Thursday, September 25, 2008

Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic

Lee Wayne Hunt Revisited

In the March 20th edition of The Guardian, I wrote concerning Bullet Lead Analysis, which had been exposed as junk science and had been a major factor in convicting some 2500 people.

The case of Lee Wayne Hunt, in which it had played a major role in bringing about a wrongful conviction, was prominently featured in that article, not only because the case against Hunt falls apart without that debunked science, but also because unrelated evidence of Hunt’s innocence had surfaced. Specifically, an attorney who represented Hunt’s co-defendant came forward and said that his recently-deceased
client had admitted to him that he had committed the murder alone, and that Hunt had nothing to do with it.

On September 15, 2008, 60 Minutes re-aired the piece about bullet lead analysis and gave an update. In this article I intend to take a further look at Hunt’s case, as well as looking at the further implications of this junk science.

Bullet Lead Analysis Explained

In order for readers to fully understand its significance, it is necessary to understand precisely what bullet lead analysis is. According to the joint project between 60 Minutes and e Washington Post, the FBI has been using bullet lead analysis for about 40 years. The Bureau performed bullet lead analysis for state and federal law enforcement agencies in more than 2500 cases.

In a timeline extrapolated from The Washington Post, the following events occurred: In 1991 the FBI conducted its first substantial study on the reliability of bullet lead analysis, which raised two red flags: The study found that the lead composition of bullets in the same box did not
always match. Further, they found two bullets made in two different time frames and from different batches of lead unexpectedly did matched.

Nonetheless, FBI witnesses continued to suggest to juries that bullets could be matched to suspects’ boxes. Yet they kept using it and allowing their agents testify as expert witnesses as evidence used to convict defendants. Not only that, but they simultaneously withheld that information from defense attorneys, thus preventing them from being able to show that the evidence used against their clients was not scientific and thus unworthy of belief.

In the Fall of 2002, faced with former chief metallurgist for the FBI William Tobin’s study and increasing legal challenges, the FBI lab asked the National Academy of Science’s National Research Council to create a panel of experts to study the scientific underpinnings of the Bureau’s lead bullet analysis testimony.

In 2004, the National Academy of Science issued its report stating that while the lead analysis measurements the FBI conducted in its lab were accurate and reliable, Bureau examiners had been overstating the significance of those findings to jurors. They specifically cited problematic testimonies by several FBI examiners and urged that the FBI stop telling jurors it could match bullets to suspects’ boxes.

Then, once the report was made public regarding the findings that the process had no scientific validity, they neglected to tell the attorneys who had represented clients whose cases had been affected. John Solomon, in an article in The Washington Post, wrote that Hunt “said in a prison interview with The Washington Post and 60 Minutes that he was never informed by the FBI, and that his attorney discovered the
flawed science while attending a conference.

‘We wouldn’t know about it today if we were waiting to hear from anybody else,’ said Richard Rosen, a professor at the University of North Carolina at Chapel Hill, who has taken up Hunt’s bid to win freedom. “I think anybody involved in a case involving fraudulent
scientific evidence ought to know.”

The Case Of Lee Wayne Hunt

According to a press release from The Innocence Network, a national network consisting of all of the groups across the country that work to undo wrongful convictions, the facts of Hunt’s case are as follows: “In 1986, Hunt was convicted of murdering two people in North Carolina, and sentenced to two life sentences. The evidence against Hunt consisted of a fellow jail inmate who said he heard Hunt describe details of the killings and from a man who said he drove Hunt and two others to the Matthews’ home. The jailhouse informant had his sentence reduced in return for his testimony, a second informant, Gene Williford, whom prosecutors didn’t charge in the murder in the Matthews’ murders and gave him immunity in a slew of unrelated drug and weapons charges, along with the bullet lead analysis testimony.

The FBI agent testified that bullets taken from the victims’ bodies “most likely” came from a box of bullets tied to the defendants. This testimony had the effect of seeming to corroborate the snitch testimony. Hunt offered alibi evidence and testimony by himself and several of his friends that one of the other men, Jerry Cashwell, who was convicted in a separate trial, admitted committing the murders alone. Hunt was nonetheless convicted. After Cashwell’s suicide in prison, his lawyer, Staples Hughes, came forward and revealed that early on in the
proceedings in this case, Cashwell had admitted to his lawyers that he had committed the murders alone, and that he had provided details.”

The lawyer had not come forward because he did not want to violate attorney client privilege. However, now that Cashwell had died and he wanted to see the wrongful incarceration of Hunt ended, he came forward. At a hearing on January 8, 2007, in Cumberland County Superior Court, the prosecution in Hunt’s case stipulated to the unreliability of Peele’s “expert” testimony.

Earlier this year, Hunt’s new lawyers unsuccessfully attempted to present all of this evidence of innocence to North Carolina Superior Court Judge Jack Thompson. When Hughes got on the stand to offer his testimony of Hunt’s innocence, Judge Thompson’s reaction was first to warn Hughes that he would report Hughes to the North Carolina State Bar for violating Cashwell’s attorney-client privilege.

