PUBLISHER'S NOTE: This post is structured in two stages: Stage one: March 2018: Alfred Swinton is exonerated of a 1991 murder conviction based on bitemark evidence (AKA junk science); Stage 2: (The recent connection:) Committee hearings: The jailhouse informant aspect: (What do police do when the forensics are utterly lacking or just really weak? Exactly!)
Harold Levy: Publisher: The Charles Smith Blog:
----------------------------------------------------------
STAGE ONE:
PASSAGE OF THE DAY: "The Innocence Project has helped get thirty wrongful convictions and indictments which relied heavily on bitemark analysis overturned. If it’s so unreliable then why is it still used? “Once an indictment has been secured, and the case is going to trial, the gloves come off and the adversarial process kicks in and the combatants [in this case, the prosecution] use all the weapons at their disposal,” Fabricant said. “It’s admissible evidence and prosecutors are going to use whatever they can use to admit the evidence, save a few data-oriented prosecutors who have recognized that the truth-seeking function of the justice system is undermined by the use of unreliable evidence. Justice is not advanced through the introduction of junk science.” A 2009 report from the National Academy of Sciences National Research Council backs up Fabricant’ stance. That report found that bite mark analysis lacks scientific validity. A second study, undertaken by the President's Counsel of Advisory on Science and Technology [PCAST], came to even stronger conclusions in 2016, finding "bitemark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards.”
------------------------------------------------------------
SUB-HEADING: "Alfred Swinton was exonerated of a 1991 murder conviction last month based on bite mark evidence. The Innocence Project told Oxygen.com that many people are falsely convicted because of bite mark analysis."
STORY: "Bitemark evidence is often used in trials to convict defendants but is it reliable? After 18 years behind bars, Alfred Swinton of Connecticut was released from prison with the help of The Innocence Project. The
evidence that got him convicted is the same evidence that got him
exonerated: bitemark analysis, which is when a forensic dentist takes
measurements of what appear to be bitemarks and then they compare it to
the mold of a suspect’s teeth. New evidence has proven that a bite
mark on the victim originally attributed to Swifton didn’t belong to
him after all, In fact, the dentist who originally testified against him
for the 1991 murder of Carla Terry recently recanted his testimony. DNA
testing also excluded him as the source of male DNA found under Terry’s
fingernails. On March 1, 2018, a judge exonerated Swinton. “Bite
mark evidence represents everything that is wrong with forensic science
in this country today,” Chris Fabricant, Director of Strategic
Litigation for the Innocence Project told Oxygen.com.
“It’s grossly unreliable even under ideal circumstances and it has
contributed to more wrongful convictions and indictments than any other
technique that is still admissible by criminal trials today.” He
added that bite mark practitioners do not undergo any proficiency
testing and actually have no idea how often they are right and how often
they are wrong when it comes to bite mark analysis. “Nonetheless,
the evidence is very, very powerful compelling evidence,” Fabricant
said. “Not only does it place the suspect’s teeth on the victim itself
where it also allows the prosecution to depict the suspect as an animal
to a jury. [...] The trouble is that forensic dentists cannot even
identify what is and what is not a bite mark. The idea that the courts
continue to admit this type of evidence is really an outrage and a
disgrace for our criminal justice system that still allows this type of
evidence.” When it came to Swinton, Fabricant said there was no
question that the marks on Terry’s body were bitemarks. Still, Fabricant
said the forensic dentist got it wrong, anyway. “What it
demonstrates is that even under ideal circumstances, this evidence is
grossly unreliable and should never be admitted to convict anybody,”
Fabricant told Oxygen, adding that Swinton’s conviction and
incarceration destroyed Swinton’s family. “He had never been convicted
of a crime and suddenly he was thrown in prison and accused not only of
this crime but of a series of similar murders. He was accused of being a
serial killer.” Michael J. Saks, a professor of law at the Sandra
Day O'Connor College of Law at Arizona State University, told
Oxygen.com that “forensic dentists have failed to carry out the research
to prove the validity of what they do.” Saks provided Oxygen with
an article he wrote with the assistance of other experts, entitled
"Forensic bitemark identification: weak foundations, exaggerated claims"
for the Journal of Law and the Biosciences. The article’s main takeaway? “The
rise and impending fall of bitemark evidence powerfully illustrates the
costs of the failure to assure that what enters our criminal courts is
sound science.” Swinton was featured on an episode of "Forensic Files" which claimed that bitemark evidence solved the case. Ironically,
the forensic dentist states in the clip that, "In my field, if I make a
mistake a man goes away for the rest of his life. So there are no
tests, no difficulties that we cannot bear to make sure we don't convict
an innocent person." Fabricant told Oxygen that
The Innocence Project searches for cases where a conviction was based
