PUBLISHER'S NOTE: As Dr. Michael Bowers put it on his informative site 'CSI DDS': Forensic and law in focus: “Founding fathers” of bitemarker group found to be wrong. Not the first time... Read about the “science” that still plagues the criminal justice system. The only believers are few but some still get paid to teach unsuspecting students and entry-level dentists. Here is another of their victims."
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QUOTE OF THE DAY: "Exonerations are always bittersweet,” said Radha Natarajan, co-counsel for Cifizzari and Executive Director of the New England Innocence Project, in a news release Tuesday. “During 35 years of wrongful imprisonment, Gary Cifizzari endured so much and lost so much. But today, he finally receives the justice he deserves and can celebrate the freedom he has again. Natarajan also said, Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.”
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STORY: "DA drops murder charge against Taunton man who served 35 years for 1979 slaying," by reporter Mike Elfland, published by The Providence Journal on December 10 2019.
SUB-HEADING: "His lawyers said DNA testing had excluded Gary Cifizzari and identified a Rhode Island man as the killer."
https://www.providencejournal.com/news/20191210/da-drops-murder-charge-against-taunton-man-who-served-35-years-for-1979-slaying
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Read National Registry of Exonerations entry by Ken Otterbourg at the link below: "On September 29, 1979, Concetta Schiappa’s body was found on her living room floor in her home in Milford, Massachusetts. She was 75 years old, and the manner of her death was particularly brutal. Her face and chest had severe bruises. Her jaw had been broken. Her scalp had been torn. She had extensive internal injuries caused by a mop handle being inserted in her vagina. In addition, there was bruising on the lower part of her stomach and the inside of her upper left thigh. During a search of the neighborhood, police found her pocketbook and keys in a yard two streets away.
A doctor performed an autopsy at a local funeral home. State investigators conducted blood-group testing on extracts from the victim’s fingernails as well as her clothes and other pieces of evidence from the crime scene. They were unable to determine the blood group. Swabs taken from Schiappa’s body were reported to be negative for the presence of sperm. In conjunction with the autopsy, Dr. Stanley Schwartz, a forensic dental examiner, took photographs of the bruises on Schiappa’s leg and abdomen and also used a rubber-based material to make an impression of the mark on the woman’s abdomen.
Early in the investigation, police questioned Michael Giroux. He was recently discharged from the U.S. Army, and his sister-in-law, Kathy Duncan, and her husband, Gary Terhune, lived next to Schiappa. Duncan told police that a year earlier, Schiappa accused Giroux of entering her home and stealing money.
Giroux told police that he was at a nearby bar on the night Schiappa died and had gotten so drunk that he couldn’t talk. He said he left for his brother’s house, and the route he described taking would have placed him near where Schiappa’s belongings were found. There were inconsistencies in Giroux’s statements about what he did when he got home. First, he said he went right to sleep. Later, he said he had changed out of the clothes he was wearing, although there is no indication the police searched for the garments. He also told police that he couldn’t stand the sight of blood. For reasons that aren’t clear, the police dropped him as a suspect, and the case ran cold.
A year later, on November 21, 1980, a police report was filed on Michael Cifizzari after he was seen drinking out of a dog bowl. Cifizzari was a familiar presence to the police. He had been in and out of mental-health facilities, had struggled to find employment, and had a long list of petty, nonviolent crimes that were consistent with his struggles. He was also Schiappa’s great-nephew. Two police officers took him to the psychiatric wing of the local hospital, and during the drive they questioned him about Schiappa’s death. Cifizzari said he had seen his Aunt Connie a few weeks earlier and that he had hit her because she made him mad. Then he said that he hadn’t hit her and was only saying he had because it was what the officers wanted to hear. One of the officers would later note that Cifizzari was incoherent and would agree to anything asked of him.