Hunt also had subpoenaed the prisoner who testified against him to the hearing. But, when the prosecution stated that they might charge him with perjury if he testi-fied about Hunt’s innocence, the prisoner who testified against Hunt also refused to testify.

Judge Thompson later issued an order dismissing the FBI’s discredited lead bullet analysis evidence as irrelevant, and held that he could not even consider Hughes’ testimony about Cashwell’s admissions. The North Carolina Court of Appeals refused to even review Judge Thompson’s decision. It is unclear at this point whether Hunt will ever be granted another opportunity to have a trial at which the junk science could be debunked.

With the re-airing of the 60 Minutes piece, I decided to look once again at Hunt’s case. There is additional information about Hunt that I would like to share. Taken from an article by John Solomon in 2007 in The Washington Post, “Hunt vividly remembers the day 21 years ago when an FBI scientist walked into a North Carolina courthouse and told jurors that he was able to match the lead content of bullets found
at the crime scene to that of bullets in a box connected to Hunt’s co-defendant. The testimony provided the sole forensic evidence to corroborate the prosecution’s circumstantial case. ‘It was like him bringin’ a gun in and say that this is the murder weapon that was used to kill these people,’ Hunt said of the FBI testimony. ‘It’s the same thing. He said that these are the bullets that come out of this box that killed these people.’”

Hunt’s trial attorney, Richard Rosen, agrees with Hunt’s categorization of the evidence. In Solomon’s above mentioned article, Rosen said “I thought it was very important to our client’s conviction. It was the single piece of physical evidence corroborating their story. And it came from, you know, it came from the mountaintop. I think everybody in the courtroom assumed that this was valid evidence.”That evidence was the only corroboration of the two witness’s who testified against Hunt in exchange for the aforementioned benefits.”

Additional evidence of Hunt’s innocence not mentioned in my prior article in The Guardian was that Hunt had an alibi for where he was during the murder: his mother and aunt. That information was in front of the jury, which rejected it.

An Update

There have been several updates. Firstly, a complaint was filed against Staples Hughes for violating the attorney-client privilege for coming forward and testifying that his now deceased client admitted to him that Hunt was innocent and that he had committed the crime by himself.

That complaint has now been dismissed. Hunt’s continued attempts to regain his freedom by proving that he is innocent have been in vain, as will be detailed below. The work pertaining to the review being done by the FBI, with The Innocence Conference Network and The National
Association Of Criminal Defense Lawyers monitoring of the FBI’s compliance with its own procedures during that review of the 2500 cases in which bullet lead analysis was a factor in convicting the defendant, is continuing.

Hunt’s Attempts At Winning His Freedom

Hunt’s original appeals have long ago been exhausted. Since getting the information regarding the junk science and the attorney coming forward to testify that his former client gave him a detailed confession and consistently maintained that Hunt had nothing to do with it, Hunt has been trying to regain his freedom, or at the very least, a new trial.

The Washington Post reported: “Despite the developments with Hughes and the FBI science, the trial judge has refused to grant Hunt a new trial, saying that the new evidence was not compelling enough.” In addition, the judge ruled that he would not even consider the testimony of the attorney, even though in another case, in Illinois, that of Alton Logan, that I wrote about in The Guardian in a previous article, and in a Virginia case, testimony from an attorney was accepted. “We’ve got evidence of innocence, and they’re refusing to listen to it based on technicalities,” Rosen said. The Fayetteville Observer wrote: “In January 2007, Cumberland County Superior Court Judge Jack Thompson refused to reopen the case. Part of Judge Thompson’s ruling, urged by the prosecutor, was that the testimony was properly excluded because it was hearsay.

The State Court of Appeals did the same in August. In an order made public Friday, the Supreme Court said it will not hear his case. It gave no explanation. “We’re disappointed, and we don’t think justice has been served, is all I can say,” said Kenneth Brown, one of Hunt’s lawyers. The lawyers next will take the case to federal court, he said.”

State prosecutors had argued in court filings that the FBI’s testimony was unreliable, but they argue that the conviction should stand because two witnesses implicated Hunt after receiving plea deals. Reported in The Washington Post, the prosecutor, James J. Coman, who is now North Carolina’s deputy attorney general declined an interview request, but his office, in a statement, cited the judge’s ruling that the bullet-lead evidence was of “minimal importance.”

The New York Times reported that Hunt has one novel avenue left — applying to the recently-created North Carolina Innocence Inquiry Commission. That board makes recommendations to a three-judge panel that can free exonerated prisoners.


It should be plain to see that Lee Wayne Hunt is innocent. The attorney coming forward and testifying that his client admitted that Hunt was innocent and that he had committed the crime alone, is evidence of innocence. The attorney did not simply say that his client confessed, but that it was a detailed confession, and that he consistently maintained that admission throughout his incarceration to his death. When it is the
other way around, as my article on Incentivized Witnessing illustrated, and a prisoner wants to implicate another person, then that is viewed as being believable. In fact, in Hunt’s case, that very thing happened: other people involved in crime implicated Hunt, and it was viewed by the prosecutor and the judge as being worthy of belief.

