DAVID KUNZE CASE: PART ONE; CORNELIS VAN DER LUGT ATTEMPTS TO BRING HIS EARPRINT EVIDENCE INTO THE U.S.A. (AND THANKFULLY LOSES);

"WHEN THE LAWYERS INTERVIEWED THE JURORS AFTERWARDS, ALL REPORTED THAT THEY WOULD HAVE DECLARED DAVID "NOT GUILTY." PROSECUTORS HAD LITTLE CHOICE BUT TO ASK THAT ALL CHARGES BE DISMISSED. THE COURT DID JUST THAT."

LAWYER JOHN HENRY BROWNE;

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Just as Louise Robbins made an occasional foray into Canada with her pseudo-scientific "Cinderella" footprint evidence and Charles Smith ventured into Illinois to testify in a death penalty case, Cornelis van der Lugt attempted to bring his dubious earprint evidence by way of Europe into the U.S.A in the David Kunze case;

Fortunately, Mr. Kunze was represented by John Henry Browne, a lawyer who managed to stop the State's attempt to obtain a murder conviction by introducing so-called "expert" earprint evidence in its tracks.

As Browne points out on his website, David Kunze might still be serving a life sentence for Aggravated Murder at the Walla Walla penitentiary. (He was freed on March 22, 2001.)

Browne tells us that:

"David was convicted in 1997 after a judge ruled that a prosecution witness could tell the jury he thought an earprint at a murder scene matched the outline of David's ear. He was sentenced to life imprisonment without possibility of parole.

David then asked John Henry Browne to handle his appeal. In the first earprint case in American legal history, John Henry Browne persuaded the Court of Appeals to reverse David's conviction and to grant him a new trial--this time without the earprint. See State v. David Kunze, 97 Wn. App. 832, 988 P.2d 977 (Div. II, 1999).

Weeks into David's second trial, prosecutorial misconduct forced a mistrial.

When the lawyers interviewed the jurors afterwards, all reported that they would have declared David "Not Guilty." Prosecutors had little choice but to ask that all charges be dismissed. The court did just that."

Next posting: The Kunze decision;

Harold Levy; hlevy15@gmail.com;

MARK DALLAGHER CASE: PART FIVE; UNRAVELLING OF AN "EXPERT"; A LONG OVERDUE BLOW TO EARPRINT COMPARISON EVIDENCE; THE TELEGRAPH;

"THE APPEAL COURT AIRED CONCERNS ABOUT MR VAN DER LUGT'S EXPERTISE. HE WAS A POLICE OFFICER OF 27 YEARS EXPERIENCE BUT HAD NO FORMAL QUALIFICATIONS. HE HAD "SIMPLY BECOME INTERESTED IN EAR PRINT IDENTIFICATION".

THE JUDGES RULED DALLAGHER'S CONVICTION UNSAFE BUT ORDERED THAT HE REMAIN IN PRISON PENDING A RETRIAL.

THAT HEARING BEGAN IN MANCHESTER LAST JUNE BUT WAS HALTED AFTER THE RECEIPT OF NEW EVIDENCE AND THE LAUNCH OF A FRESH INQUIRY. IT RESUMED YESTERDAY WITH THE CROWN SAYING IT WOULD OFFER NO EVIDENCE. THE DEFENCE REVEALED THAT DNA FROM ONE OF THE ORIGINAL EARPRINTS SHOWED IT COULD NOT HAVE BEEN MADE BY DALLAGHER."

THE TELEGRAPH:

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The unravelling of earprint evidence in Europe and North America was described in a story which appeared in The Telegraph on January 22, 2004, without a by-line, under the heading, "'Breakthrough' looks less and less convincing."

The sad part of the story is that Mark Dallagher remained behind bars for seven horrific years as a murderer while the reputations of Cornelis van der Lugt and his pseudo science became unravelled.

Although several people had been convicted in England because of earprint evidence - which the courts had begun to accept as fact - it had become apparent, however, that there is little scientific basis for this.

The reality was that experts did not have a database of earprints, nor a scientific method of comparing prints, apart from laying the suspect's print on top of the one found at the scene and examining them for differences.

Prof Peter von Coppen, of Leiden University in Holland, had issued a paper disputing earprint evidence in which he said: "There has been no research done in which you can say, for instance, what the national distribution of lobes is, so you don't know if the earprint is one which would match 80 per cent of everyone else's or whether it has unique characteristics."

