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CALIFORNIA JUDGE REVIEWS OPPOSING BITEMARK OPINIONS AND DECLINES TO BE PERSUADED BY NEW RESEARCH PRESENTING DISTURBING FACTS OF PROSECUTOR’S CASE

By Dr. Michael Bowers

On September 13, 2011, Presiding Judge of the Santa Barbara Superior Court, Brian Hill, published his denial in an extraordinary post conviction claim of innocence by ex-UCSB soccer star and Ghanaian national, Eric Frimpong.
Frimpong was convicted in Hill’s court in 2008 of rape and sexual battery. Since then Judge Hill has denied a post-conviction motion for a new trial (2008) and the California Court of Appeal has refused to grant Frimpong relief in a statutory appeal 2 years after the conviction (2010).

Numerous aspects of the case against Frimpong are troubling. Significant offers of new alibi witnesses unavailable at the 08 trial, and lack of complete review of circumstances supporting reasonable doubt to the victim’s statements were presented in this latest attempt for relief. A major portion regards ineffective assistance of counsel (IAC) and the activities and opinions of the Santa Barbara District Attorney’s two bitemark experts.

The DA’s expert dentist testifying during the trial claimed he could observe from a photo of the victim’s face that a bitemark on the cheek indicated the presence of a misaligned upper front tooth. This misalignment was also present in the upper dentition of Frimpong. In describing his methods, the technical basis was purely visual. The prescribed method of physical comparison of the photograph to the life-size outlines of Frimpong’s teeth did not “help” in his determination. The value of this one-tooth similarity played large in the mind of the judge and the jury because of the implied scientific relevance purported by this expert. The relationships of the other 11 upper and lower front teeth were only briefly mentioned. He also said that “worn teeth edges” could be seen in the bruising this expert “saw” in the aspect of the injury he determined to be from 4 lower teeth. Mr. Frimpong was 20 old at the time of trial and did not have the worn edges claimed by the DA’s dentist. Maybe if he was 60 years old.

Evidence of the victim’s DNA being present on Frimpong’s genitalia was also presented by the DA. The defense countered the DA’s assertion that this was the ultimate proof of Frimpong’s guilt by stating this low copy number DNA sample was capable of having been transferred by hand from the victim to Frimpong. This scenario was considered as possible by the DA’s DNA expert from the California Department of Justice DNA Lab. Frimpong had described he had been fondled by the victim at a small party a few hours before the police were called to a different location to investigate a sexual assault. It is important to point out that the copious male DNA available from the victim and victim’s underwear was determined to be from her boyfriend.
The State presented dozens of witnesses at trial.

The defense presented one witness. This disparity was one major aspect of the IAC claim presented in the most recent appeal.

No defense bitemark expert was available at trial. The bitemark evidence, however, was thoroughly reviewed, after Frimpong was convicted, at a motion for a new trial hearing granted by Judge Hill. This proceeding, held over numerous days, and was again before Judge Hill. The DA and the defense each retained new bitemark dentists.

The judge began the hearing with a two hour monologue directed at defense counsel. Judge Hill laid out on the record his opinion that defense counsel had presented a weak and confusing case before the judge and jury. No consistent theory of defense was a major defense flaw. The details of the judge’s opinions were ultimately adopted in the most recent appeal petition. Oddly, Judge Hill considered these arguments in the petition to be non-meritorious on the issue of IAC. This turn of events is confusing at best. This jurist made his own remarks about IAC at the post conviction hearing and later, when he ruled on the same issues in this latest claim of Frimpong’s innocence, considered the issues to be harmless error.

The DA and defense dentists had ample time to present their opposing interpretations of the bitemark on the victim’s face. There was no point of agreement on the forensic value of the pattern. The DA’s expert said it was “moderate to high” value. The two disagreed on where the upper and lower teeth were present in the injury pattern. The defense said the pattern detail was ambiguous. A digital reversal of the prosecution’s upper and lower orientation and comparison of teeth of the victim’s boyfriend to the facial injury, immediately showed alignment of dental landmarks in the bruising. In addition, the defense indicated the DA’s observation of “mal-aligned upper teeth” was actually a misdiagnosis due to the metric values (using published Adobe Photoshop digital methods) of the bruising indicating the teeth were from the lower jaw (where biting edges are one-half the size of upper teeth). The DA post conviction expert emphatically stated that the use of “metrics” in bitemark comparison was not a mandatory method in the field and that “shape analysis” was compelling, valid and controlling. This was clearly a recitation and support of the trial bitemark expert’s identical opinion. In one more bit of confusion, the DA’s two Frimpong dentists (the one at the trial and the different one at the later hearing) had just testified to the opposite in another CA case, (State v. William Richards). This latest Richards proceedings was a post conviction exoneration hearing wherein both these dentists had testified that the use of Photoshop and its high magnification digital methods were the “new age of bitemarks” and had, in part, convinced them to recant their 1999 Richards testimony. Both had stated at the original Richards trial, that a hand injury on the murdered wife of Richards’ was a definite bitemark.

