Latest / Wrongful Conviction / #145 Wrongful Conviction: Junk Science - Bite Mark Evidence

Transcript

#145 Wrongful Conviction: Junk Science - Bite Mark Evidence · Wrongful Conviction

0:00
Speaker 1: Imagine this. You're at your house. You're standing at the
0:05
Speaker 1: stove making dinner. You hear a knock at the door.
0:09
Speaker 1: It's the police. They ask you your name. They've been
0:13
Speaker 1: looking for you. The first thing you think is, oh, no,
0:17
Speaker 1: something must have happened to a friend or someone in
0:20
Speaker 1: my family. An officer looks you in the eye. They
0:24
Speaker 1: need to ask you some questions. What is it? What happened?
0:30
Speaker 1: They won't tell you. You'll need to go down to the
0:32
Speaker 1: police station. You agree to go with them, and you
0:36
Speaker 1: ask them over and over what's the problem. You're putting
0:41
Speaker 1: a small windowless room and you're very anxious, and you're
0:45
Speaker 1: told you wait here. Two plain closed detectives eventually come in.
0:50
Speaker 1: One sits across from you, or a rickety table separates
0:54
Speaker 1: you from him. The other comes to your side of
0:56
Speaker 1: the table and he sits so close to you that is,
1:00
Speaker 1: he is touching yours. He quickly begins accusing you of
1:04
Speaker 1: raping and murdering someone. He says a name that you recognize.
1:09
Speaker 1: It's your ex who you haven't been in contact with
1:13
Speaker 1: for years. The one sitting closest to you who tells
1:17
Speaker 1: you the murder happened last night and that the only
1:19
Speaker 1: way you can help yourself is to just admit what
1:22
Speaker 1: you did. He asked you where you were yesterday. At first,
1:26
Speaker 1: it's not easy to remember the mundane details of the
1:29
Speaker 1: past day. You were just told that your ex was murdered.
1:33
Speaker 1: But you take a deep breath and you try to focus.
1:37
Speaker 1: You were at work all day. On your way home,
1:40
Speaker 1: you went to the grocery store. Then you stopped and
1:43
Speaker 1: had a bureau of some friends at a local bar.
1:45
Speaker 1: Then you got gas at the gas station. You ran
1:49
Speaker 1: into one of your neighbors. You can remember sitting there
1:52
Speaker 1: across from those detectives, at least nine alibi witnesses. You
1:57
Speaker 1: tell this to the detectives, and this gets them even
2:00
Speaker 1: more pissed. They say, look, we don't believe you. We
2:04
Speaker 1: know you killed this woman. They tell you that the
2:08
Speaker 1: victim has bite marks all over her neck, on her shoulder,
2:12
Speaker 1: her inner thigh, and her arm. They tell you that
2:15
Speaker 1: the killer left those bite marks, that they can determine
2:18
Speaker 1: who committed this crime just by taking a dental impression
2:22
Speaker 1: of their teeth and matching it to the bite marks
2:24
Speaker 1: on the victim. And if you're so innocent, they say,
2:28
Speaker 1: if this is some big mix up, and you didn't
2:30
Speaker 1: really do this. Let us just take an impression of
2:33
Speaker 1: your teeth. Fine, let's do it. After more forceful accusations,
2:40
Speaker 1: they let you sit there, and sit there, and sit there.
2:44
Speaker 1: A few hours later, they send a man into the
2:47
Speaker 1: room wearing a white lab coat, and he certainly looks
2:50
Speaker 1: the part of a dentist. He takes out two metal
2:53
Speaker 1: bite plates and fills them with a silly putty like substance.
2:58
Speaker 1: He pushes these cold train into your mouth and tells
3:01
Speaker 1: you to bite down. The putty tastes like plastic. It
3:05
Speaker 1: hugs your teeth, then quickly firms up and drives. Then
3:09
Speaker 1: it's pulled from your mouth and there is a perfect impression.
