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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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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.

Forensic Failings: How to Improve the Forensic Sciences and Prevent Wrongful Convictions

New York Society of Forensic Dentistry September Meeting:

Monday, September 24, 2012 7:00 PM at NYU College of Dentistry 24th Street & First Avenue – Room 612

 

Summary: Chris Fabricant, Director of Strategic Litigation at the Innocence Project, will discuss the groundbreaking 2009 National Academy of Sciences report that called for comprehensive overhaul of the forensic science system. Through DNA exoneration cases, the Innocence Project has identified improper and unvalidated forensic science as one of the leading causes of wrongful conviction. Mr. Fabricant will provide case examples on how forensic disciplines, particularly pattern and impression evidence, including fingerprints, tire tread analysis, bite mark analysis and other disciplines have contributed to wrongful convictions–and explain how federal reforms can help significantly strengthen the field.

 

Chris Fabricant

Joseph Flom Special Counsel

Chris Fabricant is the Joseph Flom Special Counsel, Director of Strategic Ligation. Before joining the Innocence Project, he was a clinical law professor and the director of the Criminal Justice Clinic at the Pace University School of Law. Mr. Fabricant has years of criminal defense experience at the state, federal, trial and appellate levels with The Bronx Defenders and Appellate Advocates. He was also a pro se law clerk in the Southern District of New York, where he focused on prisoners’ rights litigation. Mr. Fabricant is the author of the book Busted! (HarperCollins) and his scholarship has been published by the NYU Review of Law & Social Change and the Drexel Law Review. Mr. Fabricant received his J.D. with honors and a Corpus Juris Secundum distinction in criminal law from The George Washington University in 1997.

State Attorney Ignores Science, Impedes Starks’ Full Exoneration

From The Innocence Project

Today’s Innocence Blog

Posted: 17 Aug 2012 12:30 PM PDT

Four months after former Illinois inmate Bennie Starks was exonerated of a rape conviction that DNA evidence proves he did not commit, the Lake County State’s Attorney’s Office continues to fight efforts to exonerate him of a battery conviction from the same crime. A column by Eric Zorn in today’s Chicago Tribune says 22-year veteran State’s Attorney Michael Waller has a penchant for ignoring scientific evidence and is inclined to develop peculiar theories.

The victim, now deceased, testified that she was attacked and raped by the same man. Earlier this summer, an appeals court ruled that the DNA evidence undermines Starks’ battery conviction and sent it back to the trial court. Waller didn’t see it that way and petitioned the court for a rehearing.

Prosecutors argued in court that the traces of semen must have come from an earlier sexual partner of the victim and been present due to her “bad hygiene.”

The problem with this new theory was that the sample was fresh – no more than 30 hours old according to expert trial testimony – and the victim was on record that she hadn’t had sex with anyone for at least three days prior to the attack.

Zorn cites other cases in which Waller’s office has exhibited a preference for outlandish theories over solid scientific evidence.

Juan Rivera convicted in the 1992 rape and murder of 11-year-old Holly Stoker in Waukegan. When testing excluded Rivera as the source of DNA found in the victim, prosecutors under Waller argued that the little girl had consensual sex with a never-identified boyfriend prior to the attack.

Jerry Hobbs arrested and held without bond in the 2005 slaying of his daughter Laura, 8, and her friend Krystal Tobias, 9, in a Zion park. In 2007, when DNA testing of semen found in his daughter excluded Hobbs, the Walleristas insisted that Laura must have been playing near where a couple had had sex, gotten semen on her fingers and wiped it on herself.

Read the full column.

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.

Leigh Stubbs Bitemark Case Vacated

A judge has thrown out the convictions of two women after having each served 11 years in prison.  Innocence Project lawyers were able to show critical evidence was withheld at the time of the trial.  A video surveillance tape that was published on this blog in an earlier post was analyzed by Dr. Michael West who testified in court that the two women could be seen carrying in a body to the motel room.  The FBI had reviewed the tape and were unable to come to any conclusions because of the poor quality of the tape.  The prosecution withheld this information from the defense.