STORY: " Lawyers for wrongly convicted man oppose forensic bite mark comparison," by reporter Frank Green, published by The Richmond Times-Dispatch on April 16, 2016.
GIST: "A young father of three was beaten in his bed with a crowbar, his wife thrown to the bedroom floor and sexually assaulted as her dying husband took his final, labored breaths.
The horrific events of Sept. 14, 1982, led to another tragedy: As many as six dentists believed bite marks made by the killer on the woman’s legs were caused by Keith Allen Harward, an innocent man who would spend the next 33 years in prison. “In light of this case, I imagine that dentists who are still engaged in this grossly unreliable practice have to take a long hard look in the mirror,” said M. Chris Fabricant, with the Innocence Project. “It’s unconscionable that they continue to do this,” he said. Fabricant helped represent Harward, now 60, who was freed this month after DNA testing cleared him of the Newport News crimes and implicated a former Navy shipmate. Harward’s case is the most recent of more than two dozen wrongful convictions resulting, at least in part, from bite-mark testimony. A record number of dentists, some with vaunted reputations in the field, got it wrong in a case where the stakes could not have been higher — Harward could have been sentenced to death. Their failure proves the problem isn’t with occasional errant experts, but rather with an entire forensic technique that is not based on science and that does not belong in a courtroom, his lawyers say. The Innocence Project hopes Harward’s exoneration leads to a national review of old bite-mark cases comparable to one underway by the FBI, the National Association of Criminal Defense Lawyers and others of old microscopic hair analysis, another forensic technique that has contributed to wrongful convictions. A similar bite-mark effort, however, would require support of forensic dentists, also known as forensic odontologists. So far, that support has been missing........Reached by telephone last week, the current president of the ABFO, Dr. Adam J. Freeman of Westport, Conn., said he is familiar with Harward’s case. “We are terribly concerned about cases like this — a man losing 33 years of his life due to faulty forensic evidence is concerning. I can think of nothing, personally, more terrifying than being in jail, being innocent and not being able to find some post-conviction relief,” he said. A 2009 study by a committee of the National Academy of Sciences concluded that there was not enough research available yet on the accuracy of bite-mark comparisons and that, while bite-mark comparison might be useful in excluding suspects, there was no evidence of an existing scientific basis for identifying an individual to the exclusion of all others. And, earlier this year, the Texas Forensic Science Commission recommend a statewide moratorium on the use of bite-mark analysis in prosecutions. Freeman said the ABFO has changed its standards and guidelines and the group no longer sanctions specific biter identifications in cases like Harward’s. Instead, forensic odontologists decide if comparisons either exclude or cannot exclude someone as the biter, or that there was insufficient information to decide one way or the other. “The Innocence Project would essentially like us to say, ‘Well, that’s a bite mark so let’s not do anything.’ And that, to me, is not acceptable. What we need to do is put that evidence in the proper context,” Freeman said. He said odontologists can attempt to recover DNA from a bite mark, determine if the bite mark was human or from an animal and can help police screen suspects. For example, if the biter had only six upper teeth, a suspect with two upper teeth can be excluded. Freeman said a forensic odontologist can conclude that a suspect is not excluded as a biter. “By saying that, you’re not saying this is the only person in the whole world that made this bite,” he said. He said bite-mark evidence should not be used as sole, absolute evidence, but rather as supportive evidence along with other factors that may implicate someone in a crime. “Bite marks are taking a big hit, and to some extent rightfully so because there are cases like this,” conceded Freeman. He said that because the ABFO no longer sanctions specific biter identities, it should give someone convicted in large part on such testimony the potential for a new trial or at least a hearing for some post-conviction help. Freeman said any dentist who has done forensic bite-mark comparisons should look at their old cases, see if their conclusions still are supported by the current ABFO guidelines and, if they are not, come forward and change their earlier opinions. A problem, Fabricant said, is that as far as he knows no one with the ABFO has ever contacted him or anyone else at the Innocence Project with concerns about their prior cases. As the director of strategic litigation for the Innocence Project, Fabricant looks for cases such as Harward’s across the country. According to a Feb. 26 letter from FBI Director James Comey to state governors seeking old trial transcripts, the aim of the bureau’s review of microscopic hair comparison analyses is to ensure that the FBI laboratory examiners’ testimony met accepted scientific standards. In cases in which those standards were not met, remedial action may be taken if appropriate. The Innocence Project contends that many forensic techniques such as hair microscopy, bite-mark comparisons, tool-mark analysis and shoeprint comparisons have not been subjected to sufficient scientific evaluation. Other techniques that have been properly validated, such as blood typing, sometimes are improperly conducted or inaccurately conveyed in trial testimony. Of the 337 DNA exonerations in the country, unvalidated or improper forensic science was the second most frequent contributor to wrongful convictions, says the Innocence Project. Fabricant said that, in the FBI hair review, the bureau knows in which cases its hair analysts made comparisons. There is no such central registry for bite-mark comparisons — only the dentists know all the cases. “The difference between the FBI (examiners) and these dentists is that the dentists are all worried about being sued,” Fabricant said. “Their fear of litigation is driving them underground and they have an ethical, moral and legal obligation to turn over the list of cases and allow organizations like the Innocence Project to examine these cases and to find the rest of these Keith Harwards.” He said bite-mark evidence played a role in the convictions of at least 15 people on death rows across the U.S., and the Innocence Project knows of at least four capital cases where the prosecution is seeking to introduce bite-mark analysis. At least one person has been executed in Virginia — Lem Tuggle Jr., who was convicted in part with bite-mark evidence. The Innocence Project said the ABFO’s new standards are a step in the right direction but not enough. They point out that Harward was initially excluded as the biter and then included. “There is no more evidence experts can reliably exclude anyone than there is for inclusion,” Fabricant said. He said real progress would be a moratorium on bite-mark comparison evidence and audits of prior cases where it was used."
The entire story can be found at:
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The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.
Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com;
Harold Levy;
Publisher: The Charles Smith Blog;
