Attorney Adam Nemann argues case and passionately defends client before Franklin County Court of Common Pleas. 

Brian K. Smith, 26, had chosen to not have a jury hear his case, instead asking Judge Kim Brown to decide whether his actions that led to the death of Rodney Brown, 46, were justified.  

Smith had argued he shot Brown in self defense during an argument on Stornaway Drive South.

More:Columbus police search for Far East Side man suspected in fatal shooting after argument

Brown was found fatally shot around 7:30 p.m. Sept. 11, 2021, on a sidewalk behind a home on the 6100 block of the Southeast Side street.  

Judge Brown determined after hearing testimony over a two day period that the fatal shooting qualified as self-defense under Ohio law.

Smith, who had been released on a $30,000 bond in the case after being held in custody for more than a year, was officially released from custody and supervision following the judge's decision. 

If you're planning on having a lot to drink tonight, make sure you have your rideshare app downloaded and ready to use.

The Franklin County DUI Task Force will be out in full force from 8 p.m. Friday to 12:30 a.m. Saturday conducting a sobriety checkpoint at South High Street and Dolby Drive on Columbus' South Side.

The Franklin County DUI Task Force was founded in 1993, and Franklin County was the first countywide task force in Ohio, according to the Franklin County Sheriff's Office. Since its founding, the task force has implemented more than 100 sobriety checkpoints, resulting in over 500 DUI arrests.

More than 30 central Ohio law enforcement agencies are task force members, including the Columbus Division of Police, Ohio State Highway Patrol, Grandview Heights police, Ohio State University police, and the Franklin County Sheriff's Office.

Jose Olivares hugs his attorney Wednesday after he was released from Los Angeles County Sheriff Men’s Central Jail. His parents, Martina and Jose Guadalupe Olivares, look on. (Carla Spain/Northern California Innocence Project)

There was no evidence of a crime, no witnesses, no sounds of an angry scream or a violent thud, but 3-year-old Isiah Meza was dead and his mother’s boyfriend, Jose Olivares, was the last person with him.

Olivares told police he’d stepped into the bathroom for about five minutes that day on Feb. 14, 2011. Isiah was playing with his toys and jumping on the bed. When Olivares walked out, Isiah was on the ground, crying and acting odd.

Doctors who treated Isiah at the hospital for three days, and later — after he died — examined his body, told law enforcement the injuries suffered by the boy — retinal damage, severe hemorrhage and swelling in the brain — could only be caused by someone violently shaking the child, a medical phenomenon called shaken baby syndrome.

After a 16-day trial in 2014, Olivares was convicted of assault on a child under 8 years old resulting in death, and sentenced to 25 years to life.

Ten years later, a Los Angeles County judge vacated Olivares’ conviction on Sept. 19 after attorneys for the 39-year-old man argued that new evidence suggests his prosecution was based on medical testimony that is now outdated and wrong. For years, medical experts believed injuries such as those suffered by Isiah could be attributed only to shaken baby syndrome, or SBS, but new research suggests a fall from a short distance — for instance, tumbling off a bed — could cause the same injuries.

On Wednesday, Olivares was released on a $100,000 bond.

“The facts always showed that Mr. Olivares was innocent but the medicine needed time to catch up and prove it,” said Lauryn Barbosa Findley, a lawyer with the Northern California Innocence Project who represents Olivares. “Mr. Olivares’ case is both extraordinarily unique and tragically common because faulty medical testimony has been used for too long to convict far too many loving parents and caretakers.”

The latest medical findings have cast a new critical eye on hundreds of SBS convictions in California and across the country — cases in which attorneys say parents and caregivers might have been falsely accused and wrongly convicted of killing children in their care.

But Olivares’ legal troubles still loom.

San Francisco District Attorney Brooke Jenkins speaks during a press conference at City Hall on July 7, 2022. Facing a tight reelection bid, Jenkins is under pressure from Public Defender Mano Raju to rethink her office's approach to drug dealing, which he claims is driven by human traffickers. Meanwhile, local and federal law enforcement have intensified efforts to combat fentanyl sales through arrests, citations, and deportations. (Beth LaBerge/KQED)

A San Francisco jury acquitted a man of felony drug charges last month after he was found to have been coerced into selling drugs in the Tenderloin, marking a first for the Bay Area, Public Defender Mano Raju announced Tuesday.

The verdict comes as Raju’s office is calling on District Attorney Brooke Jenkins, who faces a tight reelection bid this fall, to reconsider her office’s approach to drug dealing that the public defender says is being orchestrated by human traffickers. Local and federal law enforcement agencies have ramped up efforts to disrupt the sale of fentanyl through increased arrests, citations and deportations.

“There are a great number of cases being charged by the prosecution against our clients for very low-level drug dealing. Oftentimes, our clients are victims of human trafficking or labor trafficking,” Raju said at a rally outside the Hall of Justice. “And oftentimes they are selling drugs to avoid further violence being done to them.”

The defendant who was acquitted last month is a 27-year-old Honduran man whose name was not provided by attorneys. Raju said the district attorney’s office should treat such labor trafficking cases as it does sex trafficking cases and sign a certification stating that the acquitted defendant was a victim of a crime, which would qualify them for what’s known as a T-visa or U-visa.

The district attorney’s office, meanwhile, has filed more criminal charges against alleged drug dealers and users since Jenkins was elected in 2022, totaling nearly 1800, and her office reports that it has secured 314 felony narcotics convictions during that time. Attorneys with the public defender’s office said their caseloads have ballooned in recent years as prosecutors’ filings ticked up.

“My office has been filing pre-trial detention motions in the most egregious narcotics dealing cases and those involving repeat offenders because of the extreme public safety risk posed by these drug dealers,” Jenkins said in a previous statement to KQED. “We are making slow progress and need to continue our efforts to see more improvement.”

Last year, federal law enforcement agencies also stepped up drug-related arrests and deportation.

Although San Francisco’s sanctuary city policy bars most cooperation between local law enforcement and immigration agents, federal authorities, since last fall, have started prosecuting more drug dealing cases. Immigrants charged with federal crimes for low-level drug dealing have been offered plea deals that often end with credit for time served plus a one-day sentence — and because federal prosecutors are not barred from working directly with Immigration and Customs Enforcement, those plea deals can be a fast track to deportation.

Ismail Ramsey, the U.S. attorney for the Northern District of California, did not respond to requests for comment for this story. However, Ramsey told KQED in July that the approach has been used for more than 100 Tenderloin cases so far.

Cases that are “whisked away” to federal court stop the public defender’s office from being involved, Raju said, noting that of seven trials in which his office argued a human trafficking defense in the last two years, two ended in guilty verdicts, four ended in hung juries, and the most recent led to an acquittal.

Jenkins’ sole opponent in November’s election, Ryan Khojasteh, supports having federal authorities assist in arresting drug dealers but said the agencies should be more focused on high-level dealers and cartels.

“When it comes to really competently and holistically addressing the drug trade in our city, we have to go after those at the top to make a meaningful difference,” he said. “You can put away one low-level drug dealer and three are in their place tomorrow.”

One of the ways to do that, Khojasteh proposed, is by getting defendants to share confidential information in exchange for a favorable plea deal, which could include protected status to stay in the country.

“We should be finding out who is the one coercing these people,” he said.

Meanwhile, candidates vying for mayor have largely shown support for federal prosecutors’ and law enforcement agencies’ crackdown on the city’s drug markets.

Former supervisor and interim mayor Mark Farrell has called for a fentanyl state of emergency to leverage more resources and bring the National Guard to areas like the Tenderloin to further these efforts.

“Our sanctuary city policy was never meant to harbor criminals or those peddling death on our streets. Mayor Breed has had six years to do everything in her power to make a meaningful difference on our streets, and her latest efforts are too little too late for San Francisco,” Farrell said.

Supervisor Ahsha Safai, who immigrated to the U.S. from Iran as a child, is a strong supporter of the sanctuary city policy but said drug dealers should be held accountable as overdose rates continue at epidemic levels and neighborhoods struggle with the effects of street-level drug dealing.

“I’m sure there are a handful of cases of someone being legitimately trafficked. But ultimately, people are selling an extremely lethal weapon, this drug, on our streets,” he said. “And the feds are deciding to step in and resolve something that the local government and the mayor had let grow out of control, quite frankly.”

