STORY "Inside the great forensic-science boondoggle," by Brandon L. Garrett, published in Issue 34 of The Baffler. (2017); (Thanks to Mike Bowers at CSIDDS (Forensic In Focus) for bringing this important commentary to our attention.)
GIST: "As the
broad echoes of the same basic story of expert hubris and misguided
evidence-handling play out in the transcripts, over and over again, I
re-experience some of the initial shock of my first in-depth review of a
forensics-driven miscarriage of justice: the death-penalty case of
Keith Harward, convicted on rape and murder charges in 1982, chiefly on
testimony from two dentists about bite marks left on a victim’s legs. It is no exaggeration to say that forensic dentistry
nearly cost Keith Harward his life. Starting in the 1970s, dentists
versed in the basics of dental identification started to develop a
lucrative sideline: offering expert forensic testimony in criminal
cases. Criminal scientists had long had the ability to pursue basic
mouth-related inquiries, such as matching pristine molds of teeth to
identify remains. But these new experts, known as “forensic
odontologists,” claimed to be able to match a suspect’s teeth to human
bite marks, in the macabre kinds of assault and murder cases where such
evidence looms large. The two dentists who testified in Harward’s case,
Lowell Levine and Alvin Kagey, couldn’t have been more confident in
their conclusions. They said Harward’s teeth had to have made the marks.
Levine, in particular, was nationally known as an expert in forensic
bite-mark analysis and in the forensic sciences more generally. When I
briefly noted in an article I wrote in 2009 that there were invalid
forensic findings in the Harward case, I had no idea that Harward was
still in prison and that he had claimed his innocence for decades. In
fact, right around the time I came across his trial records, he had
written to the Innocence Project seeking new DNA testing to prove those
dentists wrong. The results of the DNA testing would upend a battery of
expert forensic evidence that had seemed to pin him down as the biter. Harward was twenty-six when the crime occurred, in
1982, in Newport News, Virginia. In the early morning, a man broke into a
family’s home near the Navy yards, beat the husband to death with a
crowbar, and raped his wife. During the assault, he bit her thighs and
calves repeatedly. After the victim was able to summon the police to the
scene, they recovered sperm from her T-shirt, and they also swabbed and
photographed the bite marks on her legs. She was never able to identify
the person who assaulted her, but described him as a white male who was
wearing a white sailor’s uniform that had a symbol on it with three
nested V’s. That symbol sounded a lot like the insignia of an E-3 Naval sailor. The USS Carl Vinson, a nuclear-powered aircraft carrier, was at the Navy yards, and it had thousands of sailors on board.
A hunt for viable Navy suspects rapidly ensued, in what local media dubbed “the bite-mark case.”
The police did a bite-mark dragnet of all the E-3 sailors. Harward was
one of more than 1,000 E-3 sailors stationed on the Vinson. Apparently
between 1,100 and 3,000 sailors on the Vinson were asked to provide
dental records for comparison. In fact, one of those sailors was the actual
culprit, but the bite experts didn’t detect him. Nor did they find
evidence linking the crime to Harward. The bite-mark case remained
unsolved for months, for sound scientific reasons. Comparing bite marks
is not easy. People with a full set of teeth have thirty-two teeth, each
with multiple surfaces. Each set of teeth carries a great deal of
forensic information, which is why postmortem dental plates can be
effective in identifying a corpse. However, a bite mark has a lot less
information. We bite only with our front teeth: maybe four or eight
teeth, and just the edges of those, are used to bite. What’s more, a bite mark in human skin may not
preserve much information. To put things euphemistically, a biting
situation may be “dynamic.” The parties in a biting encounter are
typically moving around, struggling to either inflict or avoid a bite.
To complicate matters further, skin is highly elastic and does not
perfectly preserve information like a plaster dental mold would. Skin
also reacts to injuries, by swelling and bruising. It can be hard to tell whether bite marks were made
by a human at all. Decomposition, for one thing, greatly affects skin.
In the Mississippi case of Kennedy Brewer, convicted of murder and
sentenced to death in 1995, an odontologist who testified frequently in
Mississippi claimed that only Brewer could have made bite marks. In
fact, the marks turned out to be insect bites on the victim’s body,
which was, after all, found in a creek. In 2008, new DNA testing
exonerated Brewer. Such fundamental uncertainty “may severely limit the
validity of forensic odontology,” as the National Academy of Sciences
concluded in its landmark 2009 report. This finding, crucially, doesn’t
apply only to bite marks; all crime scene forensics can lack the
information that pristine lab conditions might permit. Fingerprints may
be smudged or partial. DNA may be mixed with several people’s genetic
material, or degraded. But bite marks were always known to be especially
difficult to compare. Months after the crime in Newport News, police came
across what they believed was a pivotal break in the case. Harward was
in court because a fight with his girlfriend had turned violent—she
reported that he had bit her during the fight. Now the police thought
they had their biter. They brought the victim in the bite-mark case to
the courtroom in Harward’s domestic dispute—but she could not identify
him. So they tried to get Harward to confess. He
wouldn’t. “The detectives, all through the whole situation, tried their
best to convince me to admit to something I didn’t do,” Harward said.
