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Bite Mark Evidence Sends Innocent Man to Death Row

THURSDAY, DECEMBER 22, 2011
Death Penalty News Blog runs the CNN Anderson Cooper story about Ray Krone

Ray Krone: "I was called a monster, then an unremorseful killer"

Ray Krone was arrested for the sexual assault and brutal murder of a female bartender in Phoenix, Arizona in 1991. The case rested largely on bite mark evidence on the body of the victim, 36-year-old Kim Ancona. Krone was dubbed by the media as the “snaggletooth killer.” He was found guilty and recieved the death penalty.

“I was called a monster, then an unremorseful killer, then sentenced to death and shackled and taken right straight to death row,” says Krone.

He vehemently maintained his innocence and fought for a retrial. In 1996 Krone was given a second chance to prove he didn’t commit the murder. Again, the same bite mark expert’s testimony portrayed him as guilty, but this time Krone’s defense team had their own bite mark experts to rebut the prosecution.

“I was starting to get a sense of real faith again in the system, the truth was coming out. The jury was seeing this, this bite mark expert for the prosecution was going to be exposed and things were going to be OK for me and my family again,” he said.

But the jury once again found Krone guilty. “It hurt, it was more painful than the first time,” says Krone. He added, “but it isn’t what nearly killed me. What cut me to the bone, to the core, was they said ‘guilty’ and I heard this most horrible scream, this moan from my Mom and sister about five feet behind me (in court).”

Although Krone was found guilty a second time, the judge had doubts about the case and took him off death row and reduced his sentence to 25 years to life in prison. Krone says despite the lesser sentence, he nearly lost all hope.

“I’m not going back to death row, but really you already took my life, my freedom, my honor, my word is no good, I’m a monster, you might as well kill me. What is there to live for?”

But he never gave up fighting and his family and defense team never stopped believing in his innocence. In 2002, DNA from the crime scene was analyzed and not only didn’t match Krone’s, but there was another person in the DNA database who it matched perfectly. To make things easy on law enforcement, the perfect match was already behind bars – a convict named Kenneth Phillips.

Click here to read the full article

Source: CNN, AC360, December 21, 2011

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Balko on the Bennie Starks Case

By David Averill

Radley Balko of the Huffington Post published a nice comprehensive piece on his blog The Agitator concerning the defamation suit filed by two Chicago dentists against Michael Bowers. Balko opens his story by saying “Michael Bowers has been one of the heroes to shed light on the bite mark matching fraud. He has personally exposed a number of quacks, and contributed to the National Academy of Sciences report that found no scientific basis for the idea that bite marks on human skin can be definitively matched to one person, to the exclusion of everyone else.”

The two forensic dentists suing Bowers testified that the bitemark found on the shoulder of the victim to be a “definite match” in the wrongful conviction of Bennie Starks. DNA has since been found from semen and from the bitemark that did not implicate Bennie Starks. Starks has been released from prison after serving many years and is awaiting the decision from the prosecutor whether to be re-tried. What is most amazing is that despite the DNA found not to belong to Starks and the bitemark analysis being severely criticized by two excellent odontologists, the two expert odontologists for the prosecution stand by their opinion that Starks bit the women. The frivolity of the suit is further exposed when the damages include loss of income from dental patients to their private practices.

Review of Bitemark Evidence in the People of Illinois v. Bennie Starks

Balko finishes his piece exposing how the ABFO dental expert Dr. Lowell Levine who was interviewed in the CNN story also made a mistake in mis-identifying an individual via bite marks. But like the two Chicago dentists, Dr. Levine remains defiant that a mistake was made despite DNA implicating a man other than that identified by Levine to be the biter.

2 dentists sue colleague for criticizing their bite-mark testimony

By STEVE MILLS – Chicago Tribune

CHICAGO — In the ongoing battle over the use of bite-mark evidence, two Chicago-area dentists have opened a new legal front, suing a colleague for alleged defamation because he used a Lake County, Ill., rape case they worked on as an example of the oft-criticized discipline gone awry. Dentists Russell Schneider, of Waukegan, and Carl Hagstrom filed their lawsuit against Michael Bowers, a dentist in California who is a frequent critic of his fellow forensic odontologists for work that has led to numerous wrongful convictions.