For her part, Mayor London Breed has touted the work the federal government has done with her administration so far.

Jeff Cretan, a spokesperson for the mayor’s office, said that the city “needed support for prosecuting these crimes” and that Breed believes the federal government can be effective in doing so. “The devastation that fentanyl is having in our city and across this country is powerful,” Cretan said. “While we aren’t changing our [sanctuary city] laws here locally, there is a need for more enforcement to stop the flow of this drug.”

In a unanimous decision, the Supreme Court ruled Marion police had the authority to seize Kennedy Burroughs’ bookbag from her bathroom floor, but needed a warrant to search it. The Court reversed a Third District Court of Appeals decision allowing the bookbag search under a rare “single-purpose container exception” to the requirement for a search warrant.

Writing for the Court, Justice R. Patrick DeWine explained that for the single-purpose container exception to apply, the container by nature of its outward appearance must make the illegal nature of its contents clear.

“The single-purpose container exception, as the name makes clear, applies to single-purpose containers. A bookbag is not a single-purpose drug container,” he wrote.

Warrantless Search Leads to Bookbag
In January 2019, Marion police officer Chris Coburn and two other officers arrived at Burroughs’ home to arrest her for obstruction of justice. When Burroughs came to the door, Coburn told her he had a warrant for her arrest, and she shut and locked the door, imploring the officer to give her a second. Coburn refused and threatened to kick down the door. Coburn walked over to a window and observed Burroughs grabbing baggies off a table and heading to the back of the house.

Fearing that Burroughs was attempting to get rid of drugs contained in the baggies, he kicked in the door and rushed into the house. He found Burroughs and a teenager in a bedroom. Marijuana cigarette-butts and residue were on a plate beside the bed. On the floor of an attached bathroom was a closed bookbag with part of a plastic baggie caught in the zipper. The contents of the items in the baggie were not visible from the portion sticking out of the zipper.

Coburn suspected Burroughs had taken the bookbag into the bathroom to flush drugs. But believing he needed a search warrant to open the bookbag, he did not open it.

Burroughs was arrested, and the teenager was directed to leave. Another police officer, Lieutenant Mark Elliot, arrived on the scene. He testified that he opened the bookbag to search for weapons and found marijuana inside. Burroughs was charged with illegal possession of drugs.

Constitutionality of Search Challenged
Burroughs asked the trial court to suppress the evidence of the drugs, arguing that the warrantless search of her bookbag violated the U.S. Constitution’s Fourth Amendment protection against unreasonable searches. The trial court denied Burroughs’ request, finding the police could conduct a warrantless search because the bag was in plain view and Elliot had probable cause to suspect it contained contraband.

Burroughs pleaded no contest to marijuana possession and appealed the decision to the Third District Court of Appeals. The Third District rejected the trial court’s reasoning, finding that the “plain view exception” justified seizing the bookbag, but did not allow for the bag’s search. However, the appeals court ruled the search was justified based on the single-purpose container exception to the warrant requirement. The Third District affirmed her conviction, and she appealed to the Supreme Court, which agreed to hear her case.

Supreme Court Examines Warrant Requirement
Burroughs did not argue that the officers’ seizure of her bookbag was unlawful, but instead that the officers needed to obtain a search warrant before opening it. Justice DeWine explained that it is the rule, “not the exception,” under the Fourth Amendment that police must obtain a warrant to conduct a search. Only when a specific exception to the warrant requirement applies, he noted, may police conduct a search without a warrant.

The Marion County Prosecutor’s Office argued the single-purpose container exception allowed for the bookbag search without a warrant. The opinion explained that the exception could be traced back to a footnote in a 1979 U.S. Supreme Court case. The U.S. Supreme Court observed that some containers, “for example, a kit of burglar tools or a gun case” by their very nature cannot support an expectation of privacy because the content can be inferred from their outward appearance, the opinion stated.

Today, the Supreme Court of Ohio explained that police can seize obviously illegal items left in plain view. However, the plain view exception only allows the police to seize a closed container, but still requires a warrant to open it, the Court said. A single-purpose container can only be opened without a warrant if the “distinctive configuration of the container proclaims its contents,” the Court ruled.

The opinion noted the exception is “particularly narrow,” and that neither the Ohio nor the U.S. Supreme Court has ever used the single-purpose container exception to authorize a warrantless search.

The prosecutor argued that the single-purpose container exception should consider the totality of the circumstances, including all of the evidence that was available to the investigating officer. The opinion stated that approach would make warrantless searches the rule, not the exception, allowing officers to conduct warrantless searches on “indistinct and innocuous containers.”

“A broad exception of this sort could not easily exist alongside the long-held principle that no amount of probable cause can justify a warrantless search or seizure absent exigent circumstances,”  the Court stated.

When the container does not by its nature make its contents clear, “a warrant is required. That’s true, no matter how confident an officer is about what he thinks is inside,” the opinion stated.

The Court vacated Burroughs’ conviction and remanded the case to the trial court with instructions to suppress the evidence found in the bookbag.

2020-1304. State v. Burroughs, Slip Opinion No. 2022-Ohio-2146.

 View oral argument video of this case.

Franklin County's DUI task force will hold two sobriety checkpoints Friday to deter drunken driving.

The two checkpoints will be located at the intersections of Georgesville Road and U.S. Route 40 and Georgesville Road and Shoppers Lane on Columbus' West Side from 8 p.m. to 12:30 a.m., the task force said in a news release.

"The Task Force wants to impress upon those who will be consuming alcohol to plan for a designated driver or make other arrangements," the task force wrote in the release.

The DUI Task Force is a collaboration between several local and state police agencies, Columbus Public Health, and Mothers Against Drunk Driving.

A Clark County man was entitled to argue self-defense when he intentionally shot toward a person, and was not required to show he intended to kill or harm the man who threatened him, the Supreme Court of Ohio ruled today.

A divided Supreme Court vacated the felonious assault conviction of Tyler Wilson for his altercation at a Springfield gas station in 2021. At trial, Wilson was acquitted of attempted murder but convicted of felonious assault after he fired a shot at Billy Reffett. The shot struck the window frame of Reffett’s truck, near his head.

The trial judge refused to instruct the jury to consider Wilson’s argument that he acted in self-defense. The judge ruled Wilson was not claiming self-defense because Wilson testified that he did not aim the gun at Reffett and had no intention of harming him but was just trying to get Reffett to “back off.”

In the Court’s lead opinion, Justice Melody Stewart stated that the Ohio self-defense law does not require an intent to harm or kill another, just the “intent to repel or escape force.” Shooting toward another with the intent to stop an aggressor is sufficient to justify a self-defense jury instruction, she concluded.

The Supreme Court remanded the case to the Clark County Common Pleas Court to vacate Wilson’s sentence and conduct further proceedings.

Justices Michael P. Donnelly and Jennifer Brunner joined Justice Stewart’s opinion. Justice Patrick F. Fischer concurred in judgment only without a written opinion.

In a dissenting opinion, Justice Joseph T. Deters wrote that Wilson’s version of what had happened did not warrant a self-defense instruction.

Because Wilson insisted that he was not aiming the gun at Reffett or trying to shoot him, Wilson was arguing that he had not committed felonious assault. Arguing he was not guilty of felonious assault is different than claiming he acted in self-defense, which would require Wilson to admit he attempted to harm Reffett but was justified in doing so, Justice Deters explained.

Chief Justice Sharon L. Kennedy and Justice R. Patrick DeWine joined Justice Deters’ opinion.

Spat at Gas Station Leads to Shooting and Chase
On a June 2021 morning, Wilson drove his friend’s car and parked at a gas station pump. Reffett was on his way to work and stopped at the same gas station. As Reffett was seeking out a pump, he drove between Wilson’s car and another vehicle.

Wilson began to yell at Reffett because he believed Reffett had driven too close and nearly clipped the car. Reffett backed up his truck until his driver-side window was next to Wilson’s driver-side window. Reffett’s truck was so close that Wilson believed he could not open his door.

Wilson claimed that Reffett was hanging out the truck door and spitting in Wilson’s face as the two argued. Wilson testified that Reffett said, “[W]hat you gonna do? I’ll smoke you out here.” Wilson said Reffett pointed a gun at him. During the investigation, Reffett denied pointing a gun or even having a gun.

