn Helton and Charles Barna, who fabricated evidence against me in Washtenaw County,” Harris said in a letter. “They used my blood samples to wrongly contaminate crime scene evidence and frame me for murders.”
In the wake of daily media reports that evidence was left behind after the crime lab building closed, Worthy has turned over the investigation to the Michigan State Police. She is also using the MSP labs to review crime lab evidence as part of a “Forensic Integrity Unit” she set up after the Detroit crime lab closed.
Harris called instead for an independent forensic investigation of both the Detroit and Michigan crime labs. He encouraged people to attend the June 17 rally in a recent letter from Kinross Correctional Facility in Kincheloe, where both he and Sanders are incarcerated.
“Kym Worthy [must be] removed from the Detroit police crime lab investigation on the grounds of a conflict of interest,” he said. “Also, all Detroit crime lab cases must be removed from the jurisdiction of the Michigan State Police crime labs. The Detroit Police Crime Lab has falsified ballistics test results . . . . the Michigan crime labs were exposed for forging DNA records.”
Guzman said the case of Johnnie Henderson, grandson of Essie Henderson, also a member of the Task Force, is one of the most glaring examples of prosecutorial atrocities.
“The court transcripts showed the ballistics and physical evidence did not match,” he said. “They didn’t find any bullet in the deceased victim, claiming it had somehow slipped out. This is one of the cases Worthy is trying to cleanse because Henderson’s defense attorney also asserted that it was likely the fatal bullet came from a police officer’s gun.”
Larry Porter, now 59, was sent to prison in 1989 and is also a founding member of the People’s Task Force.
“Ms. Worthy, you haven’t shown one ounce of any genuine concern for those of us who are wrongfully convicted, let alone any compassion for our families and loved ones,” said Porter, Harris, Dulin-Bey, and Nobles in an open letter in 2008. “That comprehensive program you purportedly designed to address the failures of the Detroit Police crime lab has virtually fizzled out . . . simply because none of the wrongfully convicted have been set free yet!”
Worthy recently said that it is “impossible” to review even the 31,000 cases adjudicated between 2003-08 with her current staff, including that financed by the city.
In addition to giving Worthy $2.7 million, the current City Council voted in July, 2010 to issue up to $100 million in general obligation bonds to finance the purchase and renovation of the former MGM Grand Casino in downtown Detroit into a new Detroit police headquarters and Michigan State Police crime lab.
The bonds are guaranteed by the city’s revenue-sharing funds from the state, which are in line to be cut under Michigan Governor Rick Snyder’s budget.
“We don’t want to hear her sob stories now,” Guzman said.
“Kym Worthy knew going into this that the cases were in the thousands,” he continued. Her fingerpointing is nothing more than a sinister effort to throw the scent off her staff, which knowingly prosecuted many of these cases with falsified forensics evidence, to say nothing of the convictions in which prosecutors also deliberately concealed exculpatory forensics evidence at trial. Worthy herself should have invited a federal probe as we have repeatedly insisted since the lab debacle first exploded in 2008.”
The Detroit Free Press itself is calling for a federal investigation. (Click on http://www.freep.com/apps/pbcs.dll/article?AID=2011105290502 to read article.)
The article quotes David A. Moran, co-director of the Michigan Innocence Clinic, who said his office has been requesting evidence from the lab for years through the FOIA, to no avail.
“I wouldn’t be surprised, if in FOIA requests where we got a response saying, ‘Sorry, it’s gone,’ the evidence is sitting in that crime lab,” Moran told the Freep. He added, “A federal investigation is really called for here. … Everyone had been led to believe that the crime lab scandal had been contained, and that it was in the hands of police, but that wasn’t done.”
However, said the Freep, U.S. Attorney Barbara McQuade refused comment on such an investigation, saying only, “We are looking into the situation.”
In fact, the National Academy of Sciences has called for all crime labs to be separated completely from any law enforcement agency, including the Department of Justice.
“Forensic scientists who sit administratively in law enforcement agencies or prosecutor’s offices, or who are hired by these units, are subject to a general risk of bias,” the Feb. 18, 2009 NAS report said. “The potential for conflicts of interest between the needs of law enforcement and the broader needs of forensic science are too great.”
Read release on NAS study of forensics practices, published in Feb. 2009, with link to full report, at http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589
Read release on NAS study of forensics practices, published in Feb. 2009, with link to full report, at http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589.
The report called for the creation of an independent National Institute of Forensics Sciences, which would conduct scientific research, set national standards, and certify, regulate, enforce and standardize forensic testing and testimony.