The two dentists allege in their lawsuit that Bowers spoke at a conference of forensic dentists in Chicago this year and included a case they worked on in a list of 10 wrongful convictions caused by bite-mark evidence. That, the two allege, was wrong and subjected them to ridicule and a loss of business.

Bowers declined to comment, as did his attorney.

Bite-mark testimony has been criticized by courts for its lack of a scientific foundation, essentially leaving dentists to compare by visual examination bite marks on a victim’s skin with X-rays or molds of a suspect’s teeth and trying to determine if they match. Even some of the forensic discipline’s leading practitioners, stung by reversals linked to DNA evidence, now argue that bite marks are best used to exclude suspects, not identify them.

A 2004 Tribune investigation, “Forensics Under the Microscope,” showed that bite-mark evidence had been accepted by courts despite a lack of scientific rigor to justify its broad claims, and that its use in criminal trials had contributed to a number of wrongful convictions.

Bite-mark testimony has fallen out of favor among many prosecutors.

Schneider and Hagstrom filed the lawsuit in Cook County Circuit Court in November. They asked for an unspecified sum in damages.

Schneider and Hagstrom examined evidence for Lake County prosecutors in the case against Bennie Starks, who was convicted in 1986 of pulling a 69-year-old Waukegan woman into a ravine and beating and raping her. Schneider and Hagstrom testified at trial that they compared Starks’ teeth to a bite mark on the woman’s shoulder, and that there was a match.

Starks was convicted and was sentenced to 60 years in prison. He has maintained his innocence.

In 2006, after Starks had served nearly 20 years, the Illinois Appellate Court granted him a new trial because DNA tests excluded him as the source of semen on the victim’s underwear; that evidence, the court said, showed that a crime-lab analyst had presented false evidence at trial.

The appeals court did not rule on the bite-mark evidence. Examinations of Schneider and Hagstrom’s work by two dentists retained by Starks’ attorneys concluded that their work was flawed. Those two dentists said Schneider and Hagstrom mistook the upper jaw for the lower and the lower for the upper.

“The victim was attacked by one person who sexually assaulted her. We know that wasn’t Bennie Starks, so it wasn’t Bennie Starks who bit her,” said Jed Stone, one of Starks’ attorneys. “There is no other interpretation of this evidence that makes any sense and isn’t completely fanciful.”

Although Starks was awarded a new trial nearly six years ago, Lake County prosecutors still have not retried him.

Schneider and Hagstrom allege in their lawsuit that Bowers, in a presentation at the February conference, listed the Starks case first in his list of cases in which bite-mark evidence had contributed to a wrongful conviction.

They say Schneider stood up and told Bowers that Starks’ conviction was not reversed because of any of the bite-mark evidence, but Bowers “ignored plaintiff’s statement and did not retract his assertion that the Bennie Starks conviction was premised upon faulty bite-mark testimony.”

“Whether or not he had sexual intercourse with her … has nothing to do with my clients,” said Michael Krause, one of the attorneys for the two dentists, neither of whom returned calls for comment. “My clients feel that their reputations have been harmed by Bowers’ statements. It’s actually quite simple.”

http://www.macon.com/2011/12/25/1838917/2-dentists-sue-colleague-for-criticizing.html

Renowned Expert Says Bitemark Analysis is not Junk Science but Cannot be Proven as a Science Either…

By David Averill

CNN recently aired a segment on the Anderson Cooper 360 show titled Bite Marks Led to Wrongful Conviction. In this piece the world’s foremost ABFO expert in forensic odontology, Dr. Lowell Levine expounds that bitemark analysis is not junk science and is viable and important, but as far as he knows it can’t be proven either. Interesting, since his statement then coincides with the definition of junk science as it is often defined as dogmatic and acknowledges no higher authority than itself for validity of its assertions. Sounds just like bitemark analysis. The courts have been duped for quite some time until numerous exonerations of wrongful convictions based on bitmearks have been piling up earning bitemark analysis the “poster child for bad forensic science”.