off bite mark evidence because those cases are so flimsy. Often the
people convicted are actually innocent. “I ask my paralegals to
get me any case that involves bitemark evidence because any case that
rests on bitemark evidence is unreliable,” Fabricant said. “Every single
one of those cases that we have litigated, unless it is still currently
pending — the defendant has been exonerated.” The Innocence Project has helped get thirty wrongful convictions and indictments which relied heavily on bitemark analysis overturned. If it’s so unreliable then why is it still used? “Once
an indictment has been secured, and the case is going to trial, the
gloves come off and the adversarial process kicks in and the combatants
[in this case, the prosecution] use all the weapons at their disposal,”
Fabricant said. “It’s admissible evidence and prosecutors are going to
use whatever they can use to admit the evidence, save a few
data-oriented prosecutors who have recognized that the truth-seeking
function of the justice system is undermined by the use of unreliable
evidence. Justice is not advanced through the introduction of junk
science.” A 2009 report from
the National Academy of Sciences National Research Council backs up
Fabricant’ stance. That report found that bite mark analysis lacks
scientific validity. A second study, undertaken by the President's
Counsel of Advisory on Science and Technology [PCAST], came to even
stronger conclusions in 2016, finding "bitemark analysis does not meet
the scientific standards for foundational validity, and is far from
meeting such standards.” As for Swinton, he’s happy to be out of jail after his wrongful conviction. “Our
exonerees — and Alfred is no different — have displayed time and time
again incredible grace and this is because in my view the kind of
character that it takes to persevere through decades of wrongful
conviction. These are unique human beings,” Fabricant said. “I have
never heard Mr. Swinton express the kind of outrage that I think anyone
would expect that they themselves would feel if they experienced such an
injustice.” The only big concern that Swinton has expressed, according to Fabricant, is worry that the real killer is still at large."
The entire story can be found at:
The entire story can be found at:
------------------------------------------------------------------
STAGE TWO:
PASSAGE OF THE DAY: "Part of what help convict my uncle was a jailhouse informant who didn’t come forward until seven years after the charges were initially dropped against him,” Mink-White said. The proposed bill, which is backed by the Connecticut Innocence Project, would require prosecutors to track the use of jailhouse witness testimony and benefits provided and make that information available to prosecutors statewide, set specific timelines for prosecutors to disclose evidence about jailhouse witnesses to the defense, and require judges to hold pre-trial hearings to screen out unreliable jailhouse witness testimony."
---------------------------------------------------------------------
STORY: "Family of Hartford man exonerated in murder conviction testifies about jailhouse snitches," by Investigative Reporter Dave Altimari, published by The Hartdford Courant on March 25, 2019.
GIST: "The
niece of a man who spent nearly 20 years in prison for a murder
prosecutors now admit he didn’t commit told legislators Monday that a
jailhouse informant helped send Alfred Swinton to prison. Cheryl
Mink-White testified before the legislature’s Judiciary Committee
Monday in support of a bill that would track who prosecutors use as
informants and also give judges a chance to evaluate their credibility
as witnesses before they testify to a jury. Alfred
Swinton spent 18 years in prison partly because of the testimony of a
jailhouse informant who came forward seven years after the alleged
confession took place. “Part
of what help convict my uncle was a jailhouse informant who didn’t come
forward until seven years after the charges were initially dropped
against him,” Mink-White said. The
proposed bill, which is backed by the Connecticut Innocence Project,
would require prosecutors to track the use of jailhouse witness
testimony and benefits provided and make that information available to
prosecutors statewide, set specific timelines for prosecutors to
disclose evidence about jailhouse witnesses to the defense, and require
judges to hold pre-trial hearings to screen out unreliable jailhouse
witness testimony. Chief
State’s Attorney Kevin Kane testified Monday that these pre-trial
screenings will give a judge the job that a jury should have --
assessing the credibility of a witness. “The
bill embodies a presumption that a jury of the defendant’s peers cannot
be trusted to carefully consider and assess all of the testimony that
is presented to it, including that which is given by a witness whose
testimonial motivations may be called into question,” Kane said. “Such
an unfortunate and unwarranted presumption is also an unnecessary one in
the case of the testimony of a jailhouse informant.” Swinton
served 18 years of a 60 year sentence for the 1991 murder of Carla
Terry before he was released last June after lawyers with the Innocence
Project brought forth new DNA evidence that eventually forced a Hartford
judge to vacate his conviction. At
the trial, Laverne Terry, Carla’s sister, testified that she had given a
bra to her sister to wear the night that she was murdered. Prosecutors
told jurors that Swinton kept it as a trophy of the murder.
