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 (7^th 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.

Cases Where DNA Revealed that Bite Mark Analysis Led to Wrongful Arrests and Convictions

From the Innocence Project     http://www.innocenceproject.org/

Forensic science errors are a leading cause of wrongful convictions nationwide. Scientific errors, fraud or limitations were a factor in 63% of the first 86 DNA exoneration cases, according to an August 2005 analysis of the cases published in Science magazine. These forensic science mishaps include everything from lab analysts who committed fraud to expert witnesses who relied on analyses of forensic disciplines which have never been adequately validated to identify a perpetrator such as: hair, bullets, handwriting, footprints, or bite marks. Using DNA – which provides a precise identification that other methods cannot – wrongful convictions were exposed years or even decades later.

Bite mark analysis is particularly troubling because of the almost complete absence of validated rules, regulations, or processes for accreditation that establish standards for experts or the testimony they provide. Unlike other areas of forensic analysis, forensic dentists are generally self-employed rather than employees of an accredited lab and hence they can avoid even that layer of oversight. Moreover, no government entity has ever reviewed the validity of bite mark evidence. “[B]ite mark analysis has never passed through the rigorous scientific examination that is common to most normal sciences,” according to the 2002 book Modern Scientific Evidence: The Law and Science of Expert Testimony.

There are approximately 100 forensic odontologists in the country who have been certified by boards controlled by other odontologists – generally speaking, their friends and colleagues – but not accredited by an entity that applies scientific rigor. Much forensic odontology work involves comparing dental records to well-preserved teeth of people who died in fires or other tragedies – but comparing an accused person’s teeth to marks on a victim’s body is far more subjective, and far more prone to error. As noted in Modern Scientific Evidence, “The rate of error in bite mark identification, particularly the rate of false positive errors, appears to be quite high.” In fact, only three studies have examined the reliability of bite mark analysis. All three show serious problems. One showed an error rate – a rate of false identifications – as high as 91%. Another (conducted by the American Board of Forensic Odontology) found a 63.5% rate of false identifications, and the third showed an error rate of 11.9% to 22% of false identifications among forensic odontologists and noted that the “poor performance” is cause for concern because it has “very serious implications for the accused, the discipline, and society.”

The Innocence Project believes that all forensic disciplines need to be scientifically validated through truly independent research and peer review before the methodologies are used in criminal cases where life and liberty are at stake. Moreover, even if the methodology is valid, bias, incompetence, or a lack of adequate internal controls can compromise the integrity of the results. The Innocence Project’s position is based on fundamental principles of good science and the disturbing narratives of innocent people, arrested and convicted of crimes based on bite mark analysis, only to eventually be proven innocent through DNA testing.

Following are five cases where people were convicted based largely on bite mark analysis, only to be proven innocent through DNA years later:

Willie Jackson in Louisiana
DNA testing exonerated Willie Jackson in 2006 and implicated his brother in a Louisiana rape. The victim identified Jackson as the assailant in a photo array and also in a live line-up. His brother also appeared in a line-up but was not identified by the victim. However, Jackson lived 185 miles away from the scene of the crime, while his brother lived in the area. Several other factors tied his brother to the crime: When police searched Jackson’s mother’s house, they found a sweater with his brother’s name on it that was similar to the one described by the victim; Jackson’s mother drove a car similar to the victim’s description; and a bartender testified that he saw Jackson’s brother, and not Jackson himself, in the same bar as the victim the night of the rape. In addition to eyewitness testimony, the prosecution presented a forensic odontologist who testified that bite marks on the victim matched Jackson’s teeth. Just days after Jackson was convicted in 1989, his brother confessed to the crime but was not charged. Sixteen years later, Jackson was released based on DNA test results. In addition, a second, independent odontologist argued that the earlier finding was incorrect and that the bite marks actually matched Jackson’s brother. His brother was already serving a life sentence for an unrelated rape.