3:14
Speaker 1: The cops come back in and they tell you you
3:16
Speaker 1: can leave the police station, but they also tell you you're
3:19
Speaker 1: not to leave town. Three sleepless nights later, you're at
3:24
Speaker 1: your house, laying awake in bed, and you're really overcome
3:27
Speaker 1: by anxiety. You're wondering, do I need an attorney or
3:32
Speaker 1: does that make it look like I may have actually
3:33
Speaker 1: done something wrong? How do I act? What am I
3:36
Speaker 1: supposed to do? And then your dog starts barking. This
3:42
Speaker 1: time they don't knock. Your front door is blown off
3:48
Speaker 1: its hinges by a swat team, and before you know
3:50
Speaker 1: what's happening, you are on the ground. You can clearly
3:54
Speaker 1: hear one of these cops yell at you don't fucking move.
3:59
Speaker 1: Your face is being pushed into the carpet. You're being handcuffed.
4:03
Speaker 1: You're told you're being charged with the rape and murder
4:06
Speaker 1: of your ex who you haven't seen or spoken to
4:09
Speaker 1: in years. At your trial, the prosecution gets two experts
4:17
Speaker 1: in bite marks, called odentologists, an impressive sounding title for
4:21
Speaker 1: a forensic dentist, and they explain how the ridges, angles, peaks,
4:26
Speaker 1: and valleys of your teeth, these unique characteristics, perfectly matched
4:30
Speaker 1: with the bite marks on the victim. They say things
4:34
Speaker 1: to the jury that sound really impressive. There's a one
4:38
Speaker 1: in a million chants that these bite marks are anyone
4:40
Speaker 1: else's but the defendants, they say, and we know that
4:43
Speaker 1: to a degree of scientific certainty. The jury seems to
4:50
Speaker 1: be completely buying this, and why not? It all sounds
4:55
Speaker 1: so rational, so infallible. You're thinking, I'm really screwed here,
5:02
Speaker 1: but you know you're innocent. Countless innocent men and women
5:09
Speaker 1: have lived this horrific nightmare. Their wrongful convictions are based
5:14
Speaker 1: on evidence presented by odentologists, the quote unquote scientific experts
5:21
Speaker 1: and bitemark evidence. I'm Josh Duben, civil rights and criminal
5:28
Speaker 1: defense attorney, an innocent ambassador to the Innocence Project in
5:31
Speaker 1: New York. Today on wrongful conviction junk science, We're going
5:36
Speaker 1: to explore bitemark evidence. Like other forms of junk science
5:41
Speaker 1: used in criminal trials, bitemark evidence does not benefit crime
5:45
Speaker 1: victims or their loved ones, So why is it treated
5:48
Speaker 1: like credible science. It turns out that the charade of
5:52
Speaker 1: bitemark evidence is actually older than the United States. On
6:06
Speaker 1: April thirtieth, sixteen ninety two, a reverend by the name
6:10
Speaker 1: of George Burrows was arrested and accused of torturing young
6:13
Speaker 1: women into witchcraft. It was alleged that he would inflict
6:17
Speaker 1: various forms of physical harm on them, pinching, strangling, and yes,
6:22
Speaker 1: biting them. The evidence against Burrows was really thin, but
6:27
Speaker 1: the only physical evidence were the alleged bite marks that
6:30
Speaker 1: the prosecution claimed his teeth left on the flesh of
6:33
Speaker 1: his victims. At his trial, Reverend Burroughs was pulled by
6:38
Speaker 1: the face around the courtroom and his mouth was pride open.
6:42
Speaker 1: A stick was used to point out the unique characteristics
6:45
Speaker 1: of Burrow's teeth, the peaks, the angles of his molars,
6:50
Speaker 1: and then they were compared to what the court was
6:52
Speaker 1: told were bite marks on the young girls. Burrows was
6:56
Speaker 1: convicted and publicly hanged. While he stood on a ladder
7:00
Speaker 1: waiting the tightening him a noose around his neck, he prayed.
7:03
Speaker 1: He recited the Lord's prayer, and a collective gasp, like
7:07
Speaker 1: a creeping wave, rolled through the crowd that had gathered
7:10
Speaker 1: to watch his hanging. Because the Lord's prayer was considered
7:13
Speaker 1: impossible for a witch, and so bite mark evidence was born.
7:20
Speaker 1: In the bloodthirsty hysteria of the Salem witch trials, Burrow's
7:26
Speaker 1: recitation of the Lord's Prayer should have been a sign
7:30
Speaker 1: that something was wrong with his conviction, that he wasn't
7:33
Speaker 1: a witch after all, Because it turns out the angry,
7:37
Speaker 1: frenzied mob that was so quick to accuse, convict, and
7:41
Speaker 1: hang George Burrows had in fact executed an innocent man.
