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Exonerated man’s ordeal ends: ‘I am overwhelmed with joy’

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.”

lblack@tribune.com

Twitter: @LisaBChiTrib

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Ted Bundy Bitemarks and Richard Milone: How DNA, bitemark research and failed cases have changed bitemark analysis

By Dr. Michael Bowers

There is no other U.S. bitemark that stands higher in the Pantheon of the forensic odontology community than the Ted Bundy case. His trial for the murder of two sorority members in Tallahassee, FL showcased numerous examples of bitemark expertise involving evidence from one of the victims. This case often is said to have sent Ted to his execution by “Old Sparky”, the electric chair at Florida State Prison, in Bradford County, but that death sentence and his 1989 execution derived from a separate death penalty trial in that state.

Electric Chair

Revisiting forensic dental evidence from “old” closed cases is something that crime writers generally do. John Grisham in his 2006 non fiction work, The Innocent Man, spotlighted the 1985 State v. Wilhoit murder conviction that was helped by 2 dentists using oral bacteria components (a flawed pre DNA theory) as well as a bitemark injury to identify the defendant as the biter. A defense-selected 11 dentist panel helped reverse the conviction in 1991.

The forensic dental community seems a bit wary of a top to bottom review of their more recent bakers’ dozen (or more) of bad bitemark expert performance in cases later overturned and determined to be wrongful convictions or incarcerations.

Latest Bitemark Gaffs

Detroit erroneous bitemark evidence and conviction leads to $2.8 million settlement

Chicago bitemark involved erroneous conviction which later led to a $1.2 million civil rights violation settlement

Also, the New York Innocence Project has a list of similar cases located on their website. All of these cases involved ABFO certified odontologists making incorrect bitemark identifications.

State v. Richard Milone

In 1973, the Milone murder case dealt with a conviction heavily based on an identification of tooth marks on the thigh of the victim, 14 year old Sally Kandel. 3 dentists were for the prosecution and 4 were defense experts. The prosecution presented the bitemark as “excellent evidence.”

Lengthy appeals ensued. Three years after the trial, one of original defense dentists matched the Kandel bitemark to a bitemark confessed to by a convicted serial murderer named Richard Macek. One of Milone’s appeals also used the process of having a 4 member cohort of defense dentists. In 1986, they again argued against the 3 prosecution bitemark dentists’ 1973 conclusions that Milone was the biter by substituting the known serial killer Macek as the actual biter.

In the same year, Milone petitioned the governor of Illinois with a claim for unconditional clemency. This officer convened a panel of 3 more dentists, who evaluated the bitemark evidence in Milone and determined Macek could not have bitten Kandel and Milone was the biter. Various efforts continued in Illinois and Milone was released from prison in 1992.

It seems in the face of these battling dentists, the “excellent” bitemark evidence in Milone was a bit of forensic overstatement.

So, what about State v. Bundy? Nearly contemporaneous with Milone, (1973 versus 1979), some of the same players once again presented themselves on opposite sides of the bitemark evidence. The case was a career making event for those involved for the prosecution.

Ted Bundy Impressions

Evidence Obtained from the Tallahassee Trial of Bundy

Bitemark on Buttocks

The injury on the victim’s left buttock is red bruising. Look closely at this long range monochromatic view. One issue to consider in a bitemark case is the presence of “multiple bites” at the same anatomical position. This can make for a difficult time in determining specific teeth marks. The other issue is whether the skin can reproduce a correct replication of the biting teeth. New research indicates the biomechanics of skin and biting pressure produces uncorrectable pattern distortion. This leads to subjective and unreliable interpretations (usually discounting any discrepancies as “explainable”) during comparisons with suspects.

Bundy's Teeth Outline

Wax Imprint From Ted Bundy

Bitemark Photo with Bundy Overlay

A fuzzy color image of two overlapping bitemarks. One is more faint than the other. This image is the original bitemark photograph with two transparent overlays superimposed. One of the overlays is a hand drawn “hollow volume” type depicting the lower front teeth of Bundy. The second overlay (in blue) is a felt pen (?) drawing of the edges of Bundy’s teeth. Look closely and you can see differing values of teeth area and definition between the two methods.

Discussion

The prosecution experts determined the pattern was unique to Bundy. This assumed concept was used in court then and even now despite the arrival of DNA. It was commonly stated that every person had a dental profile of biting teeth that was individual to them; specifically analogous to a fingerprint. There should be little argument that Bundy’s lower teeth could make a pattern similar to what is seen in the autopsy picture. Are his teeth and the bitemark unique to just him? No. The scientific issue of could someone else’s teeth have created the same pattern is now much clearer. The probability of another’s teeth duplicating the Bundy bitemark is a fact. Looking at the past helps science move on.
However, the recent US exoneration cases also commonly have the dentists making the erroneous claims still supporting their original findings despite scientific and judicial results to the contrary. In our 2011 world, some forensic people stick to their beliefs and don’t really care how they got there.

See: http://www.examiner.com/dental-health-in-milwaukee/state-is-paying-robert-stinson-25-000-dr-l-t-johnson-helped-convict-him

A 2008 Chicago Tribune article describes this odd scientific juxtaposition of opinion in greater detail.
http://www.chicagotribune.com/news/chi-bite-mark-exonerationjul10,0,2835607.story?page=1

Bitemark Evidence Sends Innocent Man to Prison

Wisconsin Compensates Innocent Man $115,000

Faulty bitemark analysis has cost another innocent man 23 years in prison. This was a result of a board certified forensic odontologist’s mistake who incorrectly “matched”  Mr. Stinson’s teeth to a bitemark left on the skin of a homicide victim. Dr. L.T. Johnson is the forensic dentist at Marquette University who made the serious mistake.

Innocent Man Released from Prison after 23 Years

Although he botched this case, Dr. Johnson was recently awarded a grant from the National Institute of Justice for over $700,000 to study whether teeth can be replicated in skin and then linked to a specific dentition.  In this study, Dr. Johnson hopes to prove what he had claimed to be true at the time of the trial.  Unfortunately in this case, the erroneous analysis and testimony at the time of trial was portrayed to the jury as scientifically based and without known error rates resulting in a wrongful conviction.

The Innocence Project used DNA and a panel of forensic dentists to peer review the case and concluded that Mr. Stinson was innocent.  Dr. Johnson has re-tested the evidence using today’s modern day tools and still stands by his opinion that Mr. Stinson is the biter.  This is yet another reason for competency or proficiency testing in forensic odontology, but it is currently viewed from the profession as unnecessary.

Until recently bitemark analysis had been very popular in the courts, being admitted in all 50 states.  The popularity chilled when multiple bitemark cases were shown to have implicated the wrong individuals.  The door was slammed shut when in 2009 the National Academy of Science published a report criticizing the forensic sciences.  The study concluded that bitemark analysis should not be used until there is sound science to support the claims of a unique dentition and of the skin to be able to transfer the uniqueness.

The video below is a media piece on the work that Dr. Johnson and the prosecutorial team has done to fight crime using bitemark analysis.  It was released shortly before Mr. Stinson was found to be innocent of the crime that placed him in prison for 23 years.

The video shows how a jury can be biased when the testimony and methodology appears to be a proven science.