Janesville man’s invention changed forensic science 25 years ago

GazetteXtra.com
Tuesday, March 19, 2013 • JANESVILLE, WI
by NEIL JOHNSON Contact )   Saturday, March 16, 2013

 

JANESVILLE — Janesville engineer and physicist Bill Hyzer was renowned for decades as a pioneer in high-speed photography.

Using cameras that seemed to magnify and even freeze time at 8,000 frames per second, Hyzer showed scientists how a fly lands on a ceiling.

Those quirky, stop-action photographs of bullets exploding through such objects as cucumbers and soda cans? Hyzer’s work.

Hyzer, 88, has poured his life into six decades of research that includes a study of how geckos cling to glass surfaces and the development of electronic switches for a lunar landing module. His data analyses of lake freeze-thaw cycles are used in international studies on global warming and climate change.

Yet perhaps Hyzer’s most groundbreaking and unsung achievement was an invention he devised in a single afternoon. It also is the reason he was honored Friday by the national American Board of Forensic Odontology.

At a lunch meeting at a Holiday Inn in Freeport, Ill., in 1986, Hyzer said he listened to Kansas native Dr. Thomas Krause, an expert in forensic odontology, or “bite-mark” science, explain a conundrum to him.

At the time, criminal investigators had no tool other than the standard, one-dimensional ruler to measure and give scale to human bite marks often found on the bodies of violent crime victims. For complex reasons, the simple ruler is an unreliable tool for the job.

Hyzer sketched a solution on the spot. The two-dimensional “ABFO No. 2”—better known as the forensic bite-mark scale—was born.

The simple, L-shaped measuring tool changed Hyzer’s life and forever altered forensic science and the field of crime scene investigation.

The bite mark scale’s main use—a tool to help identify bodies through dental records and identify violent criminals from bite marks they leave on victims—has made Hyzer renowned.

More than 25 years since that Holiday Inn discussion, crime scene investigators in nearly every country in the world use Hyzer’s small, laminated plastic ruler while photographing everything from bite marks to tire tracks to bullet holes in walls.

Practically every crime lab and medical examiner’s office in the country uses Hyzer’s scale, and in most states in the U.S. the scale’s use is almost a mandate.

Hyzer now is 88. To date, about three million of his bite mark scales have been sold, according to members of the American Academy of Forensic Sciences.

His scale was a simple yet ingenious solution to a decades-old problem in forensic science.

To use bite marks as crime evidence, investigators must make exact photographic records of the marks. That’s done by taking pictures that include a measuring instrument laid next to the marks to show scale.

But a one-dimensional measuring tool—a simple ruler—cannot reliably give scale to photographic images because if photos are captured at even the slightest angle, uncorrectable distortion can occur.

A sketchbook from 1986 shows Bill Hyzer’s solution to allow criminal investigators to measure and give scale to human bite marks on the bodies of victims. The resulting tool has changed forensic science and crime scene investigations. Hyzer, 88, was honored Friday by the American Board of Forensic Odontology.

Photo by Hyzer family

A sketchbook from 1986 shows Bill Hyzer’s solution to allow criminal investigators to measure and give scale to human bite marks on the bodies of victims. The resulting tool has changed forensic science and crime scene investigations. Hyzer, 88, was honored Friday by the American Board of Forensic Odontology.

“You needed to devise a scale that measured in two dimensions, not one,” Hyzer said. “So I sat there at the Holiday Inn and sketched out the solution on a piece of paper.”

The design is simple: a right-angle, two-sided ruler with circles at each of its three points. The circles are used to define and justify any measurable plane. That corrects the problem of distortion in crime photos.

The scale also has grayscale markers, which ensure perfect photographic color reproduction.

Hyzer had done research with lizards and flies, but he had no prior expertise with human teeth or bite marks. He almost couldn’t believe someone else hadn’t thought of the scale already. Yet nobody had.

“It’s the most thrilling feeling, like discovering an ancient cave that no one knew existed,” Hyzer said.

Don Simley, a forensic odontologist in Madison who presented Hyzer with his award Friday, said bite-mark analysis has proven at times to be an ineffective way to identify criminals.

Bite-mark science has come under fire in the past after some cases in which DNA evidence later proved people were wrongly convicted based on bite-mark evidence.

But the science often helps identify bodies that have been burned beyond recognition, and Simley said use of Hyzer’s scale once helped solve a case in which a young child choked to death on soap while being disciplined by a parent.

The child’s bite marks were in a bar of soap at home.

Hyzer did not get rich from his invention. In fact, he never even patented it.

“It was my contribution to keeping people who didn’t deserve jail out of jail, and putting people in jail who should be in jail.”

Meanwhile, the scale’s inventor is now down to just a few left. He’s given most of his supply away to family or friends.

“I’m down to two scales now. It irks me that I’d have to go and buy one,” Hyzer said.

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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

A Response to a Critic of the Critics

Mark Page, Ph.D.

The author of the website http://www.bitemark.org posted an article regarding the admissibility of bitemark evidence in several cases in Texas, and spent some time discussing the supposedly ‘asinine’ nature of applying experimental scientific methodology to forensic science. The article makes the point that the scientific method should not apply to some disciplines, as they are not ‘hard’ sciences, like physics and chemistry. This commentary represents an example of why critics of forensic science find these disciplines particularly frustrating, in that they attempt to justify their forensic practice on the basis that they are somehow ‘different’ or ‘immune’ to good scientific practice. But there is no logical reason why forensic science and the scientific method should be mutually exclusive….. Read more by clicking on the PDF below

Open PDF by clicking  a-response-to-a-critic-of-the-critics-2

Another article  by Mark Page can be found by clicking this link: http://www.fdiai.org/articles/Uniqueness-Fact_or_Fiction1.pdf

 

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.

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 (7th 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.

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