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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.

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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.

The Award Winning Documentary Mississippi Innocence is Nationally Premiered at the Newseum in Washington D.C.

By Dr. David Averill

Kenny Brewer, exonerated after 15 years in prison for a wrongful conviction

The national screening of the award winning documentary by Joe York called Mississippi Innocence was premiered at the Newseum in Washington D.C. on Monday October 3. The documentary chronicles the exoneration of two men wrongfully convicted of crimes based solely on bitemark evidence. Both men served over 15 years in prison before being exonerated with DNA evidence.

The director of the Mississippi Innocence Project is Tucker Carrington, he is formerly a supervising public defender in Washington D.C. and visiting professor at Georgetown Law. The evening began with a panel discussion. The discussion revolved around the mechanisms that have resulted in the wrongful conviction of innocent individuals. A number of points were brought up including, lack of expert accountability, no consequences for faulty analysis and lack of rigor in the opinions.

ABFO diplomates Drs. David Averill and Dr. Michael Bowers attended the event

Joseph Flood, defense attorney, Tucker Carrington, Director Mississippi Innocence Project and Dr. Michael Bowers

Carol Mockbee, Program Director Mississippi Innocence Project

Police Agencies Use Bitemarks as Sources of DNA for Identification Rather than Comparison with Toothmarks

By Dr. David Averill and Dr. Michael Bowers

Sidestepping the years long controversies of bitemark comparison, police investigators have redirected their approach to answer perpetrator identification. Using the bitemark as a source of salivary DNA, the comparison is accomplished using proven biological methods of DNA profiling. These following cases below illustrate the shift to best practice police methods.

Big Sky man arrested, accused of raping 17-year-old
http://www.kxlf.com/news/big-sky-man-arrested-for-raping-17-year-old/

Zion woman denies Gurnee Mills robbery, attack
http://www.dailyherald.com/article/20110825/news/708259526/photos/AR/

Cop impersonator guilty of attempted murder
http://www.compasscayman.com/caycompass/2011/08/25/Cop-impersonator-guilty-of-attempted-murder/

Man gets 22 years in bike path rape
http://abclocal.go.com/wls/story?section=news/local&id=8306284

Burglar helps him/herself to the fridge
http://www.westseattleherald.com/2011/09/26/police-blotter/police-blotter-week-9-26-11

Detective Arrested & Charged with 1986 Murder
http://cmm.lefora.com/2010/02/16/sherri-rae-rasmussen-ruetten-stephanie-ilene-lazar/

Journal of the American Dental Association Publishes Editorial Discussing Unsubstantiated “Science” of Bitemark Evidence

By Dr. David Averill, and Dr. Michael Bowers

Dr. Mary Bush has authored a guest editorial in the September 2011 issue of the Journal of the American Dental Association. She states that bitemark analysis is not validated, yet has been accepted into the courts without substantiating empirical evidence. According to Bush, this has placed innocent individuals accused of crimes at serious risk. This also has undermined the credibility of the criminal justice system. Dr. Bush is one of a team of researchers at the University of Buffalo who have recently published a series of research papers, which show that bitemarks in skin do not reflect the actual dental characteristics of the biter in controlled experiments due to the properties of skin distortion.