DA blasts defense blog in Ross case
HOLLIDAYSBURG — The Blair County district attorney has asked that a gag order be imposed on lawyers in the Paul Aaron Ross homicide case because of a blog posted on the website of the Innocence Project of New York.
The blog was critical of Judge Jolene G. Kopriva’s recent ruling allowing the use of bite mark evidence in Ross’ upcoming trial.
DA Richard A. Consiglio said attorneys for the Innocence Project, M. Chris Fabricant and Dana Delger, were attempting “to try the case in public.”
He called the remarks about Kopriva’s March 8 ruling “outrageous,” contending that they could affect the jury pool.
“We don’t know who’s looking at the website,” he said.
Consiglio also said the blog violated Pennsylvania’s judicial rules of professional conduct.
The complaint about the blog was in a petition Consiglio filed last week.
Consiglio said after his petition was filed, the blog was removed from the website.
Fabricant told the judge he wrote the blog but said, “There is no jury pool yet. We haven’t violated any ethical rules.”
The attorney for the Innocence Project then pointed out the irony of Consiglio complaining about civility in the courtroom, pointing out the district attorney repeatedly refers to the Innocence Project attorneys as “these people.”
Blair County attorney Tom Hooper, who is also representing Ross, jumped into the fray, stating that he has been insulted and called a “liar” many times during the often-heated courtroom discussions about the Ross case, and he objected to the gag order.
He said that the Innocence Project is a nonprofit organization that relies on funds from the public to operate and uses its website to relate to the public what it does.
“They have overturned countless prosecutions,” Hooper said.
Kopriva did not make a ruling for or against the proposed gag order during Tuesday’s 90-minute hearing, but she stated she had no objections to the posting of blogs by the Innocence Project.
She then explained to Fabricant that while his agency has good intentions, he has a professional responsibly to the court not to berate people.
The Ross homicide case was before the judge because of a petition filed by Ross’ local attorneys, Hooper and Tom Dickey, and the two attorneys from the Innocence Project, to reconsider her March order.
Ross, now 45, is accused of killing Tina S. Miller, 26, of Hollidaysburg, whose body was found at Canoe Creek State Park on the morning of June 26, 2004.
During Ross’ initial trial in 2005, an Allentown odontologist could not identify a bite mark on the victim as definitely coming from Ross but found his dental impression “very highly consistent” with it.
Ross’ subsequent conviction for first-degree murder was sent back to Blair County for retrial in 2011 because, the Superior Court ruled, Dickey did not have adequate time to prepare his defense and improper “prior bad acts” testimony from several of Ross’ former girlfriends was admitted as evidence against him.
For the past six years, the hotly contested case has focused on many issues, including if the prosecution can seek the death penalty in the second trial. Kopriva has ruled the death penalty will be a option for the jury, if Ross is again found guilty of first-degree murder.
The bite mark, which the defense contends unfairly linked Ross to the victim, has become controversial because the accuracy of such evidence has been under fire nationwide.
Frabricant said Tuesday that 29 convictions have been overturned because of discredited bite mark evidence.
The President’s Council of Advisors on Science and Technology has recommended the use of bite mark evidence in Texas be put on hold.
Consiglio on the other hand argued that no court in the land has yet suppressed the use of bite mark evidence, and he said that it is still a valid science.
Kopriva stated in March that bite mark evidence is not a “novel methodology” and “is currently accepted in the relevant scientific community of forensic odontologists.”
The defense asked her to reconsider her ruling, and, if necessary, allow an appeal to the Pennsylvania Superior Court with the request that the state appeals court determine if “relevant scientific community” is limited to just odontologists and whether experts from other fields can offer their opinions about such evidence during a Frye hearing — a hearing to contest the scientific validity of bite mark evidence.
The controversial blog stated that “scientific basis for bite mark evidence is insufficient.”
When the judge was confronted with the “damming critiques” of those who contest the scientific certainty of bite mark evidence, the “court deemed them irrelevant, focusing only and improperly on the opinions of the very individuals whose livelihoods depend on the continued use of the bite marks: forensic dentists.”
It continued, “Such willful scientific illiteracy among the judiciary flies in the face of Supreme Court mandates over 30 years ago that capital cases must aspire to a heightened standard of reliability.”
Consiglio, when reviewing the blog, concluded, “the problem is putting this out to the public.”