Advertisements

U.S. Mississippi Death Row Case Faults Bite-Mark Forensics

SEPT. 15, 2014

NEW YORK TIMES

In one of the country’s first nationally televised criminal trials, of the smirking serial murderer Ted Bundy in Florida in 1979, jurors and viewers alike were transfixed as dental experts showed how Mr. Bundy’s crooked teeth resembled a bite on a 20-year-old victim.

Mr. Bundy was found guilty and the obscure field of “forensic dentistry” won a place in the public imagination.

Since then, expert testimony matching body wounds with the dentition of the accused has played a role in hundreds of murder and rape cases, sometimes helping to put defendants on death row.

But over this same period, mounting evidence has shown that matching body wounds to a suspect’s dentition is prone to bias and unreliable…..

The lack of a scientific basis for bite-mark identification was stressed by the National Academy of Sciences in a 2009 report on forensics. The academy said that such analysis could not reliably identify one individual, among all others, as the source of a bite.

Bite marks on the skin change over time and are easily distorted, the academy said, while there is a huge potential for bias when an expert is asked to match a bite wound with the teeth of a known suspect.

Dr. Peter W. Loomis, a consultant in dental forensics in Albuquerque and president of the discipline’s professional body, the American Board of Forensic Odontology, did not dispute the academy’s conclusions but said that bite-mark analysis still had a useful role in court.

Read more

http://www.nytimes.com/2014/09/16/us/mississippi-death-row-appeal-highlights-shortcomings-of-bite-mark-identifications.html?module=Search&mabReward=relbias%3Ar&_r=0

Advertisements

Dentists sue over bite mark testimony

Dr. Bicuspid

By Donna Domino, Features Editor

January 18, 2012 — In a case that could open an inquiry into the scientific validity of bite mark evidence, two Illinois dentists are suing an expert odontologist for allegedly defaming them after he used a rape case they testified at as an example of how bite mark evidence can lead to wrongful convictions.

Russell Schneider, DDS, of Waukegan, and Carl Hagstrom, DDS, of Fox Lake, filed their lawsuitagainst Ventura, CA, dentist C. Michael Bowers, JD, DDS, in November 2011 in Cook County Circuit Court.

The lawsuit claims that Dr. Bowers used a case they worked on as proof that the forensic discipline is scientifically unreliable.

“Whatever reliability there is, it is far less reliable when done only from photographs.”
— Jed Stone, attorney

Dr. Bowers is a clinical professor at the University of Southern California Ostrow School of Dentistry in Los Angeles and has written several forensic dentistry books, including Forensic Dental Evidence: An Investigator’s Handbook. He also co-authored Digital Analysis of Bite Mark Evidence. He has been a dentist for 36 years and is certified by the American Board of Forensic Odontology and as a crime scene analyst. He also serves as a deputy medical examiner for the Ventura County Medical Examiner’s Office.

In February 2011, Dr. Bowers, who lectures frequently, gave a presentation titled, “A Perfect Storm: Is There a New Paradigm to Keep Bitemarks Afloat or Will They Sink?” at the annual meeting of the American Academy of Forensic Science. According to the lawsuit, he included in that talk a case that Drs. Schneider and Hagstrom had worked on in a list of 10 wrongful convictions caused by bite mark evidence. They allege that this action subjected them to ridicule and a loss of business.

Case overturned

The case Dr. Bowers referenced involved Bennie Starks, who was convicted in 1986 of beating and raping a 68-year-old woman. Drs. Schneider and Hagstrom examined evidence for prosecutors in the case and testified at trial that Stark’s teeth matched a bite mark on the woman’s shoulder.

Starks was sentenced to 60 years in prison but always maintained his innocence. In 2006, after serving nearly 20 years, an Illinois appeals court granted Starks a new trial after DNA tests excluded him as the source of semen on the victim’s underwear.