Far too many innocent persons would have been avoided horrific consequences - including the death penalty - if judges had exercised their gate-keeper function and protected them from so-called experts such as, Charles Smith, Michael West, Steven Hayne, Louise Robbins and Cornelis van der Vugt.

"Two smudged earprints made by a burglar who pressed his head to Dorothy Woods's window before jemmying it open were the only clues police found when they discovered the 94-year-old spinster murdered in her bed," the Telegraph story began.

"The West Yorkshire police turned to Cornelis van der Lugt, a Dutch former scenes of crime officer who had made himself the world expert in the fledgling science of earprint identification," it continued;

"At the trial of 26-year-old Mark Dallagher, it was the Dutchman's testimony that sealed a conviction.

Prof Peter Vanezis, a leading British forensic scientist, did not go quite as far as Mr van der Lugt in saying the evidence pointed to Dallagher, but said he thought it "highly likely" that Dallagher left his earmarks on the window above Miss Woods's bed.

The case was hailed as representing an important breakthrough in forensic techniques. "We now have another weapon in our arsenal against crime," said one investigating officer.

The Crown Prosecution Service went further, claiming in its 1999 annual report that the case had "made legal history".

But even as that report was published, the scientific evidence underpinning the conviction was unravelling.

A court in the United States upheld an appeal by David Kunze who had been convicted of aggravated murder on the evidence of Mr van der Lugt that his earprints had been found at the crime scene. The judges said Mr van der Lugt's theories on earprints were "not generally accepted in the forensic science community" and his evidence should have been inadmissible.

In May 2000 a court in Amsterdam overturned a conviction in another case where van der Lugt had given expert evidence. The Dutch court said that the infant discipline of earprinting should be treated "with caution and reservations".

Dallagher continued to protest his innocence, claiming that he had been at home with his girlfriend on the night of the killing in 1996. His appeal was heard in July 2002.

The Appeal Court aired concerns about Mr van der Lugt's expertise. He was a police officer of 27 years experience but had no formal qualifications. He had "simply become interested in ear print identification".

The judges ruled Dallagher's conviction unsafe but ordered that he remain in prison pending a retrial.

That hearing began in Manchester last June but was halted after the receipt of new evidence and the launch of a fresh inquiry. It resumed yesterday with the Crown saying it would offer no evidence. The defence revealed that DNA from one of the original earprints showed it could not have been made by Dallagher.

Despite Dallagher's acquittal, Mr van der Lugt told The Telegraph that his faith in earprinting remained strong. He is involved in a multi-million pound European Union-funded research project that aims to produce European earprinting standards."

Harold Levy...hlevy15@gmail.com;

DOUGLAS PLUDE CASE: PART ONE: JUNK SCIENCE IN WISCONSIN; PROSECUTORS STILL DON'T GET IT; LOOKING FOR WOMAN TO STICK HEAD IN TOILET; ASSOCIATED PRESS;

"SHAIBANI SAID THAT, BASED ON HIS TESTS INVOLVING VOLUNTEERS HE POSITIONED AT A TOILET, PLUDE HAD TO BE LYING ABOUT THE POSITIONS HE CLAIMED TO HAVE FOUND HIS WIFE IN. GENELL PLUDE ALSO COULD NOT HAVE INHALED TOILET WATER ON HER OWN AND SOMEONE MUST HAVE FORCED HER HEAD INTO THE WATER, HE TESTIFIED.

DEFENSE LAWYERS FROM ACROSS THE COUNTRY HAVE DERIDED THE TESTS AND CALL THEM AN EXAMPLE OF UNFAIR EXPERT TESTIMONY. ONE OF THEM, NORTH CAROLINA LAWYER DAVID RUDOLF, WHO CLASHED WITH SHAIBANI IN ANOTHER CASE, LAUGHED ABOUT THE TESTS IN AN INTERVIEW LAST YEAR.

"HE HAD WOMEN STICKING THEIR HEADS IN TOILETS!" HE SAID. "THAT'S JUST NOT SCIENCE. HOW DO YOU PEER REVIEW THAT? HOW DO YOU TEST HIS CONCLUSIONS?""