7:46
Speaker 1: Twenty years after he was put to death, George Burrows
7:50
Speaker 1: was declared innocent. He was in another town altogether, on
7:54
Speaker 1: the knights that the victims were allegedly tortured. George Burrows
7:58
Speaker 1: hadn't beiten anyone at all. That entire show that was
8:02
Speaker 1: put on in that courtroom, the circus of forcing his
8:05
Speaker 1: mouth open was nothing more than performance masquerading as science.
8:11
Speaker 1: And yet bitemark evidence is still being used in courtrooms
8:15
Speaker 1: across the country to convict innocent people of crimes they
8:19
Speaker 1: did not commit.
8:22
Speaker 2: Every single case that my department has gotten involved in
8:26
Speaker 2: has ended up in reversal of the conviction, or exclusion
8:28
Speaker 2: of the evidence, or withdrawal of the evidence because it's
8:31
Speaker 2: so grossly unreliable.
8:33
Speaker 1: To tell us more about bitemark evidence, we have Chris
8:35
Speaker 1: Fabricaon from the Innocence Project here with us today. Throughout
8:39
Speaker 1: his twenty year legal career, Chris has worked on countless
8:42
Speaker 1: cases in which innocent men and women spent decades in
8:45
Speaker 1: prison because of bitemark evidence.
8:48
Speaker 2: We at the Innocence Project had an agenda about eliminating
8:52
Speaker 2: the use of bitemark evidence and criminal trials.
8:56
Speaker 1: Chris, there's a case from the nineteen seventies, the People
9:00
Speaker 1: versus Marx, which I believe is the first modern instance
9:03
Speaker 1: of a bite mark on human skin being presented as evidence.
9:08
Speaker 1: Can you tell us about this case.
9:10
Speaker 2: So Walter Marx was a weekend tenant of a woman
9:15
Speaker 2: named Lovey Borzanski, and so the first time since he
9:19
Speaker 2: had had this lease, he did not spend the night
9:21
Speaker 2: on the weekend, and that same weekend the murder victim
9:25
Speaker 2: turned up dead. Police discovered the body on Sunday afternoon,
9:30
Speaker 2: and they noticed that the victims nose had been indelicately
9:36
Speaker 2: put bitten off, and the cartilage of the nose on
9:42
Speaker 2: the victim's face had left the impression of what appeared
9:44
Speaker 2: to be tooth marks. Mister Marx looked good for it,
9:47
Speaker 2: but there wasn't really any evidence apart from the fact
9:50
Speaker 2: that he didn't show up for his usual weekend stay.
9:54
Speaker 2: So there was a group of dentists who had had
9:58
Speaker 2: some history with aifying human bodies through dental records, which
10:02
Speaker 2: is a totally different, unrelated sub discipline of forensic dentistry.
10:06
Speaker 2: But they had had some interest in bitemark evidence and
10:10
Speaker 2: had been kind of looking for the right case to
10:13
Speaker 2: essentially try this out. And interestingly, mister Mark spent four
10:17
Speaker 2: months in jail on a contempt charge resisting the court
10:21
Speaker 2: order to have a mold taken of his teeth. Eventually,
10:24
Speaker 2: he gave up and allowed the mold to be taken.
10:27
Speaker 1: Now, let me stop you. There didn't like six or
10:31
Speaker 1: eight weeks pass before they were able to compare the
10:34
Speaker 1: impression on Walter Mark's teeth to the victim. And hadn't
10:38
Speaker 1: she already been buried and they had to exhume her body?
10:41
Speaker 3: Yeah?
10:42
Speaker 2: You know what's interesting about that is that they still
10:45
Speaker 2: do exhumations and do that type of pattern matching today.
10:50
Speaker 1: Doesn't common sense just dictate that when you bury a
10:53
Speaker 1: human body, the skin changes, it starts to wear and decompose.
10:59
Speaker 1: It just seems like intuitive that if there was a
11:02
Speaker 1: bite mark and you actually could compare a chief to it,
11:06
Speaker 1: that it wouldn't be you know, worth anything to make
11:09
Speaker 1: that comparison after a body had been buried for that long.
11:13
Speaker 3: Yeah, precisely right.