The appellate court did not rule on the bite mark evidence. But subsequent forensic analysis of Drs. Schneider and Hagstrom’s opinions by Dr. Bowers and other odontologists concluded that their work was flawed, according to Jed Stone, Starks’ attorney. Specifically, they found that Drs. Schneider and Hagstrom reversed the upper and lower molds of Starks’ teeth, confusing one for the other, in their examination.

Drs. Schneider and Hagstrom did not respond to requests by DrBicuspid.com for comment; Dr. Bowers declined to comment.

Bite mark analysis criticized

Bite mark testimony has been criticized by some 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 to determine if they match.

Picture of victim's bite marks

Picture of victim’s bite marks, submitted as evidence in the Bennie Starks case. The discrete areas of bruising and abrasion show patterned injuries produced by human teeth. Image courtesy of Drs. David Senn and Iain Pretty.

“Drs. Hagstrom and Schneider incorrectly identified photographs of alleged bite marks on the victim as coming from Mr. Starks,” Stone told DrBicuspid.com. “We now know two things. One, they were wrong. And two, their bite mark opinion, introduced by the prosecution at Mr. Starks’ trial, contributed to his wrongful conviction.”

A Congressional hearing in 2009 focused on the findings of a National Academy of Sciences report on the scientific basis of forensic disciplines. Among the pattern evidence fields reviewed in the report, bite mark analysis received critical commentary. During the hearing, legislators heard from another man who, like Sparks, was wrongfully convicted on bite mark evidence and later exonerated through DNA analysis.

In addition, a 2009 study published in theJournal of Forensic Sciences (July 2009, Vol. 54:4, pp. 909-914) challenged the commonly held belief that every bite mark can be perpetrator identified. The results indicated that when dental alignments were similar, distinguishing which set of teeth made the bites was difficult. The researchers cautioned that bite marks should be very carefully evaluated in criminal investigations in which perpetrator identity is the focus of a case.

The study’s lead author, Raymond Miller, DDS, a clinical associate professor of oral diagnostic sciences at the University at Buffalo’s Laboratory for Forensic Odontology Research in the School of Dental Medicine, noted that numerous cases have been overturned through erroneous interpretation of bite marks. Dr. Miller warned of the dire consequences caused by such misidentification for the accused, the victim, and the justice system.

“We know that forensic odontologists are excellent at identifying human remains from dental records,” Stone said. “We know that the science is far less reliable when dentists attempt to identify bite marks on elastic skin surfaces. And we know that whatever reliability there is, it is far less reliable still when done only from photographs.”

The current suit claims that Dr. Bowers’ presentation constitutes “false publications” because the reversal of Starks’ conviction was not due to faulty bite mark testimony. It claims that Dr. Bowers imputed that Drs. Schneider and Hagstrom “lack ability and integrity” as forensic odontologists.

The alleged defamation harmed the professional reputations of Drs. Schneider and Hagstrom, the complaint contends. They have not been retained to provide bite mark testimony in any cases since then, and the number of patients that have been referred to them for treatment and evaluation has decreased, according to the lawsuit.

In a defamation suit, the plaintiff must prove that the alleged defamatory statements are false. If it goes to trial, the case could open an inquiry into the scientific validity of bite mark evidence.

The suit seeks compensatory damages as well as legal costs.

Prosecutors still have not decided whether to retry Starks.

2 dentists sue colleague for criticizing their bite-mark testimony

Witnesses worked on rape case in which defendant was granted a new trial because of DNA evidence

December 25, 2011|By Steve Mills, Chicago Tribune reporter

In the ongoing battle over the use of controversial 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 rape case they worked on as an example of the oft-criticized discipline gone awry.

Dentists Russell Schneider, of Waukegan, and Carl Hagstrom, of Fox Lake, filed their lawsuit against Michael Bowers, a dentist in California who is a frequent and sometimes acerbic critic of his fellow forensic odontologists for work that has led to numerous wrongful convictions.

Innocent man, jailed for 20 years, suing forensic experts

Image

http://rt.com/usa/starks-innocent-jail-suing-711/

Bennie Starks was released from prison in 2006, after being locked up for 20 years for a crime he never committed. He is now suing the forensic experts who falsely testified against him in a case of sexual assault.