RYAN J. FOLEY; ASSOCIATED PRESS;

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Three cheers to the Associated Press for exposing the efforts of Wisconsin prosecutors to introduce evidence on a par with Michael West and Steven Haynes's bite marks, Louise Robbin's "Cinderella" footprints, Cornelis van der Lugt's earprints and Dr. Charles Smith's incriminating observations during autopsies that no-one else could see.

As defence lawyer David Rudolf put it: "He had women sticking their heads in toilets...That's just not science. How do you peer review that? How do you test his conclusions?

Fortunately the Wisconsin Supreme Court threw out Douglas Plude's 2002 homicide conviction - and he is out of custody on bail pending a new trial - but as the Associated Press story indicates, the prosecutors are soldiering on.

The A.P. story, by reporter Ryan Foley under the date-line Madison, Wis. ran yesterday under the heading "Toilet test contentious issue in Wis. slaying case."

"If you are a female about 5 feet 8 inches tall, 140 pounds and willing to stick your head in a toilet, a northern Wisconsin prosecutor wants your help in proving a high-profile homicide case," the story begins;

"The Vilas County district attorney plans to recruit volunteers for a second round of controversial tests designed to prove that a woman was drowned by her husband in a toilet — and didn't commit suicide as he claims," the story continues;

"The experiments involve positioning women the size of the late Genell Plude of Land O' Lakes at a toilet to determine whether the version of events told by her husband, Douglas Plude, is plausible.

Defense lawyers say it's junk science.

Plude, 42, was convicted of first-degree intentional homicide in 2002. But the Wisconsin Supreme Court threw out the conviction last year after learning that an expert witness who conducted the first round of toilet tests exaggerated his credentials. Plude has been released from prison pending the second trial, which is expected to begin in October.

Prosecutors contend Plude murdered his 28-year-old wife because she was about to leave him. They say he poisoned her with a migraine drug and pushed her face into the toilet to drown her while she vomited.

Plude says his wife was depressed, committed suicide by taking the pills on her own and then drowned. He claims he found his wife slumped over the vomit-filled toilet and tried to perform CPR to keep her alive.

Prosecutors called on expert witness Saami Shaibani to shoot down Plude's story at the first trial.

Shaibani said that, based on his tests involving volunteers he positioned at a toilet, Plude had to be lying about the positions he claimed to have found his wife in. Genell Plude also could not have inhaled toilet water on her own and someone must have forced her head into the water, he testified.

Defense lawyers from across the country have derided the tests and call them an example of unfair expert testimony. One of them, North Carolina lawyer David Rudolf, who clashed with Shaibani in another case, laughed about the tests in an interview last year.

"He had women sticking their heads in toilets!" he said. "That's just not science. How do you peer review that? How do you test his conclusions?"

The state high court ordered a new trial for Plude after discovering Shaibani lied about being a clinical associate professor at Temple University who taught physicians and surgeons there about injuries. He had no relationship with Temple; years earlier he had a "loose courtesy affiliation" that gave him parking privileges but little else.

The Wisconsin Department of Justice is considering whether to charge Shaibani with perjury.

Unfazed by the controversy, Vilas County District Attorney Al Moustakis has hired Christopher Damm of the Milwaukee School of Engineering to do a second round of tests. Judge Neal Nielsen III last month granted his request to allow the testing of the toilet and a floor display of the bathroom in the court's custody.

"The testing is likely to be the same type of testing that Shaibani did," Moustakis said.

Prosecutors routinely re-create crime scenes to prove their theories of crimes and hire accident reconstruction experts to analyze what might have caused someone's death, said Gerald Mowris, former president of the Wisconsin Association of Criminal Defense Lawyers.

"It's really a question of, is the testing done properly, is it done according to scientifically accepted standards and is it by someone who is a qualified expert?" he said. "There are people who hold themselves out as experts who aren't experts. That's a major issue."

He added: "The type of test you're describing — whether someone could drown in a toilet or would need help — I'm not sure the type of expert who would be able to testify about that. I don't know what the purported qualifications of the new expert is. The old one was essentially a charlatan."

Damm, an associate professor of mechanical engineering, said he is a consultant in accident reconstruction and has testified in civil cases but this would be his first criminal case.