Ray Krone in Arizona
Based largely on bite mark analysis, Ray Krone was convicted of murdering a Phoenix bartender and sentenced to death plus 21 years. Krone became known as the “snaggle-tooth killer” when an impression of his jagged teeth (in a Styrofoam cup) was said to match the bite marks on the breast and neck of the murder victim. She had been fatally stabbed, and the perpetrator left behind little physical evidence. There were no fingerprints; blood at the scene matched the victim’s type; and saliva on her body came from someone with the most common blood type. There was no semen, and no DNA tests were performed. First convicted in 1992, Krone won a re-trial in 1996 and was convicted again mainly on the state’s supposed expert bite-mark testimony. His death sentence, however, was reduced to life in prison. Finally, in 2002, Krone was released after DNA testing proved that he could not have been the perpetrator. Instead, saliva and blood found on the victim matched a convicted rapist.

Calvin Washington in Texas
Calvin Washington was convicted of murder and sentenced to life in prison in Texas in 1987. It was alleged that Washington, either acting alone or with Joe Sidney Williams, robbed, raped, and murdered the victim. An expert witness testified that bruises on the victim’s body were bite marks that matched Williams’ teeth. A jailhouse informant claimed that he heard Washington and Williams make incriminating statements when he walked by their hotel room one night. Meanwhile, the defense presented over a dozen Waco, Texas, police officers who testified to the unreliability of the jailhouse informant. The prosecution also produced evidence that the defendants were in possession of the victim’s car and had sold items belonging to the victim on the night of the crime. Both Williams and Washington were convicted. Williams’ conviction was overturned and the prosecution declined to retry him. Washington served 13 years in prison before DNA test results exonerated him in 2001. Testing also showed that fluids taken from the victim did not come from Washington, but rather from another man, since deceased.

James O’Donnell in New York
James O’Donnell became a suspect in an attempted sodomy case on the basis of a police sketch. A Staten Island resident, having seen the sketch in the newspaper, contacted the police and named O’Donnell. The victim later identified O’Donnell in a photo array and in a live line-up, but a second witness who was also at the scene of the crime did not identify him. The victim had passed out after struggling with the assailant. He bit her on the hand and she scratched him. The bite mark was said to match impressions of O’Donnell’s teeth, but DNA testing of the saliva on the bite mark later disproved the finding. Testing of the fingernail scrapings matched the saliva and further proved that O’Donnell was not the perpetrator. He was exonerated in 2000, after over two years of wrongful incarceration.

Dan Young in Illinois
Dan Young spent 12 years in prison before DNA testing cleared his name in a Chicago murder. His conviction was based on a bite mark match and a false confession. Young was mentally handicapped and could not read or write. An initial analysis of the bite mark found a match between Young’s teeth and the bite mark, but a more recent analysis, commissioned by the defense, contradicted this finding. The odontologist who aided in Young’s conviction later said that the prosecution pushed him to exaggerate his results. Young was released in early 2005.

Bite mark analysis has also caused an unknown number of innocent men and women to be arrested and charged with crimes they did not commit. Some of these people became ensnared in police investigations on the basis of nothing more than an erroneous bite mark “match.” The following people languished in jails awaiting trial until DNA testing lead to their release:

• In 1994, Anthony Otero of Detroit was charged with first-degree murder, rape, and larceny in the death of a 60-year-old woman. A forensic odontologist testified at a preliminary examination that Otero was “the only person in the world” who could have inflicted bite marks found on the victim’s breast and thigh. After Otero spent five months in jail awaiting trial, the state dismissed the charges after a newly available DNA test excluded him as the perpetrator.
• Dale Morris, Jr., was arrested in 1997 based on bite mark analysis matching his dentition to a mark on a nine-year-old murder victim. Morris was a neighbor to the little girl who was found stabbed, sexually assaulted, and bitten in a field near her Florida home. He spent four months in jail until DNA tests proved his innocence.
• A police dog led officers to the home of Edmund Burke during an investigation in the murder of a 75-year-old woman from Massachusetts. The assailant had left a bite mark on her breast. The odontologist in the case compared photos of the bite wound with a mold made from Burke’s teeth and concluded “to a reasonable scientific certainty” that Burke had made the mark. However, just weeks after his arrest, DNA taken from saliva from the bite mark was tested and Burke was released.