The
new DNA testing, known as touch DNA, was conducted in 2015 by the
Connecticut Forensic Science Laboratory. It showed no presence of DNA
from Swinton or Terry on the bra. That revelation raised the possibility
that the bra was not Terry’s and that she wasn’t wearing it the night
she was murdered. The
state laboratory also conducted new DNA testing on saliva that had been
found in bite marks on both of Carla Terry's breasts. At the time of
Swinton's trial, the state laboratory said there was not sufficient DNA
to perform testing. But
more recent testing, with the new technology, allowed lab staff to
extract DNA from the saliva in the bite mark on Terry’s right breast.
The testing concluded that it was not Swinton’s DNA. In addition, the
laboratory also recently tested DNA that was found near Terry’s vagina
and determined that Swinton could not have been the source of that DNA
either. Swinton
was sentenced to 60 years in prison after he was convicted in 2001 for
Terry's murder. She was strangled in January 1991. Swinton’s
case was initially dropped by a judge in 1991 but he was re-arrested in
1997 partially because of the testimony of jailhouse informant Michael
Scalise. Scalise,
who was also acting as a jailhouse informant in other cases, claimed
that Swinton admitted to the murder while they were both in jail
together. Authorities never made his cooperation agreement known to the
court or Swinton’s lawyers. Scalise denied getting an explicit deal in
exchange for his testimony, but he ultimately obtained early release
from prison. Swinton
also was convicted based, in part, on the testimony of a forensic
odontologist who testified that a bite mark on Terry’s right breast
matched Swinton’s teeth. But DNA from saliva found in the bite mark was
recently tested by the state forensic laboratory and the results showed
that Swinton’s DNA wasn’t a match. Police
first identified Swinton as a suspect because he was seen with Terry at
a bar before she disappeared. Swinton was arrested, but a judge threw
out the case, ruling there wasn't enough probable cause to prosecute
him. Seven
years later, police arrested Swinton again based on two new pieces of
evidence: the bra that was found in a box in the basement of the
apartment building where Swinton lived at the time of the murder and the
testimony of Dr. Constantine Karazulas, who said bite marks on Terry’s
breasts matched Swinton’s teeth. Authorities
once suspected that Swinton, 69, was a serial killer, but have not
uncovered any new evidence linking him to the death of Terry or the
deaths of four other women he acknowledged knowing and in whose deaths
police considered Swinton a suspect. Prosecutors had the state lab
examine evidence from other cases in which Swinton was suspected but no
evidence emerged linking him to those crimes."
----------------------------------------------------------------
| PASSAGE ONE OF THE DAY:
Dr. Gus Karazulas, the chief forensic
odontologist of the Connecticut State Police Forensic Science
Laboratory, testified that bite mark analysis was an exact science that
could link an individual to a bite mark to the exclusion of all other
individuals. Karazulas said that he compared Swinton’s teeth to the
marks on Terry’s body and determined to a “reasonable medical certainty
without any reservation” that Swinton made the bite marks.
Since Dr. Karazulas’s 2001
testimony, the scientific community had come to reject bite mark
analysis as a forensic method capable of identifying a suspect. A 2009
report by the National Academy of Sciences found that there is “no
scientific basis for forensic odontologists (bite mark analysts) to
proffer individualization testimony.” The President’s
Council of Advisors on Science and Technology and the Texas Forensic
Science Commission, which recommended a ban on the use of bite mark
evidence, has also condemned the use of bite mark analysis. The
American Board of Forensic Odontologists, the accrediting board for
bite mark analysts, no longer permits analysts to make a positive
identification from bite mark comparisons. In light of
those developments, Innocence Project lawyers contacted Dr. Karazulas,
who provided a sworn affidavit saying he no longer believed that Swinton
was the person who inflicted the bite mark on the victim. Dr.