The full program can be viewed by clicking on CNN Anderson Cooper – Bitemarks led to wrongful conviction

Illinois Prosecutor Who Challenged DNA Evidence Will Resign

New York Times
By ANDREW MARTIN
Published: December 7, 2011

A longtime prosecutor in suburban Chicago known for his brazen comments challenging DNA evidence, including statements to The New York Times that his superiors deemed inappropriate, will retire early next year, the state’s attorney’s office in Lake County, Ill., announced on Wednesday.
Related

The Prosecution’s Case Against DNA (November 27, 2011)
The prosecutor, Michael Mermel, will continue working through January in order to allow for the transition of his cases to colleagues. He was quoted extensively in a Nov. 27 article in The New York Times Magazine challenging DNA tests. Some DNA tests have shown that sperm found inside several rape and murder victims did not come from men he prosecuted.

Mr. Mermel, 60, a prosecutor in Lake County since 1990, argued that sperm was not always relevant to a violent crime. For instance, Mr. Mermel explained away the sperm found inside an 11-year-old murder victim — which did not match the man convicted of the crime — by arguing that she was sexually active.

“The dirtiest thing in that room is the remote control. Everybody has sex and then rolls over and goes, ‘I wonder what’s on?’ “ he said in the article, referring to a hotel room. “O.K., so you can find DNA in the form of sperm from 10 different people in that room from that remote control or even on a person who has touched it. And that woman gets murdered in that room tonight, and you are going to have a lot of DNA. Is it all going to be forensically significant?”

Last week, Lake County’s sheriff, Mark Curran, demanded that Mr. Mermel be fired for his comments. In a statement released Wednesday, Michael J. Waller, the Lake County state’s attorney, said: “The comments attributed to Mike Mermel do not reflect my views on the role of the Lake County state’s attorney’s office. Nor do they reflect the manner in which my staff has conducted themselves over the last 21 years.”

Neither Mr. Mermel nor Mr. Waller could be reached for comment.

Wrongly Convicted Database Record

http://forejustice.org/db/Starks–Bennie.html

Bennie Starks

Years Imprisoned:

20

Charge:

Sexual Assault (includes aggravated)

Sentence:

60 years

Year Convicted:

1986

Year Cleared:
2006

Location of Trial:
Illinois

Result:
Judicially Exonerated Released

Summary of Case:
Wrongly convicted of sexual assault and battery in 1986 based on the expert testimony of a crime lab analyst that a bite mark on the victim was made by Bennie Starks. Starks was sentenced to 60 years imprisonment for sexual assault and 5 years for battery. Starks conviction was vacated and he was released on $100,000 bail on October 4, 2006, after a DNA test excluded him as the source of crime scene evidence originating from the perpetrator.

Conviction Caused By:
Faulty bite mark testimony by a crime lab analyst.

Innocence Proved By:
DNA tests unavailable at the time of his conviction excluded him as the woman’s attacker.
Defendant Aided By:
Compensation Awarded:

Was Perpetrator Found?

Age When Imprisoned:
27

Age When Released:
47

Information Source 1:

Prison door swings open, By Dave Wischnowsky, Chicago Tribune, October 5, 2006

Information Location 1:
http://www.chicagotribune.com/news/local/chi-0610050059oct05,1,4411333.story?coll=chi-newslocal-hed

In 3 cases, Lake County prosecutor Michael Mermel is willing to pit other evidence against genetic tests that exclude defendants

In 3 cases, Lake County prosecutor Michael Mermel is willing to pit other evidence against genetic tests that exclude defendants

“If this DNA . . . were to come from the victim herself, I would be standing over there advocating the side that the defense has in the case,” Mermel said, according to a transcript.

Three years later, a vaginal swab from the rape kit on the woman was found; again, the DNA evidence did not match Starks’ profile.

But Mermel still argued it failed to exonerate him in the 1986 rape case.

In a recent interview, the prosecutor said that because the profiles from the underwear and vaginal swab were the same, they both could have been from someone with whom the woman had consensual sex.