He said he was still reviewing testimony from the first trial and hadn't yet designed the tests, which are expected to take place in June, but agreed they would be similar to Shaibani's.

As for claims that it's junk science, he said: "I don't think you can make blanket statements like that. It would take an understanding of why the tests are being done and the methods that were used."

Moustakis noted Shaibani's conclusions were in line with some of the other evidence, including bruising Genell Plude had on her neck.

Other medical testimony was inconclusive on the cause of death.

Harold Levy...hlevy15@gmail.com;

LOUISE ROBBINS: SHE MAY HAVE DESERVED A PLACE ON A FORENSIC WALL OF SHAME, BUT WHAT ABOUT THE JUDGES AND PROSECUTORS WHO PUT HER THERE?

"IN THE CASE OF LOUISE ROBBINS, A NORTH CAROLINA ANTHROPOLOGIST TURNED PROSECUTION WITNESS, PROSECUTORS FOUND AN "EXPERT" WILLING TO MATCH BOOT PRINTS TO INDIVIDUALS WITH VIRTUAL CERTAINTY. DESPITE THE LACK OF SCIENTIFIC BASIS FOR HER CLAIMS, ROBBINS MADE A LUCRATIVE CAREER AS A PROSECUTION WITNESS."

JONATHAN TURLEY: LOS ANGELES TIMES;

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Jonathan Turley, a law professor at George Washington University and a practicing criminal defense attorney, presented a "wall of shame" of tainted prosecution forensic "experts" in an article on the Phil Spector murder trial.

(Spector was charged with murder in the second degree following the shooting death of a woman guest in his home. His first trial ended in a mistrial. As of March 2009, his retrial was in progress;)

Our readers will note that Louise Robbins occupies a prominent place in Turley's forensic Wall of Shame - and Dr. Charles Smith will undoubtedly make an appearance in subsequent revisions. (As well as Doctor's Michael West and Steven Hayne who appeared in numerous postings on this Blog)

But lets not forget the prosecutors and judges who put Robbins - and on a pedestal and allowed her to peddle her unsubstantiated science in the courtroom.

Turley's article ran on September 11, 2007, under the heading: "Don't hang Spector by his wealth: Why the prosecution was wrong to prejudice the jury against the music producer's highly paid expert witnesses."

"In his closing argument last week in the murder trial of pop music legend Phil Spector, prosecutor Alan Jackson encouraged jurors to ignore the experts who testified for the defense because, he said, "if you hire enough lawyers who hire enough experts who are paid enough money, you can get them to say anything," Turley began."

"He went on to inform the jury that "Phil Spector thinks if he throws enough money at a problem, he can solve the problem," he continued;

"It was a highly unprofessional argument that encouraged jurors to dismiss the opinions of any experts who appear on behalf of wealthy defendants as, in effect, purchased testimony. Yet the fact is that such witnesses are not only available to the rich; even a public defender is allowed to call such witnesses, at public expense, who would probably have made the same arguments.

" There is no question that there are some experts in both civil and criminal trials whose opinions invariably follow the direction of their clients. Moreover, it was fair game for the Spector prosecutors to challenge the objectivity of forensic pathologist Michael Baden, who just happens to be married to Spector's trial counsel, Linda Kenney Baden. It was breathtakingly bad judgment to call a relative to the stand as an expert, and the prosecution scored points on the issue, particularly after Michael Baden said he could not define a "conflict of interest" and prosecutors asked if he would end up "sleeping on the couch" if his testimony did not favor Spector's case.

Still, Jackson's effort to persuade the jury to disregard the defense experts as presumptively tainted was deeply inappropriate and should have resulted in a judicial rebuke in open court.

What is particularly galling about this line of argument is that it should come from a prosecutor after a litany of scandals over the years involving discredited government experts. It is prosecutors who often hire experts to testify that any babbling or barking defendant is demonstrably sane, and experts who will claim to find a virtual portrait of a defendant in blood spatters. These "hired guns" make small fortunes working for the government.

They are so predictable that they are given such nicknames as "Dr. Death" -- the nom de guerre of James Grigson, a psychiatrist who helped prosecutors secure 115 death sentences in 124 capital cases.