About 1 a.m. on February 26, 1981, Michael Cifizzari showed up at the Milford Police Station and asked to spend the night. The police had let him sleep there a few times in the past six months. Officer Anthony DiGirolamo, the station desk officer, had been Cifizzari’s youth football coach, and he would later say that he sensed Cifizzari wanted to talk. He and Officer John Chianese read Cifizzari his rights, which he first waived with the name “Paul M. Cartney,” before signing properly. The officers then began questioning Cifizzari about Schiappa’s murder. The session was not recorded, but the officers said Cifizzari gave four statements. None was signed. In the fourth version, Cifizzari said he and his cousin, Robert Cananzey, had been “drugged out” on marijuana, alcohol, and PCP and gone to Schiappa’s house to ask for money. He said she refused, and then they attacked her with a stick. He said he bit her on the neck and upper leg and Cananzey bit her on the neck.
Later that day, Cifizzari went to the Worcester office of the Massachusetts State Police, where he was questioned by Sergeant Joseph Doheny. The officer would later note that Michael appeared “somewhat confused” and “wild-eyed.” Cifizzari repeated part of his statement. For reasons that are unclear, Doheny asked Michael whether he was sure that he had been with Cananzey, and not his brother, Gary. Michael said that “Gary was there,” and that “they (his cousin and his brother) were both there.” He never said what Gary had done.
Michael was arrested that day and charged with murder. He had a competency evaluation on February 27, where he recanted his confession and said he was innocent. The examining psychiatrist recommended he be sent to a state mental hospital. Cifizzari was later found to be “acutely mentally ill” and for more than a year deemed incompetent to stand trial.
Police soon questioned Gary Cifizzari about his brother’s statement. He said he was nowhere near Milford on the night his great aunt died.
Michael Cifizzari was found competent to stand trial in 1982. As the state prepared for trial, prosecutors got a court order to take dental impressions from his mouth. They were sent to Schwartz for comparison with the photographs of the bruising on Schiappa’s leg and abdomen and the mold made from the impressions. In February 1983, Schwartz reported that Michael Cifizzari was not the source of the bitemarks. Dr. Richard Souviron, another forensic dental examiner, also reviewed the material, and he agreed with Schwartz’s findings.
At Michael Cifizzari’s trial in Worcester County Superior Court, he tried unsuccessfully to suppress his statements to police, on the grounds that he had not been mentally competent to waive his rights. But that effort failed, and he was convicted of second-degree murder on September 7, 1983. He died in prison in 2000.
After Michael had been excluded as the source of the bitemarks, police then asked Gary Cifizzari and Cananzey to voluntarily allow dental impressions to be taken from their mouths. Cananzey’s were taken on March 30, 1983, and he was quickly excluded and never charged. Gary Cifizzari’s were taken on April 27, 1983. There was a problem with Cifizzari’s teeth. He had lost a front tooth in 1980, so police also obtained a copy of X-rays from 1977 and gave this information to Schwartz. He made an initial finding in May 1983 that Cifizzari’s teeth were the source of the bitemarks. He followed up with a more detailed report on September 28, 1983 that “within reasonable medical certainty” Gary Cifizzari’s dentition, particularly the purported position of the missing front tooth, matched the bitemarks on Schiappa’s body. Police interviewed Gary Cifizzari in May 1983 after Schwartz’s initial results, and he continued to deny any involvement in his aunt’s murder.
The police then asked Souviron to review the material. On November 1, 1983, he issued a report that agreed with Schwartz, “to a reasonable degree of dental certainty,” about Gary Cifizzari being the source of the bitemarks on his great aunt’s body. Three weeks later, on November 21, 1983, Gary Cifizzari was arrested and charged with murder.
Gary Cifizzari’s trial began in July 1984, also in Worcester County Superior Court. Michael’s confession was not introduced. There was no eyewitness testimony or other physical evidence. The state’s case was based almost solely on the work of the dental examiners: Schwartz, Souviron, and Dr. Anthony Captline.
Schwartz, who was a founding member of the American Board of Forensic Odontology, testified that he had determined that the photos of the bitemarks on Schiappa’s body showed a maxillary right central incisor that was “palatally displaced.” The maxillary incisors are the prominent front teeth on the top row. A palatally displaced tooth would be one positioned away from the lips, pushed inward toward the mouth. This was the tooth that Cifizzari was missing, but Schwartz said he could determine that it had been palatally displaced based on the position of the root in the dental cast and an examination of the 1977 X-ray. In addition, he testified that such a tooth was so rare that “there was nothing in the literature to describe it.”