Karazulas said that “new scientific developments caused a significant
change to my understanding of bite-mark analysis, which have compelled
me, as a matter of my professional ethics and civic duty, to recant
completely the testimony that I gave at Mr. Swinton's trial.” Dr.
Karazulas said, “First, I now understand that it is not possible to
accurately measure and scientifically compare anything other than the
arch of an individual's dentition. Second, I have become convinced,
given the recent changes in scientific knowledge and understanding in my
field, that skin is not capable of accurately recording the
characteristics of human dentition, making it impossible to identify
‘the biter’ with any degree of certainty."----------------------------------------- PASSAGE TWO OF THE DAY: ------------------------------------------------------------------ | |||||||||
| "Shortly
before 5 a.m. on January 13, 1991, the body of 28-year-old Carla Terry
was found in a snowbank near the University of Hartford in Hartford,
Connecticut. She had been sexually assaulted and strangled to death. Police soon focused on 42-year-old Alfred Swinton after witnesses said they saw him talking to Terry a few hours earlier in a nearby tavern. Police obtained a search warrant for Swinton’s apartment, which was a short walk from where Terry’s body was found. During the search, they found a black bra in a basement common area. Although Terry’s sister, Laverne Terry, said she did not recognize the garment, police believed that Swinton had killed Terry after she refused to trade sex for drugs and that he took the bra as a “trophy.” In March 1991, police drove Swinton to the location where Terry’s body had been discovered, as well as the locations where four other women had been found murdered in Hartford. Swinton told police that he knew all of the women, but denied having anything to do with their murders. Police, however, believed he was a serial killer. After a forensic analyst said that bite marks on Terry’s breasts appeared to have been made by Swinton’s teeth, police arrested him on June 25, 1991. However, he was released in August when a judge ruled there was insufficient evidence to charge him with murder after the forensic analyst said there was no way to determine when the bite marks were made in relation to Terry’s murder. The case went cold for several years. However, Swinton again was arrested for Terry’s murder in October 1998 after another forensic odontologist examined the evidence and said the bite marks had been left not long before Terry was killed. Swinton went to trial in Superior Court in Hartford in January 2001. Terry’s sister, Laverne—who in 1991 said that she did not recognize the black bra—testified that it in fact belonged to her niece, who had loaned it to the victim. Laverne said she had helped pin the bra so the victim could wear it. Dr. Gus Karazulas, the chief forensic odontologist of the Connecticut State Police Forensic Science Laboratory, testified that bite mark analysis was an exact science that could link an individual to a bite mark to the exclusion of all other individuals. Karazulas said that he compared Swinton’s teeth to the marks on Terry’s body and determined to a “reasonable medical certainty without any reservation” that Swinton made the bite marks. Hector Freeman testified that on the night of the crime, he saw Carla Terry around 1 a.m. at the Oakland Terrace Café and agreed to take her home. However, first they stopped at Kenney’s Grill. Freeman said he left with Terry shortly before 2 a.m. and dropped her off at the home of another sister, Rhonda Terry. Darlene Chappell, a bartender at Kenney's Grill, testified that she saw Swinton and Terry at the bar, but Swinton left before Terry. Martha Point-DuJour, a customer at Kenney’s, testified that she saw Swinton talking with Terry. After Terry left with Freeman, she said, Swinton left alone. Rhonda Terry testified that she saw Carla Terry get out of Freeman’s car shortly after 2 a.m. She said she saw her sister walk across the street and out of view, but she never arrived. Her body was found less than three hours later. Mary Alice Mills testified that although she did not remember his exact words, she heard Swinton say in 1991 that he “got away with murder.” She admitted that when she heard the statement, she was drinking alcohol and “getting stoned.” James Arnold, an inmate at the Webster Correctional Institution and an admitted heroin addict, claimed he had two conversations with Swinton in 1991, during which Swinton told him that he bit the victim. Cynthia Stallings, a habitual drug user, testified that in August 1991, Swinton said that he was not innocent of Terry's murder, and that the authorities “had” him “through the teeth marks” that were found on Terry’s breasts. The prosecution also presented portions of a freelance writer’s tape-recorded interview of Swinton . The writer, Karon Haller, published an