Wilson’s friend, the owner of the car, had a gun in the car. Wilson said he quickly grabbed it, aimed out the window, and fired in an upward direction. The bullet struck the truck near Reffett’s head. Wilson drove away from the gas station, and Reffett chased him. The chased spilled onto the interstate, and both vehicles reached speeds of up to 90 mph.

Reffett called 911 as he was chasing Wilson. He eventually gave up and went to work. Reffett did not meet with police until several hours later when he got off work.

Wilson’s car ran out of gas on the highway. When law enforcement arrived to assist the disabled vehicle, they discovered Wilson had unrelated warrants and took him into custody. He was later charged with attempted murder and felonious assault.

Shooter, Witnesses Testify at Trial
At his trial, Wilson testified in his own defense, as did other witnesses from the gas station. Reffett also testified. When asked if he intended to shoot Reffett, Wilson answered that he did not. He said Reffett had a gun, and Wilson grabbed his passenger’s gun to protect himself and her. He said he was just firing into the air to get Reffett to back away.

Wilson initially presented the legal theory that he was acting in self-defense. At the close of evidence, the trial judge conferred with Wilson’s attorney and the prosecutor. The trial judge stated he was not inclined to instruct the jury on self-defense based on Wilson’s testimony because he was not attempting to harm Reffett. Instead, the judge indicated that Wilson was arguing he did not commit the charged crimes because he had no intention of harming anyone.

After he was convicted of felonious assault, Wilson appealed to the Second District Court of Appeals. In his appeal, he argued he received ineffective assistance of counsel because his attorney failed to seek a self-defense jury instruction.

The Second District affirmed the conviction and denied the claim that Wilson’s attorney was ineffective. Wilson appealed to the Supreme Court.

Supreme Court Analyzed Self-Defense Claim
Justice Stewart explained that the lower courts wrongly concluded that to argue self-defense, the accused must show that they acted with the intent to harm or kill another person. She wrote that the self-defense law, R.C. 2901.05(B)(1), is available to those who present evidence that tends to support their claim that they used force “in self-defense, defense of another, or defense of that person’s residence.” Nothing in the statute specifies the accused must act with intent to kill or harm another.

The lead opinion stated that for nearly 100 years, the Court had held that self-defense “presumes intentional, willful use of force to repel or escape force.”

“This means that the use of force must be intentional – not accidental. The only additional ‘intent’ required is the intent to repel or escape force, not an intent to use force to harm or kill another person,” the opinion stated.

The opinion stated that Wilson was trying to argue self-defense, and contrary to the lower court findings, he was not attempting to refute that his actions were not felonious assault. The lead opinion found that Wilson was trying to “justify” his use of force, rather than negate any element of felonious assault. Under R.C. 2903.11(A)(2), a person commits felonious assault when they “knowingly” cause or attempt to cause physical harm by means of a deadly weapon.  Under the standard of R.C. 2903.11(A)(2), Wilson acted knowingly because he was aware that his conduct could certainly cause harm to Reffett because Wilson was shooting so close to Reffett.  Wilson’s attorney was ineffective for not presenting the self-defense claim because that was the only defense supported by Wilson’s testimony, the opinion stated.

“The jury found Wilson not guilty of the attempted murder charge, which suggests the jury had some questions regarding Wilson’s intent. Further, it is unknown who the jury may have believed and how it may have weighed the evidence if it was instructed to consider Wilson’s claim of self-defense,” the Court stated.

Self-Defense Instruction Unwarranted, Dissent Stated
In his dissent, Justice Deters explained that self-defense is an “affirmative defense,” which means it is more than denying that the prosecution produced the evidence to prove the crime. Rather, an affirmative defense is a “true defense,” he wrote, that asserts the prosecution’s facts are true but the defendant is not guilty because the law provides a justification for the action.

The dissent indicated that Wilson was attempting to negate an element of the felonious assault charge. While he admitted he intentionally shot the gun, he flatly denied he attempted to cause physical harm. For Wilson to argue self-defense, he would have had to  admit that he attempted to harm Reffett but was justified in doing so.

“Because Wilson attempted to negate an element of felonious assault at trial, he did not assert a true affirmative defense,” the dissent stated.

The dissent added that Wilson’s attorney was not ineffective, and in light of the trial judge’s explanation as to why he was not going to provide a self-defense instruction, the attorney’s strategy was reasonable.

2022-1482. State v. Wilson, Slip Opinion No. 2024-Ohio-776.

A Columbus woman was sentenced to 10 to 14 years in prison for injecting her 9-month-old infant with opioids, nearly killing the child.

Stephanie Whitley, 27, entered guilty plea to charges of felonious assault, endangering children and tampering with evidence.

On Aug. 30, 2022, Whitley was arrested after Columbus police got a call from Nationwide Children's Hospital about a 9-month-old undergoing treatment. Staff at the hospital alerted police after a hospital staff member saw Whitley inject an unknown substance into the baby with a syringe.

The infant was admitted into the intensive care unit and had to be resuscitated after undergoing cardiac arrest. Whitley would not tell police what type of substance she injected the baby with at the hospital.

Assistant Franklin County Prosecutor Melinda Killworth said it was difficult for the lab to analyze the syringe Whitley used, but that it was found to contain an opiate and chemicals present in cough syrup. The baby likely felt like it “was being burned from the inside,” she said.

It’s not yet clear whether the child will suffer any long-term damage as a result of the injection. Defense attorney Adam Nemann said Whitley, who appeared in court with bandages covering one forearm and visible scratches on the other, suffered from mental illnesses including bipolar disorder, PTSD and a dissociative disorder.

In a short, tearful statement to the court, Whitley said she was sorry and loved her children. She sobbed when the sentence was read and could be heard saying “it’s not fair” as she was led out of the courtroom.

Anthony Apanovitch is an innocent man, and the state of Ohio knows it. But it plans to execute him anyway.

Apanovitch is on death row even though DNA evidence conclusively proves that he did not commit the crime for which he has been sentenced to die. He is there because of a shocking combination of prosecutorial misconduct and the desire of some supporters of capital punishment to achieve finality in death cases even if it comes at the expense of justice.

This almost unimaginable situation defies any semblance of justice and simple fairness. Executing the innocent is an American nightmare. It is a nightmare that Apanovitch is living.

The state of Ohio needs to end that nightmare and make sure that it doesn’t commit a state-sanctioned murder.

Capital sentencing has proven to be unreliable not just in Ohio but wherever the death penalty is used in this country.

Over the last fifty years, 190 people have been exonerated and released from death row. Twenty-one of those exonerations resulted from DNA testing. Experts estimate that 4.1% of the 2,436 inmates awaiting execution as of January 1, 2022, are, like Apanovitch, actually innocent.

Add to this list another 20 people executed since 1976 who were, in all probability, also innocent, and the picture of America’s death penalty system looks pretty grim.

Apanovitch’s situation is unique because he seems to be the only person currently awaiting execution where DNA evidence shows that he is innocent. Yet it highlights some of the pathologies that are pervasive in America’s death penalty system.

Let’s look at how those pathologies played out in Apanovitch’s case.

In January 1985, he was convicted of raping and murdering Mary Anne Flynn, a woman whose house he had been painting. The police quickly targeted him and ignored other possible suspects. Such targeting is common in capital cases. It exemplifies what the newspaper columnist Radley Balko calls “tunnel vision.”

As Balko explains, tunnel vision

is a form of cognitive bias that is common in wrongful convictions and especially in high-profile cases. Tunnel vision… “leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular conclusion and then filter all evidence in a case through the lens provided by that conclusion.” Instead of following leads until the evidence points to a perpetrator…investigators start with a suspect, then look for evidence to confirm their suspicions. Exonerating evidence and leads pointing to alternate suspects tend to be ignored.

From the start, Apanovitch has maintained his innocence and cooperated in the investigation. After his arrest, he voluntarily provided police hair, saliva, and blood samples. These are hardly things that a guilty person would do. But none of that helped Apanovitch.

Apanovitch was tried and convicted based almost exclusively on circumstantial evidence, and right from the start, the state’s conduct in his case was egregiously wrong. It was more typical of a vendetta than a dispassionate search for justice.

