Saturday, March 28, 2009






Reporter Mark Hansen's classic article on Louise Robbins appeared in the American Bar Association Journal in June 1993 under the apt heading "Believe it or not."

"Louise Robbins had but one claim to fame: She could see things in a footprint that nobody else could see," the article began.

"Give her a ski boot and a sneaker, for instance, and Robbins contended that she could tell whether the two shoes had ever been worn by the same person," it continued;

"Show her even a portion of a shoeprint on any surface, Robbins maintained, and she could identify the person who made it.

It might sound amusing, coming as it did from an anthropology professor who once astounded her colleagues by describing a 3.5 million-year-old fossilized footprint in Tanzania as that of a prehistoric woman who was 5 1/2 months pregnant.

It might also be considered harmless, had it remained a subject of academic speculation at the University of North Carolina at Greensboro, where Robbins taught anthropology courses and collected footprints from her students for comparison. By 1976, however, Robbins had taken her quirky ideas out of the classroom and into the courtroom, where her amazing feet-reading abilities seemed to dazzle juries and made her something of a celebrity on the criminal trial circuit. Newspapers called her a female "Quincy." She was profiled in the ABA Journal. Her techniques were even touted in the pages of Time magazine.

By her own account, Robbins appeared as an expert, mostly for the prosecution, in more than 20 criminal cases in 11 states and Canada over the next 10 years until a losing battle with brain cancer finally forced her off the witness stand. She died in 1987 at the age of 58. By then, her testimony had helped send at least a dozen people to prison. And it may have put one man on death row.

There's just one catch. Robbins was the only person in the world who claimed to do what she said she did. And her claims have now been thoroughly debunked by the rest of the scientific community.

Melvin Lewis, a John Marshall Law School professor who keeps track of more than 5,000 expert witnesses, dismisses Robbins' work as "complete hogwash."

"It barely rises to the dignity of nonsense," he said.

And FBI agent William Bodziak, one of the world's leading authorities on footprints, said that Robbins' theories were totally unfounded.

"Nobody else has ever dreamed of saying the kinds of things she said," he explained.

Robbins' story, as reported last year by the CBS news program "48 Hours," provides a graphic illustration of how far some prosecutors and defense lawyers are willing to go to find an expert witness to bolster a case. It also shows how easily one self-proclaimed expert with little or no credence in the scientific community can make a mockery out of the criminal justice system.

"It's frightening to me that something like that could go as far as it did," said Lewis, who runs a school-sponsored referral service that puts lawyers in touch with qualified experts. "Her so-called evidence was so grotesquely ridiculous, it's necessary to say to yourself, if that can get in, what can't?"

Today, nearly six years after her death, some of the legal ramifications of Robbins' testimony are still being felt.

Stephen Buckley, who spent three years in an Illinois jail awaiting trial for the 1983 murder of a 10-year-old Chicago-area girl, is suing prosecutors for allegedly violating his civil rights.

Buckley's first trial, in 1985, ended in a hung jury, despite Robbins' testimony that a bootprint left on the victim's kicked-in front door had been made by him. He was freed in 1987, but only because Robbins was then too sick to testify at his retrial.

Dale Johnston is also suing prosecutors after spending six years on Ohio's death row, due at least in part to Robbins, for the 1982 murders of his teen-age stepdaughter and her fiance.

Robbins testified at Johnston's 1984 trial that a muddy impression in the cornfield where the victims' dismembered bodies were found came from the heel of Johnston's cowboy boot. He was released from prison in 1990 after an appeals court ruled that the boots on which Robbins based her testimony couldn't be used against him.

Yet Buckley and Johnston might consider themselves lucky, in light of what has happened to Vonnie Ray Bullard.

Bullard is still serving a life sentence in a North Carolina prison for the 1981 murder of another man after Robbins testified that a bare footprint outlined in the victim's blood was his. Having exhausted his appeals, based largely on Robbins' testimony, Bullard won't be eligible for parole until the year 2001.

Other experts can match feet with footprints or shoes with shoeprints, provided that the two samples being compared share enough of the same ridge details or random characteristics. But Robbins was alone in claiming that she could tell whether a person made a particular print by examining any other shoes belonging to that individual.

Robbins built her reputation on the theory that footprints, like fingerprints, are unique. It was her contention that, because of individual variations in the way people stand and walk, everyone's foot will leave a distinct impression on any surface, including the inside sole of his or her shoe. Those impressions, she contended, show up as "wear patterns" on the bottom of every shoe.

"Footprints are better indicators for identifying people than fingerprints," Robbins told the ABA Journal in July 1985. "With a footprint, you use the entire bottom surface of the foot. With the fingerprint, you only use the tip of the finger."

Robbins' claims were hotly contested from the moment she first set foot in a courtroom. Shortly before her death, a panel of more than 100 forensic experts concluded that her footprint identification techniques didn't work. In hindsight, her theories may seem patently absurd.

