Innocence Project appeals rape conviction of Allegheny County man

By Rich Cholodofsky- Pittsburgh Tribune Review- Pittsburgh, PA

The Innocence Project of New York has filed an appeal of a conviction of an Allegheny County man found guilty in 1992 of brutally raping a New Kensington woman, saying prosecutors used bogus science at his trial.

John Kunco is now 43 and serving a 45- to 90-year prison sentence. He was found guilty in a four-day trial in 1992 that heavily relied on testimony from forensic dentists concerning a bite mark found on his victim's shoulder.

Experts, using science available to them in the early 1990s, found the bite marks were made by Kunco.

But Innocence Project lawyers, in court documents filed last week in Westmoreland County, said that science should be disregarded. A study released in February by the National Academy of Sciences found that bite mark comparison is not reliable.

"Simply put, Kunco's trial was polluted and contaminated with false, misleading and grossly unreliable bite mark evidence, and as a result this court can have no confidence in the jury's decision to convict Kunco," states the appeal written by Innocence Project lawyer Craig M. Cooley.

Kunco had worked as maintenance man at the apartment where his 55-year-old accuser lived. During the trial, prosecutors presented evidence that he broke into her home on Dec. 16, 1990, blindfolded her with her own underwear, shocked her with a frayed electrical cord, raped her, then forced her to perform painful and degrading sexual acts.

The victim was able to identify Kunco by virtue of a recognizable lisp.

Five months after the woman was attacked, an ultraviolet photograph of her back was enlarged and healed bite wounds were compared to a mold of Kunco's teeth. Forensic experts testified at trial that the healed wounds matched Kunco's dental impression.

Defense attorneys never challenged that testimony during the trial, but a subsequent appeal did. That appeal eventually was taken to the U.S. Third Circuit Court of Appeals, where it was rejected in 2003.

Westmoreland County Assistant District Attorney Wayne Gongaware, who tried the case against Kunco in 1992, said Friday that he is confident the right man is in prison for the rape.

"We had two different experts. They independently reviewed the evidence and found it was his bite marks," Gongaware said.

The Innocence Project, a private nonprofit agency based in New York, was created in 1992 and has worked on high-profile cases in which DNA could be used to overturn a conviction.

Kunco has maintained his innocence since his arrest. After the federal appeals court ruling Kunco contacted the Innocence Project, Cooley said on Monday.

In January, Westmoreland County prosecutors agreed to DNA testing of some evidence used against Kunco, including an electrical cord and the victim's girdle. Test results have not been returned.

"We're testing to find some other male DNA that we can hopefully use to exonerate John. If the results are inconclusive, then we will have to find another available avenue of appeal," Cooley said.

The Justice Project Releases New Report on Prosecutorial Review

The Justice Project-Washington, D.C.

Click here to link to the new report recently released by the Justice Project, which analyzes the problems of prosecutorial misconduct and provides recommendations to improve the accountability of the nation’s prosecutors.

At emotional hearing, relatives finally hear man's name cleared

By Aman Batheja-Austin Star-Telegram -Austin, TX

Twenty-two years ago, Ruby Session listened in disbelief as a Lubbock jury convicted her son, Timothy Cole, of rape. She promised herself that one day she would make sure this injustice was corrected.

"I always had faith and I just believed that it would one day happen," Session said.

That day finally came Tuesday when, after years of efforts by Cole’s family and a relentless group of supporters, state District Judge Charles Baird issued the first posthumous DNA exoneration in Texas history.

"The evidence is crystal clear that Timothy Cole died in prison an innocent man and I find to 100 percent moral, legal and actual certainty that he did not commit the crime that he was convicted of," Baird said.

Cole was convicted of aggravated sexual assault in 1986, after Michele Mallin identified him as the man who attacked her near Texas Tech University. Cole had always maintained his innocence.

In 1995, Jerry Wayne Johnson, who was serving two consecutive life sentences in prison for sexual assaults in Lubbock, admitted raping Mallin. Authorities ignored his confession until the Innocence Project of Texas took up the case in 2007. DNA tests in 2008 confirmed that Johnson was Mallin’s attacker.

Cole died in prison in 1999 at age 38 from complications of asthma.

"This is probably the most important decision I’m going to have in my entire judicial career, and I’m honored that I’m the one who was able to do this," Baird said.

Problems with police

Baird laid much of the blame for Cole’s conviction on the Lubbock Police Department for making a "snap judgment" on Cole’s guilt and then refusing to consider other suspects. He described evidence that pointed to anyone but Cole as being "downplayed or deliberately ignored."