Among other things, the prosecution concealed potentially exculpatory evidence. It tried to link Apanovitch to the crime by claiming that he was the source of fluids found inside Ms. Flynn’s vagina. Yet prosecutors knew that the fluids could have been entirely those of the victim.

The state’s misconduct didn’t end there. The prosecution presented a police detective’s testimony about an allegedly incriminating statement made by Apanovitch that it knew to be false when it was offered.

Prosecutors who do not reveal exculpatory information or correct false witness testimony are common in death cases, though that misconduct may, as it did in Apanovitch’s case, take years to uncover.

Not surprisingly, it plays a substantial role in false conviction cases.

In 2021, The Death Penalty Information Center (DPIC) reported that such misconduct was involved in 69% of all death row exonerations. It found that official misconduct played an important role in securing an erroneous conviction in 10 of the 11 Ohio exonerations that it studied.

The likelihood of such misconduct is especially great in Cuyahoga County, the jurisdiction in which Apanovitch was prosecuted and convicted. As the DPIC noted, “Cuyahoga County prosecutors have a long history of misconduct in capital cases and of stonewalling efforts to release death-row prisoners who have been wrongfully convicted.”

But the most startling injustice in Apanovitch’s case happened years after his trial and conviction. In 2000 the county medical examiner’s office discovered slides with biological material that had been taken from the victim during her autopsy.

When the medical examiner tested it for DNA, he did, he found definitive proof that Apanovitch could not have been the source of the DNA taken from in Ms. Flynn’s vagina. But the state again hid the evidence, even though Apanovitch was pursuing post-conviction relief at the time.

In 2008, the exculpatory DNA evidence finally came to light. Apanovitch then sought a new trial. After a hearing on that request, a trial judge acquitted him on the rape charge and ordered a new trial on the murder charge.

As a result, Apanovitch was released from death row and sent home after almost 32 years on death row.

While he was free, the state appealed the trial judge’s decision. In 2018 the Ohio Supreme Court held that the trial court “lacked subject matter jurisdiction” and sent the case back to that court which, in light of that decision, this time refused Apanovitch’s request for a new trial.

Even by the standards of a legal system awash in Kafkaesque technicalities which sometimes stand in the way of justice, the Ohio Supreme Court decision sets a new mark for heartlessness.

Although no one doubted the accuracy of the DNA results, the supreme court decided that Apanovitch could not use them to prove his innocence. It cited a state law that said DNA could only be used in cases where the defendant requested the testing. The fact that Apanovitch could not have requested testing of evidence that the state had hidden from him didn’t matter.

As the court itself acknowledged, in a monstrous understatement, its decision could be characterized as “unduly formalistic or unfair.”

Nonetheless it made that decision, as Justice Terrance O’Donnell put it, to “ensure the finality of this nearly 34-year-old judgment.” It was time to get on with the business of executing Anthony Apanovitch.

According to an astonishing United States Supreme Court precedent, executing an innocent person does not violate the Constitution of the United States.

With no judicial remedies available to him, Apanovitch has applied for executive clemency. His application is pending with the Parole Board. How long should it take to clear someone who has conclusively been shown to be innocent? The facts of his case prove that he should be pardoned.

Horrified by what has happened to Apanovitch, several Ohio legislators have introduced a bill to close the DNA loophole.

While its consideration process continues, the Ohio Parole Board must not stand by and allow the state to kill an innocent person. It should recommend to Ohio’s governor that Anthony Apanovitch be pardoned and set free, ending once and for all his nightmare and ours.

Police have used “Fog Reveal” to search hundreds of billions of records from 250 million mobile devices, and harnessed the data to create location analyses known among law enforcement as “patterns of life,” according to thousands of pages of records about the company.

Sold by Virginia-based Fog Data Science LLC, Fog Reveal has been used since at least 2018 in criminal investigations ranging from the murder of a nurse in Arkansas to tracing the movements of a potential participant in the Jan. 6 insurrection at the Capitol. The tool is rarely, if ever, mentioned in court records, something that defense attorneys say makes it harder for them to properly defend their clients in cases in which the technology was used.

The company was developed by two former high-ranking Department of Homeland Security officials under former President George W. Bush. It relies on advertising identification numbers, which Fog officials say are culled from popular cellphone apps such as Waze, Starbucks and hundreds of others that target ads based on a person’s movements and interests, according to police emails. That information is then sold to companies like Fog.

“It’s sort of a mass surveillance program on a budget,” said Bennett Cyphers, a special adviser at the Electronic Frontier Foundation, a digital privacy rights advocacy group.

_____

This story, supported by the Pulitzer Center on Crisis Reporting, is part of an ongoing Associated Press series, “Tracked,” that investigates the power and consequences of decisions driven by algorithms on people’s everyday lives.

____

The documents and emails were obtained by EFF through Freedom of Information Act requests. The group shared the files with The AP, which independently found that Fog sold its software in about 40 contracts to nearly two dozen agencies, according to GovSpend, a company that keeps tabs on government spending. The records and AP’s reporting provide the first public account of the extensive use of Fog Reveal by local police, according to analysts and legal experts who scrutinize such technologies.

Federal oversight of companies like Fog is an evolving legal landscape. On Monday, the Federal Trade Commission sued a data broker called Kochava that, like Fog, provides its clients with advertising IDs that authorities say can easily be used to find where a mobile device user lives, which violates rules the commission enforces. And there are bills before Congress now that, if passed, would regulate the industry.

“Local law enforcement is at the front lines of trafficking and missing persons cases, yet these departments are often behind in technology adoption,” Matthew Broderick, a Fog managing partner, said in an email. “We fill a gap for underfunded and understaffed departments.”

Because of the secrecy surrounding Fog, however, there are scant details about its use and most law enforcement agencies won’t discuss it, raising concerns among privacy advocates that it violates the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure.

What distinguishes Fog Reveal from other cellphone location technologies used by police is that it follows the devices through their advertising IDs, unique numbers assigned to each device. These numbers do not contain the name of the phone’s user, but can be traced to homes and workplaces to help police establish pattern-of-life analyses.

“The capability that it had for bringing up just anybody in an area whether they were in public or at home seemed to me to be a very clear violation of the Fourth Amendment,” said Davin Hall, a former crime data analysis supervisor for the Greensboro, North Carolina, Police Department. “I just feel angry and betrayed and lied to.”

Hall resigned in late 2020 after months of voicing concerns about the department’s use of Fog to police attorneys and the city council.

Former police data analyst Davin Hall quit the Greensboro, N.C., police force in part over its use of Fog Reveal, a powerful cellphone-tracking tool. “The capability that it had for bringing up just anybody in an area whether they were in public or at home seemed to me to be a very clear violation of the Fourth Amendment,” Hall said. (AP Photo/Allen G. Breed)

While Greensboro officials acknowledged Fog’s use and initially defended it, the police department said it allowed its subscription to expire earlier this year because it didn’t “independently benefit investigations.”

But federal, state and local police agencies around the U.S. continue to use Fog with very little public accountability. Local police agencies have been enticed by Fog’s affordable price: It can start as low as $7,500 a year. And some departments that license it have shared access with other nearby law enforcement agencies, the emails show.

Police departments also like how quickly they can access detailed location information from Fog. Geofence warrants, which tap into GPS and other sources to track a device, are accessed by obtaining such data from companies, like Google or Apple. This requires police to obtain a warrant and ask the tech companies for the specific data they want, which can take days or weeks.

Using Fog’s data, which the company claims is anonymized, police can geofence an area or search by a specific device’s ad ID numbers, according to a user agreement obtained by AP. But, Fog maintains that “we have no way of linking signals back to a specific device or owner,” according to a sales representative who emailed the California Highway Patrol in 2018, after a lieutenant asked whether the tool could be legally used.

Despite such privacy assurances, the records show that law enforcement can use Fog’s data as a clue to find identifying information. “There is no (personal information) linked to the (ad ID),” wrote a Missouri official about Fog in 2019. “But if we are good at what we do, we should be able to figure out the owner.”

Fog’s Broderick said in an email that the company does not have access to people’s personal information, and draws from “commercially available data without restrictions to use,” from data brokers “that legitimately purchase data from apps in accordance with their legal agreements.” The company refused to share information about how many police agencies it works with.

