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

 

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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.

Balko on the Bennie Starks Case

By David Averill

Radley Balko of the Huffington Post published a nice comprehensive piece on his blog The Agitator concerning the defamation suit filed by two Chicago dentists against Michael Bowers. Balko opens his story by saying “Michael Bowers has been one of the heroes to shed light on the bite mark matching fraud. He has personally exposed a number of quacks, and contributed to the National Academy of Sciences report that found no scientific basis for the idea that bite marks on human skin can be definitively matched to one person, to the exclusion of everyone else.”

The two forensic dentists suing Bowers testified that the bitemark found on the shoulder of the victim to be a “definite match” in the wrongful conviction of Bennie Starks. DNA has since been found from semen and from the bitemark that did not implicate Bennie Starks. Starks has been released from prison after serving many years and is awaiting the decision from the prosecutor whether to be re-tried. What is most amazing is that despite the DNA found not to belong to Starks and the bitemark analysis being severely criticized by two excellent odontologists, the two expert odontologists for the prosecution stand by their opinion that Starks bit the women. The frivolity of the suit is further exposed when the damages include loss of income from dental patients to their private practices.

Review of Bitemark Evidence in the People of Illinois v. Bennie Starks

Balko finishes his piece exposing how the ABFO dental expert Dr. Lowell Levine who was interviewed in the CNN story also made a mistake in mis-identifying an individual via bite marks. But like the two Chicago dentists, Dr. Levine remains defiant that a mistake was made despite DNA implicating a man other than that identified by Levine to be the biter.

Renowned Expert Says Bitemark Analysis is not Junk Science but Cannot be Proven as a Science Either…

By David Averill

CNN recently aired a segment on the Anderson Cooper 360 show titled Bite Marks Led to Wrongful Conviction. In this piece the world’s foremost ABFO expert in forensic odontology, Dr. Lowell Levine expounds that bitemark analysis is not junk science and is viable and important, but as far as he knows it can’t be proven either. Interesting, since his statement then coincides with the definition of junk science as it is often defined as dogmatic and acknowledges no higher authority than itself for validity of its assertions. Sounds just like bitemark analysis. The courts have been duped for quite some time until numerous exonerations of wrongful convictions based on bitmearks have been piling up earning bitemark analysis the “poster child for bad forensic science”.

The full program can be viewed by clicking on CNN Anderson Cooper – Bitemarks led to wrongful conviction

Wrongly Convicted Database Record

http://forejustice.org/db/Starks–Bennie.html

Bennie Starks

Years Imprisoned:

20

Charge:

Sexual Assault (includes aggravated)

Sentence:

60 years

Year Convicted:

1986

Year Cleared:
2006

Location of Trial:
Illinois

Result:
Judicially Exonerated Released

Summary of Case:
Wrongly convicted of sexual assault and battery in 1986 based on the expert testimony of a crime lab analyst that a bite mark on the victim was made by Bennie Starks. Starks was sentenced to 60 years imprisonment for sexual assault and 5 years for battery. Starks conviction was vacated and he was released on $100,000 bail on October 4, 2006, after a DNA test excluded him as the source of crime scene evidence originating from the perpetrator.

Conviction Caused By:
Faulty bite mark testimony by a crime lab analyst.

Innocence Proved By:
DNA tests unavailable at the time of his conviction excluded him as the woman’s attacker.
Defendant Aided By:
Compensation Awarded:

Was Perpetrator Found?

Age When Imprisoned:
27

Age When Released:
47

Information Source 1:

Prison door swings open, By Dave Wischnowsky, Chicago Tribune, October 5, 2006

Information Location 1:

http://www.chicagotribune.com/news/local/chi-0610050059oct05,1,4411333.story?coll=chi-newslocal-hed

Guilty, said bite expert. Bogus, says DNA

As forensic scientists scramble to shore up a shaky field, new evidence casts doubt on an old conviction
By Maurice Possley and Steve Mills
Chicago Tribune reporters
July 10, 2008

MILWAUKEE — In a cubicle at Marquette University, a professor of dentistry and a former prosecutor are trying to use computer science to shore up a beleaguered forensic discipline.

