PUBLISHER'S NOTE: In a recent post I referred to the following comment made by Dr. Michael Bowers on the up-coming hearing in the John Kunko case: "Bitemark evidence ( Part 2): John Kunko: Pennsylvania; Dr. Michael Bowers posts on his site "CSIDDS - Forensics and news in focus - that "another exoneration from a bitemark conviction is pending next week..."John Kunco in Pennsylvania has local and Innocence Project attorneys arguing for his release (on bail pending appeal) on May 23. His possible exoneration could bring the number of men released from false science testimony of bitemarkers to 31 cases." Dr. Bowers recently reminded us by twitter that Washington Post columnist Radley Balko wrote an important column on his W.P. Blog 'The Watch' on the Kunko case on February 20, 2018 under the heading 'The path forward on bite mark matching - and the rearview mirror." The entire post is well worth reading. (At the link below): Here is what Balko has to say about the Kunko case - and the extraordinary difficulty involved in getting a conviction based on bad science overturned: "The 2009 National Academy of Sciences report that was highly critical of the way forensics is used in the courtroom was entitled “A Path Forward.” The words expressed the hope of the report’s authors that it would serve as a catalyst to spur scientific testing of forensic specialties, more vigorous policing of what expert witnesses say on the stand and the development of uniform standards and procedures, all pointing toward an ultimate goal of preventing more wrongful convictions caused by unsupported expert testimony. Reform, of course, is a long process, but in the field of bite mark matching — which again was the forensics specialty the NAS report singled out for some of its harshest criticism — the “path forward” looks to be obstructed. That’s probably because with bite mark matching, the debate isn’t just about adopting better standards or practices, but also about whether the field should exist at all. “Most people in forensic odontology are practicing dentists, or academics. They don’t make their living doing bite mark analysis,” says Michael Saks, an Arizona State University law professor who studies the role of science in criminal law. “They do it on the side. Many of these cases involve sex crimes and crimes against children. So they see themselves as avenging angels. They’re protecting the weak. They’re putting away the bad guys. Then along come critics like Michael Bowers or the Bushes, calling their good work into question. You can see why they’d be angry, even though Bowers and the Bushes are right.” Perhaps that’s why courts and prosecutors have been so reluctant to acknowledge the field’s shortcomings as well. Since the NAS report was released, there have been several court challenges to the validity of bite mark evidence. So far, every challenge has been struck down. In 2011, for example, a Pennsylvania judge upheld the 1994 conviction of John Kunco, who had been convicted of rape due in part to the testimony of bite mark analysts Michael N. Sobel and Thomas J. David. (David is a previous president of the American Board of Forensic Odontology.) In his closing argument, the prosecutor emphasized the importance of the testimony: [T]here’s no way, no way on this earth, for Mr. Kunco to explain how his tooth marks got on Donna Seaman’s shoulder unless you accept the fact that he’s the one who attacked and brutalized Mrs. Seaman. That’s the only explanation, ladies and gentlemen. That’s why the evidence is better than fingerprints or hair samples … [T]he bite mark on Donna Seaman’s shoulder was as good as a fingerprint. And I submit to you it was that, ladies and gentlemen, for all intents and purposes. Ladies and gentlemen, I’d submit to you that John Kunco should have just signed his name on Donna Seaman’s back, because the bite mark on Donna Seaman’s shoulder belongs to John Kunco. The alleged bite marks on the victim’s shoulder weren’t actually examined by Sobel and David until five months after the rape, a length of time long enough for most wounds to heal. In a 1994 article for the Journal of Forensic Sciences, Sobel and David explained they were able to “recapture” a bite after so much time had passed. They wrote that they employed a technique using ultraviolet light to find, isolate and photograph the mark. They then used the photograph to match the marks to Kunco. The article included a footnote to cite the bite mark analyst who had pioneered the technique. That bite mark analyst: the discredited Michael West. (Thomas David is also quoted at length in Melissa Mourges’s brief in the Dean case, discussed below.) To win a new trial after conviction, an inmate must show that he or she has discovered new evidence, that the new evidence was not discoverable at the time of trial and that if the evidence had been available, the jury would probably have acquitted. The inmate must also file his or her petition within a year of when the new evidence was discovered or should have been discovered. Kunco’s petition hinged on the NAS report and its findings on bite mark evidence. In denying Kunco’s petition for a new trial, Judge Rita Donovan Hathaway acknowledged that there are problems with bite mark analysis, but she found that the NAS report wasn’t new evidence. Rather, it was based on older research for which Kunco had already missed his deadline to file. Hathaway’s ruling may have been correct on the law, but it underscores just how difficult it can be to get a conviction based on bad science overturned. Many, many defendants in fact had challenged bite mark evidence based on the prior research and criticisms Hathaway ruled that Kunco should have discovered earlier. They, too, were denied. At this point, even the ABFO may disclaim Michael West. But his legacy in bite mark analysis continues to keep people in prison." Radley Balko writes and edits The Watch, a reported blog covering civil liberties and the criminal-justice system. Previously, he was an investigative reporter for the Huffington Post and a writer and editor for Reason magazine. His most recent book is "The Cadaver King and the Country Dentist: A True Story of Injustice in the American South." Follow @radleybalko
The entire post can be read at the following link:
Harold Levy: Publisher; The Charles Smith Blog:
-----------------------------------------------------------
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/c
