Check out the latest Popular Science magazine article titled “It’s Time To Treat Crime Forensics Like Real Science”.
By Lisa Black, Tribune reporter
12:26 pm, January 7, 2013
A wrongfully convicted man who spent 20 years in prison for rape and battery had a happy final day in court today as Lake County officially dropped the last charge in a case that dates back to 1986.
“I don’t even have any words. I am overwhelmed with joy. It’s finally over,” Bennie Starks said outside the Lake County courthouse this morning, minutes after all the details of dropping the case had been ironed out.
Days into his first term in office last month, Lake County State’s Attorney Mike Nerheim agreed to vacate the final charge of aggravated battery, reversing the course of retired Lake County State’s Attorney Michael Waller.
“For 2½ decades, a dark cloud has shrouded this courthouse,” Starks’ attorney Jed Stone said. “Today a ray of sunlight shines through that cloud because of Mike Nerheim.”
The case has a byzantine history that reaches back to 1986.
Starks, 53, who lives in Chicago, spent 20 years in prison for raping and battering a 69-year-old woman in Waukegan before DNA pointed away from him.
The victim had identified Starks as her attacker, authorities had said his jacket was found near the scene and bite marks on the woman matched him. His attorneys called the dental evidence into question, and he said his jacket had been stolen from him.
He was freed six years ago after DNA evidence indicated the woman had had sex with someone else and appeals judges ordered a new trial. Prosecutors continued to pursue the rape charge against Starks, arguing the woman must have had consensual sex with another man, although she said the opposite at trial.
Prosecutors finally dropped the rape charge in May, but the battery charge survived because it had been split from the rape case by a prior court ruling.
In June, the appeals court ordered Lake County to hold a hearing where Starks’ lawyers could argue for a new trial on the battery charge. Lake County called on appeals judges to reconsider and, when they declined, asked the state Supreme Court for review.
The Illinois Supreme Court declined to do so on Nov. 28, one week before Nerheim said he would end Starks’ prosecution.
“He’s finally cleared his name,” said Lauren Kaeseberg, an attorney who had been working with Starks since 2004 for the Innocence Project, which uses DNA evidence to exonerate people who have been wrongly convicted.
“He’s exonerated in every way … he can move forward … now he can explain a 25-year gap in his work history.”
Bush, M. A.
Bush, P. J.
Sheets, H. D.
Journal of Forensic Sciences, Vol. 56 Issue 1, Pages 118-123
Recent scrutiny of forensic science has focused on unreliability of expert witness testimony when based on statements of individuality. In bitemark analysis, assumptions regarding uniqueness of the dentition have been based on use of the product rule while ignoring correlation and nonuniformity of dental arrangement. To examine the effect of these factors, two separate sets of scanned dental models (n=172 and n=344) were measured and statistically tested to determine match rates. Results were compared to those of a prior study. Seven and 16 matches of the six anterior lower teeth were found in the respective data sets. Correlations and nonuniform distributions of tooth positions were observed. Simulation tests were performed to verify results. Results indicate that given experimental measurement parameters, statements of dental uniqueness with respect to bitemark analysis in an open population are unsupportable and that use of the product rule is inappropriate.
The court has recently denied relief, due to legal technicalities in the 1991 Kunco v. Commonwealth of Pennsylvania case where perhaps one of the most egregious uses of bitemark evidence was used to convict a man to 45-90 years in prison. Radley Balko, a Senior Editor of Reason Magazine first wrote about this case in 2009, which he published on his web site at http://www.theagitator.com/2009/04/24/another-dubious-bite-mark-case-this-time-in-pennsylvania/.
The case involves the brutal rape and torture of a 55-year-old woman. Two ABFO board certified forensic dentists became involved in the case 5 months after the crime. They were hired to analyze a bitemark on the shoulder of the victim. This request came only after more than 40 pieces of forensic evidence collected at the crime scene, which included hair; blood and fiber did not link to the police’s suspect.
The police had photographed the bitemark at the time of the crime but failed to include a scale in the photograph as a reference, which is required to compare the bitemark to a suspect’s dentition. To rectify this situation the ABFO experts resorted to a novel photographic technique that they had learned from Dr. Michael West, which they claimed to show the bitemark, despite the 5 months of healing which had taken place.
The Innocence Project first took this case on in 1993 and appealed on the basis of the novel UV photographic technique the experts used to “recapture” the bitemark 5 months later. The experts learned the technique from former ABFO member and now dis-credited forensic analyst, Dr. Michael West (see previous post). The Innocence Project used Dr. Gregory Golden as the forensic dental photography expert who testified that the UV reflectance photographic technique was unreliable. He was opposed in court by Dr. Robert Barsley who the court felt satisfactorily rebutted Dr. Golden’s testimony since some sort of marks could be seen in the UV reflectance “recaptured photograph” purported to be a bitemark. There was no discussion at the time surrounding the ability of this bitemark without details to be used to identify a specific individual. Historically this was at a time when bitemarks were being used and accepted in the courts across the country with an irrational exuberance. It was only later as DNA that has been recovered from many of these overstated and unsupported opinion bitemark cases that the reliability and validity of bitemarks have come under intense scrutiny and question by the media.
