GIS
T: This week in
an airy courtroom in San Francisco, the California Supreme Court heard
oral arguments in the notorious case of Bill Richards, who in 1997 was
sentenced to life in prison for the brutal beating death of his wife,
Pamela. The Richards case has long been viewed as a clear case of
wrongful conviction that was based on the discredited forensic science
of bite-mark analysis. The court’s eventual decision, due within 90
days, could finally vacate Richards’s conviction and clear a path toward
his ultimate exoneration. Junk science and the fallibility of expert opinion are key to
Richards’s case. After two hung juries failed to convict him of his
wife’s grisly murder, in a third trial San Bernardino County prosecutors
introduced new evidence that Richards had supposedly bitten Pamela’s
hand while murdering her. If the mark on her hand was in fact a human
bite mark that matched Richards’s teeth, that would prove Richards was
present when Pamela died, a circumstance Richards has consistently and
vehemently denied. Prosecutors called as a witness Dr. Norman “Skip” Sperber, a forensic
dentist whose expertise in bite-mark evidence had been used in cases
against serial killers Ted Bundy and Jeffrey Dahmer. Sperber testified
that Richards’s dental pattern was so unique that out of 100 people,
“one or two or less” would have a similar bite. Moreover, Sperber
provided to the jury a blown-up image of the alleged bite mark covered
by an overlay of Richards’s teeth and concluded that the mark was
clearly “consistent” with Richards’s unique bite. The problem is that there was no scientific underpinning to support
Sperber’s conclusions. Bite-mark analysis relies on two conceits: that
human dentition is unique — as unique as DNA — and that the skin is a
suitable substrate on which to record that uniqueness. Unfortunately,
the only recent empirical research on the reliability of bite-mark
“science” has demonstrated that neither proposition is true. Indeed, bite-mark evidence has been at the epicenter of ongoing
controversies in forensic science, which were underscored by a
groundbreaking 2009 National Academy of Sciences report that criticized
nearly every forensic practice — save for DNA — as having no underlying
scientific basis. Bite-mark analysis received some of the harshest
criticism. Eleven
years after Richards’s conviction, Sperber recanted his testimony
during an evidentiary hearing, lamenting that he’d used a distorted
photo of Pamela’s hand in order to make the overlay exhibit, and saying
that he never should have claimed there were statistics to back up his
conclusions about the possible match between Richards’s teeth and the
wound on Pamela’s hand. He admitted that there was simply no science to
back up his contentions. His revised opinion was that Richards’s teeth
were not consistent with the mark. At the end of the hearing (which also
included testimony regarding newly developed DNA evidence), the judge
ruled that the prosecution’s entire case had been undermined and the
record now pointed “unerringly” to Richards’s innocence.
But Richards was not exonerated. Instead, an appeals court rejected
the trial court’s conclusions, and the California Supreme Court followed
suit in a controversial 2012 opinion. According to the majority
decision, in an opinion condemned by
California Lawyer magazine
as the worst of the year, the testimony of an expert witness could
never be wrong or legally false because that testimony was merely
opinion. A three-judge minority of the court issued a strong dissent. The
majority, it argued, had imposed a new burden on defendants by claiming
expert opinions are somehow different from other kinds of evidence, when
a plain reading of the law made no such distinction. “The underlying
basis of Dr. Sperber’s trial testimony as well as the testimony itself
have been proven false by a preponderance of the evidence, and it is
reasonably probable that the verdict at the final trial would have been
different without Dr. Sperber’s testimony,” Justice Goodwin Liu wrote
for the dissenters. “Accordingly,” he continued, he would reverse the
appeals court decision “and grant [Richards’s] request for habeas corpus
relief.”
The Supreme Court’s opinion makes little sense if you consider
it critically. Under the court’s reasoning, a conviction could be
overturned if, for example, an eyewitness to a crime later realized he
was wrong about what he saw. But if an expert who testified that DNA
evidence belonged to one person later realized that the DNA belonged to
someone else, nothing could be done to remedy that error, even if it was
responsible for a conviction. In the wake of that opinion, and with Richards’s case firmly in mind,
lawyers from across the state asked for a change in law — one that
would make it clear that a conviction can be overturned when experts
recant their prior testimony as a result of scientific or technological
advances. Known as a junk science statute, the Bill Richards Bill changed the
state penal code to address problematic forensic practices in individual
criminal cases. Faulty forensics have been implicated in nearly half of
all DNA exonerations, according to the Innocence Project, and in
roughly 23 percent of all wrongful convictions, according to the
National Registry of Exonerations. California’s bill, which passed with
bipartisan support, is only the second such statute in the country
(following one in Texas), and its passage propelled the Richards case
back to the Supreme Court for further consideration. Since the 2012 ruling, two of the justices making up the previous
majority left the court — including the opinion’s author. The three
dissenters remain on the bench, and two new jurists have joined the
court. While two of the judges previously in the majority remain —
including the court’s chief justice, Tani Cantil-Sakauye — it appears
their thinking may have changed, judging from the questions they posed
during the oral arguments this week.".........
How the court rules will be significant not only for Richards,
but also for the future of junk science statutes. Richards’s case is
the first test of California’s new law. In Texas, the state’s highest
criminal court has upheld the law’s plain meaning,
granting a new trial in at least one case, and sending another,
a death penalty conviction,
back to the trial court for further vetting. If California follows suit
and vacates Richards’s conviction under the new law, that could prompt
other states to adopt similar laws, thereby providing criminal
defendants a significant avenue for challenging convictions based on
shaky or nonexistent science. For Richards himself, the stakes are clearly high. Vacating his
conviction could lead to a full exoneration, though San Bernardino
prosecutors could also attempt to try Richards again. In announcing last
month that his office was setting up a conviction review unit, San
Bernardino District Attorney Michael Ramos noted proudly that his county
has seen “zero exonerations.” “Our record of only convicting the guilty is due to many factors,” Ramos
wrote. “Primarily it exists because our prosecutors work tirelessly every day to ‘do the right thing.’” So far, it appears that Ramos sees nothing wrong with the handling of
the Richards case, though other state officials apparently do. In
March, California’s parole board recommended that Richards be released
from prison, despite the fact that he has refused to take any
responsibility for a crime he says he absolutely did not commit. Gov.
Jerry Brown’s decision whether to accept the board’s recommendation is
due at nearly the same time as the state Supreme Court’s ruling. In a March letter, Richards wrote to me that he was pleased with the
outcome of his parole hearing, but that he must still “wait for a good
ruling from the Cal Supreme to move on with my life.”"
