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.