Innocence Project’s New Strategic Litigation Unit Takes on Bite Mark Evidence…

Posted on August 14, 2012 by Mark Godsey

http://wrongfulconvictionsblog.org

From press release:

THE INNOCENCE PROJECT (IP) is a national litigation and public policy organization based in New York dedicated to exonerating wrongfully convicted individuals through DNA and reforming the criminal justice system to prevent future injustice.  As the DNA exonerations have revealed, the misapplication of forensic science has been a leading cause of wrongful convictions.  The newly created Strategic Litigation unit is aimed at, among other things, eliminating junk science from courtrooms nationwide, beginning with bite mark comparison evidence.  To that end, IP seeks to partner with an attorney(s) on criminal cases involving bite mark comparison.  Attorneys with cases meeting the following criteria should contact IP directly.

• Bite mark testimony is proffered by the government as evidence identifying the defendant to exclusion of all other potential sources
• Pre-trial, trial, appellate or post-conviction cases:  The primary interest is assisting with pre-trial Frye/Daubert motions and hearings, but IP will consider bite mark cases in all stages of litigation
• Other disciplines, in particular other pattern or impression evidence:  Although the initial focus is on bite marks, other novel, unvalidated disciplines will be considered.
• NOTE:  Strategic Litigation will consider cases with or without biological evidence, i.e., non-DNA cases.

Dentist now doubts science of bite-analysis

Written by  Jerry Mitchell  Clarion-Ledger Staff Writer

Leigh Stubbs and Tami Vance were jubilant on June 28 after the state Supreme Court threw out their convictions. Dr. Michael West, an expert witness on bite-mark analysis, testified in their trial. Now, West says he no longer believes in bite-mark analysis. / The Clarion-Ledger

Hattiesburg man testified as expert in about 80 trials

Since the 1980s, Hattiesburg dentist Michael West has raised his right hand and sworn dozens of time that bite marks on victims matched suspects.

He compared these bite marks to fingerprints, describing their unique characteristics to jurors. Most suspects he testified against went off to prison.

Now West rejects the very science he relied on to help put so many behind bars.

“I no longer believe in bite-mark analysis,” he said in a 2011 deposition obtained by The Clarion-Ledger. “I don’t think it should be used in court. I think you should use DNA. Throw bite marks out.”

Two of those convicted in a 2001 aggravated assault case in which West testified, Leigh Stubbs and Tami Vance, are now receiving a new trial. They are both out on bond and will be arraigned today in Brookhaven.

Stubbs and Vance are charged with conspiring to steal drugs and cash and assaulting a traveling companion, Janet Kimberly Williams, who reported wounds to her head, breasts, vagina and buttocks.

Stubbs is glad to be free. “I have a lot of lost years to make up for,” she said. “I’m so happy to be back with my family and spending time with them. I’m looking forward to going back to school.”

Vance said she is “very grateful to God and the Innocence Project. I feel really blessed. It has been a very long and hard 11 years for me and my family and Leigh’s family.”

Vance’s lawyer, Merrida Coxwell of Jackson, said he believes West’s testimony could affect any case in which the dentist has testified. “If I was a person in prison, I would demand a review,” Coxwell said.

Asked about his testimony, West told The Clarion-Ledger his cases have been reviewed before, and he is happy to have them reviewed again.

He doesn’t see his testimony as a reversal, he said. “If they (defense lawyers) wish to debate it in court, so be it.”

As for bite-mark analysis, he is leaving that to others, he said. “The science is not as exact as I had hoped.”

At one point, the science of identifying bite marks was cutting edge, he said. “DNA has made it fairly obsolete.”

West has estimated he’s worked on 16,000 cases, and he’s put the number of trials he’s testified at across the U.S. as an expert at 81.

According to his resume, courts have recognized him as an expert in bite marks, child abuse, wound pattern analysis, crime scene reconstruction and ultraviolet photography.

Over the decades, his testimony has proved effective. Of the 38 Mississippi criminal trials in which The Clarion-Ledger could find a record of West’s testimony, 31 ended in convictions.

Reversals have followed in several of those cases, most notably with two Noxubee County men, Kennedy Brewer and Levon Brooks.

In Brooks’ trial, West testified he found bite marks on the body of 3-year-old Courtney Smith he said were made by Brooks.

In Brewer’s trial, West testified he found bite marks on 3-year-old Christine Jackson that he said Brewer made.

Brewer went to Death Row and spent 15 years behind bars. Brooks, who received a life sentence, spent 18 years there.

In 2008, authorities said DNA proved the identity of – Justin Albert Johnson.

In February, Johnson pleaded guilty to murdering the two girls, saying, “I wasn’t in my right mind when that happened.”