11:14
Speaker 2: You're asking the critical questions that no court in the
11:16
Speaker 2: country asked. For forty years, state after state after state
11:20
Speaker 2: after state cited back to the Walter Marx decision as
11:24
Speaker 2: evidence of not just that it's admissibility, but if it's
11:27
Speaker 2: scientific reliability.
11:30
Speaker 1: This becomes the precedent, This becomes well, hey, bite mark
11:33
Speaker 1: evidence was accepted in the Marks case, you should accept
11:36
Speaker 1: it here and all of a sudden it just starts
11:38
Speaker 1: to get accepted. How is that even possible?
11:42
Speaker 3: Because it worked.
11:43
Speaker 2: You know, the criminal justice system is an efficient eating
11:46
Speaker 2: and killing machine of largely poor people of color, and
11:49
Speaker 2: whatever facilitates that process, it's going to be used as
11:55
Speaker 2: long as courts admit it. And bite mark evidence was
11:58
Speaker 2: introduced as evidence, the admitted it, it got upheld on appeal,
12:01
Speaker 2: so it was good to go.
12:03
Speaker 1: So bite mark evidence was officially accepted in the Marks
12:06
Speaker 1: case and now it has been ingested, if you will,
12:10
Speaker 1: into the criminal justice system. But it became acceptable to
12:15
Speaker 1: the general public because of the Ted Bundy case.
12:18
Speaker 3: Right, Yeah, you know.
12:19
Speaker 2: I mean I sometimes say that Ted Bundy ended up
12:21
Speaker 2: having many more posthumous victims than any other serial killer
12:25
Speaker 2: that we can be aware of, because that his trial
12:28
Speaker 2: led to the widespread use of bite mark evidence all
12:30
Speaker 2: over the country.
12:32
Speaker 1: So for those of our listeners who don't know, but
12:34
Speaker 1: I feel like it's safe to say, most dude, Ted
12:37
Speaker 1: Bundy was one of the most infamous serial killers in
12:41
Speaker 1: US history, and his murder trial was actually the first
12:45
Speaker 1: criminal trial to ever be televised in the United States. Now,
12:49
Speaker 1: there was overwhelming evidence that proved Bundy was guilty of killing, raping,
12:56
Speaker 1: and torturing these young women from Florida State University. And
13:00
Speaker 1: they had eyewitness testimony of him, you know, coming to
13:04
Speaker 1: the murder scene, leaving the murder scene. They had things
13:09
Speaker 1: that he had stolen from the homes of these women.
13:11
Speaker 1: And there was sort of like a belts and suspenders
13:14
Speaker 1: moment where they wanted to make sure they did everything
13:17
Speaker 1: they could to prove his guilt. And they spent two
13:21
Speaker 1: full days presenting this bitemark testimony in the case. Why
13:27
Speaker 1: do you think that is, Chris.
13:28
Speaker 2: People are hungry for every piece of news they could
13:32
Speaker 2: possibly get about Ted Bundy.
13:33
Speaker 3: Everybody believed he's guilty.
13:35
Speaker 2: The only physical evidence in that case was the bitemark,
13:38
Speaker 2: so it was touted as you know, bitite marks are
13:41
Speaker 2: the thing that finally brought Bundy down. And after Ted
13:43
Speaker 2: Bundy was convicted of using bitemark evidence, it really just
13:46
Speaker 2: exploded all over the country.
14:06
Speaker 1: There's something about teeth and dentists that gets associated with reliability, right.
14:11
Speaker 1: I mean, we've all heard about dental records being used
14:15
Speaker 1: to identify crime victims accident victims, and that sign seems
14:21
Speaker 1: to be real. But that's very different from saying that
14:24
Speaker 1: a bitemark can be used to identify the person that
14:28
Speaker 1: did the biting, right.
14:30
Speaker 2: The identification of human remains through dental records is kind
14:33
Speaker 2: of a trojan horse for the forensic dentistry crowd to
14:37
Speaker 2: get into court on bitemark evidence, and I've seen it
14:41
Speaker 2: firsthand in lots of dentists. Conflating these two subdisciplines is
14:46
Speaker 2: the same thing. You identify people by their teeth, and
14:50
Speaker 2: you identify people by the bitemarks those teeth make. And
14:54
Speaker 2: that kind of makes sense until you actually think about it.
14:57
Speaker 2: The two techniques have nothing whatsoever to do with each other.