He was especially critical of the photo lineup of suspects that was presented to Mallin. Cole’s picture — a Polaroid — was drastically different than the others, making it stand out.

Baird urged the Legislature to take immediate action to make sure that what happened to Cole isn’t repeated. He stressed the need for statewide fair-practice standards on witness identification procedures and easier court access for convicted Texans who proclaim their innocence.

He also called for increasing compensation the state gives to wrongly convicted people and a method for compensating survivors of those who have been exonerated posthumously. Under current law, Cole’s family cannot receive any compensation from the state, said Jeff Blackburn, the Innocence Project’s chief counsel.

Toward the end of the hearing, Baird made a point of speaking directly to Mallin, assuring her that none of this was her fault. Cole’s family also said they harbor no ill will toward Mallin.

Mallin said she still feels guilty about identifying Cole and said she is in counseling over it.

"Until May of last year, I thought he was the one who did it," Mallin said. "I had no idea."

Meeting with Perry

Ruby Session said she is now focused on improving state laws for exonerated people and those who should be. She has met with most of the Dallas men who have recently been cleared of crimes via DNA evidence.

"I feel closeness to them," Session said. "They call me Mom, so I have 19 more sons."

Members of Cole’s family have an appointment today for a private meeting with Gov. Rick Perry. Ruby Session said they plan to talk to him about getting Tim Cole officially pardoned and to discuss legislation related to aiding the wrongly convicted.

Cory Session, Tim Cole’s brother, said he also wants the governor to issue an executive order that on Dec. 2, the 10th anniversary of Cole’s death, all flags at state buildings and prisons fly at half-staff "just so they remember that an innocent man did die in prison and that the system is broken and it can never be fixed for Timothy Cole."

Monroeville lab hits the bull's-eye on gunshot tests

Monday, April 13, 2009

Michael A. Fuoco-Pittsburgh Post-Gazette-Pittsburgh, PA

A.J. "Skip" Schwoeble, director of forensic science at RJ Lee Group Inc., sits with a scanning electron microscope linked to a computer at the company's headquarters in Monroeville.

Pennsylvania State Police investigators turned to a private Monroeville laboratory when they needed to know whether any gunshot residue was found on an 11-year-old suspect in the Feb. 20 shotgun killing of his father's pregnant fiancee in New Beaver, Lawrence County.

Subsequently, Lawrence County District Attorney John Bongivengo said he considered the gunshot residue found on Jordan Brown's shirt and jeans by scientists at RJ Lee Group as some of the strongest evidence presented at a preliminary hearing last month for the fifth-grader, who was held for trial on a homicide charge.

State police aren't alone in contracting with RJ Lee, whose scientific development, innovation and expertise in the field over the past 20 years has made it world renowned. The company has criminal forensic contracts with the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives as well as 500 other law enforcement agencies in the United States, the American Virgin Islands, the British Virgin Islands, Bermuda and, until recently, the entire country of Switzerland.

In fact, A.J. "Skip" Schwoeble, RJ Lee's forensic sciences director and an internationally respected expert in gunshot residue -- known as GSR -- was scheduled to leave today for St. Thomas, Virgin Islands, to testify in a murder trial. Over the past decade, he has testified in more than 150 trials and analyzed evidence in more than 1,500 cases.

"It's very interesting work," said Mr. Schwoeble, whose book, "Current Methods of Forensic Gunshot Residue Analysis," is used in college courses and by law enforcement agencies.

"I like the whodunits. Every case is different," said Mr. Schwoeble, one of 27 experts in an international working group sponsored by the National Institute of Justice to upgrade standards for GSR collection, analysis, interpretation, report writing and testimony.

GSR is the expelled microscopic particles of the heavy metals barium, lead and antimony that make up the primer of a bullet or shell. When the firing pin strikes the primer, causing it to burn and ignite the gunpowder, the created gases carry the heavy metals' particles through any opening in the weapon. Those particles adhere to the shooter's hand, clothing and elsewhere in the vicinity.

The presence of GSR tells investigators a suspect either fired a weapon, handled a fired weapon or was in an environment in which a weapon was fired.

"It's one part of the puzzle," Mr. Schwoeble said. As with most trace evidence, other physical evidence or eyewitness testimony is necessary to create the whole picture of a crime.