As mentioned above, Judge Hill denied the Frimpong motion for a new trial, saying, in part, that the Defense dentist was “not credible.” He had no comment about the coup de grace performed by the DA’s bitemark expert’s presentation where the photograph of the injury was again shown to the judge. Frimpong’s upper teeth were digitally placed over the injury pattern in his “proper orientation.” The expert stated the fit between the two was significant proof of biter identity. Expounding himself as the digital examiner who performed these described methods, he confidently testified that all he had to do was digitally expand the bitemark image 128% to obtain this relationship.

Coincidentally, the dilemma of skin distortion and the accompanying distortion of tooth patterns was addressed in 2010 by a well respected University of Buffalo research team. It was published in the Journal of Forensic Sciences, and titled “Inquiry into the Scientific Basis for Bitemark Profiling and Arbitrary Distortion Compensation.” They gave the bitemark reading profession its first glimpse into relevant biological science and forensic dentists’ 40 years of judicial opinions on bitemark matching. This precedent setting and seminal piece of literature describes their “back to basics” approach into the physiological characteristics of cadaveric human skin before and during biting activity. Their findings clearly established the judicial use of bitemark opinions has broadly surpassed its scientific underpinnings. Two conclusions, which appear in the paper’s title, suggests that any bitemark profiling examiner using methods to match patterns or counteract the stretching and shrinkage of skin during the dynamics of movement, pressure and physical stress should reconsider scientific facts. Profiling (i.e. comparing) and enlarging or shrinking injury patterns to fit, as in the arbitrarily “adjustment” presented in Frimpong was not supported scientifically.

In 2009, at a national forensic meeting, there was a presentation of the prosecutorial bitemark case and served as a public pronouncement for the DA’s bitemark experts. At the culmination of this tour-de-force, at the Q&A end of this show, he was pressed by an attendee to discuss what scientific basis supported his rendition of the bitemark photo. Words from the dentist who testified on his match-improving methods seemed to detach himself from his earlier testimony, as he replied, “..

“…this was not my idea…”…”…the district attorney took it upon herself to have that done to see whether or not she could enter that into evidence to thereby bolster her case…” “…had I been operating by myself out there in the real world there is absolutely no way I would have done that…”

Fast forward to September 13, 2011.
Judge Hill writes he was not “persuaded” by the analysis and critiques presented by the appellate submission in State v Eric Frimpong.
Eric Frimpong is scheduled to be released from prison in 18 months. Upon his release, he mostly likely will be deported to Ghana unless criminal justice proceedings intervene.

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Fabricated Bitemark and Phony Surveillance Video Land Leigh Stubbs 44 Years in Mississippi Prison

By David Averill and Mike Bowers

Leigh Stubbs, Department of Corrections Photo

Leigh Stubbs has now served 10 years of a 44 year sentence based largely on the faulty testimony from discredited forensic odontologist Dr. Michael West. West testified in this trial as a multi-disciplinary expert and was allowed to give his opinion in bitemark analysis, toolmark comparison, video enhancement, crime scene reconstruction, gynecological injuries and psychological criminal motive. Of course he reminds the jury every chance he can get that he is qualified in all of these areas, and that he has lectured to the FBI, Scotland Yard and throughout China.

Stubbs is now being represented by the Innocence Project who are now petitioning for a new trial. This is yet another case that has wreaked havoc with the judicial system by offering West’s bogus expert opinion where he is once again the only one able to see the evidence that he describes. The prosecutor still used West’s testimony in this case despite West having been thoroughly discredited by every major forensic organization in the world. Not to mention the numerous cases that are adding up where innocent men have been wrongfully convicted of crimes that they did not commit due to his faulty testimony.

Bitemark Evidence
Dr. West narrates his first video as he records his “body scan” to document the examination. The video shown below is a clip taken from the right hip where West makes no mention of recognizing a bitemark. In court when asked why there was no mention of the bitemark, he testifies that ”I missed it on the first day but realized that there was a bite after looking at some polaroid photographs that I had taken.”