Below is a response from Assistant Prosecutor Maria Miller on behalf of Kym Worthy to issues raised in this story, along with a reply from the Task Force’s Roberto Guzman.
RESPONSE FROM APA MARIA MILLER, COMMUNICATIONS CHIEF FOR PROSECUTOR KYM WORTHY
Here is some background about the Conviction Integrity Unit (CIU) that was formed in 2010.
The unit consists of CIU Chief, Robert Moran, CIU Director APA Patrick Muscat and three other APAs assigned to the unit. The WCPO has been reviewing these cases with SADO [the State Appellate Defenders Office) since 2008. The Michigan State Police does all of the re-testing of firearm evidence.
We identify cases to review from several sources:
1) Prisoner Letter requests;
2) SADO, Innocence Project, and other defense attorney referrals;
3) Civilian referrals;
4) APA (Internal) referrals;
5) Court referrals;
6) MDOC List of Convictions from 2003-2008;
We initiate a review on all requests or referrals. Our priority is the firearms convictions. We automatically send the following types of convictions to MSP for retesting (per the MOU):
Convictions from 2003-2008 involving the use of firearms evidence at trial.
The data is still raw. We have a list of all the convictions from 2003-2008, but we still don’t have the data from DPD telling us which of those convictions went to firearms lab. There are over 31,000 convictions from 2003-2008 that could have had firearms evidence that was used at trial (based on statutory codes). We review each case one at a time.
We review them internally pursuant to a workflow process. The CIU and/or Appeals draft several internal memorandums on cases as they progress through our workflow process. These memos compare the original testing and the retesting results, identify the role that the firearms evidence had in the trial, and discuss whether or not any differences found in the firearms retesting were significant. Each case is handled on a case by case basis.
On all these cases, we send a copy of the retesting results to the defense attorney and, if requested by the prisoner, to the prisoner.
For cases where there is no longer an active appeal or attorney involved we send a copy of the letter and results to the last known attorney of record.
For cases that we pull from the MDOC List of convictions, we advise SADO of the cases that we reviewed. We last met with SADO on May 4, 2011 and gave them an current list.
We have been meeting with the SADO since 2008. The committee meets every three months. The Wayne County Prosecutor’s Office and SADO review cases and issues related to the DPD gun lab issues. The group consists of Jonathan Saks, Kim McGinnis, Marlena David, and our APA’s Marilyn Eisenbraun, Jason Williams, Pat Muscat and Robert Moran.
You should know that since the problem was discovered in 2008 we have received very few referrals on these cases. This year we have received one new referral from a defense attorney that just came to us recently. We will be doing a posting in the legal news for referrals again in the near future. Also, if an attorney or prisoner requests re-testing results they are provided regardless of the decision on the case.
As a result of the review there have been four cases that received new trials Orand Thompson – Case No 05-9189 M1, FIP, FF ; Edward Hill – 06-10464, Murder2 , AWIM 3 cts, FIP, FF; and Jarrhod Williams- 07-11179 where we agreed to let him withdraw his plea and he convicted at trial of M1, 2 cts and FF. Four cases have been re-tried and three defendants were convicted. Note: William Lee 07-010547was acquitted on re-trial on CSC, AWIM, FF. However, this was a post-conviction DNA retesting matter, not a firearms case.
Currently ,Nathan Jacobs is the only firearms case where we did not agree to a re-trial. We did not agree to a new trial, but have agreed to submit it to Neutral Review Process. Justice Patricia Boyle formerly of the Michigan Supreme Court and Defense Attorney James Samuels were approved by SADO and WCPO to review the evidence in the case and to provide their recommendations.
Jacobs is essentially the first case (with differences that can be categorized as more than minor) discovered during the retesting process where we didn’t agree to a new trial.
The Michigan Supreme Court and Court of Appeals (COA) ruled on this issue. The firearms retesting evidence was brought before them and the COA declined to send it to the trial court for an evidentiary hearing or any further action. See attached opinion. Jacobs is the only case that SADO has asked to be sent to for “Independent Review.”
[The Prosecutor’s Office does not consider it a conflict of interest to be investigating cases] because our office is not conducting an investigation, it is a review of the evidence that is done in conjunction with the State Appellate Defenders Office. SADO was well suited to this task because it represents defendants across the state, set up its own database to keep track of the cases and has a state wide website to inform the defense bar on this issue.
There was some talk of Michigan Attorney General or federal agencies being involved.
Prosecutor Worthy has gone on record and said that the process is voluminous and laborious and it is frustrating. She became involved in this because as she has stated previously, “We’re the only ones who did anything with these cases.” We have not heard from any agencies that have come in to investigate this problem.
