Court Strips Immunity From Bite Mark Experts Who Put Wrong Man In Jail For 23 Years

from the junk-scientists-junked dept

We've discussed the junk science masquerading as forensic science in criminal cases. Coming in slightly ahead of chatting with psychics is "bite mark analysis." According to these so-called experts, each bite mark is just as unique as a fingerprint. But if so, why have so many cases been overturned when actual science -- usually DNA evidence -- is examined? Bite mark analysts have no answers. Fortunately, there's been less and less reliance on this highly-questionable evidence over the years.

But bite mark analysis was in vogue long enough to do serious damage to people's lives. The 7th Circuit Appeals Court has just decided a wrongly imprisoned man can continue with his civil rights lawsuit against the two forensic odontologists who allegedly conspired to fabricate their expert opinions. Here's how the plaintiff spent most of the last quarter-decade, from the opening of the court's decision [PDF]:

Robert Stinson spent twenty‐three years in jail for a murder he did not commit. No eyewitness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson’s dentition matched the teeth marks on the victim’s body, and a jury found Stinson guilty.

The court chronicles the long path law enforcement -- aided by two dentists -- took to Stinson in prison for a murder he didn't commit. The opinion, somewhat unfortunately, doesn't question the use of bite mark analysis as evidence. Instead, it focuses on the fabrication and other missteps/misconduct allegedly perpetrated by the analysts as they assisted law enforcement and prosecutors in building the murder case.

Dr. Lowell Johnson was the first dentist to be brought in. Examining photos of bite marks on the victim's body, Johnson informed officers the suspect would have a missing or broken lateral incisor -- a tooth one over from the upper front teeth. When Stinson was interviewed by officers at his home, they noticed he had a missing right front tooth, which is not the same tooth as indicated by their bite mark expert. Nevertheless, they persisted.

After they finished their interviews, the two detectives met at the front of the house, and Jackelen told Gauger, “We have him.” The detectives then went back to speak with Stinson and intentionally said something to make Stinson laugh so that his teeth would be visible. When Gauger saw that Stinson had a missing upper front tooth, he thought, according to his later memoir, The Memo Book, published long after Stinson’s conviction, “There it was. The broken front tooth and the twisted tooth just like on the diagram and pictures.” (At his deposition in this case, however, Gauger said that the missing tooth was on the upper right side and to the right of the front tooth.)

[...]

On November 15, 1984, Gauger and Jackelen met with Johnson. The November 15 police report states that Johnson said the offender would have a missing or broken right central incisor (i.e., the upper right front tooth). That is the same tooth that the detectives had observed that Stinson was missing when they questioned him.

Then came more "expert" work from law enforcement's expert:

The next day, the detectives interviewed and photographed two other men with at least one missing or broken tooth. Johnson ruled them out as suspects in Cychosz’s murder based only on looking at the photographs. Stinson’s odontological expert in the current case, Dr. Michael Bowers, states there was no scientific basis for Johnson to exclude these two men by just looking at photographs.

Despite Stinson missing the wrong tooth, the dentist and law enforcement continued to build a case against him. Dr. Johnson had another sketch of the bite marks drawn up -- again with the missing lateral incisor. Then this drawing simply vanished. Dr. Johnson referred to it in court during a pre-trial hearing, while remarking Stinson's teeth (with the missing incisor, rather than lateral incisor) matched up with the imprints and missing sketch -- a statement that followed Johnson's 20-second "examination" of Stinson's teeth.

A cast of Stinson's teeth was ordered by the court. Johnson examined the cast and claimed it was a match -- again, despite the wrong tooth being missing. Law enforcement officers used this assertion to push for a search warrant but the DA pushed back, saying there still wasn't enough probable cause despite the declared "match."

So, Dr. Johnson brought in a friend of his -- Dr. Raymond Rawson -- to act as a second bite mark expert. Rawson reviewed the bite mark evidence in a Las Vegas hotel room and unsurprisingly sided with his longtime friend and colleague. Dr. Rawson did not personally examine Stinson's mouth at any time. Johnson prepared an "expert report" on these findings and submitted it to the court with Rawson's approval.

The trial began, with the state offering nothing but two dentists and some highly-questionable bite mark examinations as evidence.

The prosecution did not offer any evidence of motive, nor did it produce any eyewitness testimony that connected Stinson to Cychosz’s murder. Some testimony suggested that Stinson had given conflicting versions of his whereabouts on the night of Cychosz’s death. Stinson’s counsel moved to exclude any forensic odontology evidence from trial, but that request was denied. Johnson testified at trial that the bite marks on Cychosz must have been made by teeth identical in relevant characteristics to those that Johnson examined on Stinson. Rawson testified that Johnson performed “a very good work‐up” and that he agreed with Johnson’s conclusion to a reasonable degree of scientific certainty that Stinson caused the bite marks on Cychosz’s body.