Or Fred Zain, one of the most prolific government experts. The former chief of the West Virginia crime lab and the San Antonio medical examiner's office, Zain testified in countless trials and always seemed to find incriminating forensic evidence. Zain was undone by an investigation into the case of Glen Woodall, who was sentenced to two life terms plus 300 years for two rapes. He was tied to the rapes by Zain's analysis of blood and hair samples. Years later, it was shown that Woodall was innocent, and an investigation into Zain's testimony found a long history of false conclusions and deceitful practices. In 1992, a court concluded that he may have fabricated and misrepresented evidence in almost 150 cases of conviction.

Then there is Johnny St. Valentine Brown Jr., who was credited with testifying in roughly 4,000 trials in 14 states despite the fact that prosecutors never checked into his background to see that he had lied about his credentials.

A special prosecutor investigated leading prosecution expert Ralph Erdmann, who was found to have falsely testified in a number of Texas death penalty cases.

The investigation concluded that "if the prosecution theory was that death was caused by a Martian death ray, then that was what Dr. Erdmann reported."

In the case of Louise Robbins, a North Carolina anthropologist turned prosecution witness, prosecutors found an "expert" willing to match boot prints to individuals with virtual certainty. Despite the lack of scientific basis for her claims, Robbins made a lucrative career as a prosecution witness.

John Sam, a detective in the infamous case of Rolando Cruz (who was wrongly convicted of murder and sentenced to death), explained how prosecutors would shop for experts:

"The first lab guy says, 'It's not the boot.' We don't like that answer, so there's no paper. We go to a second guy who used to do our lab. He says yes. So we write the report on Mr. Yes. Then Louise Robbins arrives. This is the boot, she says. That'll be $10,000. So now we have evidence."

The list of debunked and discredited prosecution witnesses stretches across the country. Indeed, in a study of 200 exoneration cases involving DNA (including death row cases), more than 25% involved flawed forensic testimony from prosecution witnesses.

Obviously, criminal defendants also have retained unscrupulous experts -- and when it happens, these experts should be attacked based on their backgrounds and on their opinions. What lawyers should not do is what Jackson did -- encourage jurors to dismiss any defense experts at all as sold-out stooges. It is the weight of the evidence, not the wealth of the defendant, that should be the sole consideration of a jury.

The great irony is that Jackson and his colleagues had little need to engage in cheap tactics. The case against Spector is overwhelming, and even though he hasn't testified, he has supplied the jury with one of the most creepy appearances and lifestyles in recent memory.

Yet this was not enough for the prosecutors, who sought to prove the guilt of the defendant by pandering to the prejudices of the jury against wealthy defendants.


Harold Levy...hlevy15@gmail.com;

FOLLOWING LOUISE ROBBINS FOOTSTEPS INTO THE MANITOBA COURT OF APPEAL;

"BUT DR. ROBBINS DID COME BEFORE THE COURT AS A GENUINE EXPERT IN TERMS OF DRAWING COMPARI-SONS BETWEEN DIFFERENT PRINTS AND NOTING SIMILARITIES. SHE DEMONSTRATED HOW MEASUREMENTS COULD BE MADE AND WHAT MEASUREMENTS ARE SIGNIFICANT. SHE OBSERVED THE ODDITIES OF SHAPE AND THE CONTOURS OF MARKINGS WHICH WILL ASSIST IN AN IDENTIFICATION. COUNSEL FOR THE ACCUSED, NIELSEN, SEEMED TO HOLD THE VIEW THAT IF A WITNESS COULD NOT QUALIFY AS A SCIENTIST THEN HE OR SHE COULD NOT QUALIFY AS AN EX-PERT. EXPERTISE, HOWEVER, IS INVALUABLE IN A MULTITUDE OF TECHNICAL PROCEDURES, INCLUDING THE MEAS-UREMENT OF FOOTPRINTS AND THE IDENTIFICATION OF SIMILARITIES IN SHAPE. SO LONG AS DR. ROBBINS CON-FINED HERSELF TO THE AREA OF TECHNICAL EXPERTISE WITHOUT THE GLOSS OF A SCIENTIFIC THEORY AROUND IT, THEN HER TESTIMONY WAS WHOLLY ADMISSIBLE.

