Dentists sue over bite mark testimony

Dr. Bicuspid

By Donna Domino, Features Editor

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.

“Whatever reliability there is, it is far less reliable when done only from photographs.”
— 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.

Case overturned

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.

Picture of victim's bite marks
Picture of victim’s bite marks, submitted as evidence in the Bennie Starks case. The discrete areas of bruising and abrasion show patterned injuries produced by human teeth. Image courtesy of Drs. David Senn and Iain Pretty.

“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.

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2 dentists sue colleague for criticizing their bite-mark testimony

Witnesses worked on rape case in which defendant was granted a new trial because of DNA evidence

December 25, 2011|By Steve Mills, Chicago Tribune reporter

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.

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.

Bitemark Analysis Problems Disclosed 10 Years Ago by CBS 60 Minutes

For the full 60 Minutes program show on bitemark evidence

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

Prosecutor, DNA at odds

In 3 cases, Lake County prosecutor Michael Mermel is willing to pit other evidence against genetic tests that exclude defendants

By Steve Mills, Chicago Tribune reporter
December 15, 2008 Monday

DNA evidence has been widely embraced over the last two decades as a powerful forensic tool to prove a defendant’s guilt or innocence. But in Lake County, authorities have sometimes pressed for convictions even when the DNA doesn’t match a suspect.

Consider three active cases overseen by Michael Mermel, chief of the criminal division for the Lake County state’s attorney’s office:

When DNA evidence excluded a man convicted in the rape and battery of a 68-year-old woman, Mermel suggested the victim had consensual sex with someone else.

When DNA evidence excluded a man in the rape and murder of an 11-year-old girl, Mermel and another prosecutor suggested that the girl may have been sexually active. The DNA, he said, was a “red herring.”

And, just recently, when lawyers for the man charged in the killing of his 8-year-old daughter and her 9-year-old friend said in court that DNA evidence from semen excluded him as the perpetrator, the Lake prosecutor had another explanation.

Mermel said DNA may have gotten inside the 8-year-old’s body as she played in the woods at what became the crime scene — a place where Mermel said some couples go to have sex. The girl was found fully clothed.

In each of the cases, all likely to go to trial in the new year, Mermel argues that other evidence, mainly confessions and witness identification, carry greater sway than the genetic material.

That attitude startles some DNA experts and others in the criminal justice system.

“The vast majority of prosecutors in the United States generally are willing to walk away from a case where DNA excludes a suspect,” said Joshua Marquis, an Oregon prosecutor and member of the board of directors of the National District Attorneys Association.

\ ‘Forensically significant’

In these Lake County cases, several DNA scientists and others say the prosecutor’s explanations are difficult to imagine.

“It’s just amazing how convincing DNA can be if it supports your case and how unconvincing it is when it doesn’t support your case,” said William Thompson, a lawyer and DNA expert at the University of California at Irvine.

Defending his office’s approach, Mermel said Lake prosecutors believe in DNA “when it is forensically significant.”

“If we thought the evidence excluded the defendant in any of these cases,” he said, “we’d dismiss them.”

Mermel pointed to another rape case where his office supported vacating a man’s conviction after DNA excluded him as the source of semen in the victim.

But in that case the defendant had served his prison sentence and been released.

\ ‘DNA ought to humble us’

At a hearing six years ago in the case of Bennie Starks, who had been convicted of raping a 68-year-old woman, Mermel made an intriguing vow.

Though a semen stain on the victim’s underwear contained a genetic profile different from Starks’ DNA, Mermel said it was not enough to prove his innocence. What would help Starks’ claim, Mermel said, was if the semen came from inside the woman’s body.

“If this DNA … were to come from the victim herself, I would be standing over there advocating the side that the defense has in the case,” Mermel said, according to a transcript.

Three years later, a vaginal swab from the rape kit on the woman was found; again, the DNA evidence did not match Starks’ profile.

But Mermel still argued it failed to exonerate him in the 1986 rape case.

In a recent interview, the prosecutor said that because the profiles from the underwear and vaginal swab were the same, they both could have been from someone with whom the woman had consensual sex.

Starks was awarded a new trial in 2006 based on the DNA evidence. After serving 20 years of a 60-year prison term, he was released on bond. When the case comes to trial again next year, Mermel plans to use the victim’s identification of Starks as her attacker.

But eyewitness identification, while still widely used, has been proven fallible by DNA. In three-quarters of the more than 200 DNA exonerations nationwide, eyewitness identifications were central to the state’s case, according to the Innocence Project, which represents inmates seeking to prove their innocence with DNA.

Mermel also plans to argue that bite-mark evidence — the comparisons of bite marks on a victim to a suspect’s teeth — links Starks to the case.

But Mermel’s confidence in bite-mark comparisons contrasts even with some of the forensic discipline’s leading practitioners who, after embarrassing reversals linked to DNA evidence, now argue that bite marks are best used to exclude suspects, not to identify them.

Prosecutors also will use the fact that Starks’ jacket was found near the crime scene.