Stinson got locked up for the next 23 years and Dr. Johnson went on to use this case to further his career as a forensic expert, despite the ringing up a person with the wrong missing tooth on murder charges. Twenty-three years later, experts not named Rawson or Johnson examined the so-called evidence.

[A] panel of four forensic odontologists reanalyzed the bite mark evidence and concluded that Stinson could not have made the bite marks found on Cychosz. DNA testing of blood found on Cychosz’s clothing also excluded Stinson. Stinson’s conviction was vacated on January 30, 2009, and he was released from prison. The State of Wisconsin dismissed all charges against him that July. In April 2010, the Wisconsin State Crime DNA Database matched the DNA profile of the blood found on Cychosz’s clothing with that of a convicted felon, Moses Price. Price later pled guilty to Cychosz’s murder.

Another expert had more to say about the state's supposed experts:

Stinson’s expert in this case, Dr. Bowers, reviewed the bite mark evidence and concluded that the bite marks found on Cychosz excluded Stinson. Consistent with the panel, Bowers concluded that Johnson’s and Rawson’s explanations of why a bite mark appeared on Cychosz’s body where Stinson has a missing tooth has “no empirical or scientific basis and does not account for the absence of any marks by the adjacent, fully developed teeth.” Bowers believed that the methods Johnson and Rawson used “were flawed and did not comport with the accepted standards of practice in the field of forensic odontology at the time.” Bowers concluded that “to a reasonable degree of scientific certainty as a forensic odontologist … Johnson and Rawson knowingly manipulated the bite mark evidence and Stinson’s dentition to appear to ‘match’ when there was in fact no correlation between Stinson’s teeth and the bite marks inflicted on Cychosz’s body.”

At this point, the Appeals Court can't rule on the issue of qualified immunity for the law enforcement officers involved in this case, but it can take away the absolute immunity asked for by the state's dental experts. As the court notes, the allegations all concern pre-trial evidence preparation. Statements made in court usually confer absolute immunity, but nothing like that shields state experts from actions taken prior to the case going to court. As the court here sees it, Stinson has alleged more than enough to continue with his lawsuit. It quotes the lower court's decision summary of the actions taken by the two dentists, which raises serious questions about the fabrication of evidence.

The evidence in the record about Johnson’s shift regarding which tooth was missing after the detectives thought they had their man, the lack of a sketch at the John Doe hearing, Johnson’s call to Rawson, Rawson’s extremely brief initial review of the physical evidence in Las Vegas, and the existence of gross errors in Johnson's and Rawson’s review of the physical evidence (which another expert says could not be honestly made) provides enough to allow Stinson to get Johnson, Rawson, and Gauger before the jury for evaluation.

These two dentists will now have to face the court and defend themselves against charges they fabricated evidence and conspired (along with officers) to withhold exculpatory evidence from the defendant. There's a lot at stake here with 23 years of prison time involved. This doesn't make Stinson whole again, but it at least gives him a shot at receiving something in exchange for the two dozen years the government took away from him.

Filed Under: forensic science, immunity, robert stinson

FBI, DOJ And Their Forensic Scientists State They'll Continue Using Discredited Junk Science To Put People Behind Bars

from the if-it-ain't-working,-don't-fix-it dept

For dozens of years, criminal prosecutions have relied on junk science. Forensic science, properly applied, can actually provide matches that identify suspects. But it's not properly applied. In the hands of the DOJ, forensic evidence examination is a closed loop. Outside scientists have been granted access to the DOJ's DNA work, but everything else -- from fingerprints to hair samples -- has been locked away in the government's database.

Still, the DOJ insists its science is solid, something it bases on confirmation bias. The matches determined in its forensic labs are "scientifically certain" because the DOJ's expert witnesses have said so in court. Not only are outside scientists locked out of examining evidence and forensic processes, but defense lawyers are as well.

The DOJ has finally decided to dial back its "scientific certainty" a bit by issuing guidance instructing its experts to not make this claim in court. This follows years of bogus matches being presented as sure things by forensic experts in court, leading to an unknown number of false convictions. This step back is a step forward for an agency that is mostly unwilling to admit to any mistakes or wrongdoing.

This small change is likely due to a damning report [PDF] issued by the President's Council of Advisors on Science and Technology (PCAST) that asserts that the "scientifically certain" evidence prosecutors rely on is severely flawed.