In fact, many of her colleagues have been saying as much since 1978, when Robbins joined a scientific expedition at Laetoli, Tanzania, then the site of one of the most important archaeological discoveries ever made. During that expedition, according to her colleagues, Robbins misidentified one set of prehistoric human footprints as belonging to an antelope and concluded that another set of footprints had been made by the prehistoric woman who was 5 1/2 months pregnant. She also claimed to have found fossilized cobwebs that other members of the expedition said did not exist.

Tim White, an anthropology professor at the University of California at Berkeley who was also a member of the expedition, said it was hard enough to determine that the footprints they found were indeed human. But it was impossible to tell if any of the prints had been made by a woman, let alone one who was 5 1/2 months pregnant, he said.

"Her observations were unreliable, she was overly imaginative and she was incredibly suggestible regarding the interpretation of evidence," White said. "She kept saying things that could not be documented, and for very good reason. It was all in her mind."

"It truly reveals her as someone who was willing to go to any extremes to come up with an interesting story," said University of Chicago anthropology professor Russell Tuttle, who has studied Robbins' work and appeared opposite her in court. "She'd say anything anybody wanted her to say."

But that didn't keep Robbins from being qualified as an expert, with no known exceptions, from the time she first testified for the prosecution in the arson trial of a Pennsylvania man in 1976, until her last known appearance in court, once again as a prosecution witness, at the 1986 murder trial of a Chicago man.

In some cases, like Bullard's, her testimony may have been cumulative. In other cases, like Buckley's and Johnston's, it constituted the only physical evidence linking the defendant to the crime.

Prosecutors usually succeeded in getting her testimony admitted by portraying Robbins as a pioneer in a new field of science and by putting on testimonials as to her character and credentials from one or two of her peers. One prosecutor noted that it took 400 years for Galileo's theories to win acceptance. Another pointed out that fingerprint evidence also was considered a new science just 80 years ago.

Since Robbins had no competition, her testimony was difficult to refute. But defense lawyers depicted her variously as a fraud, a charlatan, an opportunist and a hired gun. And they presented other experts who testified that there was no scientific basis for any of the claims she made.

By her own admission, Robbins never took or taught a course on shoeprint identification techniques or the wear patterns of shoes. She never conducted a blind test of her abilities, published her findings in a scientific journal or submitted her work to peer review. And she never accounted for such things as manufacturing differences in shoewear construction, dynamic changes in a person's foot or the effect of various surfaces on the quality of a shoeprint.

"She may well have believed what she was saying," said C. Owen Lovejoy, an anthropology professor at Kent State University who testified on behalf of Buckley, "but the scientific basis for her conclusions was completely fraudulent."

Tuttle said he concluded after hearing her testify at a 1983 murder trial in Winnipeg that Robbins was "either a crook or a self-deluded quack."

Robbins didn't always testify for the prosecution and her testimony didn't always win the case for the side that hired her. On the other hand, she was always willing to make a positive identification that nobody else was willing or able to make, and her conclusions consistently supported the case of the side for which she was testifying.

Several lawyers cite her testimony on behalf of the defendant in a North Carolina murder trial in 1985 as one of the most telling examples of her work. Other witnesses had testified that they saw the defendant go into a dry cleaning store where a clerk was murdered and come out a few minutes later. And the state's own experts had matched two bloody shoeprints in the store with the defendant's shoes.

But Robbins testified that the shoeprints had been made by two people other than the defendant, both of whom were wearing the same size shoes as the defendant.

The defendant was subsequently convicted and sentenced to death, but was awaiting resentencing in May as a result of a 1990 ruling by the U.S. Supreme Court holding that North Carolina's capital sentencing scheme was unconstitutional. McKoy Jr. v. North Carolina, 110 S. Ct. 1227.

Bodziak never saw those prints. But he did examine the same evidence as Robbins in two cases. And both times, the FBI expert concluded that Robbins was flat out wrong.

In Johnston's case, Robbins and Bodziak both compared three plaster casts of bootprints taken at the scene of the murders with three pairs of cowboy boots belonging to the defendant. Both agreed that two of the prints could not have been made by the defendant's boots.

The third print was unidentifiable to Bodziak, who said he couldn't even determine through computer enhancement if the impression had been made by a boot or a bare foot. Yet Robbins positively identified the print as having come from the left heel of one of Johnston's boots.

"There was nothing there," Bodziak said. "There was no evidence whatsoever of any recognizable portion of a boot. It literally looked like they had poured plaster over a bunch of rocks."

In Buckley's case, Bodziak and Robbins both compared the defendant's boots with the bootprint left on the victim's front door. Robbins said the print was definitely Buckley's. Bodziak says it definitely was not.

"They're different in a lot of ways," Bodziak said of the two samples. "They don't even come close" to matching.

To this day, Robbins still has at least one supporter who backs her work unequivocally.

Thomas Knight, a former Illinois prosecutor who used Robbins as an expert in the case against Buckley, describes her as one of the least controversial experts he has ever encountered. The fact that she alone could do what she did, he says, is a testament to her ability, dedication and hard work.

"I would rank her credibility as a witness and her integrity as a scientist right at the top," he said.

