Bennie Starks

NORTHWESTERN LAW

BLUHM LEGAL CLINIC

Center on Wrongful Convictions

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.


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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.

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.

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.

Innocence Project’s New Strategic Litigation Unit Takes on Bite Mark Evidence…

From press release:

THE INNOCENCE PROJECT (IP) is a national litigation and public policy organization based in New York dedicated to exonerating wrongfully convicted individuals through DNA and reforming the criminal justice system to prevent future injustice.  As the DNA exonerations have revealed, the misapplication of forensic science has been a leading cause of wrongful convictions.  The newly created Strategic Litigation unit is aimed at, among other things, eliminating junk science from courtrooms nationwide, beginning with bite mark comparison evidence.  To that end, IP seeks to partner with an attorney(s) on criminal cases involving bite mark comparison.  Attorneys with cases meeting the following criteria should contact IP directly.

  • Bite mark testimony is proffered by the government as evidence identifying the defendant to exclusion of all other potential sources
  • Pre-trial, trial, appellate or post-conviction cases:  The primary interest is assisting with pre-trial Frye/Daubert motions and hearings, but IP will consider bite mark cases in all stages of litigation
  • Other disciplines, in particular other pattern or impression evidence:  Although the initial focus is on bite marks, other novel, unvalidated disciplines will be considered.
  • NOTE:  Strategic Litigation will consider cases with or without biological evidence, i.e., non-DNA cases.

Dentist now doubts science of bite-analysis

Written by  Jerry Mitchell  Clarion-Ledger Staff Writer
Leigh Stubbs and Tami Vance were jubilant on June 28 after the state Supreme Court threw out their convictions. Dr. Michael West, an expert witness on bite-mark analysis, testified in their trial. Now, West says he no longer believes in bite-mark analysis.

Leigh Stubbs and Tami Vance were jubilant on June 28 after the state Supreme Court threw out their convictions. Dr. Michael West, an expert witness on bite-mark analysis, testified in their trial. Now, West says he no longer believes in bite-mark analysis. / The Clarion-Ledger

Hattiesburg man testified as expert in about 80 trials

Since the 1980s, Hattiesburg dentist Michael West has raised his right hand and sworn dozens of time that bite marks on victims matched suspects.

He compared these bite marks to fingerprints, describing their unique characteristics to jurors. Most suspects he testified against went off to prison.

Now West rejects the very science he relied on to help put so many behind bars.

“I no longer believe in bite-mark analysis,” he said in a 2011 deposition obtained by The Clarion-Ledger. “I don’t think it should be used in court. I think you should use DNA. Throw bite marks out.”

Two of those convicted in a 2001 aggravated assault case in which West testified, Leigh Stubbs and Tami Vance, are now receiving a new trial. They are both out on bond and will be arraigned today in Brookhaven.

Stubbs and Vance are charged with conspiring to steal drugs and cash and assaulting a traveling companion, Janet Kimberly Williams, who reported wounds to her head, breasts, vagina and buttocks.

Stubbs is glad to be free. “I have a lot of lost years to make up for,” she said. “I’m so happy to be back with my family and spending time with them. I’m looking forward to going back to school.”

Vance said she is “very grateful to God and the Innocence Project. I feel really blessed. It has been a very long and hard 11 years for me and my family and Leigh’s family.”

Vance’s lawyer, Merrida Coxwell of Jackson, said he believes West’s testimony could affect any case in which the dentist has testified. “If I was a person in prison, I would demand a review,” Coxwell said.

Asked about his testimony, West told The Clarion-Ledger his cases have been reviewed before, and he is happy to have them reviewed again.

He doesn’t see his testimony as a reversal, he said. “If they (defense lawyers) wish to debate it in court, so be it.”

As for bite-mark analysis, he is leaving that to others, he said. “The science is not as exact as I had hoped.”

At one point, the science of identifying bite marks was cutting edge, he said. “DNA has made it fairly obsolete.”

West has estimated he’s worked on 16,000 cases, and he’s put the number of trials he’s testified at across the U.S. as an expert at 81.