The questions that DNA analysis had raised about the scientific validity of traditional forensic disciplines and testimony based on them led, naturally, to increased efforts to test empirically the reliability of the methods that those disciplines employed. Relevant studies that followed included:

• a 2002 FBI re-examination of microscopic hair comparisons the agency’s scientists had performed in criminal cases, in which DNA testing revealed that 11 percent of hair samples found to match microscopically actually came from different individuals;

• a 2004 National Research Council report, commissioned by the FBI, on bullet-lead evidence, which found that there was insufficient research and data to support drawing a definitive connection between two bullets based on compositional similarity of the lead they contain;

• a 2005 report of an international committee established by the FBI to review the use of latent fingerprint evidence in the case of a terrorist bombing in Spain, in which the committee found that “confirmation bias”—the inclination to confirm a suspicion based on other grounds—contributed to a misidentification and improper detention; and

• studies reported in 2009 and 2010 on bitemark evidence, which found that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter.

Beyond these kinds of shortfalls with respect to “reliable methods” in forensic feature-comparison disciplines, reviews have found that expert witnesses have often overstated the probative value of their evidence, going far beyond what the relevant science can justify. Examiners have sometimes testified, for example, that their conclusions are “100 percent certain;” or have “zero,” “essentially zero,” or “negligible,” error rate. As many reviews—including the highly regarded 2009 National Research Council study—have noted, however, such statements are not scientifically defensible: all laboratory tests and feature-comparison analyses have non-zero error rates.

Despite these conclusions, law enforcement forensic scientists, along with the FBI and DOJ are promising to continue using junk science to convict people. The Attorney General's response to the report is basically, "Thanks for all the hard work, but we're not changing a thing."

In a statement reported by the Wall Street Journal, Attorney General Loretta Lynch said that the agency remains “confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning.” As such, she said, while “we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”

The FBI's response [PDF] is no more enthusiastic. Its one-page blast claims the entire PCAST report is flawed. It also asserts there are "multiple studies" that back up its forensics work. However, the FBI turned down an invitation to participate in the PCAST study and one of the PCAST members points out that the studies the FBI claims contradict the PCAST findings actually do no such thing.

Asked about the FBI’s complaints, Eric Lander, co-chair of the presidential council and president and founding member of the Broad Institute of MIT and Harvard, a biomedical research group, told The Intercept that the FBI is mistaken. “Neither report says that proficiency testing be used to estimate the ‘error rate’ of forensic methods,” he wrote in an email, and both reports agree that examiners should be subject to proficiency tests. And Lander said he is “not aware” of what studies the FBI believes were ignored by the report. “We specifically received FBI’s input on studies to consider and we did so.”

[...]

Lander wrote that the presidential council did in fact review the six studies the FBI complains that it missed. “However, these studies are clearly not empirical studies ‘providing support for foundational validity,'” he wrote. “Indeed, only one of the papers even reports an empirical study of current forensic method at all!”

But the most defensive response [PDF] to the PCAST study has come from the American Congress of Forensic Science Laboratories. Unsurprisingly, the group isn't pleased that its conclusions and methodology have been questioned. Before addressing the shortcomings it feels the study contains, the ACFSL first tries to claim the whole thing is just a politically-motivated attack on the good people in law enforcement.

Interestingly, the PCAST report comes during a presidential administration that has demonstrated a deep sensitivity to the needs and demands of trial attorneys, criminal defendants, and advocates of sweeping criminal justice reform. Future administrations may take a different approach, tending to champion positions traditionally held by police and prosecutors. We have no opinion in these matters. But these swings in ideological perspective cause commensurate changes in how forensic science and its role in our criminal justice system are perceived. In the current political climate, forensic science is looked upon with far more suspicion and, in some cases, disdain than would be the case in other political circumstances. And because forensic science is both expected and apt to remain independent of these political currents, it is vulnerable to being misportrayed and even bullied in a way that compromises its occupational stability.

It's somewhat interesting that a field where evidence has been used to deprive innocent people of their freedom -- and whose courtroom assertions are treated as nearly-unassailable despite a long history of uncorrected errors -- can somehow be bullied by a report both the DOJ and FBI have already indicated they're going to ignore.

It also attacks some of the contributors for their work with the Innocence Project (Eric Lander) and their previous assertions about the intrusiveness of DNA collections (Tania Simoncelli) -- all the while claiming it has no interest in "disparaging" the authors of the study. Even in this, the forensic scientists' sample size is way too small. Attacking Lander for his Innocence Project work conveniently overlooks his considerable contributions to the scientific community.

[Innocence Project's Chris] Fabricant said the congress’ assertions were absurd. “To suggest that the leading scientists in the country would cash in their credibility to do – what? What possible agenda could they be pursuing except scientific validity?” he asked. “I’d like to know what agenda they propose is being driven, and how somebody like Eric Lander – who mapped the human genome — is going to preside over a process that is intended to undermine the criminal justice.”

These responses indicate business -- as lousy and inaccurate as it is -- will continue as usual until the DOJ is forced to confront these issues, either by litigation or legislation. Not exactly heartening news for citizens who don't like being locked up for crimes they didn't commit.

Filed Under: doj, fbi, forensic science, junk science, prosecutors, science