Knight, who now has a private civil practice outside of Chicago, also contends that Robbins has been made a scapegoat by a collection of people with ulterior motives, primarily those who hope to discredit her testimony as a means of getting the convictions she helped secure overturned.

Bodziak has his own ax to grind, Knight suggests, because Robbins was able to identify footprints that he couldn't identify, an assertion that the FBI expert flatly denies.

"She was a terrific person who's been terribly maligned by some of the things that have been said about her," Knight said. "I think it's really sad, and I intend to do whatever I can to set the record straight."

"I don't think he has any other choice" but to defend Robbins, Bodziak responded. "Maybe he really believes her."

Even some of Robbins' once-staunchest defenders now express doubts about the validity of her work.

Ellis Kerley, a retired professor of anthropology at the University of Maryland who used to vouch for Robbins' abilities on the witness stand, today concedes that he was "a little surprised" by some of the things she said in court.

"The question you have to ask in any scientific examination is whether the interpretation has gone beyond the underlying data," he said. "It strikes me that that must be what happened in Louise's case."

Courts have different standards for the admission of scientific evidence. Many state and federal courts still follow the so-called Frye rule, named after a landmark federal appeals court decision in 1923 barring the use of results from an early form of lie detector test against a criminal defendant. Frye v. U.S., 293 F. 1013.

Under the Frye rule, expert testimony must be based on a well-recognized scientific principle or discovery that has "gained general acceptance in the particular field in which it belongs" in order to be admitted.

Since 1975, however, when Congress enacted new rules of evidence, several state and federal courts have liberalized the standards governing the use of expert witnesses. Those rules essentially permit any expert who is qualified in his or her field to testify in a case, as long as the testimony is relevant and it helps the jury understand the evidence or determine the facts.

Critics of the 1975 rules contend that what they call the "let it all in" approach to the admission of expert testimony has allowed the courts to become mired in all sorts of unsubstantiated scientific claims and dubious forms of expertise. They say that judges and juries are too easily swayed by the likes of someone like Robbins, a grandmotherly professor with the right academic credentials, a scientist's demeanor and a matter-of-fact delivery on the witness stand.

But proponents of the more flexible standard argue that much of the evidence needed to prove a scientific claim in court is generally regarded as being on the cutting edge of science. They point out that much of what is universally accepted as science today was once considered to be outside of the scientific mainstream. And they suggest that judges and juries are fully capable of making the distinction between a legitimate scientific claim and an unfounded one.

The appellate record on Robbins is mixed.

In 1980, a California appeals court upheld the conviction of a man whom she linked to the rape, robbery and assault of three elderly women through shoeprints left at the scene of the crimes, finding that Robbins was an expert in her field. People v. Barker, 113 C.A.3d 743.

Bullard's conviction also was affirmed in 1984 by the North Carolina Supreme Court. It held that new scientific methods are admissible if they are reliable, which it said was the case with respect to Robbins' techniques. Any rebuttal testimony, the court said, goes to the weight of the evidence, not to its admissibility. State v. Bullard, 312 N.C. 129.

Under that standard, which remains in effect, Robbins could still testify in North Carolina if she were alive today, according to Carl Barrington Jr., Bullard's defense lawyer.

But not in Illinois. An appeals court there threw out the conviction of a man on murder, armed robbery, sexual assault and home invasion charges in 1988 on the grounds that Robbins' techniques didn't meet the "general acceptance" test set forth in Frye. People v. Ferguson, 172 Ill. App. 3d 1.

"While there is arguably a scientific basis in Robbins' theory (i.e., measurement techniques), her theory is not only not generally accepted in her scientific community, but is also not shared with any other member of her field," the court said.

Johnston's conviction also was overturned by an Ohio appeals court in 1986, but not on the basis of Robbins' testimony. The court held that Robbins met the test of admissibility under the state's rules of evidence, which require that expert testimony be "relevant and helpful to the finders of fact." State v. Johnston, 1986 WL 8799 (Ohio App.).

The judge at Johnston's second trial suppressed the boots, along with other evidence he found had been illegally obtained, in a ruling that was affirmed by an appeals court in 1990.

Now the U.S. Supreme Court has agreed to enter the debate by taking up the case of Daubert v. Merrell Dow Pharmaceuticals, the culmination of a 10-year battle in the federal courts over the admissibility of evidence alleging to show that the anti-nausea drug Bendectin causes birth defects.

The case stems from the dismissal of two federal suits against Merrell Dow, the maker of Bendectin, brought by the parents of two San Diego boys who were born with birth defects. Those suits were dismissed after two California courts refused to allow a jury to hear evidence purportedly linking the mothers' use of the drug during pregnancy with their sons' birth defects.

The narrow issue before the Court in Daubert is whether Congress' adoption of the new evidence rules in 1975 supersedes the judicially created Frye rule of 70 years ago. But the Court is widely expected to set a definitive standard for the admission of scientific evidence or, at the very least, clear up some of the confusion and inconsistency that exist now.

Although the decision will apply only to the federal courts, most state courts look to the High Court for guidance.

The Court heard oral arguments in the case on March 30. A ruling is expected by early summer."