According to his resume, courts have recognized him as an expert in bite marks, child abuse, wound pattern analysis, crime scene reconstruction and ultraviolet photography.

Over the decades, his testimony has proved effective. Of the 38 Mississippi criminal trials in which The Clarion-Ledger could find a record of West’s testimony, 31 ended in convictions.

Reversals have followed in several of those cases, most notably with two Noxubee County men, Kennedy Brewer and Levon Brooks.

In Brooks’ trial, West testified he found bite marks on the body of 3-year-old Courtney Smith he said were made by Brooks.

In Brewer’s trial, West testified he found bite marks on 3-year-old Christine Jackson that he said Brewer made.

Brewer went to Death Row and spent 15 years behind bars. Brooks, who received a life sentence, spent 18 years there.

In 2008, authorities said DNA proved the identity of – Justin Albert Johnson.

In February, Johnson pleaded guilty to murdering the two girls, saying, “I wasn’t in my right mind when that happened.”

Johnson received two consecutive life sentences with no hope of parole.

Even after Brooks and Brewer were set free, West stuck to his conclusions that these two men had bit the girls. He told The Clarion-Ledger that the men obviously bit the girls before they were murdered.

He reiterated that claim in the deposition. “I never accused them of killing or raping anybody – just biting them while they were alive,” West said. “If I have a bite mark on one part of the body and semen on another part of the body, to me it’s evidence that there are two people involved.”

West’s work has also been questioned in the Dec. 18, 1993, death of Haley Oliveaux of Monroe, La., who drowned.

West said a bite mark he found on the girl matched Jimmie Duncan, now on Louisiana’s death row.

In a 2009 interview, West told The Clarion-Ledger he believed Duncan made the bite marks and killed Haley.

In the autopsy video, West can be seen examining her body, noting several injuries but none on the right cheek.

When the video resumes the next day, a visible abrasion can be seen on her right cheek. West can then be seen pressing a plaster mold of the suspect’s teeth into her cheek.

In a sworn statement, defense bite-mark expert Dr. Charles Michael Bowers of Ventura, Calif., said what West did constituted “forensic fraud.”

West responded that the accusations he made up or falsified evidence “is a damn lie.”

In the case of Stubbs and Vance, West testified at trial that he found a bite mark on Williams’ thigh that was consistent with that of Stubbs.

But what prompted the new trial was West’s other testimony and evidence the prosecution didn’t turn over to the defense that could have been used to rebut it.

West reportedly enhanced a surveillance videotape from a Brookhaven hotel and testified that on the tape he could see two women pull a limp body from the toolbox in a pickup bed.

Stubbs’ father later received copies of FBI documents prosecutors had but didn’t show in which the FBI analysts reportedly concluded they couldn’t tell what objects were being unloaded.

In his deposition, West said when he testified at the Stubbs and Vance trial, he believed in the uniqueness of bite marks. “I no longer believe in that,” he said. “And if I was asked to testify in this case again, I would say I don’t believe it’s a system that’s reliable enough to be used in court.”

Whatever testimony he gave at the trial “was the truth to the best of my knowledge,” he said. “Today I don’t believe that.”

That’s a far cry from the West, who declared in one case that his error rate was “something less than my Savior, Jesus Christ.”

After the exonerations of Brewer and Brooks – in which the office of Attorney General Jim Hood played a role – Hood talked of examining 20 or so cases in which West was involved.

Given West’s reversal, Stubbs and Vance are hoping Hood’s office will drop the charges against them.

Hood’s spokeswoman, Jan Schaefer, said he couldn’t comment on the case outside the court file and filings.

“The attorney general has recognized that bite mark evidence can be unreliable – and last fall he committed himself to investigating cases of innocence in which Dr. West testified,” said Valena Beety, an attorney for the Mississippi Innocence Project representing Stubbs. “Yet, a year later, his office is seeking to re-try two women wrongly convicted in large part due to the testimony of Dr. West in 2001.”