15:00
Speaker 1: So why doesn't bitemark evidence work? Why isn't it reliable?
15:05
Speaker 2: Bite marks are totally different because you're interpreting an injury
15:08
Speaker 2: on skin that has almost nothing to do with teeth
15:10
Speaker 2: at all, And so all of the little individual theoretically
15:14
Speaker 2: unique differences in teeth that you're pointing out, the cracks,
15:17
Speaker 2: the bevels, the crookedness or the straightness or the missing tooth,
15:21
Speaker 2: or this or that that you can think of that
15:23
Speaker 2: would be different from mouth to mouth or not reflected
15:25
Speaker 2: in the skin whatsoever. But even if you can say
15:30
Speaker 2: with some confidence that these two things can be associated.
15:35
Speaker 2: Then you have to answer the question is it one
15:37
Speaker 2: in ten or is it one in ten million people
15:39
Speaker 2: that might also match. So in DNA, we know you
15:42
Speaker 2: know fairly well how many other people are likely to
15:46
Speaker 2: share your DNA. We've done the statistical population frequencies to
15:50
Speaker 2: know and to believe that the human DNA is unique.
15:54
Speaker 3: We haven't done that with fingerprints or shoes.
15:56
Speaker 2: Or tires or firearms, and we certainly have not done
15:59
Speaker 2: the with teeth.
16:01
Speaker 1: So you're saying that a bite mark and a suspects
16:04
Speaker 1: tooth might appear to match, but many other people's teeth
16:08
Speaker 1: might match that same bite mark, so it's not a unique.
16:11
Speaker 2: Match, right, So you layer those problems on top of
16:14
Speaker 2: bite marks where you're trying to interpret an injury in
16:17
Speaker 2: human skin, where all skin is different, right, old people,
16:21
Speaker 2: young people, thin people, heavy people. All these things make
16:26
Speaker 2: a difference in individual skin characteristics. If you are flexing
16:30
Speaker 2: at the time you were bitten, the bite mark's going
16:32
Speaker 2: to look one way. If your arm was relaxed at
16:34
Speaker 2: the same time, it would look a different way. Right,
16:37
Speaker 2: And if you think about somebody who may be lost
16:39
Speaker 2: one hundred pounds recently and has saggy skin as a result, right,
16:42
Speaker 2: the way that bite mark is going to appear on
16:44
Speaker 2: that person's going to be different than somebody who's you know,
16:48
Speaker 2: puffy from drinking, right, and their skin's all taut and round,
16:51
Speaker 2: you know, and you try and bite into that and
16:53
Speaker 2: you're just going to engage a few teeth. So every
16:55
Speaker 2: time that the same teeth make a bite mark, it's
16:58
Speaker 2: going to look different every single time, depending on the
17:00
Speaker 2: angle of the body, what type of struggle it was,
17:02
Speaker 2: what type of person that you're dealing with. All of
17:05
Speaker 2: these things are variable. Is that change every single time,
17:08
Speaker 2: So it's just fundamental speculation, you know, just guess work
17:12
Speaker 2: that's proffered as science.
17:13
Speaker 3: Very very persuasive, but totally guesswork.
17:16
Speaker 1: I read that someone can be missing their front teeth
17:20
Speaker 1: bite down on human skin, and the bite mark can
17:25
Speaker 1: make it appears if they actually have two front teeth,
17:28
Speaker 1: and that someone would two front teeth that are fully
17:31
Speaker 1: intact and bite down and the bitemark can look like
17:35
Speaker 1: they are missing two front teeth.
17:37
Speaker 2: Can really get the skin to say anything that you
17:39
Speaker 2: needed to say. You can match a bitemark to almost
17:42
Speaker 2: any suspect.
17:43
Speaker 1: But if this evidence is so unreliable, then what exactly
17:47
Speaker 1: makes these odentologists, these bitemark experts, so convincing that they're
17:52
Speaker 1: able to convince a judge or a jury of an
17:56
Speaker 1: innocent person's guilt.
17:57
Speaker 2: So you'll see these experts that are testifying and using
18:00
Speaker 2: a lot of scientific terminology plus a lot of obscure
18:05
Speaker 2: dental terminology, and the testimony just becomes opaque, and you
18:09
Speaker 2: just kind of turn off your brain and your critical thinking.