Souviron was also a founding member of the ABFO. He testified that “the teeth of Gary Cifizzari were the teeth that inflicted both bitemarks, one on the leg and one on the stomach.” Skin is elastic, and dental impressions can be affected by pressure and also the time elapsed between when the mark is made and when it is examined. Both Schwartz and Souviron acknowledged on cross-examination that the photos they used showed changes in the impressions, but they each said that their conclusions still stood.
Souviron also testified under cross-examination that the loss of a tooth can cause other teeth to move, but he said that in this case, he was confident that there was no movement.
Captline’s testimony corroborated the conclusions of Schwartz and Souviron, and he told jurors that he was impressed with the work of his colleagues.
Cifizzari’s cousin, Antonetta Pasqualone, testified that Michael and Gary came to her house on September 29, 1979, the day Schiappa’s body was found, and that she and her mother washed their “bummy clothes.” She had told police that she remembered the date of the brothers’ visit, but this statement came only after Michael had confessed. It’s unclear if she told police the same information when they interviewed her two weeks after the murder, when Giroux was still a principal suspect.
Terhune also testified. Although he had initially told police that he saw an unknown white man in Schiappa’s window and provided a description that did not match Cifizzari, at trial he said only that he saw a “shadow,” and was unable to determine if the person was male or female.
Cifizzari’s attorney did not pursue a defense based on either a third-party culprit or inadequate investigation by the police. When the trial judge asked the attorney whether he was planning to argue about the inadequacy of the investigation, the attorney said the thought hadn’t crossed his mind.
During closing arguments, prosecutors hammered home on the testimony of the three dental examiners. “Keep in mind that you have two of the fifty most qualified people in the country helping you out . . . and they both came in with the same opinion,” they said. “They’re saying this man caused the bitemarks, but there was no room for doubt in their opinion. They gave it to you straightforward and they gave it to you honestly.”
Gary Cifizzari was convicted of first-degree murder on July 30, 1984 and sentenced to life in prison without the possibility of parole.
Cifizzari appealed his conviction, challenging the admission of the bitemark testimony and related evidence. The Massachusetts Supreme Judicial Court rejected his appeal in 1986. In 1996, he filed a pro se motion for a new trial, which was referred to the Committee for Public Services Counsel. The agency denied Cifizzari representation. The motion was then rejected, in part because Cifizzari did not comply with the procedural rules. Twice, in 2003 and 2006, he requested DNA testing of the evidence recovered from Schiappa’s house, but those requests were denied.
In 2017, Cifizzari became a client of the New England Innocence Project. Later that year, attorneys from the Ropes & Gray law firm, led by Kirsten Mayer, joined with the organization to begin representing Cifizzari pro bono. On December 21, 2017, attorneys moved for discovery to find out whether there was any physical evidence retained from the case. In June 2018, they were told that 25 pieces of evidence were found in a state police barracks. In August 2018, the court authorized testing on 12 pieces of evidence, including a pillow case, a bathrobe and nightgown, and fingernail scrapings. The material was sent to a laboratory, which developed a DNA profile from the material as well as from a sample provided by Cifizzari. The profiles, which were analyzed by Bode Technology, excluded Gary. They were later confirmed by Dr. Robin Cotton, the director of Boston University’s biomedical forensic sciences program. On February 28, 2019, Cotton reported that Gary Cifizzari was excluded as a contributor of the genetic material found at the crime scene. She also excluded Michael Cifizzari, based on the assumption that they were true brothers.
The genetic profile was then uploaded to the Federal Bureau of Investigation’s Combined DNA Index System, known as CODIS. On May 3, 2019, the state police were told that DNA obtained from a sperm fraction on Schiappa’s nightgown matched the DNA profile of Michael Giroux. Since the murder, Giroux had been in and out of prison and had occasionally worked as an informant for the FBI and other law-enforcement agencies. His brother would later note in an affidavit that Giroux was a violent man. While DNA testing wasn’t available in 1984, the presence of sperm had not been detected in the initial investigation. Giroux died in 2014.