Tucker Carrington, director of the Mississippi Innocence Project at the University of Mississippi School of Law, which investigated the case, said Hood’s decision to reprosecute “is disappointing – both for my client and for the state’s criminal justice system overall.”

Eddie Lee Howard is on Mississippi’s death row because of West’s testimony, Carrington said.

“Mississippi is known nationally as the poster child for forensic fraud. It’s embarrassing. The attorney general’s office should be focused on repairing this damage, not perpetuating it.”

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.

After 20 years in prison, man cleared in ’86 Waukegan rape

By Dan Hinkel Chicago Tribune reporter

Starks case dismissed

Surrounded by his attorneys, Bennie Starks speaks to the media after his court case was dismissed in the Lake County Courthouse in Waukegan today. (Stacey Wescott, Chicago Tribune / May 15, 2012)

Lake County prosecutors have dropped rape charges against Bennie Starks, who spent 20 years in prison before DNA pointed away from him.

Assistant State’s Attorney Jim Newman appeared at a brief hearing and dropped the sexual assault charges.

“He is a free man and he is not guilty,” said Starks’ lawyer, Jed Stone.

Starks, dressed in a burgundy sport coat and black and white checked shirt, accepted a hug around the shoulder from another of his lawyers, Vanessa Potkin from the New York-based Innocence Project.

“This has been a great day,” Starks said.

As to his plans, he said, “Spend time with my grandkids and just…living.”

Starks, 52, of Chicago was convicted in 1986 of raping a 69-year-old woman in Waukegan. He was in the middle of a 60-year sentence when the appeals court ordered a new trial in 2006 and he was released on bond. As with three other recent Lake County cases, prosecutors insisted on his guilt even after DNA pointed toward someone else as the attacker.

The possibility of a retrial had been thrown into doubt by court rulings barring prosecutors from using the testimony of the victim, who identified Starks as the rapist.

She died several years ago, and a Lake County judge ruled in January 2011 that prosecutors could not use her past testimony at the retrial.

The state appeals court affirmed that decision in February, writing that Starks’ lawyers would not have a fair shot at cross-examining her and holding that the original cross-examination was inadequate.

Since February’s ruling, Starks has waited to learn whether prosecutors planned to retry him.

After the conflicting DNA evidence became public in the early 2000s, prosecutors responded much as they did to other cases involving forensic evidence suggesting a suspect’s innocence.

Prosecutors argued that the DNA did not clear Starks because the woman could have had consensual sex with someone else, although she said at trial she had not had sex in the weeks before the attack.

The woman identified him as the man who pulled her into a ravine and beat, bit and raped her. A dentist said bite marks on the victim matched Starks, and his jacket was found at the scene.

Starks said the jacket and money were stolen from him after he passed the evening in a local tavern, and the defense attorneys have called the scientific rigor of the bite-mark evidence into question.

In the early 2000s, testing turned up a genetic profile from another man on the victim’s underwear. Later, testing on a vaginal swab found DNA that didn’t come from Starks, and the appeals court ordered a new trial in 2006.

This morning, it first appeared that Starks’ wait to have his name cleared might continue.

Newman, the assistant state’s attorney, surprised Starks’ defense lawyers at the start of today’s hearing when, instead of immediately dropping the charges, he asked for a continuance while the appeals court considers Stark’s challenge to his battery conviction. Starks hopes to see that conviction — which stems from the same crime — wiped from his record.

Without pause, Judge John Phillips tersely declined that request and told prosecutors to make a decision on retrying Starks immediately. Newman left court for a few minutes to consult with his superiors, then returned to begin filling out paperwork for Starks’ case before the judge returned.

Stone, one Starks lawyers, approached Newman as he filled out a court form and smiled as he said, “That’s N-O-L-L-E,” a reference to the Latin phrase, nolle prosequi, which indicates a prosecutor is dropping charges.

When Phillips returned, Newman dropped the charges and hurried from the courtroom. He declined to comment on the decision.

Freelance reporter Ruth Fuller contributed

dhinkel@tribune.com

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