Arguing that Starks left his coat there, Mermel said it would help jurors see past the DNA. None of the defense’s case “makes any sense,” he said. “None of it passes the most elementary credulity test.”

Starks has said he was drinking the night of the attack and was robbed of his money and coat. His lawyers insist the DNA is the most telling piece of evidence in the case and are perplexed that the prosecutor continues to fight it.

“The DNA ought to humble us,” said Starks’ lawyer, Jed Stone. “But it doesn’t humble some people.”

\ Child cases most puzzling

Of all cases, those where genetic evidence in sperm is recovered from a child are particularly compelling because there is rarely any explanation other than a sexual assault.

Children were the victims in the other two pending Lake County DNA cases. In both, the victims were found with semen in their bodies, and in both cases DNA tests revealed genetic profiles that do not match the defendants’ DNA.

Juan Rivera sits in the Lake County Jail awaiting a third trial in the 1992 rape and murder of Holly Staker, 11.

Early on, primitive DNA testing excluded Rivera. But prosecutors were armed with confessions from Rivera and won two convictions. Rivera’s lawyers said that under intense police interrogation, he experienced a psychological breakdown and gave a false confession. Prosecutors said he knew facts only the killer could have known.

More sophisticated DNA tests in 2005 isolated a genetic profile from semen that did not match Rivera and won him the third trial. As he has in the past, Mermel dismissed the evidence’s significance, saying Rivera told detectives he did not ejaculate during the rape.

“Is it some other killer, contrary to the evidence we have against Mr. Rivera?” Mermel asked. “We say it’s not.”

One of Rivera’s attorneys, Jeff Urdangen of Northwestern University’s Center on Wrongful Convictions, said it “baffles me” that prosecutors put more weight on the confession than the DNA.

“As we’ve said in our pleadings, it’s very rare for a prosecuting agency to continue with a prosecution after a DNA exoneration,” Urdangen said.

In the other case, Jerry Hobbs is charged with the killings on Mother’s Day 2005 of his daughter Laura, 8, and her friend Krystal Tobias, 9, in Zion. He has pleaded not guilty.

As in Rivera’s case, the anticipated centerpiece of the prosecution’s case is a confession, a short but detailed statement from Hobbs in which he says he stabbed the girls repeatedly after Laura refused to come home and Krystal held out a small knife at him.

“I am sorry for what happened, things just got out of hand and I lost it,” Hobbs says in the confession, which he now disavows.

Public defenders in the case said in court that DNA from semen from oral, rectal and vaginal swabs of Laura produced a profile that did not match Hobbs’ DNA.

But Mermel noted that prosecutors had not charged Hobbs with a sex crime, saying there was no evidence of sexual trauma. He said, too, that it was possible the small amount of semen in her was picked up as she played in the woods, where some couples have sex.

And Mermel disagrees with the contention by Hobbs’ attorneys that the DNA is evidence that someone else attacked the girl.

“It is such a goofy logic leap [that] because somewhere in her life she came into contact with a sperm cell it means she was sexually assaulted,” Mermel said. “To take this leap that this is the identity of the mystery killer, I don’t know where everybody gets this idea.”

Setback for Lake County prosecutors in effort to retry Bennie Starks

Woman’s testimony about rape case won’t be admitted, judge rules
January 05, 2011|By Ruth Fuller, Special to the Tribune
Prior testimony from a woman who has since died will not be heard at the retrial of the man convicted of raping her, casting doubts on whether the retrial will proceed.

A Lake County judge ruled Wednesday that statements made by the woman who identified Bennie Starks as her rapist in 1986 cannot be used by prosecutors trying to send him back to prison.

Starks, now 50, was freed on bail and granted a new trial in 2006 after spending almost 20 years in prison for the rape conviction. That was nearly four years after DNA samples taken from the woman were found not to fit Starks’ genetic profile.

“This 25-year nightmare for Bennie is very close to coming to an end,” said Starks’ attorney Jed Stone.

In making his ruling, Circuit Judge John Phillips noted that the defense would not be able to cross-examine the alleged victim. He stressed his ruling was not an exoneration of Starks but conceded that “this will make it difficult for the state to move forward.”

Prosecutor Michael Mermel said he’s “still utterly convinced of the defendant’s guilt” but would consult with State’s Attorney Michael Waller before determining the state’s next move.

At his first trial, the woman testified that Starks pulled her into a ravine in Waukegan, beat, bit and raped her. A dentist matched Starks’ teeth to a bite mark on the woman, and Starks’ jacket was found near the attack.

Starks, who attended Wednesday’s hearing but made no comment, has said he had spent the evening in a nearby bar and was robbed of his coat on the way home.

Starks’ attorneys have said the woman gave conflicting accounts of the attack. In 1986, police were contacted by a state case worker who told them that the woman admitted she was not raped and had fabricated the allegation to “ensure that the man who attacked her would pay for beating her up.” That man was not Starks, the defense said.

But Phillips also ruled Wednesday that he would not throw out Starks’ aggravated battery conviction.

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

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