Although Starks’ charges were dismissed, the 53-year-old man will never regain his lost years. In 1986, he was found guilty of assaulting and raping a 69-year-old woman from Waukegan, Ill., and sentenced to 60 years in prison.

Government witnesses, two dentists and a forensic technician testified against him. The rape victim also identified him in a photo line-up, but Starks believes two police officers encouraged the woman to accuse him.

Dr. Carl Hagstrom and Dr. Russell Schneider, two dentists, testified that the bite marks on the victim’s body matched the marks left by Starks’ teeth. Their methodology, however, was outdated and unreliable, according to information obtained by the Courthouse News Service.

With government witnesses, forensic ‘experts’, and the victim herself alleging that Starks was the rapist, there was little he could do to keep himself out of prison. But in 2006, the Illinois Appellate Court vacated the man’s conviction and set up a retrial. DNA evidence cleared him of the 1986 rape, and Starks walked out of prison a free man.

It wasn’t until January 2013 that all of his charges were dismissed and his record was clean.

“I’m just overwhelmed with joy,” Starks told ABC after walking out of the courtroom with a clean slate. The man’s attorney, Jed Stone, compared the outcome to a “ray of sunlight that cracked through a cloud”. 

But what Starks can’t forget is the false testimony by the state’s forensic technician, Sharon Thomas-Boyd, as well as the two dentists who matched his teeth to the bite marks. Thomas-Boyd falsely claimed that Starks’ semen matched the DNA found on the victim.

US District Judge Gary Feinerman supported Starks’ theory that the forensic experts engaged in a conspiracy to falsely accuse him.

“The complaint amply alleges that the police defendants, the dentist defendants, and Thomas-Boyd all worked to get Starks convicted for a crime he did not commit, and it is more plausible that they each made their contributions to that effort in the context of an agreement to secure a wrongful conviction than that, by some wild coincidence, everyone who came into contact with Starks’s case independently developed a desire to see him convicted and a willingness to lie in pursuit of that goal,” the judge said, according to court documents.

It is unlikely that the police officers will be penalized for lying to the jury, since they hold impunity for doing so. But it is possible that they could face charges for prompting the rape victim to falsely identify Starks as the suspect.

Starks claims the conspiracy caused him emotional distress. The Innocence Project, a group that originally helped the man clear his name, told ABC that in cases where innocent men are imprisoned, misidentification is most often the cause.

“Bennie’s case features a wrongful identification and also faulty forensics,” Lauren Kaeseberg of the Innocence Project said in January. “Misidentifications make up 75 percent of wrongful convictions.”

In the state of Illinois, committing conspiracy or perjury under oath or affirmation is a class 3 felony, which could result in 2-5 years imprisonment and/or a fine of up to $25,000. The lawsuit accuses the forensic experts of filing false reports, giving false statements, conspiring against Starks and pursuing wrongful prosecutions.

The defendants have filed a motion to dismiss the complaint, but Judge Feinerman denied all motions except the intentional infliction of emotion distress.

A Statement Why Court Opinions On Bitemark Analysis Should Be Limited

By C.Michael Bowers

December, 1996

Let’s think for a moment concerning what our wish list would be for bitemark analysis, our profession’s only controversial subject. I would start with an admission and publication from the ABFO of the noted and significant weaknesses that exist at this time in the field. Inferring from its contents, the ABFO’s Guidelines and Standards imply that all things have not been going well. This document expresses some technique recommendations and establishes a few limits on the behavior and language used by forensic dentists. It is not comprehensive since it is silent regarding the scientific basis of dental “uniqueness” determinations by our membership, but its intentions are good and progress is being made. Now is the time to analyze the basic weaknesses and failings of this field’s scientific underpinnings. This article is a short discussion of the biggest weakness and contains a suggestion to minimize the current high degree of risk that exists when bitemark analysis is presented in court.