But as the two men try to lay the groundwork to provide a statistical backbone to preserve bite-mark comparison’s place in the courtroom, they are being confronted with new evidence from a 1984 murder case that suggests their own use of this controversial analysis may have sent an innocent man to prison.

Dr. L. Thomas Johnson, a veteran forensic odontologist —or dental scientist—at Marquette, and a colleague, law professor Daniel Blinka, worked together on that criminal case, the first in Wisconsin to use bite-mark evidence. Blinka was the prosecutor who brought the charges, and Johnson testified that the bite marks on the victim were made by Robert Stinson.

Stinson, who has always insisted he was innocent, now has new hope to win his freedom: DNA tests exclude him as a source of saliva found on the victim, and a defense-commissioned study concludes the testimony from Johnson and another forensic dentist was inaccurate.

His case, as well as Johnson’s new research, raises a question that has been asked frequently in recent years: Can bite-mark comparison be trusted or is it a junk science?

Johnson and Blinka stand behind their work in the Stinson case and insist that bite-mark analysis is credible.

“What we want to show,” Johnson said during an interview at Marquette’s dental school, “is that it’s not a faulty science if it’s done properly, and there is a solid statistical basis behind it.”

Johnson said his and Blinka’s new research was prompted in part by a 2004 Tribune series, “Forensics Under the Microscope,” that showed that DNA tests have proved wrong many of the leading bite-mark experts, including the discipline’s founding fathers.

One of them, Dr. Raymond Rawson, helped send two men to Death Row in Arizona, and in both cases his work was later undermined, with one of the men set free. He also testified against Stinson.

The Tribune in its series also examined 154 cases involving bite-mark comparison, mostly murders and rapes, that reached appeals courts around the country and found that, in more than one-quarter of the cases, forensic dentists for the prosecution and defense gave diametrically opposed opinions.

Injecting science

Johnson’s research aims to provide scientific underpinning to the much-criticized discipline by establishing a database similar to the fingerprint database. Johnson believes that if a sufficient number of images of sets of teeth are put into a computer, all with consistent marking points, forensic dentists could estimate the frequency of dental patterns.

For the study, Johnson gathered dental molds from more than 400 Air National Guard members and scanned them into a computer. He then established six identifying characteristics.

“This is only a starting point,” Johnson said. “This isn’t the Rosetta stone that’s going to solve all the problems. We’re not ready for prime time yet. But what it’s done is answered the question of whether there is any science behind this.”

David Sweet, a professor of odontology at the University of British Columbia who has been working on a similar study, said Johnson’s research is much needed.

“Right now it’s a discipline based on an opinion,” Sweet said. “But in order to express that opinion in real terms, what we need to know is if anybody in the population has the same dental traits as the suspect.”

Other odontologists are skeptical, saying Johnson’s study sample is too small and does not represent the wider population. Any conclusions drawn from it, they say, would be misleading.

“This is the epitome of junk science cloaked as academic research,” said Dr. Michael Bowers, a California odontologist and a frequent critic of bite-mark comparisons. “I don’t think his claims are supported. The study just doesn’t pass muster.”

Over the past two years, as Johnson was doing his research, lawyers for Stinson were uncovering new evidence in the 1984 murder of 63-year-old Ione Cychosz, who was beaten to death and bitten eight times. Stinson was sentenced to life in prison for Cychosz’s murder.

The DNA test results — from saliva on Cychosz’s sweater — and the study from four other bite-mark experts have been turned over to Milwaukee County prosecutors for their review. Stinson’s attorney, Byron Lichstein of the Wisconsin Innocence Project, has asked prosecutors to vacate Stinson’s conviction. He is scheduled to meet with the prosecutors Thursday.

“At this point, we feel there is more review that needs to be done in this case before any decision is made,” said John Chisholm, Milwaukee County district attorney.