Johnson received two consecutive life sentences with no hope of parole.

Even after Brooks and Brewer were set free, West stuck to his conclusions that these two men had bit the girls. He told The Clarion-Ledger that the men obviously bit the girls before they were murdered.

He reiterated that claim in the deposition. “I never accused them of killing or raping anybody – just biting them while they were alive,” West said. “If I have a bite mark on one part of the body and semen on another part of the body, to me it’s evidence that there are two people involved.”

West’s work has also been questioned in the Dec. 18, 1993, death of Haley Oliveaux of Monroe, La., who drowned.

West said a bite mark he found on the girl matched Jimmie Duncan, now on Louisiana’s death row.

In a 2009 interview, West told The Clarion-Ledger he believed Duncan made the bite marks and killed Haley.

In the autopsy video, West can be seen examining her body, noting several injuries but none on the right cheek.

When the video resumes the next day, a visible abrasion can be seen on her right cheek. West can then be seen pressing a plaster mold of the suspect’s teeth into her cheek.

In a sworn statement, defense bite-mark expert Dr. Charles Michael Bowers of Ventura, Calif., said what West did constituted “forensic fraud.”

West responded that the accusations he made up or falsified evidence “is a damn lie.”

In the case of Stubbs and Vance, West testified at trial that he found a bite mark on Williams’ thigh that was consistent with that of Stubbs.

But what prompted the new trial was West’s other testimony and evidence the prosecution didn’t turn over to the defense that could have been used to rebut it.

West reportedly enhanced a surveillance videotape from a Brookhaven hotel and testified that on the tape he could see two women pull a limp body from the toolbox in a pickup bed.

Stubbs’ father later received copies of FBI documents prosecutors had but didn’t show in which the FBI analysts reportedly concluded they couldn’t tell what objects were being unloaded.

In his deposition, West said when he testified at the Stubbs and Vance trial, he believed in the uniqueness of bite marks. “I no longer believe in that,” he said. “And if I was asked to testify in this case again, I would say I don’t believe it’s a system that’s reliable enough to be used in court.”

Whatever testimony he gave at the trial “was the truth to the best of my knowledge,” he said. “Today I don’t believe that.”

That’s a far cry from the West, who declared in one case that his error rate was “something less than my Savior, Jesus Christ.”

After the exonerations of Brewer and Brooks – in which the office of Attorney General Jim Hood played a role – Hood talked of examining 20 or so cases in which West was involved.

Given West’s reversal, Stubbs and Vance are hoping Hood’s office will drop the charges against them.

Hood’s spokeswoman, Jan Schaefer, said he couldn’t comment on the case outside the court file and filings.

“The attorney general has recognized that bite mark evidence can be unreliable – and last fall he committed himself to investigating cases of innocence in which Dr. West testified,” said Valena Beety, an attorney for the Mississippi Innocence Project representing Stubbs. “Yet, a year later, his office is seeking to re-try two women wrongly convicted in large part due to the testimony of Dr. West in 2001.”

Tucker Carrington, director of the Mississippi Innocence Project at the University of Mississippi School of Law, which investigated the case, said Hood’s decision to reprosecute “is disappointing – both for my client and for the state’s criminal justice system overall.”

Eddie Lee Howard is on Mississippi’s death row because of West’s testimony, Carrington said.

“Mississippi is known nationally as the poster child for forensic fraud. It’s embarrassing. The attorney general’s office should be focused on repairing this damage, not perpetuating it.”

DNA does not match ex-husband in Prade murder

 

The Associated Press

Posted Aug 02, 2012 @ 10:45 AM

COLUMBUS —

Tests indicate that crime scene DNA did not come from a former Akron police captain convicted of murdering his ex-wife 13 years ago.

Douglas Prade was sentenced in 1998 to life in prison with parole eligibility in 26 years for the death of 41-year-old Akron doctor Margo Prade.

The 66-year-old Prade has maintained his innocence, and two years ago Summit County Common Pleas Judge Judy Hunter granted Prade’s request for DNA testing.

The Columbus Dispatch reports Thursday that DNA testing by the Diagnostics Center of suburban Cincinnati focused on the lab coat Margo Prade was wearing during the attack and a bite mark left by her killer.