Criminal forensic analysis accounts for only 10 percent of the $25 million to $30 million in annual revenue earned by the company headquartered in a nondescript building on Hochberg Road that gives no hint of the scientific brainpower, sophisticated equipment and innovation inside. The scientists in the materials analysis laboratory study everything from manufacturing problems to irritants inside NASA's space shuttle fleet to what New Yorkers were exposed to when the World Trade Center towers collapsed.

Dr. Richard J. Lee, the company's president, started the firm, which now employs 250 people in several states, after he was laid off in 1985 as head of U.S. Steel's microscopy research and analytical research laboratory. He bought the lab's equipment and hired most of his colleagues, including Mr. Schwoeble, whom he credited with discovering that there was a niche in criminal forensics for the company.

The firm's entry into the field occurred because of coincidence and insight. The company had developed a scanning electron microscope for use in its various materials analyses in the late 1980s. About the same time, it developed an adhesive.

"We had a transparent glue we couldn't find a market for, so I told Skip to go find me a market, something this stuff can do," Dr. Lee said.

He had no idea the search would lead to criminal forensics. "I was looking at anything that spelled money," he said, laughing.

Mr. Schwoeble thought the burgeoning field of criminal forensics might be a market, so he contacted his brother-in-law, an FBI agent, who introduced him to scientists at the FBI lab. Mr. Schwoeble spent the next two years traveling the country, visiting other crime labs. He realized that GSR analysis could be a good fit for RJ Lee.

At the time, potential evidence was lifted from suspect's hands, clothing and other materials with melted wax or a liquid chemical.

A chemical solution then would be used to analyze what had been collected to see if GSR was present.

But Mr. Schwoeble realized that the company's adhesive would offer a much more effective way to lift evidence. And RJ Lee's sophisticated scanning electron microscope would provide a much better method for analyzing lifted samples for the presence of GSR. What he developed is now the preferred method of GSR collection and analysis.

Furthermore, he helped develop a computer program that automated the analysis, allowing the microscope to operate 24 hours a day. That allows the company to promise law enforcement clients analytical results in seven to 10 days rather than the months they would have to wait to get results from their own backlogged crime labs.

Dr. Lee said he is pleased the company's innovations and expertise have aided the criminal justice system.

"For us, it's a great treat when you see a successful prosecution that would not otherwise been possible," he said.

"It's interesting, one of the things we've been told is that confrontation with the [GSR] evidence eliminates a lot of trials" because suspects then enter a plea bargain.

Mr. Schwoeble noted that because of the company's varied analytical abilities, crimes other than those involving GSR can be investigated. One of the most unusual cases involved a man arrested on the East Coast on charges he stole a woven basket from an Indian burial ground in the West.

The man denied it, but RJ Lee scientists were able to match dirt embedded in the basket with dirt from the burial ground.

As it turned out, the evidence wasn't as crucial as it normally would have been -- authorities discovered a photograph the man had taken of himself as he was stealing the basket from the burial ground.

That's a case you likely won't see on "CSI," but the fictionalized work on that television show is the real-life work for Mr. Schwoeble and five other scientists he works with in Monroeville.

Innocence Institute Director Takes 2nd Place in Investigative Reporting in National Contest

Innocence Institute of Point Park University- Pittsburgh, PA

Innocence Institute Director Bill Moushey was one of few Pittsburgh news reporters who garnered awards in the Associated Press Sports Editors’ Writing Contest.

Moushey, a former investigative journalist for the Pittsburgh Post-Gazette, finished second in the Investigative Category with his stories examining how the Pennsylvania Interscholastic Athletic Association lacked to perform criminal background checks on many game officials.

Mr. Moushey’s research revealed that several working and former officials had been arrested or charged with other crimes. The story caused the state to force background checks on all of its officials.

Innocence Project Comes To Temple

MyFox Philadelphia- Philadelphia, PA

A nationwide organization that has worked to exonerate hundreds of wrongfully convicted inmates has a new affiliate housed at Temple University.

The Pennsylvania Innocence Project, based at Temple University's law school, opens its doors Monday. It will review petitions submitted from around the state by inmates who say they are serving time for crimes they did not commit.

The group will start with about a dozen law students and a similar number of attorneys but hopes to expand statewide. Organizers say it will look not only at cases with DNA evidence but also those with questionable forensic evidence or other issues.

The first Innocence Project was founded in 1992 in New York. The organization says there are now 50 such groups that have exonerated 400 inmates -- more than half of those through DNA evidence.