Johnson examined Cychosz’s body the day it was found nude and battered near her home. He worked with a police sketch artist to come up with a diagram of the attacker’s teeth and determined that the suspect had a missing upper front tooth.

A detective on the case, James Gauger, who has since retired, recalled in an interview that after Johnson said the perpetrator had a missing tooth, he and his partner visited Stinson’s home as part of their neighborhood canvass. Stinson lived in a home adjacent to the yard where the body was found.

“My partner told him a couple of jokes, and Stinson laughed,” Gauger said. When they saw a missing tooth, “we knew we had our man.”

After Johnson said he had linked Stinson’s teeth to the bite marks and Rawson concurred, Stinson was arrested.

“I was an easy target,” Stinson, now 43, said in a recent interview at the New Lisbon Correctional Institution. “I was young. I had no education, and they took advantage of that.”

At his three-day trial in December 1985, Stinson insisted he was innocent. The only evidence against him was the bite-mark testimony. Neither Johnson nor Rawson used any of the qualifying language that experts in the field say bite-mark analysts should use when testifying.

Johnson concluded the bite marks on Cychosz “had to have been made by teeth identical” to Stinson’s and there was “no margin for error in this.” Rawson called the evidence “overwhelming” and said “there was no question there was a match.”

Skeptical review

Three years ago, Stinson wrote to the Wisconsin Innocence Project at the University of Wisconsin Law School. After taking his case, Lichstein, working with the cooperation of Milwaukee County prosecutors, obtained the DNA tests and commissioned the review of Johnson and Rawson’s findings.

The group was headed by Gregory Golden, current chairman of a committee of the American Board of Forensic Odontology that oversees guidelines for the use of digital imaging in bite-mark analysis — a tool that has improved the ability of odontologists to compare bite marks.

The case also was examined by forensic experts from Texas, California and Illinois. In their report, the experts said that while some modern methods were not available in 1984, “it should be emphasized that Drs. Johnson and Rawson should have excluded Robert Lee Stinson even based on methods and standards available at the time … because there is little or no correlation of Robert Lee Stinson’s dentition to the bite marks.”

The report also criticized Johnson’s testimony that there was no doubt Stinson’s teeth left the marks. “That statement has no evidence-based, scientific, or statistical basis and drastically overstates the level of certainty attainable using bite mark analysis,” the report said.

Johnson, in an interview, defended his work in the case and said he has seen nothing to suggest Stinson is innocent. “I would have to say that I respectfully disagree with them,” he said.

Rawson declined to comment.

Blinka also rejected the report. “As I sit here now, do I have any reasonable doubt that Stinson is guilty?” he said. “No, I don’t.”

Stinson, meanwhile, said he has been told that he cannot qualify for parole unless he admits guilt.

“But I won’t do it. I’m innocent,” he said. “This is a huge mistake. I am not a murderer. I’m an innocent person that wants his freedom back.”

mpossley@tribune.com

smmills@tribune.com
Copyright © 2011, Chicago Tribune

ABFO Bitemark Expert and City of Warren Settle Case for Over $2.8M

Newspapers across the midwest are reporting on another unfortunate bitemark case that has resurfaced.  Jeffrey Moldowan was convicted and spent nearly 12 years in prison based on bitemark evidence prior to being exonerated.  The wrongfully convicted Moldowan brought suit against the city and the dentist who gave the faulty opinion. The case was settled yesterday for $2.8 million dollars. The city will pay a $250,000 deductible and insurance will pay the rest. Earlier in the month an agreement was made for the forensic odontologist to pay $200,000. The forensic dentist testified in court that the bitemarks found on the body were consistent with the teeth of the defendant and that the “chances are 2.1 billion to 1 that another individual can make those same marks”. The forensic dentist in this case has had a number of other cases where he mis-identified bitemarks leading to wrongful convictions. This case and others resulting in wrongful conditions are discussed in the textbook Bitemark Evidence: A Color Atlas and Text edited by Dr. Robert Dorion.

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