Taking a historical viewpoint, the early (Texas, 1954)(1) acceptance of bitemark analysis by the U.S. appellate courts really proved a disservice to all participants and future trials. For the sake of this discussion, discount the apparent details of the cases like Marx(2) (California, 1975) which generally contained significant three-dimensional patterns in skin injuries or foodstuffs. The quality of these cases of precedent might not be representative of the majority which followed. There was, however, little science involved in the ultimate opinions dentists delivered in any of these cases. The appellate opinion in Marx realized this when bitemark admissibility was approved on the basis of the “trier of fact” (usually the jury) making their own determination from the evidence presented. Jury acceptance of bitemark testimony is no substitute for population studies and reliability testing. The “generally accepted” methods in use haven’t changed much and the glaring weakness is in the lack of pragmatic determination of “uniqueness” as seen in bitemarks on skin and inanimate objects. Hundreds of cases have occurred since the 1970’s and the issue of individuation has not been resolved scientifically. This place’s odontology at the bottom of the list of other forensic disciplines. Maybe Questioned Document Examination is worse off. There is no reliable way of saying, other than colloquially, that one or more tooth marks seen in a wound are conclusively unique to just one person in the population. Because of this vacuum, value judgements abound in our discipline. Proffering the testifying expert’s years of experience is a popular means of “proving” uniqueness.” He or she has seen more bitemarks. This misses the scientific point and is misleading to a lay jury that is given the responsibility of filtering good science from bad. The confidence level of expert testimony must be based on data available to BOTH the dentist and the court. This scientific data does not exist. Until this changes, the admissibility of bitemark analysis should be limited to a “possible” determination. The odontologist doesn’t have a basis to expand an opinion beyond that. Marks in skin can be spatially associated to the edges of teeth by trained dentists. That is within the realm of physical comparison methodology. The “unique” or “reasonable dental certainty” description currently used to characterize a positive match are not supported by anything other than personal opinion. That is the reason for this proposed limitation on bitemark testimony.

There have been and will continue to be cases where the defendant’s teeth and an unknown bite pattern shows a common pattern and shape. The determination of common similarities equaling a finding of uniqueness can’t be made on such general features. The equation using values of 1 to 4 (one being common) for these generic features such as arch width and tooth width should not be 1x1x1x1=4. The Milone(3) case and its derivative commentaries(4),(5) should be read by everyone to underscore this limitation.

I also propose that a bifurcation must take place in possible value of different types of bitemarks. A three dimensional bite, as in Marx (on a nose), allows for much more accuracy in the “wound to teeth” comparison. Questions of spatial relationships are substantially answered and discrepancies leading to subjective visualization are minimized. The answer is demonstrable and the commonly used syllogism of “its much like a toolmark” is applicable. A two-dimensional wound is a separate and much greater challenge. These cases lack “toolmark” clarity and are the foundation for uncontrolled opinion and poor sensitivity and specificity in analysis.

Research must progress to raise the current anecdotal level of individuation in contemporary bitemark analysis. A concerted effort to find funding and research facilities has to be done by this organization. It will be the cheapest assurance that our future in court will be positive, rather than controversial. After the research is done, the “possible”might then become “unique.”

Footnotes

1. Doyle v. State, 159 Tex. C.R.310, 263 S.W.2d 779 (Jan 20, 1954)

2. People v. Marx, 54 Cal.App3d 100, 126 Cal.Rptr. 350 (Dec. 29, 1975)

3. People v. Milone, 43 Ill.App.3d 385, 356 N.E.2d 1350 (Nov. 12, 1976)

4. U.S. ex rel. Milone v. Camp, Slip opinion (U.S. Dist. Court, N.D.IL; Sept 29, 1992)

5. Milone v. Camp, 22 F.3d 693 (7th Cir.) (Apr. 21, 1994)

About the Author: C.Michael Bowers provides expert and criminal litigation support in matters pertaining to forensic dentistry and DNA profiling. Originally published at Vol. 4, No. 2, December 1996; American Board of Forensic Odontology Newsletter.

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.