The newspaper says testing results released Thursday found male DNA present within the bite mark but it didn’t match Douglas Prade.

After 20 years in prison, man cleared in ’86 Waukegan rape

By Dan Hinkel Chicago Tribune reporter

Surrounded by his attorneys, Bennie Starks speaks to the media after his court case was dismissed in the Lake County Courthouse in Waukegan today. (Stacey Wescott, Chicago Tribune / May 15, 2012)

Lake County prosecutors have dropped rape charges against Bennie Starks, who spent 20 years in prison before DNA pointed away from him.

Assistant State’s Attorney Jim Newman appeared at a brief hearing and dropped the sexual assault charges.

“He is a free man and he is not guilty,” said Starks’ lawyer, Jed Stone.

Starks, dressed in a burgundy sport coat and black and white checked shirt, accepted a hug around the shoulder from another of his lawyers, Vanessa Potkin from the New York-based Innocence Project.

“This has been a great day,” Starks said.

As to his plans, he said, “Spend time with my grandkids and just…living.”

Starks, 52, of Chicago was convicted in 1986 of raping a 69-year-old woman in Waukegan. He was in the middle of a 60-year sentence when the appeals court ordered a new trial in 2006 and he was released on bond. As with three other recent Lake County cases, prosecutors insisted on his guilt even after DNA pointed toward someone else as the attacker.

The possibility of a retrial had been thrown into doubt by court rulings barring prosecutors from using the testimony of the victim, who identified Starks as the rapist.

She died several years ago, and a Lake County judge ruled in January 2011 that prosecutors could not use her past testimony at the retrial.

The state appeals court affirmed that decision in February, writing that Starks’ lawyers would not have a fair shot at cross-examining her and holding that the original cross-examination was inadequate.

Since February’s ruling, Starks has waited to learn whether prosecutors planned to retry him.

After the conflicting DNA evidence became public in the early 2000s, prosecutors responded much as they did to other cases involving forensic evidence suggesting a suspect’s innocence.

Prosecutors argued that the DNA did not clear Starks because the woman could have had consensual sex with someone else, although she said at trial she had not had sex in the weeks before the attack.

The woman identified him as the man who pulled her into a ravine and beat, bit and raped her. A dentist said bite marks on the victim matched Starks, and his jacket was found at the scene.

Starks said the jacket and money were stolen from him after he passed the evening in a local tavern, and the defense attorneys have called the scientific rigor of the bite-mark evidence into question.

In the early 2000s, testing turned up a genetic profile from another man on the victim’s underwear. Later, testing on a vaginal swab found DNA that didn’t come from Starks, and the appeals court ordered a new trial in 2006.

This morning, it first appeared that Starks’ wait to have his name cleared might continue.

Newman, the assistant state’s attorney, surprised Starks’ defense lawyers at the start of today’s hearing when, instead of immediately dropping the charges, he asked for a continuance while the appeals court considers Stark’s challenge to his battery conviction. Starks hopes to see that conviction — which stems from the same crime — wiped from his record.

Without pause, Judge John Phillips tersely declined that request and told prosecutors to make a decision on retrying Starks immediately. Newman left court for a few minutes to consult with his superiors, then returned to begin filling out paperwork for Starks’ case before the judge returned.

Stone, one Starks lawyers, approached Newman as he filled out a court form and smiled as he said, “That’s N-O-L-L-E,” a reference to the Latin phrase, nolle prosequi, which indicates a prosecutor is dropping charges.

When Phillips returned, Newman dropped the charges and hurried from the courtroom. He declined to comment on the decision.

Freelance reporter Ruth Fuller contributed

dhinkel@tribune.com

How accurate is bitemark analysis?

Answered by The Discovery Channel

Bite marks are not as distinctive as fingerprints or DNA. Forensic dentists can tell a lot about someone from his or her teeth or from bitemarks, but the analysis can be flawed or misleading. There are countless examples of people who were convicted on the basis of bitemark analysis and later exonerated by subsequent DNA evidence. Critics of bitemark analysis point out that forensic dentists receive a lot of information about a suspect before they perform an analysis of a bitemark. This could inadvertently lead dentists to force evidence to fit investigators’ needs. Critics also point out that forensic dentists can give juries the impression that bitemarks are completely unique or can identify a person with 100 percent certainty, and that is not the case.

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

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

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.