SUBMISSION FOR PROCEDINGS BEFORE THE NATIONAL ACADEMY OF SCIENCE
EMERGING TECHNOLOGY RESHAPING OUR LEGAL JUSTICE SYSTEM UTILIZING
ANIMATED CRIME SCENE RECONSTRUCTIONS
Donald E. Fymbo
What could be worse than spending your life in prison or executed for a crime you did not
commit; particularly when technology now exists which might have exonerated the accused
before ever going to trial?
Our Nation, with the greatest legal system in the world, has a duty to its citizens to explore
every possible method to prevent the manifest injustice of an unfair trial and the resultant
wrongful conviction by utilizing recognized technology now available.
ABSTRACT
Emerging technologies that have changed Forensic Science will have a significant effect in
reshaping our entire criminal legal justice system. These technologies allow litigates and
jurors to be shown precisely how a crime actually occurred in visually animated
reconstructions, that if properly prepared from accurate forensic evidence, are irrefutable in
their factual presentation.
Five years ago, the National Academy of Science conveyed that the forensic science
community was not fulfilling its potential to our criminal justice system. In response, the
Federal Government created the National Commission on Forensic Science (NCFS) under
the Department of Justice and the Organization of Scientific Advisory Committee (OSAC),
under the National Institute of Standards and Technology (NIST). Initially, both
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organizations excluded animated digital reconstruction as too complex, too dynamic and too
new. Now, all that has changed.
Members of the American Academy of Forensic Science began working to get digital
evidence recognition by the NCFS and OSAC. Our former US Attorney General, Eric
Holder, included digital evidence in the charters of both organizations.
Over half of all states now have compensation for the wrongfully convicted.
If these
convictions could be prevented there would be considerable savings to taxpayers, who not
only have to shoulder that compensation, but also the massive legal expenses and the costs
of the trials that put them there.
The number of wrongful convictions is anything but small. Recent estimates by the Supreme
Court, specifically, the late Justice Antonin Scalia, place the number between 2.7% to 4.1%.
Conservatively applied to our 2,200,000 presently incarcerated adults, that equates to nearly
60,000 wrongful convictions. If these estimates hold true, they would also apply to the 2,984
presently on death row in the United States of which only three are in Colorado. These
should be the first of cases examined.
Forensic animations can be produced in almost any case, even decades old, if medical
examiners reports, photos, and/or other forensic evidence is available. DNA evidence is not
available or a factor in more than 10% of all cases, while forensic animations may be done
in almost any case.
A $1.4 million dollar grant to the Colorado Attorney General for DNA comparison of crime
scene evidence to those on file produced only a single case of wrongful incarceration; that
of Robert Dewey, who served as the example for our States wrongfully convicted
Compensation Bill. Without funding, we have already experienced greater successes.
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Videos of our reconstructions of several of these cases can be viewed on the web at
coloradojusticeproject.com. The Colorado Justice Project is a non-governmental civil rights
organization based in Denver, Colorado that is dedicated to the exoneration of the wrongfully
convicted and the prevention of future wrongful convictions by requiring minimum levels of
real evidence be required at preliminary hearings before any major or capital crimes may
proceed to trial.
EVIDENCE
The following are practical applications by the Colorado Justice Project that produced
results far different than the trials outcome:
Trayvon Martin – Our animated reconstruction reveals Trayvon Martin was murdered by
George Zimmerman with a direct shot to his chest from a distance of 10 inches away. If
they had been fighting in a prone position, both had recovered and were facing each other
when the fatal shot was fired. If Angela Corey, George Zimmerman’s prosecutor, had
utilized our reconstruction, which had been provided her, she might have rebutted the
defense’s expert witness, not bungled the trial which allowed Zimmerman to be acquitted
and commit other crimes. Accordingly, she lost her long held elected position.
Michael Brown - There were riots and massive civil unrest over the death of Michael Brown.
Yet animated forensic evidence clearly established that Brown assaulted Officer Darrin
Wilson, attempted forcibly to take his handgun in which two shots were fired, escaped and
ran over half a block before he turned and charged the officer. He died in a volley of gunfire
from Officer Wilson and fell 135 feet from where he had assaulted the officer. Had the St.
Louis area media utilized our reconstruction that they were provided, the public would have
been made aware that Michael Brown was responsible for his own death and civil
insurrections and riots across our Nation could have been avoided.
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Jessica Hernandez – A 17-year old Hispanic girl was killed by Denver police who shot eight
times into her moving car, although occupied by four other teenagers. Denver police,
believing the car was stolen, blocked the car in an alley from which she tried to escape. The
police falsely claimed she was trying to hit them with the car when in fact, our reconstruction
proves the Denver police entirely culpable. District Attorney Michael Morrissey should not
have exonerated the responsible officers. Since then he faced media criticism and civil
insurrection including the picketing of his home. He is no longer in office. The attorneys for
Jessica Hernandez were provided our reconstruction at no charge. They were then able to
effect a million dollar settlement with the City and County of Denver without filing a lawsuit.
Francis M. Hernandez – A 23-year old illegal immigrant, killed a 3-year old boy and two
others in a vehicular homicide. After his attorney falsely claimed the driver of the other
vehicle precipitated the accident the Colorado Justice Project provided a reconstruction at
no cost. The Denver Post stated Calculations Show Suspect Hit Speed of 77 MPH in Triple
Fatal.