Starks was awarded a new trial in 2006 based on the DNA evidence. After serving 20 years of a 60-year prison term, he was released on bond. When the case comes to trial again next year, Mermel plans to use the victim’s identification of Starks as her attacker.

But eyewitness identification, while still widely used, has been proven fallible by DNA. In three-quarters of the more than 200 DNA exonerations nationwide, eyewitness identifications were central to the state’s case, according to the Innocence Project, which represents inmates seeking to prove their innocence with DNA.

Mermel also plans to argue that bite-mark evidence—the comparisons of bite marks on a victim to a suspect’s teeth—links Starks to the case.

But Mermel’s confidence in bite-mark comparisons contrasts even with some of the forensic discipline’s leading practitioners who, after embarrassing reversals linked to DNA evidence, now argue that bite marks are best used to exclude suspects, not to identify them.

Prosecutors also will use the fact that Starks’ jacket was found near the crime scene.

Arguing that Starks left his coat there, Mermel said it would help jurors see past the DNA. None of the defense’s case “makes any sense,” he said. “None of it passes the most elementary credulity test.”

Starks has said he was drinking the night of the attack and was robbed of his money and coat. His lawyers insist the DNA is the most telling piece of evidence in the case and are perplexed that the prosecutor continues to fight it.

“The DNA ought to humble us,” said Starks’ lawyer, Jed Stone. “But it doesn’t humble some people.”

Child cases most puzzling

Of all cases, those where genetic evidence in sperm is recovered from a child are particularly compelling because there is rarely any explanation other than a sexual assault.

Children were the victims in the other two pending Lake County DNA cases. In both, the victims were found with semen in their bodies, and in both cases DNA tests revealed genetic profiles that do not match the defendants’ DNA.

Juan Rivera sits in the Lake County Jail awaiting a third trial in the 1992 rape and murder of Holly Staker, 11.

Early on, primitive DNA testing excluded Rivera. But prosecutors were armed with confessions from Rivera and won two convictions. Rivera’s lawyers said that under intense police interrogation, he experienced a psychological breakdown and gave a false confession. Prosecutors said he knew facts only the killer could have known.

More sophisticated DNA tests in 2005 isolated a genetic profile from semen that did not match Rivera and won him the third trial. As he has in the past, Mermel dismissed the evidence’s significance, saying Rivera told detectives he did not ejaculate during the rape.

“Is it some other killer, contrary to the evidence we have against Mr. Rivera?” Mermel asked. “We say it’s not.”

One of Rivera’s attorneys, Jeff Urdangen of Northwestern University’s Center on Wrongful Convictions, said it “baffles me” that prosecutors put more weight on the confession than the DNA.

“As we’ve said in our pleadings, it’s very rare for a prosecuting agency to continue with a prosecution after a DNA exoneration,” Urdangen said.

In the other case, Jerry Hobbs is charged with the killings on Mother’s Day 2005 of his daughter Laura, 8, and her friend Krystal Tobias, 9, in Zion. He has pleaded not guilty.

As in Rivera’s case, the anticipated centerpiece of the prosecution’s case is a confession, a short but detailed statement from Hobbs in which he says he stabbed the girls repeatedly after Laura refused to come home and Krystal held out a small knife at him.

“I am sorry for what happened, things just got out of hand and I lost it,” Hobbs says in the confession, which he now disavows.

Public defenders in the case said in court that DNA from semen from oral, rectal and vaginal swabs of Laura produced a profile that did not match Hobbs’ DNA.

But Mermel noted that prosecutors had not charged Hobbs with a sex crime, saying there was no evidence of sexual trauma. He said, too, that it was possible the small amount of semen in her was picked up as she played in the woods, where some couples have sex.

And Mermel disagrees with the contention by Hobbs’ attorneys that the DNA is evidence that someone else attacked the girl.

“It is such a goofy logic leap [that] because somewhere in her life she came into contact with a sperm cell it means she was sexually assaulted,” Mermel said. “To take this leap that this is the identity of the mystery killer, I don’t know where everybody gets this idea.”