The end result of this bogus bitemark court case was the closing arguments by the prosecutor using the bitemark evidence as the nail in the coffin for the defendant proving his guilt:
[T]here’s no way, no way on this earth, for Mr. Kunco to explain how his tooth marks got on Donna Seaman’s shoulder unless you accept the fact that he’s the one who attacked and brutalized Mrs. Seaman. That’s the only explanation, ladies and gentlemen. That’s why the evidence is better than fingerprints or hair samples … [T]he bite mark on Danna Seaman’s shoulder was as good as a fingerprint. And I submit to you it was that, ladies and gentlemen, for all intents and purposes. Ladies and gentlemen, I’d submit to you that John Kunco should have just signed his name on Donna Seaman’s back, because the bite mark on Donna Seaman’s shoulder belongs to John Kunco.
Next: Part Two of this case that will show the evidence presented in court and the opinions of the Innocence Project forensic odontologists.
Forensic Odontology is a fascinating and challenging subject. The explosion of technological and procedural advances coupled with the general publics increased awareness through the media such as “CSI” has made forensic sciences appealing to many and seemingly infallible to others.
I have known Dr. Bowers for over twenty years. We ﬁrst made acquaintance in Louisville, Kentucky in 1989 while challenging the ABFO dental certiﬁcation board examination. Over these years he has earned the respect of all others in this ﬁeld with his determined dedication to further forensic odontology into a respected discipline of the forensic sciences.
The second edition of “Forensic Dental Evidence: An Investigatorʼs Handbook” edited by Dr. C. Michael Bowers is written for those whose desire the knowledge, background and understanding of forensic dentistry. This book is essential reading and a valuable asset for any investigator, lawyer, medical examiner, nurse or dentist that has an interest or a role in a forensic dental case.
A highlight of this handbook is the discussion of the wrongful convictions and erroneous bitemark opinions that have surfaced in the past decade. In the early 1990s Dr. Bowers and others become cautious in the manner in which bitemark opinions were being used to identifying speciﬁc individuals in an open population. Currently there have been 10 exonerations of individuals who have served many years in prison that were falsely imprisoned as a result of faulty bitemark evidence and incorrect opinions. These opinions were not based in science and were without validity or reliability. Dr. Bowers asan impartial dental expert and DNA evidence resulted in the exoneration of these innocent individuals.
Dr. Bowers determined work in educating and informing the forensic community of the need for scientiﬁcally validated opinions in the 1990s went largely neglected by forensic dentists. In 1999 the ABFO performed a bitemark workshop to examine the ability of the expert to properly discern the biter from a lineup of unknowns. The ABFO published a paper with the results that reported the ability of the forensic dentists to identify the correct perpetrator with moderate accuracy of 86%. What was not reported was the high level of false positives that accompanied these ﬁndings. Dr. Bowers high ethical standards compelled him to uncover the actual ﬁndings that revealed this high false positive rate that was not exposed in the scientiﬁc paper published by the ABFO.
Recognizing that improvements were necessary in the forensic sciences Congress directed the National Academy of Science to study the problem. In 2009 the National Academy published a report called “Strengthening Forensic Science in the UnitedStates: A Path Forward” which was a comprehensive review of all the forensic sciences,including bitemark analysis. The ﬁndings from the report were the same as Dr. Bowers had been teaching and writing about for years. It was not until after the report was published did the dental forensic specialty group begin to acknowledge the need for change. Fortunately this process has begun and positive changes are currently being
made. This handbook relates and discusses all the problems identiﬁed by the National Academy of Science.
In this book Dr. Bowers has partnered himself with many of the worlds foremost forensic scientists and dental experts. This handbook offers the latest information available to the forensic community and beyond. It will function to advance the profession and allow justice to be served for all.
Bitemark experts from North America will gather this week in Chicago for their annual scientific meeting. The highlight of the week will be the presentation on Thursday by a research team from the University of Buffalo. The research team has published a number of scientific articles that oppose what many of the bitemark experts have testified in their past cases concerning bitemarks.
There will be a palpable trepidation among many of the bitemark experts as the guest scientists from the University of Buffalo deliver their talk. The presentation will likely be about the lack of scientific studies on skin distortion and the unresolved issue of dental uniqueness. The Buffalo team consists of Peter Bush, Mary Bush, David Sheets and Ray Miller who have published numerous articles in the scientific forensic journals. I will post more on their presentation later.
Dr. Michael West was once known as a world-renowned forensic odontologist. His robust resume overflowed with case credentials from the FBI and Scotland Yard. Police and prosecutors from across this nation purchased his expert witness services, earning him accolades in newspapers, forensic journals, and other major media outlets. He was a crime fighter extraordinaire appearing in Newsweek magazine. Dr. West’s trained expertise is in forensic odontology, a specialty of the forensic sciences. He made his name analyzing bitemarks on skin.
Dr. West’s career terminally imploded after authorities examined DNA left at the crime scenes that did not belong to either convicted men. Instead, the DNA implicated one man from both crime scenes that had been free while the innocent men both served 15 years in prison.
The American Board of Forensic Odontology reports this case on their blog. What you don’t see on the ABFO blog is the many other additional exonerations of innocent men wrongfully convicted by ABFO certified dentists through bitemark evidence. Perhaps the ABFO only publishes Dr. West’s case is that he resigned his certification and is no longer a member.