At a meeting before City Council family members of defendants who believed they had been wrongfully convicted on improper firearm evidence appeared and Prosecutor Worthy offered to look into all of their cases. The group was identified as members of the Detroit People’s Task Force for the Wrongfully Convicted. When she directed one of her assistant prosecutors to get the names from the family members so that the evidence could be prioritized and reviewed their attorney Brian Zubel prevented his clients from giving information and instructed them not to speak to the WCPO. As stated earlier we will take any civilian/ prisoner inquiry. Zubel has not contacted us on behalf of any of his clients to date. When we checked recently to see if Zubel had filed any motions on behalf of any clients related to this issue we did not find anything filed with the Court of Appeals.
(VOD ed. note: Attorney Brian Zubel is no longer involved with the Task Force.)
RESPONSE FROM ROBERTO GUZMAN, PARALEGAL FOR THE TASK FORCE
This is nothing new. Lies and political gamesmanship.
We have letters from both prisoners and the prosecutors’ office where prisoners whose convictions predate 2003 requested that their evidence be sent for retesting. The Forensics Review Unit specifically hurriedly denied their requests, stating they were not entitled to retesting because their convictions fall outside the five year parameters set by Ms. Worthy. That flies in the face of assurance she made in May of 2009 at the City Council when she stated in plain English that regardless of the age of a conviction they will send the evidence for RETESTING if someone asks them to. Those were Kym Worthy’s words. Kelly Nobles was one they denied, although his 2002 conviction only falls a few months short of her 2003 start time. Demeteius Greene is another one; Arthur Campbell another one; we can go on and one, but again, letters from the prosecutor’s office themselves disprove that claim.
I just spoke with another family member who called about Friday’s rally. She said she’s been waiting two years for just a response from the prosecutor’s office on her request for her son’s evidence to be retested. They have ignored her several requests for retesting. Ms. Miller, on the other hand, talks as though no one gets ignored. This woman, and many others who will be there on Friday, tell the same story.
It’s interesting they keep talking about working with SADO as if to give her biased reviews some semblance of fairness. That is a smoke bomb. SADO is rubber stamping the prosecutor’s findings and being dictated to by the prosecutor on the results in many of these reviews. Kym Worthy is not “cooperating” with SADO! She’s bossing them around with the dictates of her own findings.
But more importantly the prosecutor breached the terms of the memorandum of understanding with the city. In that MOU, she misled city council when she stated that the forensic review unit would include a defense attorney and former judge. That never happened. She structured a forensic review unit of all assistant prosecutors. She never intended to include defense lawyers or judges. It was insincerity from the beginning. How is that a fair, independent review!
The other interesting fact is that SADO has no authority to order the MSP to retest the evidence. Only Kym Worthy does. SADO has to ask her to agree to retesting. Kym Worthy has the last say. And she tells us that’s cooperation!
Another comment about the blame storming going on: it’s both the DPD and the prosecutor’s fault these convictions were wrongful. In many cases the prosecutors knowingly went ahead and convicted innocent defendants by deliberately concealing ballistics evidence that would have exonerated the defendant at trial. The police don’t prosecute these cases; the prosectors do! Kelly Nobles’ case is a perfect example, but there are many many more. DPD and the WCPO worked hand in hand to obstruct justice.
I want to make a final comment about Ms. Miller’s point that it is the DPD’s responsibility to see to it that the lab evidence was properly inventoried and secured. That is such a contradictory position to take. You trust the very same police agency that caused the fiascos to secure and store the evidence? But wait a minute! I thought that was the reason Kym Worthy wanted to “investigate” these scandals in the first place. Did she not say that she was the right person to handle these reviews to see if she could uncover wrongdoing and prosecute any officer or other official for it? So why is she still leaving it up to DPD to safeguard all that evidence that they themselves tainted or otherwise mishandled? If you trust a bank thief to guard the bank, do you think he’s not going to take the money!
Finally, the four new trials they mention are nothing new to us. I was aware of those cases and in each of those cases, the errors that were uncovered were brought to Kym Worthy’s attention by outside counsel. In other words, she could not reasonably deny error in those cases.
We are still waiting for proof that she and she alone uncovered an error in any case in the past three years in which she notified the defendant and agreed to grant him a new trial.
The Task Force and its supporters are planning to rally outside the Frank Murphy Hall at St. Antoine and Gratiot, where Worthy’s office is located, this Friday, June 17, from 8 a.m. to 10 a.m.