18:11
Speaker 2: And the experts sounds so persuasive because they have ten
18:16
Speaker 2: thousand different ways to record a bite mark. Some of
18:18
Speaker 2: them go so far as harvesting tissue they call it
18:20
Speaker 2: from dead bodies and mounting them on silicone rings. And
18:24
Speaker 2: they use ultra violet photography and digital photography and black
18:28
Speaker 2: and white photography, and they use very very precise dental molds,
18:33
Speaker 2: and they use dental materials that are highly highly accurate.
18:37
Speaker 3: All that's very.
18:37
Speaker 2: Impressive, it's just totally meaningless. There's massive distinction between collecting
18:42
Speaker 2: data and interpreting data, and what a lot of junk
18:47
Speaker 2: science relies on very very precise and impressive methods of
18:53
Speaker 2: collecting data and very very light on interpreting the data.
18:58
Speaker 1: And so the evidence of these so called expert odentologists
19:03
Speaker 1: sound strong because of all the jargon and technology, and
19:07
Speaker 1: in our society we're told to trust people in white
19:11
Speaker 1: lab codes, and these guys, these odentologists, really do appear
19:15
Speaker 1: to be experts.
19:16
Speaker 2: When an expert witness gets on the stand, they don't
19:18
Speaker 2: just start testifying. Right, what's the first thing that they do?
19:22
Speaker 3: Right?
19:22
Speaker 2: You go through their credentials cvs that are over twenty
19:25
Speaker 2: pages long, appearances on sixty minutes presentations at the American
19:30
Speaker 2: Academy of Forensic Sciences, This board membership, that board membership.
19:34
Speaker 2: The credentials are off the.
19:36
Speaker 1: Chain, right, So the jury hears all of these impressive credentials,
19:40
Speaker 1: and why should they dispute it, And suddenly they start
19:44
Speaker 1: believing that these so called experts must know what they're
19:48
Speaker 1: talking about, that they're presenting solid scientific fact.
19:52
Speaker 2: It takes a very very critical thinker and an independent
19:56
Speaker 2: thinker not to be lulled into a a sense of,
20:01
Speaker 2: you know, abdicating your responsibility. And there's always two strikes
20:05
Speaker 2: against any defendant that walks into criminal court and is
20:09
Speaker 2: on trial. You know, most of the people in the
20:11
Speaker 2: courtroom believe that he or she is guilty already. The
20:14
Speaker 2: bias that most Americans walk into court with with the
20:18
Speaker 2: idea that the person that is on trial is guilty
20:22
Speaker 2: as charged.
20:22
Speaker 1: Chris, I've heard of so many convictions where bitemark evidence
20:28
Speaker 1: was used to gain the conviction and it was later
20:33
Speaker 1: proven that the injuries weren't even human bites at all.
20:37
Speaker 1: They were things like insect bites and animal bites or
20:42
Speaker 1: bruises something else entirely.
20:44
Speaker 2: One of the fundamental claims by bitemark experts, these forensic dentists,
20:50
Speaker 2: is that they, through their training and experience, have the
20:54
Speaker 2: ability to discern a human bitemark from other types of injuries.
21:00
Speaker 2: Can say in science is that if experts look at
21:03
Speaker 2: the same evidence and largely come to similar the same conclusions,
21:06
Speaker 2: there's some reliability in the technique. And there was a
21:11
Speaker 2: study that was done about four years ago, and what
21:15
Speaker 2: this was was a survey of the self identified top
21:19
Speaker 2: A forensic dentists in the country. It was about forty
21:21
Speaker 2: of them, and they did a survey of one hundred
21:23
Speaker 2: different injuries and they wanted to see if there are
21:26
Speaker 2: inter radar reliability.
21:28
Speaker 1: So when a bunch of odentologists looked at different kinds
21:30
Speaker 1: of injuries, did they agree about whether or not they
21:33
Speaker 1: were looking at photographs of human bite marks.
21:36
Speaker 2: These top bitemark experts in the country, they were all
21:40
Speaker 2: over the place. So even just as a threshold matter,
21:44
Speaker 2: as we're talking about what's a bitemark and what is
21:46
Speaker 2: in a bite mark, it's junk science at that level too.
21:50
Speaker 1: This study should have been the end of bite mark
21:52
Speaker 1: evidence and courtrooms in this country, right, I mean, why
21:55
Speaker 1: wasn't it?