Our reconstruction resulted in his conviction on 18 criminal charges.
He was
sentenced to 60 years in prison.
Deion Santistevan – A 5-year old Hispanic boy was killed by a single shot to the forehead
from a high powered rifle of a Denver Swat Team member from a distance of 15 feet after
storming an apartment in pursuit of his father. Police falsely claimed the father killed his son
and then committed suicide. Our reconstruction animation proved both were killed by police.
Massive forensic crime scene evidence supported our reconstruction
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Odiceo Lopez Valencia – Was attending his daughter’s communion when he was shot
seven times and killed by Denver Police after they falsely claimed he came at them with a
knife. Eye witness testimony assisted in the crime scene reconstruction by the Colorado
Justice Project that proved Denver Police shot an unarmed man after their missed attempts
to Taser him. He might have survived if police had not fired the fatal shots after he was
already in a prone position laying on the ground. The Project also drafted the wrongful death
lawsuit at no cost to the family and assisted with their expenses.
Harold Henthorn – The Defendant in this highly publicized case; in the absence of a thread
of any real evidence, was charged with the murder of his second wife who fell from a cliff in
Rocky Mountain National Park. Yet he was brought to trial and convicted almost entirely on
his alleged prior “bad acts,” the murder of his first wife who was crushed to death while
helping voluntarily to change a flat tire, 17 years earlier.
Our reconstruction of Lynn
Henthorn’s death proved it was unquestionably an accident that could not have been staged
or planned. An Amicus Curiae brief containing that reconstruction was filed with the U.S.
District Court but denied. Had Judge R. Brooke Jackson allowed our reconstruction of the
first Mrs. Henthorn’s death into evidence, or had his Defense Attorney, Craig Truman utilized
the documentation provided him, the innocent Henthorn would not have been convicted and
sentenced to life imprisonment where he now remains.
Frederick Mueller - Frederick Mueller was accused of his wife’s drowning death,
incarcerated and endured two trials both of which resulted in hung juries; when there was
no motive and not even circumstantial evidence supporting an indictment. The Prosecution
relied totally on “junk science” and unsupportable theory. Our motion to allow an Amicus
Curiae brief was filed before the Broomfield Colorado Court when this case was set for the
third trial. Our State had already paid for two costly, unwarrented prosecutorial attempts
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and should prosecutors ultimately have prevailed; the taxpayers would also have had to pay
compensation for a wrongful conviction. Copies of our Brief were provided to every member
of our responsive General Assembly. Surely the influence of these duly elected
representatives prevailed as the prosecutors admitted they had no new evidence and the
case was dismissed. Frederick Mueller was never compensated.
Lisa Auman – This teenage girl was prosecuted for felony murder as a result of the death
of a Denver Police Officer even though she was in handcuffs in a police car when the police
officer was killed. Our reconstruction, backed by massive evidence, accompanied our
Amicus Brief before the Colorado Supreme Court, resulted in her exoneration and release.
We are presently assisting her in the recovery of nearly $1,000,000 in compensation
statutorily authorized by Senator Lucia Guzman’s bill.
Timothy Masters - The available evidence properly evaluated, would have prevented this
wrongful Colorado murder conviction from ever reaching the courthouse steps. Substantial
crime scene evidence, never introduced at trial, would have proven that Masters, who was
only 15 years old at the time, could not have committed the crime. Again, in the absence of
any evidence ‘junk science,” a flawed psychological evaluation, resulted in his conviction,
costing Master’s years in prison. He was able to exonerate himself through DNA analysis
which should be afforded to all those that request it.
Colorado taxpayers paid millions for this wrongful conviction. Detective Broderick,
responsible for the false affidavit leading to his arrest was criminally charged.
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CONCLUSION
Recent technological advances, particularly in the various fields of forensic science, should
be afforded to every defendant; especially those being prosecuted for capital crimes, in
which a life sentence of incarceration or a death sentence may be imposed.
The Public Servants of our City’s, County’s, States, and Federal Governments have a great
financial interest in preventing wrongful prosecution, conviction, and incarceration as the
taxpayers not only pay the cost of case preparations and trial costs but also the
compensation for the wrongful convicted.
In 2013, Colorado’s Senator Lucia Guzman’s Bill was signed into law affording those
exonerated of wrongful convictions a payment of $70,000 for each year spent in prison, and
$50,000 for each year on probation.
Civil suits have resulted in a settlement of over $11 million dollars to Timothy Masters, a $41
million dollar award in the wrongfull conviction of the “Central Park Joggers” and another
$30 million dollar award for the “Beatrice Six cases,” which that Nebraska County cannot
pay and may result in the Countys bankruptcy.
These are proven accepted technologies.
The cost of the production of crime scene
animations by experts is negligible compared to the costs and the manifest in the Colorado
Justice Project of a wrongful conviction. Properly applied, the innocent can be exonerated
without ever facing trial or life in prison, and the savings to taxpayers can be measured in
the millions. It is moved that Colorado and all State legislature’s nationwide embrace these
now well established technologies and require all jurisdictions within their state to hold
evidentiary hearings in which minimum mandatory standards of proof may be applied, before
the filing of charges.
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