The double standard of testimony being believable if it is damaging to a defendant but not believable if it is favorable, is hypocritical and inconsistent with justice. In fact, a confession to a defense attorney is even more believable because it is not being given in exchange for any benefit. Nor, since the attorney-client privilege was in effect and Cashwell had no basis to think that his attorney would ever come forward and reveal it, could he have done so in order to try to falsely clear Hunt.

The revelation that the bullet lead analysis, which played a major role in Hunt’s being convicted, only makes his claim of innocence even stronger. Without that testimony, there is no corroboration of the testimony of the two men who received benefits in exchange for their testimony. It is laughable that a prisoner would be freely talking about a double murder for which they were incarcerated to other people in
the jail.

That would leave one piece of evidence: A witness, Gene Williford, whom prosecutors didn’t charge in the murders and gave immunity to in a slew of unrelated drug and weapons charges. His testimony, uncorroborated, is not enough to prove beyond a reasonable doubt that Hunt committed the murder.

It is known that witnesses who are offered benefits in exchange for testifying have been the cause of wrongful convictions in 15% of the now 220 DNA proven wrongful convictions. Accordingly, I find that the argument made by the prosecution supporting the judge in saying that the bullet lead analysis was insignificant, to be absurd. Similarly, the prosecution argument that the testimony from the lawyer was hearsay, is ridiculous. Of course it is; he is dead. Other than the lawyer testifying as to what he was told, how else could the evidence be received
in order to free an innocent man?

This line of reasoning by the judge, which goes by the letter of the law rather than the spirit of it, is an example of courts taking on a quasi law enforcement role in which they seek to uphold convictions by any means necessary rather than objectively and fairly considering them.
One purpose of the hearsay rule is to prevent evidence coming in against defendants without giving them the ability to cross-examine the source. It is not to prevent evidence of innocence from being heard.

The prosecutor would have had an opportunity to cross-examine the lawyer if he did not believe him. Rather, this argument by the prosecutor, is an example of the win-at all-cost mentality by many prosecutors and a refusal to admit error. It is a disgrace when prosecutors use procedural issues to fight against claims of innocence; and, clearly, that is what is going on in the Hunt case. They didn’t argue that the evidence didn’t prove Hunt innocent; they argued that it should not even be considered. This mentality is very reminiscent of the Jeanine Pirro mentality “Cage The Bastards”, which she actually titled as the name of a chapter in that book she co-authored.

What is even more pathetic, and sadder yet, is the fact that North Carolina Courts have co-signed those arguments by the judge accepting them and the appellate courts refusing to overturn the decision. Rather than admitting that the court system screwed up, they would rather keep an innocent man in prison.

It is because of this very type of rubber stamp denying of appeals and this mentality, that I advocate for a review apparatus independent of appeals courts and the governors office. I am glad that North Carolina has an additional review mechanism for Hunt to apply to, even though I don’t like how it is set up with the commission merely making recommendations to a three-judge panel rather than having the power to review and release prisoners on their own.

Deficient judges, after all, are the reason to have a review panel in addition to an appeals system. To that extent, doing it that way defeats the purpose. What will happen when a commission recommends that a conviction be overturned based on evidence, but the three-judge panel refuses to follow the recommendation? The accused will then remain in prison. Thus that remedy has a large potential to be ineffective.
It is not enough for a prosecutor to maintain their integrity and to righteously cloak themselves in the mantle of a reformer, caring about justice and not simply winning. They must do the right thing in every case. James Coman, who is now a deputy Attorney General in North Carolina and is credited with halting the Duke Lacrosse Players rape case, which appeared two weeks ago in The Guardian, was, in this case, a part of the defend convictions at all costs regime in the Hunt case.

As important as Hunt’s case is, there are implications for cases well beyond his. Bullet lead analysis was used in 2500 cases across the country. That means that all of those convictions are questionable, and there is no telling how many people are actually innocent. If only 10% are, then that is 250 people. But the number could be as high, some experts say, as 50%.

As I see it, any type of review in which courts try to remove that evidence from their mind and consider the other evidence separately, would be invalid, because that evidence was in the jurors’ minds when they decided to convict. There is no telling what they would have decided had that faulty evidence not been there. Accordingly, every single person who was convicted based even partially on the junk science should have
their convictions overturned and be given a new trial. It is one of my unshakable positions that everybody deserves a fair trial, irrespective of one’s subjective belief in the guilt or innocence of an accused. In terms of prosecutors or courts arguing that “the evidence was harmless”, as
they sometimes like to say when offering up a rationale for maintaining a trial verdict which has been tainted by errors, my response to that is that if it was harmless, the prosecutor would not have wasted time introducing that evidence.

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