21:56
Speaker 2: It depends on really, you know, do you want the
21:57
Speaker 2: cynical answer or do you want the long term answer.
21:59
Speaker 2: Thisical answer is that courts don't care. Any tool that
22:03
Speaker 2: is used successfully to prosecute indigent defendants in our criminal
22:09
Speaker 2: justice system is almost always going to be available to
22:13
Speaker 2: the prosecution and continue to be available to the prosecution
22:18
Speaker 2: once it's become amissible in the first place, and it's
22:20
Speaker 2: almost impossible to unwind it and to walk back all
22:23
Speaker 2: that legal precedent. The prosecutors have a duty to do justice,
22:26
Speaker 2: and that part of that should be never using unreliable
22:29
Speaker 2: evidence in the case.
22:30
Speaker 3: But that's not the way it's done.
22:31
Speaker 2: Once it's amissible, the prosecutors are going to continue to
22:34
Speaker 2: fight for its admissibility because it's useful to get convictions.
22:37
Speaker 1: Right. The prosecutor who says, you know what, I feel
22:41
Speaker 1: uncomfortable presenting a case that is built on junk science
22:46
Speaker 1: is unfortunately the exception to the rule, and a very
22:51
Speaker 1: rare exception at that. And I think what our listeners
22:54
Speaker 1: need to understand is that prosecutors are often told go
22:59
Speaker 1: get a convict, and what matters to them is the win,
23:03
Speaker 1: and the mentality is when it all costs, even if
23:08
Speaker 1: it means presenting information that is known to be unscientific, unreliable, unsubstantiated,
23:16
Speaker 1: including bitemark evidence. At the beginning of this episode, I
23:34
Speaker 1: asked you to imagine yourself accused of a murder. The
23:38
Speaker 1: victim had bite marks all over their body. The prosecution
23:42
Speaker 1: brought out a parade of experts. They presented what sounded
23:46
Speaker 1: like unimpeachable scientific fact. You're sitting there knowing that you're innocent,
23:52
Speaker 1: Yet these so called facts about bitemarks are being used
23:56
Speaker 1: to turn a jury against you. These sports are still
24:01
Speaker 1: being used to wrongly convict people all over the country.
24:06
Speaker 1: There are people sitting on death row right now whose
24:09
Speaker 1: cases are based on the junk science of bitemark evidence.
24:14
Speaker 1: The good news is that lawyers like Chris Fabricaon are
24:17
Speaker 1: working with the Innocence Project to overturned cases that are
24:21
Speaker 1: based on bitemark evidence.
24:23
Speaker 2: Our objectives were was to eliminate the use of bitemark
24:27
Speaker 2: evidence generally, which you know, sadly we still have an
24:30
Speaker 2: accomplished that goal, but also to find the many, many
24:33
Speaker 2: victims of this junk science and that are still incarcerated
24:37
Speaker 2: around the country. You know, we still have five different
24:39
Speaker 2: cases that we're working on right now with people that
24:41
Speaker 2: are in prison and on death row. We have two
24:44
Speaker 2: death row clients and one case that's about to go
24:47
Speaker 2: to trial in another capital case in Pennsylvania that's also
24:51
Speaker 2: you know, trying to use bite mark evidence.
24:54
Speaker 1: The wheels of justice grind slowly, but there is hope
24:58
Speaker 1: Chris's attempt to eliminate bitemark evidence from our criminal justice
25:03
Speaker 1: system is indeed paying off. One of Chris's clients, Shila Denton,
25:09
Speaker 1: who was wrongfully convicted based on bitemark evidence, was released
25:13
Speaker 1: from prison this past April.
25:15
Speaker 2: Sheila Denton was convicted fifteen years ago for the homicide
25:20
Speaker 2: of a drug dealer in Georgia. The state's theory was
25:26
Speaker 2: that Sheila Denton, who was weighed in at about one
25:29
Speaker 2: hundred and ten hundred and fifteen pounds, had manually strangled
25:33
Speaker 2: this crack dealer who was maybe about one hundred and
25:35
Speaker 2: eighty pound man, and there was an injury on her arm,
25:40
Speaker 2: and there was an injury on the victim's arm. The
25:44
Speaker 2: forensic dentist in the case, a guy named Tom David,
25:46
Speaker 2: said it was probable that Sheila Denton had bitten the victim,
25:50
Speaker 2: and it was also probable that the victim had bitten
25:53
Speaker 2: Sheila Denton, and that was essentially the only evidence in
25:56
Speaker 2: the case. So Sheila Denton was fairly quickly convicted.
