Check out the latest Popular Science magazine article titled “It’s Time To Treat Crime Forensics Like Real Science”.
BLUHM LEGAL CLINIC
A prosecutor finally did the right thing – 26 years after a wrongful conviction
— Rob Warden
Bennie Starks had been behind bars for two decades when he was freed after DNA testing excluded him as the source of semen recovered from his alleged victim in 2006, but his exoneration took another six years.
Starks was arrested shortly after a 69-year-old Waukegan woman reported on January 18, 1986, that she had been pulled into a ravine, beaten, bitten, and raped by a man who left his coat at the scene. A dry-cleaning receipt in the coat pocket led police to Starks, who acknowledged that the coat was his—but insisted that it had been stolen from him at a bar.
The evidence against Starks, 26, seemed overwhelming: The victim positively identified him. A forensic dentist, Dr. Russell Schneider, of Waukegan, concluded that his teeth matched a bite mark on the victim. A state forensic scientist, Sharon Thomas-Boyd, testified that serology testing—this was before the advent of DNA forensic testing—included him among possible sources of semen recovered from the victim’s vagina and underpants.
A Lake County jury found him guilty of both rape and aggravated assault. He was sentenced to 60 years in prison.
A decade later, the New York Innocence Project accepted the case and sought DNA testing. After the Illinois Appellate Court affirmed the conviction in 2002, a judge ordered the testing over the strenuous objection of Lake County State’s Attorney Michael Waller.
A vaginal swab take n from the victim immediately after the crime could not be found, but testing of a semen stain in her underpants excluded Starks—clearly indicating that he was innocent, given that the victim had stated that she had not had consensual sex with anyone in the two weeks preceding the rape. The testing also showed that, contrary to Thomas-Boyd’s trial testimony, the serology results had excluded Starks as the source of semen.
In response to media inquiries, Assistant State’s Attorney Michael Mermel, the head of felony prosecutions under Waller, maintained that the DNA results from the underpants did not prove Starks innocent. The only thing that could help Starks, Mermel said, would be his exclusion as the source of semen from inside the victim’s body. That, of course, seemed impossible at the time because a vaginal swab taken from the victim immediately after the crime was believed to have been lost or destroyed.
A few weeks later, however, the Northern Illinois Crime Laboratory located the swab, and DNA testing eliminated Starks as the source of semen on it—that is, as the source of semen from inside the victim’s body. Mermel then contended that the victim, who had moved to Mexico and since died, had not told the truth when she denied having consensual sex with anyone in the weeks preceding the rape.
Based on the DNA results, the Illinois Appellate Court reversed the conviction and ordered a retrial in 2006. Starks was released on bond. On the eve of a retrial, the prosecution dropped the rape charges, with the possibility of reinstating them later. But the aggravated battery conviction, which had not been contested on appeal, remained—even though, if Starks had not raped the victim, neither had he beaten her.
In 2011, Mermel resigned in the wake of a New York Times Magazine article exposing bizarre theories he expressed about why DNA was irrelevant in a series of Lake County cases. Michael Waller announced shortly thereafter that he would not seek reelection when his term expired in 2012.
In August 2012, the Illinois Appellate Court vacated Starks’s aggravated battery charge, still leaving open the possibility of a retrial on that charge. It was not until January 7, 2013, until the aggravated battery charges were dismissed by State’s Attorney Michael Nerheim, who had been elected to succeed Waller two months earlier.
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.
— 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.
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.
“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.
Witnesses worked on rape case in which defendant was granted a new trial because of DNA evidence
In the ongoing battle over the use of controversial bite-mark evidence, two Chicago-area dentists have opened a new legal front, suing a colleague for alleged defamation because he used a Lake County rape case they worked on as an example of the oft-criticized discipline gone awry.
Dentists Russell Schneider, of Waukegan, and Carl Hagstrom, of Fox Lake, filed their lawsuit against Michael Bowers, a dentist in California who is a frequent and sometimes acerbic critic of his fellow forensic odontologists for work that has led to numerous wrongful convictions.
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.
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.
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.
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.”
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
Click on the link below to see his talk.
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.
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.