“We are confident Law Enforcement has the responsible leadership, constraints, and political guidance at the municipal, state, and federal level to ensure that any law enforcement tool and method is appropriately used in accordance with the laws in their respective jurisdictions,” Broderick said in the email.

“Search warrants are not required for the use of the public data,” he added Thursday, saying that the data his product offers law enforcement is “lead data” and should not be used to establish probable cause.

___

Kevin Metcalf, a prosecutor in Washington County, Arkansas, said he has used Fog Reveal without a warrant, especially in “exigent circumstances.” In these cases, the law provides a warrant exemption when a crime-in-process endangers people or an officer.

Metcalf also leads the National Child Protection Task Force, a nonprofit that combats child exploitation and trafficking. Fog is listed on its website as a task force sponsor and a company executive chairs the nonprofit’s board. Metcalf said Fog has been invaluable to cracking missing children cases and homicides.

“We push the limits, but we do them in a way that we target the bad guys,” he said. “Time is of the essence in those situations. We can’t wait on the traditional search warrant route.”

Fog was used successfully in the murder case of 25-year-old nurse Sydney Sutherland, who had last been seen jogging near Newport, Arkansas, before she disappeared, Metcalf said.

Police had little evidence to go on when they found her phone in a ditch, so Metcalf said he shared his agency’s access to Fog with the U.S. Marshals Service to figure out which other devices had been nearby at the time she was killed. He said Fog helped lead authorities to arrest a farmer in Sutherland’s rape and murder in August 2020, but its use was not documented in court records reviewed by AP.

Cyphers, who led EFF’s public records work, said there hasn’t been any previous record of companies selling this kind of granular data directly to local law enforcement.

“We’re seeing counties with less than 100,000 people where the sheriff is using this extremely high tech, extremely invasive, secretive surveillance tool to chase down local crime,” Cyphers said.

One such customer is the sheriff’s office in rural Rockingham County, North Carolina, population 91,000 and just north of Greensboro, where Hall still lives. The county bought a one-year license for $9,000 last year and recently renewed it.

“Rockingham County is tiny in terms of population. It never ceases to amaze me how small agencies will scoop up tools that they just absolutely don’t need, and nobody needs this one,” Hall said.

Sheriff’s spokesman Lt. Kevin Suthard confirmed the department recently renewed its license but declined to offer specifics about the use of Fog Reveal or how the office protects individuals’ rights.

“Because it would then be less effective as criminals could be cognizant that we have the device and adjust their commission of the crimes accordingly. Make sense?” Suthard said.

Fog has aggressively marketed its tool to police, even beta testing it with law enforcement, records show. The Dallas Police Department bought a Fog license in February after getting a free trial and “seeing a demonstration and hearing of success stories from the company,” Senior Cpl. Melinda Gutierrez, a department spokeswoman, said in an email.

Fog’s tool is accessed through a web portal. Investigators can enter a crime scene’s coordinates into the database, which brings back search results showing a device’s Fog ID, which is based on its unique ad ID number.

Police can see which device IDs were found near the location of the crime. Detectives or other officers can also search the location for IDs going forward from the time of the crime and back at least 180 days, according to the company’s user license agreement.

The emails and Fog’s Broderick contend the tool can actually search back years, however. Emails from a Fog representative to Florida and California law enforcement agencies said the tool’s data stretched back as far as June 2017. On Thursday Broderick, who had previously refused to address the question, said it “only has a three year reach back.”

While the data does not directly identify who owns a device, the company often gives law enforcement information it needs to connect it to addresses and other clues that help detectives figure out people’s identities, according to company representatives’ emails.

It is unclear how Fog makes these connections, but a company it refers to as its “data partner” called Venntel, Inc. has access to an even greater trove of users’ mobile data.

Venntel is a large broker that has supplied location data to agencies such as Immigration and Customs Enforcement and the FBI. The Department of Homeland Security’s watchdog is auditing how the offices under its control have used commercial data. That comes after some Democratic lawmakers asked it to investigate U.S. Customs and Border Protection’s use of Venntel data to track people without a search warrant in 2020. The company also has faced congressional inquiries about privacy concerns tied to federal law enforcement agencies’ use of its data.

Venntel and Fog work closely together to aid police detectives during investigations, emails show. Their marketing brochures are nearly identical, too, and Venntel staff has recommended Fog to law enforcement, according to the emails. Venntel said “the confidential nature of our business relationships” prevented it from responding to AP’s specific questions, and Fog would not comment on the relationship.

While Fog says in its marketing materials that it collects data from thousands of apps, like Starbucks and Waze, companies are not always aware of who is using their data. Venntel and Fog can collect billions of data points filled with detailed information because many apps embed invisible tracking software that follows users’ behavior. This software also lets the apps sell customized ads that are targeted to a person’s current location. In turn, data brokers’ software can hoover up personal data that can be used for other purposes.

Prior to publication, Fog’s Broderick refused to say how the company got data from Starbucks and Waze. But on Thursday, he said he did not know how data aggregators collected the information Fog Reveal draws from, or the specific apps from which the data was drawn.

For their part, Starbucks and Waze denied any relationship to Fog. Starbucks said it had not given permission to its business partners to share customer information with Fog.

“Starbucks has not approved Ad ID data generated by our app to be used in this way by Fog Data Science LLC. In our review to date, we have no relationship with this company,” said Megan Adams, a Starbucks spokesperson.

“We have never had a relationship with Fog Data Science, have not worked with them in any capacity, and have not shared information with them,” a Waze spokesperson said.

___

Fog Data Science LLC is headquartered in a nondescript brick building in Leesburg, Virginia. It also has related entities in New Jersey, Ohio and Texas.

It was founded in 2016 by Robert Liscouski, who led the Department of Homeland Security’s National Cyber Security Division in the George W. Bush adminstration. His colleague, Broderick, is a former U.S. Marine brigadier general who ran DHS’ tech hub, the Homeland Security Operations Center, during Hurricane Katrina in 2005. A House bipartisan committee report cited Broderick among others for failing to coordinate a swift federal response to the deadly hurricane. Broderick resigned from DHS shortly thereafter.

In marketing materials, Fog also has touted its ability to offer police “predictive analytics,” a buzzword often used to describe high-tech policing tools that purport to predict crime hotspots. Liscouski and another Fog official have worked at companies focused on predictive analytics, machine learning and software platforms supporting artificial intelligence.

“It is capable of delivering both forensic and predictive analytics and near real-time insights on the daily movements of the people identified with those mobile devices,” reads an email announcing a Fog training last year for members of the National Fusion Center Association, which represents a network of intelligence-sharing partnerships created after the Sept. 11 attacks.

Fog’s Broderick said the company had not invested in predictive applications, and provided no details about any uses the tool had for predicting crime.

Despite privacy advocates’ concerns about warrantless surveillance, Fog Reveal has caught on with local and state police forces. It’s been used in a number of high-profile criminal cases, including one that was the subject of the television program “48 Hours.”

Teachers, principals, and other school staff in Ohio can now carry firearms on campus and in the classroom .

Ohio’s House Bill 99 went into effect this week, allowing trained school staff to carry firearms after completing at least 24 hours of initial training along with eight supplemental training hours annually.

Ohio Gov. Mike DeWine (R-OH) signed the bill into law in June, reducing gun training requirements in the name of school safety.

BIDEN SAYS IT WILL BE A ‘DIFFICULT TWO YEARS’ IF DEMOCRATS LOSE CONGRESS

"Our goal continues to be to help our schools, public schools, parochial schools, private schools, to have the tools they need to help protect our children," DeWine said after signing the bill.

Previously, an Ohio Supreme Court ruling established that the carrying of a firearm on school premises was limited to security officers or those who received written authorization from a board of education and had completed 700 hours of peace officer training or 20 years of law enforcement experience.

The new law comes amid a renewed focus on school safety following the Uvalde, Texas, school shooting in May.

The National Education Association has criticized the reduction of firearms training for school employees.

"Bringing more guns into schools makes schools more dangerous and does nothing to shield our students and educators from gun violence,” Becky Pringle, the NEA's president, said in the days following the Uvalde school shooting. “We need fewer guns in schools, not more. Teachers should be teaching, not acting as armed security guards.”