In the years since Cifizzari was convicted, forensic odontology has been discredited as a tool for making identifications based on bitemark analysis. Even the ABFO no longer says it is acceptable for its members to talk of a match or use language such as “probable” or a “reasonable medical/dental certainty.” Instead, its members can testify only that comparison either excluded a suspect, didn’t exclude a suspect, or was inconclusive. A 2009 report from the National Academy of Sciences said that there was no scientific foundation to support the idea that human bitemarks are unique or that skin is capable of faithfully recording those marks.
In a motion for a new trial filed on May 30, 2019, Mayer and Radha Natarajan, the executive director of the New England Innocence Project, noted the DNA results that pointed clearly to Giroux’s role in the murder. They also attacked the credibility of the forensic testimony of Schwartz, Souviron, and Captline used to convict Cifizzari. Along with noting that the testimony no longer complied with AFBO standards, the motion also said that some of the testimony was just flat out wrong. Schwartz had testified that a palatally displaced top incisor was extremely rare, and his assertion was hammered home by prosecutors in closing arguments. In fact, that type of tooth placement is widely seen by dentists and orthodontists.
The motion noted the possibility for confirmation bias. Souviron and Captline both made their reports after knowing of Schwartz’s findings. In addition, the motion suggested the identification made from studying Cifizzari’s teeth was analogous to a faulty police lineup, where the witness is steered toward choosing the right suspect. In this instance, the examiners were given only three sets of teeth. After Michael Cifizzari and his cousin were eliminated, there was only one suspect remaining. “The very use of this all-suspect lineup presented a serious risk of cognitive bias as it may have led to a relative process judgment whereby Dr. Schwartz was inclined to select whichever of the three dentitions most closely matched the patterned injuries, instead of leaving open the possibility that none of the dentitions matched,” the motion said. Schwartz was also a forensic examiner in the case of Keith Harward, who was convicted in part based on bitemark comparison and later exonerated after DNA testing excluded him as the source of genetic material left at the crime scene.
As part of the motion, Cifizzari’s attorneys also included an affidavit from Souviron that recanted his trial testimony. He said in the document, dated April 30, 2019, that his recantation was done without knowledge of the DNA testing. In part, he wrote: “The bottom line is that today I cannot conclude, as I did at Mr. Cifizzari’s trial, that his teeth ‘were the teeth’ that inflicted either of the bitemarks on the victim in this case to the exclusion of all others.”
On July 12, 2019, Judge Janet Kenton-Walker stayed Cifizzari’s life sentence and ordered him released on personal recognizance and GPS monitoring, prior to a hearing on his motion for a new trial. The judge said that Cifizzari was not a flight risk or a danger to society. Now 63, he suffered from diabetes, hypertension and cognitive impairment. Prosecutors opposed the move, arguing at the time that the DNA evidence didn’t exonerate Cifizzari. It was possible, they said, that he and his brother had been there with Giroux. They sought more time to do additional DNA testing on other items. Cifizzari’s attorneys noted that there was no evidence that the men knew each other.
On December 10, 2019, prosecutors dismissed Cifizzari’s case. The new DNA results, including testing from material on Schiappa’s robe, also excluded Cifizzari and was a match with Giroux’s genetic profile. In a statement, Worcester District Attorney Joseph Early said: “The aforementioned evidence leads the commonwealth to determine that Michael Giroux perpetrated this brutal murder, and a Nolle Prosequi of Gary Cifizzari is in the interests of justice in this case.”
Mayer told The Springfield Republican: “Words don't describe what it means to see someone who never should have been convicted in the first place finally have the conviction overturned. Ultimately, science was a key part of why he'd been exonerated but inadequate science was also a key part of how he got convicted in the first place."
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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;
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FINAL WORD: (Applicable to all of our wrongful convictions): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.""
Lawyer Radha Natarajan:
https://www.providencejournal.com/news/20191210/da-drops-murder-charge-against-taunton-man-who-served-35-years-for-1979-slaying
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