25:59
Speaker 1: But when the case was overturned, Chris was able to
26:02
Speaker 1: convince not only the judge but also the odentologists who
26:06
Speaker 1: testified for the prosecution, that bitemark evidence is nothing but
26:10
Speaker 1: junk science.
26:11
Speaker 2: You know, for an expert who drank the kool aid
26:14
Speaker 2: for many years and has been declared an expert witness
26:17
Speaker 2: in courts around the country and takes a lot of
26:19
Speaker 2: personal and professional pride in the forensic identology practice, you know,
26:24
Speaker 2: I mean and busting bad guys aspect of their civic
26:27
Speaker 2: duties to come to the realization that they were wrong,
26:32
Speaker 2: that everything that they had talked about and everything that
26:35
Speaker 2: they believed in was bullshit. That's very, very powerful, and
26:38
Speaker 2: you need more of that in forensics.
26:44
Speaker 1: You might be wondering how you can help besides being
26:48
Speaker 1: a more critical and informed jourm The Innocence Projects Policy
26:52
Speaker 1: Department works in all fifty states. The pass laws that
26:55
Speaker 1: facilitate releasing innocent people from prison and preventing wrong convictions.
27:01
Speaker 1: Sign up for their newsletter so you can see the
27:04
Speaker 1: policies that are being proposed in your community. There's an
27:08
Speaker 1: expression that I like to use in wrongful incarceration cases,
27:12
Speaker 1: which is that pressure breaks pipes. These exonerations don't come easy.
27:18
Speaker 1: They're usually the result of a grueling fight, and your
27:22
Speaker 1: voice matters. What I mean by that is make noise
27:27
Speaker 1: about the junk science of bitemark evidence. Write a letter
27:30
Speaker 1: to your local criminal court judges about how inaccurate it is.
27:34
Speaker 1: Send them articles about its flaws. Write an op ed.
27:38
Speaker 1: Judges are human, they can be persuaded, and you have
27:42
Speaker 1: the power to help change their minds by speaking up.
27:46
Speaker 1: You have learned from this episode how dangerous one case,
27:50
Speaker 1: one legal precedent can be in infecting our system of
27:54
Speaker 1: justice with junk science. All it takes is one more
27:58
Speaker 1: to write that wrong and if you wind up as
28:01
Speaker 1: a juror in a criminal case, and you find yourself
28:04
Speaker 1: presented with something that is touted as science, ask tough
28:08
Speaker 1: questions of your fellow jurors when you're deliberating. Approach it
28:12
Speaker 1: with a healthy degree of skepticism. Demand answers to tough questions.
28:17
Speaker 1: If something doesn't make sense, Give the defendant the benefit
28:21
Speaker 1: of the doubt. After all, isn't that what the presumption
28:25
Speaker 1: of innocence is all about. If you do that, if
28:29
Speaker 1: you demand real proof beyond a reasonable doubt and it
28:33
Speaker 1: doesn't meet that standard, you might just prevent the next
28:37
Speaker 1: wrongful conviction. Next week, we'll explore the junk science of
28:47
Speaker 1: blood spatter analysis with award winning journalist Pamela Koloff from
28:51
Speaker 1: pro Publica and The New York Times. Pam has written
28:54
Speaker 1: extensively about this kind of evidence. As part of her research,
28:58
Speaker 1: she actually became I'm a certified blood spatter analyst. Wrongful
29:05
Speaker 1: Conviction Junk Science is a production of Lava for Good
29:08
Speaker 1: Podcasts and association with Signal Company Number One. Thanks to
29:12
Speaker 1: our executive producer Jason Flam and the team at Signal
29:15
Speaker 1: Company number One, Executive producer Kevin Wardis and senior producers
29:20
Speaker 1: Karen Kornhaber and Brit Spangler. Our music was composed by
29:24
Speaker 1: Jay Ralph. You can follow me on Instagram at dubin Josh.
29:28
Speaker 1: Follow the Wrongful Conviction podcast on Facebook and on Instagram
29:32
Speaker 1: at Wrongful Conviction, and on Twitter at wrong Conviction