In court, West describes the alleged bitemark on the hip as “not a prototypical bite mark in appearance….it has fused components from the swelling” yet he is able to give it his strongest opinion, “100 percent sure that it is a bitemark.” West cautions the jury that “I must admit to a novice, this may not appear to be a bitemark by any means.” In other words, West can only see it as a bitemark.

In his second video taken 5 days later on March 15th the area that West says “that the bitemark is no longer visible due to the nurses taking such good care of the victim and using lotion on her skin.” West then proceeds to tamper with the evidence by actually imbedding a stone cast of Leigh Stubbs teeth into the comatose victims hip resulting in a fabricated bitemark on the skin of the victim.

West comes to the conclusion that the bitemark that he sees on the hip is from the teeth of Leigh Stubbs since “the corner of tooth #7 has a little sharp area, very minute… on the skin notice this red area, we have petechia….this is the area caused by the little notch on her tooth #7…..that dot, that dot and that dot represent three teeth.” “Its a pretty good relationship there, it falls short of what we need to make 100 percent.” “There is a high degree of correlation between those teeth and this injury on this girl’s leg”. Dr. West submitted a West bitemark Report that contained two paragraphs.

Enhancement and Interpretation of Surveillance Video
The surveillance video was recorded at the motel the three girls rented for the night. The video was brought to Dr. Wests attention by the Detective in the case who thought he could see a body being removed from a toolbox in the bed of the pickup truck. Dr. West agreed that he could also see the body and said he could enhance the video to make it more visible. The police department had sent the video to the FBI for analysis and enhancement but were told that nothing could be done with the video. Dr. West then saves the day by “enhancing” the video and despite admitting that “we have a very poor imaging system…that is not designed to take high definition pictures….but probably the most important problem we have with the video is the tape had been recorded over and over and over….its about worn out.” No problem for Dr. West though, “what I see isn’t what everybody else sees, there are interpretations.” Don’t worry about your eyes if you cannot see anything on this enhanced video, remember that West is usually the only one to see what he is talking about.

West Interpretation of Video
“All the action we’re interested in now takes place between this truck and that light…as fate would have it this is where the tape had a wrinkle or started messing up…what I’m saying happens next in this clip. You’ve got to imagine her scooping her up and holding that head, with the hair to the side, closing the lid, turning around, stepping off the truck and going into the room.”
Amazing action since the timeline is 16 seconds for Leigh Stubbs to leave the motel door, get to the truck, lift the lid of a toolbox and pull a 120 pound limp unconcious person out from within a toolbox in 1-2 seconds and then haul her out of the back of the pickup stepping down and into the motel room, all within 16 seconds. It only gets more bizarre as Dr. West now recreates the crime scene. West cannot explain how come when the crime lab looked for blood, hair and fiber inside the toolbox they found none that belonged to the victim. They also found no blood on the carpet or in the bathtub of the motel room. West tried to explain that the toolbox could be washed out with water and chlorine. Problem is that they found other hair and fiber inside the box that did not belong to the victim. So much for his crime scene re-creation abilities.

Toolmark Testimony
Dr. West looked at the wound on the head of the victim and thought it looked like the latch that was on the toolbox. And when he looked at the hip where he found the bitemark he also found a toolmark in the shape of a latch from the toolbox. He measured the distance from the head wound and the hip wound and found 37 inches. You guessed it, the distance from the latches on the tool box is 37 inches. A forensic pathologist testified that the wound to the head could not have been made by closing of the lid on her head. The wound was consistent with a blunt object. Read more of the trial testimony if you are interested. I will include pdf copies of the trial at the end of this post.

Conclusion
Unfortunately the police did not do a thorough investigation, so the answers to many questions will never be known. What is known is that Leigh Stubbs dentition cannot be associated with what Dr. West describes as a bitemark on the hip of the victim.

ABFO Board of Director Urges Judicial Restraint in Admitting Bitemark Evidence

In a 2010 article published in the Southwest Journal of Criminal Justice, Vol. 7 (1) titled BITE THIS! THE ROLE OF BITE MARK ANALYSES IN WRONGFUL CONVICTIONS, Dr. Roger Metcalf et al chronicle the case history of wrongful convictions based on bitemark evidence. The authors conclude the article with this statement:

“Perhaps it is time for a judge somewhere to finally be the first to say “this bite mark analysis is just not scientific and it’s not reliable, and I’m not letting it come in” thereby greatly diminishing the possibility of wrongful convictions based on the admission of what appears to be a flawed forensic science”.

The full text of the article can be found at: http://utsa.edu/swjcj/archives/7.1/Metcalf%20et%20al..pdf

Court Denies Kunco Relief in “Recaptured Bite Mark” Case

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.