Randi Weingarten, the president of the American Federation of Teachers, also said, "The answer to gun violence is not 'more guns.'"

Earlier this year, DeWine also signed into law a bill allowing any Ohio citizen aged 21 and older to carry a firearm in public without undergoing training or obtaining a concealed carry permit.

Call Nemann Law Offices for a free consultation to assist at (614)-333-6007

More than 3,200 cases of driving under the influence of marijuana relied on faulty testing by Michigan State Police.

Michigan State Police relied on faulty testing to produce criminal charges in about 3,250 cases since March 2019 in which a driver was allegedly under the influence of marijuana and no other drugs or alcohol.

In a letter to prosecutors sent on Wednesday, Jeffrey Nye, director of MSP’s Forensic Science Division, acknowledged that the tests could not have conclusively proven the driver was intoxicated by cannabis.

The letter was issued less than a week after Michigan State Police halted blood tests for marijuana because they were producing false positives for THC, the active ingredient in cannabis that produces a high. The toxicology tests failed to distinguish between THC and CBD, a non-psychoactive chemical compound that does not produce a high.

The significance of this discovery cannot be overstated. As many as 3,250 people may have been wrongfully arrested and convicted based on faulty testing.

In those cases, Nye admitted, “there is insufficient evidence of impairment, intoxication, or recent use of marihuana to otherwise support the charged offense.”

State police plan to notify prosecutors about the people who may have been wrongfully convicted, and defense attorneys are expected to begin filing motions to challenge their clients’ convictions.

“Most immediately our concern was for the impact this finding may have on active legal proceedings where an individual allegedly used CBD alone and no other intoxicating substances,” Nye said.

State police are only focusing on cases since March 2019 because that’s when CBD became legal in Michigan, according to Nye. But attorney Barton Morris, who specializes in cannabis-related cases, said it’s still possible that many others were wrongfully convicted of driving under the influence because they had consumed CBD prior to March 2019.

Morris, principal attorney of the Cannabis Legal Group in Royal Oak, says state police have relied on a relatively inexpensive testing method that is unreliable for testing the amount of THC in a person’s blood, producing a measurement uncertainty — or an error rate — of 30%.

“Michigan State Police created a method for testing THC in a manner that wasn’t great, but it was good enough for them because no one was complaining about it,” Morris tells Metro Times. “It’s expensive to test it for more specificity, and they would rather do it the cheaper and faster way. They created a method that was questionable as to the precise amount of THC in their blood.”

He adds, “It was intentional ignorance. They stopped the testing when they could no longer ignore” the problems.

Morris says convictions that were based solely on the faulty testing should be overturned.

“People like me contemplate to what degree does this invalidate the ability to remove convictions over the past three years,” Morris says. “Any conviction where the (lab) evidence was the main piece of evidence in determining someone’s guilt or innocence, there’s a strong argument that the conviction should be overturned.”

With the widespread use of CBD over the past three years, Morris says it’s likely that many people who were convicted based on faulty testing had solely consumed CBD and were not under the influence of THC.

But the problem goes well beyond that. Morris and other legal experts have long complained about the accuracy of marijuana tests. Due to varying tolerance levels, the amount of THC found in drivers’ blood does not prove they were intoxicated when they were behind the wheel. For example, a cannabis consumer can have moderate to high levels of THC in their blood and not be under the influence.

The effects of cannabis don’t last long, but the THC lingers in the user’s blood, where it can be detected.

“There is no amount of THC in a person’s blood suspected of driving under the influence that equates to intoxication like there is with alcohol,” Morris says. “We all know that .08 grams of alcohol per 100 milliliters of blood means you are guilty. There’s overwhelming evidence. We don’t have that in Michigan for TCH for a number of different reasons.”

Call Nemann Law Offices for a free consultation to assist at (614)-333-6007

Testimony on the first day of a retrial hearing for a Floyd County man sentenced to death in 1985 concerned forensic evidence, and what experts described as debunked scientific methods used to gain a conviction in the case.

The attorneys for James Randall Rogers are attempting to prove that flawed evidence examination practices led to his conviction for the rape and killing of his 75-year-old neighbor Grace Perry.

Testimony concerning a bite mark on Rogers’ arm, a hair that may have belonged to Perry found on Rogers, as well as a partial fingerprint found on the handle of a rake used to kill Perry were key to the prosecutor’s case — and, defense lawyers contend, were all based on flawed forensic examination practices.

“This evidence was junk science,” Chris Fabricant, the director of strategic litigation at the Innocence Project, told Floyd County Superior Court Judge Bryan Johnson. “This can not be the basis for executing a human being.”

Investigative practices at that time were highly subjective, he said, and led forensic examiners toward a conclusion predetermined by investigators.

“False and misleading information was introduced and used in this case,” Fabricant said.

The hearing Tuesday morning specifically centered on the testimony of Dr. Richard Souviron, a forensic odontologist who testified in 1985 that a bite mark on Rogers was definitively made by the victim. In 2020 he recanted that testimony, saying he would not have come to the same conclusion using modern methods.

To illustrate how the field of forensic odontology has evolved since 1985, Dr. Adam Freeman testified concerning the process that debunked the perceived science behind bite mark testimony.

In conducting research to normalize the process of bite mark forensics, Freeman said he discovered “shocking” evidence. In most cases, people who were seen as experts in the field did not agree with the findings of other experts on simple determinations like whether a wound was caused by a bite from a human — much less if it came from a specific person.

That research led organizations like the American Board of Forensic Odontology to reject the practice.

“It’s junk. It doesn’t work. It’s a completely subjective field,” Freeman testified.

The prosecution largely focused on procedural arguments, stating Souviron’s change of heart and new testimony are not grounds for granting a retrial for Rogers.

During the hearing, Rome Circuit Assistant District Attorney Natalee Staats said another forensic dentist countered Souviron’s claim during the trial that the bite mark was made by Perry.

Essentially, the state is attempting to show that what the defense is characterizing as new evidence was already introduced in the 1985 trial.

Prior to the hearing, Rogers objected to proceedings moving forward insisting that his attorneys had not conducted an investigation into fingerprint evidence located on the rake.

Rogers insisted a fingerprint, entered into evidence in his original trial, was not his and said he wanted the GBI to investigate.

One of Rogers’ attorneys, Mark Loudon-Brown from the Southern Center for Human Rights, told Judge Johnson they intend to attack fingerprint evidence submitted in the case. In a supplemental motion filed prior to the hearing, Rogers’ attorneys stated a reexamination of a partial fingerprint proves that it didn’t belong to Rogers.

“I would like to fire my attorney and get the GBI to do an investigation,” Rogers told the judge. “If that’s what it takes, that is what it takes.”

Their differences were settled after a brief out-of-court discussion and the hearing resumed. Testimony will continue Tuesday morning at 9 a.m.

THREE DECADES AFTER Claude Garrett was accused of committing arson to kill his girlfriend, Lorie Lance, a Tennessee judge vacated his conviction, finding him innocent of murder and opening the door to his release. In an order signed on May 6, Davidson County Criminal Court Judge Monte Watkins found that Garrett had made a “clear and convincing” case that if jurors had been aware of new scientific evidence at the time of his trial, they would never have convicted him of setting the 1992 fire that sent him to prison for life.

The order comes one month after an evidentiary hearing in Nashville in which leading fire experts testified that the case against Garrett was based on a rush to judgment, a shoddy investigation, and junk science. The hearing followed a reinvestigation of the case by the Davidson County District Attorney’s Office — spurred by The Intercept’s reporting — which concluded last year that it could no longer stand by its conviction. Lawyers from both the Tennessee Innocence Project and the DA’s Conviction Review Unit subsequently asked Watkins to vacate the conviction in light of new scientific evidence that dismantled the state’s original theory of the crime. “If the state had been armed with the information that we now have,” Conviction Review Unit Director Sunny Eaton told the judge, “we would not have indicted this case.”

Garrett, 65, has always insisted on his innocence. As he describes it, he woke up in the small home he shared with Lance on February 24, 1992, to a fire in the living room, then tried to escape with Lance. But rather than follow him out the front door, he said, she turned to the back of the house, where she was later found dead from smoke inhalation. Investigators became suspicious upon arriving at the home; they smelled kerosene, which the couple used to heat the house, and found a large, irregularly shaped burn pattern on the living room floor. At that time, fire investigators labeled such evidence “pour patterns,” believing them to be proof that a liquid accelerant had been used to start a fire. Today such indicators have been widely discredited as myths.