The cops were so determined to link Harward to the crime that they
hypnotized a security guard at the Navy base—and a full seven months
after the crime, he identified Harward’s mugshot as that of the person
whom he saw returning to the shipyard in the early morning after the
murder. Enter forensic odontology. The two dentists, Kagey
and Levine, testified that the bite mark matched Harward’s teeth. They
told the jury that they were totally certain. Levine testified to a
“very, very, very high degree of probability” that Harward’s teeth left
the bite mark. Kagey testified that “there is just not anyone else that
would have this unique dentition.” It was, Levine said, a “practical
impossibility”—yes—“that someone else would have all [the]
characteristics in combination.” They described all this in detail. They explained
how they compared Polaroid images from the victim to Harward’s dental
mold. They said Harward had unusual and distinctive characteristics on
his teeth. One of his teeth “canted sideways” and there was a “hook type
area” that seemed to match the bite mark. There was a “chipped area”
and a “breakage” that aligned perfectly, they said. There were “no
discrepancies.” Could that be true? Could no one else in the world
have left those bite marks? How high a degree of probability is “very,
very, very high”? Does that mean one in a million? One in a billion? One
in a thousand? The dentists couldn’t have answered those questions,
because no one knows. There were not, and still are not, any databases
of bite marks. Tracing the configuration of bite marks is nothing like
DNA testing, where demographic studies and statistical analysis can,
with great precision, identify what segments of the population share
certain genetic markers. Statistics can be used to express a DNA
comparison result, but not a bite comparison. There are no population
studies on bite marks, nor are there any statistics that can offer
airtight identifications from other forensics far more commonly used
today, such as fingerprints or ballistics. In an interview with the Richmond Times-Dispatch
after Harward’s exoneration, Kagey explained, “At that time, bite-mark
analysis was new, relatively, and there was a lot of publicity about
it,” adding that “I never say about a bite mark [now], ‘He or she is the
only person that could have done this.’” As a result of cases such as Harward’s, along with
the West Memphis Three conviction, which also hinged on bite-mark
testimony that has since been thoroughly discredited, the American Board
of Forensic Odontology no longer recognizes the validity of testimony
that claims total certainty. For years, the board’s guidelines allowed
examiners to say that this set of teeth made that bite, to the exclusion
of all other sets of teeth in the world. It was only after the National
Academy of Sciences issued its 2009 report discrediting such claims
that the board members changed their tune. In one important win for scientific rigor, forensic
odontologists have conceded that the word “match” should not be used.
Today they say,
“Terms assuring unconditional identification of a perpetrator, or
identification ‘without doubt,’ are not sanctioned as a final
conclusions.” Instead, the dentist can say that the person “could have”
created the bite marks. Nevertheless, the overall effect of the revised, and
exasperatingly vague, odontologist guidelines is to continue offering
cover to a multitude of sins. There are simply no standards for how much
evidence it takes to conclude that bite marks “match” or even are
“generally similar.” What makes the marks generally similar? What are
the criteria? There are none in the field. As the Innocence Project
later asserted
in connection with the Harward case: “Despite the fact that for decades
courts have permitted forensic dentists to testify in criminal trials,
there is a complete lack of scientific support for claims that a suspect
can be identified from an injury on a victim’s skin.” And this was but a
restatement of the National Academy of Science’s 2009 declaration: “The
scientific basis is insufficient to conclude that bite-mark comparisons
can result in a conclusive match. There was more in the way of forensics in Harward’s
case—and none of it implicated the suspect. None of the fingerprints
that police lifted from the scene matched Harward. An expert from the
Virginia crime lab also testified that blood typing on the semen
evidence was inconclusive, and blood types on cigarette butts found at
the scene did not match Harward. None of the hairs found in the house
matched Harward. The victim could not identify Harward as her
attacker. Nor had the victim described a person with a moustache, which
Harward wore at the time.
But the bite marks impressed the jury, which
convicted Harward of capital murder. When an appeals court later
reversed Harward’s conviction on technical grounds concerning the
interpretation of Virginia’s death penalty statute, a new jury sentenced
Harward to life in prison. Throughout the case’s long trek through the appeals
system, the bite-mark testimony retained a tenacious hold on jurists. On
appeal, the Virginia court said: “Both
forensic dentists testified that all gross characteristics of spacing,
width, and alignment of Harward’s teeth ‘fit on the money’ the
photographs of bite marks.” Harward was released last year, aged sixty, after
spending thirty-three years in prison. DNA testing cleared his name and
definitively matched another person, Jerry L. Crotty, who died in prison
in Ohio over a decade ago, while serving time for burglary and
kidnapping. What went wrong? The dentists provided a story that fit what the prosecutors wanted—a conviction. “It’s just heartbreaking to think that more than
half of his life was spent behind bars when he didn’t belong there,”
state attorney general Mark Herring said after Harward’s release. “The
Commonwealth can’t give him back those years, but we can say that we got
it wrong, that we’re sorry and that we’re working to make it right.” But what, exactly, has been done to make it right?
The attorney general and the courts all promptly released Harward. The
State of Virginia will probably offer him compensation. But so far,
Virginia law enforcement and prosecutors have not banned the use of
unreliable forensics like bite-mark testimony, as the Texas Forensic
Science Commission has done.".........Meanwhile, scientists and researchers have started
to make strides to improve forensics and how they are used in
courtrooms. But as the White House report concluded, this isn’t a
question of mere incremental tinkering. The present, scandalously
unreliable state of forensic inquiry is unlikely to change unless and
until the relevant pseudo-authorities are held truly accountable for the
consequences of their actions. “They weren’t looking for the truth.
They were looking for a conviction,” Keith Harward said after he was exonerated.
No one could be bothered to listen to Harward during his 1982 trial,
when it counted most for him. It is high time that we heed the lesson of
his ordeal now. [*] You can read this testimony in an online archive I’ve constructed at convictingtheinnocent.com."
The entire commentary can be found at:
https://thebaffler.com/salvos/trials-and-errors-garrett
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. 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/
The entire commentary can be found at:
https://thebaffler.com/salvos/trials-and-errors-garrett
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. 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/