article about the unsolved murders of 10 women and quoted Swinton as saying that the women likely traded sex for drugs. At the same time, Swinton said he had been falsely accused of being “an insane murderer. You don’t have to be insane to have sex and bit somebody all over her body, all right?” The prosecution asserted showed Swinton’s “consciousness of guilt.” The tape of the interview also contained Swinton’s denials that he had any involvement in Terry’s death or the deaths of any of the women—although those denials were not in the article Haller published. Michael Scalise testified that while he was in jail with Swinton prior to Swinton’s trial, Swinton confessed to him that he had killed Terry. Scalise, who also said that another inmate had confessed an unrelated crime to him as well, said Swinton told him he had sex with Terry, bit her on the breasts, killed her, and took her bra. Police subsequently equipped Scalise with a hidden tape recorder, but Swinton never incriminated himself and repeatedly insisted he was innocent. Swinton’s defense attorney presented a dental expert as well. Forensic dentist Neal Riesner testified that his examination revealed no match between Swinton’s teeth and the bite marks. Riesner testified that the images used by Karazulas were too blurry to allow for a positive match, and that a computer enhancement falsely increased the appearance of a match. On March 21, 2001, the jury convicted Swinton of first-degree murder. He was sentenced to 60 years in prison. Although police said they continued to suspect Swinton in the other unsolved murders, he was never charged with any of those crimes. In 2004, the Connecticut Supreme Court upheld his conviction, although the court said that the computer enhancement evidence should not have been allowed because the person who created the enhancement was never called to testify. In 2014 and 2015, at the request of the Connecticut Innocence Project, DNA testing was performed on the bite mark swabs. The tests identified male DNA that did not belong to Swinton. DNA testing of the bra revealed the presence of skin cells that did not match the victim or Swinton—suggesting that Carla Terry had never worn it. Although Swinton had never been charged with sexually assaulting Terry, anal and vaginal swabs taken at the time also were tested and revealed male DNA that did not match Swinton. Because of a conflict, the Innocence Project took over Swinton’s representation in 2015 and enlisted the law firm of Skadden, Arps, Slate Meagher &Flom. After bringing the case to the attention to the Hartford County state’s attorney’s office, DNA testing of the fingernail scrapings of the victim was performed. Those tests also excluded Swinton. Since Dr. Karazulas’s 2001 testimony, the scientific community had come to reject bite mark analysis as a forensic method capable of identifying a suspect. A 2009 report by the National Academy of Sciences found that there is “no scientific basis for forensic odontologists (bite mark analysts) to proffer individualization testimony.” The President’s Council of Advisors on Science and Technology and the Texas Forensic Science Commission, which recommended a ban on the use of bite mark evidence, has also condemned the use of bite mark analysis. The American Board of Forensic Odontologists, the accrediting board for bite mark analysts, no longer permits analysts to make a positive identification from bite mark comparisons. In light of those developments, Innocence Project lawyers contacted Dr. Karazulas, who provided a sworn affidavit saying he no longer believed that Swinton was the person who inflicted the bite mark on the victim. Dr. Karazulas said that “new scientific developments caused a significant change to my understanding of bite-mark analysis, which have compelled me, as a matter of my professional ethics and civic duty, to recant completely the testimony that I gave at Mr. Swinton's trial.” Dr. Karazulas said, “First, I now understand that it is not possible to accurately measure and scientifically compare anything other than the arch of an individual's dentition. Second, I have become convinced, given the recent changes in scientific knowledge and understanding in my field, that skin is not capable of accurately recording the characteristics of human dentition, making it impossible to identify ‘the biter’ with any degree of certainty. In January 2017, Innocence Project lawyers Chris Fabricant and Vanessa Potkin, along with Skadden attorneys Maura Barry Grinalds, Ed Tulin and Thania Charmani, filed a motion for a new trial. In June 2017, the prosecution agreed to vacate Swinton’s conviction and on June 8, 2017, he was released on bond. On March 1, 2018, the prosecution dismissed the case. Swinton subsequently filed a claim for compensation from the state of Connecticut." |
--------------------------------------------------------
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