Prosecutors tried Garrett twice, arguing that he had locked Lance in a utility room in the back of the house and then used kerosene to start the fire. But the evidence was shaky at best. After Garrett uncovered a police report that had been concealed from his defense attorney at trial — which indicated that the utility room door had been unlocked — a court overturned his conviction. By the time prosecutors tried Garrett again in 2003, scientific advancements in understanding fire behavior should have discredited the central evidence against him. But the state’s star witness, veteran Special Agent James Cooper of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, insisted that he could tell through his visual observations alone that the fire was arson. The second jury also found Garrett guilty.

At the hearing in Nashville last month, fire experts made clear that Cooper’s claims were divorced from science and that the investigation into the alleged arson had failed to adhere even to the loose standards in place in 1992. Particularly egregious was the failure to preserve or even examine the door and latch that had supposedly trapped Lance in the utility room. Smoke deposits could have provided critical evidence to show the position of the door, the expert witnesses explained. Instead, Cooper had dismissed such vital evidence. In his order vacating Garrett’s conviction, Watkins noted that “every expert applying modern standards concludes that the latch was unlocked.”

At the heart of the judge’s order was what experts described as a “paradigm shift” between 1992 and modern-day fire investigation. Today’s fire investigators are trained to follow the scientific method in determining the origin and cause of a fire, gathering evidence to test a hypothesis before drawing any conclusions about whether a fire was arson.

Watkins was persuaded by expert testimony showing that “although the field had taken significant strides toward accepting the scientific method by the time of Garrett’s retrial in 2003,” Cooper had insisted upon discredited methodology, using the term “pour pattern” 34 times on the stand. What’s more, in the nearly 20 years since the retrial, additional research on fire behavior has continued to debunk the evidence used to convict Garrett. “Jurors at Mr. Garrett’s 2003 trial were not informed about any of these developments,” the judge wrote.

Ultimately, Watkins granted both claims brought by Garrett’s attorneys, both based on new scientific evidence: “a freestanding claim of actual innocence” and a claim that Garrett’s due process rights were violated under the Tennessee and federal constitutions. On the latter, Watkins found that Cooper’s expert testimony regarding the origin of the fire — the “pillar of proof” against Garrett — was “highly prejudicial.”

“To view any of the evidence as inculpatory requires speculation or rejection of scientific fact,” the judge wrote.

The finding of actual innocence, meanwhile, carries particular meaning for Garrett. Unlike an exoneration through DNA, in which scientific evidence reveals the real perpetrator of a crime, the failed investigation and destruction of evidence in 1992 means that the true source of the fire will remain unsolved. Although the Conviction Review Unit was unable to “uncover affirmative evidence conclusively establishing Garrett’s innocence,” Eaton wrote last fall, the case against Garrett was “nonexistent.” Watkins agreed. He found that the evidence supported an accidental fire scenario, even if the cause remained undetermined. If Garrett were tried today, the state “would have no reliable proof of guilt.”

For Garrett’s most dedicated advocate, veteran fire investigator Stuart Bayne, the order was a final step toward correcting a profound injustice. When he received the news Friday afternoon, Bayne called the prison chaplain at Riverbend Maximum Security Institution. Shortly afterward, the phone rang. When Bayne heard Garrett’s voice on the other line, he was singing from the Barry Manilow song “It’s a Miracle”: “Looks like we made it.”

A House-approved bill to federally legalize and tax cannabis would significantly reduce prison costs and generate billions in revenues, according to a new report by the Congressional Budget Office (CBO).

The CBO anticipates around $8.1 billion in federal cannabis tax revenues over a decade should the Marijuana Opportunity and Expungement (MORE) Act be enacted into federal law. The office also believes that thousands of prisoners currently serving time for cannabis-related offenses would be released earlier under the MORE Act, and that the incarceration rate would decline. The CBO estimates this reduction in prisoner numbers would save the Bureau of Prisons around $800 million.

“H.R. 3617 (MORE Act) would federally decriminalize cannabis (marijuana), expunge the records of people convicted of federal cannabis offenses, and require resentencing of some federal prisoners,” the report says. “As a result, CBO estimates, thousands of current inmates would be released earlier than under current law. In the future, decriminalization also would reduce the number of people in federal prisons and the amount of time they serve.”

In total, the CBO predicts the proposed federal cannabis reform would reduce prison sentences overall by 37,000 years both for current and potential future inmates.

The MORE Act would also restore the rights of those convicted of some marijuana-related offenses to certain federal benefits, which the CBO believes would result in an additional spend by the federal government of $344 million over ten years.

Under current federal tax law, specifically tax code 280E, marijuana businesses are unable to make tax deductions for operational expenses, nor claim credits. The MORE Act would remove these restrictions, and this would in turn partially offset total federal cannabis sales tax revenues.

The MORE Act would support social equity initiatives in the cannabis industry through the establishment of an Opportunity Trust Fund, which the CBO estimates would receive around $7.8 billion in total between 2022 and 2031. The Justice Department would be allocated 40 percent of this “to provide job training and legal aid, among other services, to people harmed by what was termed the war on drugs.”

The Small Business Administration, meanwhile, would receive around $1.4 billion through the Opportunity Trust Fund as “grants to states and localities to make business loans to related small businesses and to develop cannabis-licensing rules.”

Interestingly, many of the CBO estimates as to the MORE Act’s impacts are notably more conservative than in its 2020 report on the same legislation, which has not changed a great deal in the interim. For instance, the CBO previously estimated federal cannabis tax revenues of $13.7 billion and a collective reduction in prison time of 73,000 years.

The CBO’s report on the MORE Act was released just prior to the House of Representatives’ vote in support of the legislation. This marked the sixth time the House had approved some iteration of the proposed cannabis reform since it was first introduced. The Senate is yet to vote on the measure, with Majority Leader Chuck Schumer primarily focused on passing his own comprehensive marijuana reform bill – the Cannabis Administration and Opportunity Act (CAOA).

The short white lines on the side of the highway are easy to miss, as they're painted in quarter-mile intervals and zip by when passed at speed. They go by even faster if you're speeding.

They're soon to be a thing of the past, as the Ohio State Highway Patrol's aerial enforcement unit shifts to digital technology. By the end of the year Highway Patrol pilots will be able to help local law enforcement catch speeders on any road in the state.

For the past 11 years, state Trooper Milan Milosevic has patrolled Northeast Ohio in a Cessna 182 Skylane on most days suitable for flying. He covers the region from his base at the Akron Fulton International Airport as part of the patrol's aviation section. The section includes 11 uniformed flight crew personnel, three helicopters and 13 airplanes. It coordinates with troopers on the ground, as well as local law enforcement agencies to conduct speed enforcement, among other missions.

Milosevic said the quarter-mile markers are easy to spot from 2,000 feet up. Speeders stand out, and he uses a timer to calculate their progress between the marks.

Once he verifies their speed — generally around 20 mph over the limit — he paces them and radios the vehicle description to police on the ground.

A recent focus has been the construction zone on Interstate 77, where the patrol said 90 motorists were cited during targeted enforcement totaling 10 hours over several months.

"It's non-stop, it's every day," Milosevic said, adding the circumstances are sometimes hard to believe.

"There's a lady I got going 92 mph. She was passing on the berm," he said.

He later found out the car was "full of kids" and the woman driving told the trooper on the ground she was late getting to Cedar Point.

"I look for people who are pulling away, catching up to traffic, weaving in and out," he said. "It's just the stuff that I see that the trooper on the ground can't see."

Milan Milosevic, aviation trooper with the Ohio State Highway Patrol, sits in the cockpit of his Cessna 182 Skylane.

From ground to air

Before taking to the air, Milosevic served about 10 years in a cruiser, rotating between day, evening and midnight shifts.

“After a couple of years of working midnights, putting my kids through school, getting into pursuits, getting into resistings, my body wasn’t healing like it used to after a fight,” he said.

