PUBLISHER'S NOTE: It is encouraging to see a prestigious law publication respond so powerfully to a miscarriage of justice. The Connecticut Law Tribune's editorial on the outrageous Swinton case tackles junk bite-mark head-on - exposing the how both of its fundamental premises are flawed - and addresses the important question: how can courts protect the rights of criminal defendants when the reliability of a forensic method may shift radically over time? Kudos to The Connecticut Law Tribune.
Harold Levy: Publisher: The Charles Smith Blog.
PASSAGE OF THE DAY: Acting on these developments, Swinton’s attorneys asked Karazulas to re-evaluate the state of forensic dentistry and his own opinions. To his credit, Karazulas did so wholeheartedly. He filed an affidavit on Swinton’s behalf that discredited bite-mark analysis as a valid forensic method and retracted his opinion about Swinton. Approximately 30 other defendants across the country have been exonerated in similar circumstances, but many more remain incarcerated based on bite-mark testimony. The judicial branch’s role as gatekeeper when it comes to scientific evidence is inherently limited. It is only as good as the prevailing view in the scientific community at the time. When our Supreme Court affirmed Swinton’s conviction in 2004, for example, it was able to marshal compelling evidence that bite-mark analysis was methodologically valid and employed in courtrooms nationwide. This raises a difficult but important question: how can courts protect the rights of criminal defendants when the reliability of a forensic method may shift radically over time?
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SECOND PASSAGE OF THE DAY: "Turning a critical eye to forensic science and seeking avenues for reform will not atone for what was done to Swinton, but it is an essential first step."
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EDITORIAL: "Reversal of Bite-Mark Murder Conviction Mandates Hard Look at Forensic Evidence: Courts may not be able to foresee how science will change, but they can—and should—limit forensic experts from overstating the probative value of their opinions," by the Connecticut Law Tribune Editorial Board, published on March 16, 2018,
GIST: "On
March 1, a Hartford judge officially dismissed a decades-old murder
charge against Alfred Swinton. Swinton, who served 18 years of a 60-year
sentence, was released last June after DNA testing exculpated him, and a
forensic expert who testified at his trial recanted. But it was not until this month, when the state’s attorney confirmed
that her office would not retry Swinton, that the miscarriage of justice
that claimed nearly two decades of a man’s life was rectified.
Swinton’s story provides an opportunity for Connecticut to critically
examine the ways in which forensic evidence can threaten the integrity
of the criminal justice system—and how, in the process, we can look for
answers. At Swinton’s 2001 murder trial, the most damning evidence came from
Gus Karazulas, the chief forensic dentist for the Connecticut State
Police. Karazulas, who claimed to be an expert in analyzing bite marks,
testified that bite marks found on the murder victim’s body had been
made by Swinton. His opinion rejected any possibility of error;
Karazulas testified, “I believe that with reasonable medical certainty
without any reservation that these marks were created by [Swinton’s]
teeth.” That sentence was quoted by the Connecticut Supreme Court in
upholding Swinton’s conviction. Bite-mark analysis relies on two premises: first, that human
dentition, like DNA, is entirely unique; and second, that human skin can
record a dental impression with enough sensitivity to be accurately
matched to an individual. The problem is that neither premise has been
proved. In the years since Swinton’s conviction, bite-mark analysis has
been almost entirely debunked. In 2009, the National Academy of Sciences published a congressionally
commissioned report on the state of forensic science in the courtroom.
The report was critical of a wide range of forensic specialties, but it
singled out bite-mark analysis as particularly dubious. It found “no
evidence of an existing scientific basis for identifying an individual
to the exclusion of all others.” In 2016, a report by the United States
President’s Council of Advisors on Science and Technology affirmed this
conclusion and went a step further, declaring that the odds of
transforming bite-mark analysis into a scientifically valid method were
nil. Acting on these developments, Swinton’s attorneys asked Karazulas to
re-evaluate the state of forensic dentistry and his own opinions. To his
credit, Karazulas did so wholeheartedly. He filed an affidavit on
Swinton’s behalf that discredited bite-mark analysis as a valid forensic
method and retracted his opinion about Swinton. Approximately 30 other
defendants across the country have been exonerated in similar
circumstances, but many more remain incarcerated based on bite-mark
testimony. The judicial branch’s role as gatekeeper when it comes to scientific
evidence is inherently limited. It is only as good as the prevailing
view in the scientific community at the time. When our Supreme Court
affirmed Swinton’s conviction in 2004, for example, it was able to
marshal compelling evidence that bite-mark analysis was methodologically
valid and employed in courtrooms nationwide. This raises a difficult
but important question: how can courts protect the rights of criminal
defendants when the reliability of a forensic method may shift radically
over time? One answer may lie in imposing stricter limits in criminal cases on
how expert forensic opinions are given. According to the latest
research, many forensic methods—even if generally reliable—carry
meaningful error rates. And most, with the exception of DNA, are not
able to identify a perpetrator to the exclusion of others. Yet across
all fields, experts elide these critical limitations, overstating the
probative value of their evidence and expressing a confidence level that
far exceeds what the relevant science can justify. Opinions rendered with empirically unfounded certainty are not a
matter of expertise or professional judgment, they are scientifically
invalid. And the consequences are alarming. A three-year study by the
Department of Justice and the FBI of 3,000 criminal cases involving
microscopic hair analysis revealed that FBI examiners had provided
scientifically invalid testimony in more than 95 percent of cases in
which testimony was used to convict a defendant. Courts may not be able to foresee how science will change, but they
can—and should—limit forensic experts from overstating the probative
value of their opinions. The 2016 report from the President’s Council
provides concrete recommendations in this area, urging courts to
preclude forensic experts from using a laundry list of common phrases
that are scientifically indefensible. One of those phrases is “to a
reasonable degree of scientific certainty,” almost precisely the
language that helped convict Swinton. Turning a critical eye to forensic science and seeking avenues for
reform will not atone for what was done to Swinton, but it is an
essential first step."
The entire editorial can be read at:
The entire editorial can be read at:
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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html 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.