He said the patrol has several divisions that qualified officers can join, such as K-9, SWAT and aviation. He chose to get his pilot’s license, going through flight school at Akron Fulton Airport. He then trained with the patrol’s aircraft before landing a slot with the aerial enforcement division.

"We do missing persons, our bread and butter is speed enforcement, but we also do pursuits. We'll fly over a pursuit where people are exiting a vehicle and running," he said. Other missions include surveillance with agencies such as the Drug Enforcement Administration, where "controlled buys" of drugs are monitored by air.

"My favorite thing is a lot of people hate these motorcyclists who are driving aggressively," he added. "We don't get into chasing them ... When I'm up there, they're not getting away. There's only so many turns they can make."

Milosevic said he caught a total of 37 aggressive bike riders in one year.

"It's easier for me to watch where they're going," he said.

One rode so long that he ran out of gas and was caught at a gas station. Another, who Milosevic said knew he was being tracked by air, led police to a home where stolen motorcycles were being taken apart for parts sales.

"He knew I was up there. He went back to a house, into the garage. I was doing circles over the residence there making sure he wasn't running out the back door. The sheriff's department and Akron police showed up. In that residence, they found six other stolen motorcycles," he added, explaining the machines were in various stages of disassembly for sale of their parts. "He led us back to his chop shop."

Milosevic arrives at work every day, checks the weather and then contacts the various posts and police agencies he's scheduled to work with.

"Usually it's set up in advance," he said.

He lists the areas he is responsible for: most of Northeast Ohio including Lorain, Elyria, Medina, Ashland, New Philadelphia, Dover — all the way to Pennsylvania and Ashtabula.

He can be anywhere in the region within about 25 minutes, depending on the wind.

New technology coming

Right now, Milosevic uses a push-button timer to clock speeders and a digital camera to take photos of accident scenes and other evidence.

"I'll slow down the plane and bank it to the side," he said, holding an imaginary camera up to his eye.

Things will be different next year.

Sgt. Ray Santiago, Ohio State Highway Patrol public information officer, said new equipment, which requires a crew of two troopers in the plane, is now being used in Franklin County, and statewide deployment of the "aerial speed measurement system" is expected by the end of the year.

"We started developing it last year and testing it. We're one of the very few law enforcement agencies in the country that are going to be using it," Santiago said. He pointed out that aerial speed enforcement is currently only possible over designated speed zones, with quarter-mile markings.

"The new equipment that we have, using GPS, it's all tracked. They can run speed enforcement anywhere," Santiago said.

Franklin County was picked to test the equipment because it's central and has a high volume of traffic. Santiago said the patrol will be analyzing crash data to determine where to target aerial enforcement efforts with the new equipment once it is deployed statewide. Another consideration is establishing court decisions that will enable the new technology to stand up to scrutiny.

As the new system is rolled out, the patrol will be identifying high-crash areas across the state that are outside marked speed zones.

"These more dangerous areas, they have grades going into them, they go up and down, they have turns," he said. "Those two pilots that are in the air can pretty much do the job of four to six troopers on the ground because there's so much they can see."

For example, some drivers speed on roads where there are narrow shoulders, which makes traffic enforcement difficult as there is nowhere to pull violators over. With aerial assets, violators can be tracked and then stopped by ground units where it is safe.

Summit County resumes aerial enforcement

Lt. Karla Bloomingdale, head of the traffic division for the Summit County Sheriff’s Office, said that after not using aerial assets for some time, the county began working again with the highway patrol's aerial unit in 2019.

“We’ve seen increased effectiveness in our traffic stops," she said. "We are catching folks at much higher speeds, and we’re working heavily in our construction zones to try and keep the workers safe and get people to their destinations. It’s a very effective enforcement.”

She said staffing is a consideration in using air assets, because officers have to be put on special assignment to work with Milosevic.

“However, we do get traffic grant funding from the state,” she said. “We’ll usually set up a detail in advance so that there is plenty of staffing available that can go and hit certain areas to try and keep some of the problem areas safer.”

She said the office's recent focus has been construction areas in and around Akron, where the highway system is being rebuilt in phases.

Though traffic stops are not made inside the zones, deputies are waiting down the road for unsafe motorists who are spotted from the air.

Edited body cam footage posted on Facebook on Monday night shows a Tulsa police officer rattling a locked door and laughing as she attempts to persuade a 70-year-old woman to come out of a restroom she has locked herself in.

“She is mental as all …,” the officer says, referring to the woman inside.

The officer can be heard saying, “This is going to be so fun,” before another officer is seen knocking the door down to take LaDonna June Paris into custody.

Paris is bipolar and was having a manic episode, according to the EMSA employee shown speaking to the officer.

“We couldn’t make her do anything, so we called you guys for assistance, and then she just took off,” the EMSA employee tells officers.

The incident occurred on Oct. 25 at the Habitat for Humanity ReStore at 1234 S. Norwood Ave., according to court records.

The YouTube video identifies the female officer as Ronni Corracia. Corracia is also listed as the arresting officer on the arrest and booking report.

Paris was charged on Oct. 28 with attempted arson, assault and battery upon a police officer, resisting an officer, trespassing and cruelty to animals. She was held in the Tulsa County jail for approximately a month before the case was dismissed on Nov. 23 “in the interest of justice and civil diversion.”

At one point in the video, Corracia can be seen talking to another officer as they wait for a third officer to assist with knocking down the door.

“I really hope it is (name unclear) because I really like the way he works,” Corracia says. “He is going to pound the door open and spray her.”

During another segment of the video, she taps the door with her fingertips to rattle it, laughs and says: “I love my job.”

The Tulsa Police Department issued a detailed statement about the incident Tuesday evening after the Tulsa World emailed questions regarding the incident.

“After 34 minutes of unsuccessful verbal coaxing, Paris still refused to open the door and surrender,” the statement says. “Officers forced entry into the small bathroom and quickly secured Paris with minimal force.

“When loading Paris into a vehicle, she kicked an officer.”

According to police, officers were called to ReStore by an employee of the business who said Paris had been there for four hours and had left a dog in the U-Haul in which she arrived. Police had hoped to have their Community Response Team, which includes mental health specialists, respond to the call, but no members of the team were available, police said.

“She was in the bathroom for five hours. They asked her to leave. She said no,” Corracia can be heard telling the EMSA employee on the YouTube video. “Then we asked her to leave. She said no. And we had to force into the bathroom to remove her from here.

“She tried to set the bathroom on fire; she had a lighter with like the (aerosol) spray. She had a lighter with the spray, like spraying at the door and at us, so she gets to go to jail now for probably arson, trespassing, obstruction — cause she wouldn’t leave — resisting, all that stuff.”

The police statement notes that officers made several attempts to secure Paris while having no knowledge of what she had with her on the other side of the door.

“After 33 minutes a third officer arrived on scene and (after) Paris still refused to exit the bathroom, the officers formulated a plan to enter the room and secure Paris,” according to the TPD statement. “While the use of OC (pepper) spray was discussed the officers chose to not use it and try to control Paris’ hands instead.”

The six-minute video was edited down from 90 minutes of body cam footage, according to police. The Tulsa World was unable to verify the source of the edited video.

The video ends with a female voice speaking from inside the Police Department or jail, where she can be heard saying: “If you are going to play stupid games, you are going to win stupid prizes. I’m just — I’m over it.”

The Tulsa World asked Mayor G.T. Bynum several questions about the incident Tuesday afternoon, many of which he did not respond to directly.

In an emailed response, he said the YouTube video was brought to his attention by TPD leadership as part of their investigation of the incident.

“It is heartbreaking to see a fellow Tulsan suffering a mental health crisis in a video, and it is a reminder of the difficult situations officers deal with in the field every day,” Bynum said. “I am confident in the investigation conducted by the Tulsa Police Department.”

In its statement, the Police Department said the officers’ overall actions and the way the call was handled were within the department’s policies.

“To be clear, the banter between the officers outside of the presence of the suspect can be (perceived) as unprofessional and has been addressed with the officers.”

The department said the video footage was originally released because an arrest had been made, though a judge later cited Paris’ mental health when dismissing the charges. The agency made public several full-length videos from the arrest after the edited footage got attention.

“Under normal circumstances, we would not release a video where no arrest was made, and someone was in a mental health crisis,” the statement reads.