IN FACT, SUCH WAS THE NATURE OF HER TESTIMONY. WHEN SHE TESTIFIED BEFORE THE JURY SHE DESCRIBED THE MEASUREMENTS SHE HAD TAKEN TO COMPARE THE FOOTPRINTS MADE BY NIELSEN IN PAINT ON BROWN PA-PER WITH THE FOOTPRINTS ETCHED IN BLOOD. SHE DESCRIBED UNIQUE FEATURES OR CHARACTERISTICS WHICH AP-PEARED IN BOTH PRINTS, BUT SHE SHIED AWAY FROM ADVANCING A SCIENTIFIC THEORY THAT THE FOOTPRINTS OF NO TWO HUMAN BEINGS COULD BE THE SAME. ON THE CONTRARY, AFTER EXPRESSING HER OPINION THAT NIELSEN WAS INDEED THE AUTHOR OF BOTH SETS OF PRINTS (BASED ON SIMILARITIES IN MEASUREMENT AND MORPHOLOGY), DR. ROBBINS DECLARED THAT "IT IS POSSIBLE, BUT HIGHLY REMOTE" THAT A PERSON OTHER THAN NIELSEN HAD BEEN THE AUTHOR OF THE BLOODSTAINED FOOTPRINTS. THERE CANNOT BE A MISCARRIAGE OF JUSTICE IN ALLOWING THE JURY TO HEAR ADMISSIBLE EVIDENCE, WHICH IS WHAT THEY HEARD FROM DR. ROBBINS."

MANITOBA COURT OF APPEAL: HUBAND J;
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Steve Weinberg wrote in an article published by the Centre for Public Integrity published in a previous posting that Robbins was able to get away with her flawed science in the courtroom because of the "goodwill" of judges;

In Weinberg's words: "Prosecutors around the nation used to retain the services of a University of North Carolina-Greensboro anthropology professor named Louise Robbins, who said she could match crime-scene footprints to the footwear of perpetrators. Few other forensic scientists endorsed the validity of Robbins' techniques. But prosecutors called on Robbins over and over, banking on the good will of the trial judge to certify her as an expert. Robbins helped convict defendants across the nation until her technique was shown to yield results that were no better than chance would have produced."

It is instructive to examine how three justices of the Manitoba Court of Appeal leaned backwards to find a justification for accepting Robbins "expert" evidence in a murder case - while finding that there was no scientific basis for it;

I find it utterly alarming that the three justices Manitoba's highest court could not see the risks in exposing the two accused men to Robbin's evidence - with all of the prestige that her presence in the courtroom would bring - while ruling that she had no relevant scientific expertise which would be helpful to the jury; (The Ontario Court of Ontario did not demonstrate such folly when dealing with barefoot morphology evidence in the Dimitrov Case which is the subject of a previous posting on this Blog);

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The case involved appeals launched by Barry Craig Nielsen, and Jerry Carl Stolar, against their murder convictions at the hands of a jury.

Justice Huband noted in his October 11, 1984 decision for the unanimous three judge panel that: "Two former City of Winnipeg police officers, Barry Craig Nielsen (Nielsen) and Jerry Carl Stolar (Stolar), were convicted of the second degree murder of Paul Clear, after a jury trial conducted before Scollin, J. Nielsen and Stolar have both appealed.

"Both accused raise a defence of alibi, although neither chose to testify. There was strong physi-cal evidence suggesting that Nielsen and Stolar were at the scene when the murder took place. There were footprints in the area which might be attributed to Nielsen. Certain fingerprints and palmprints of Stolar were found on the murder victim's car. There was evidence, consisting of a tire print, that Nielsen's car was at the murder scene."

Hubard also noted that: "There were signs of struggle and commotion about the area. A great deal of blood was on the concrete roadway, and some of the blood was also found in the area of soft mud. Footprints at the scene indicated that two persons had dragged Paul Clears body from where he had been bludg-eoned, to a second motor vehicle at the murder scene. One of the assailants was wearing shoes, an impression of which was clearly imprinted in the mud. The other assailant had bare feet. His foot-prints appear in the mud, but, in addition, that person walked in the blood on the concrete roadway, and left very clear footprints, in blood. One of the tires on the right hand side of the second motor vehicle also drove through a patch of blood, and as the tire continued to roll forward when the vehi-cle left the scene, the tire left several distinct imprints, in blood, on the concrete roadway."

Specifically referring to the footprint evidence, he ssid that: "On March 13, 1982, a set of bare footprints in white paint on brown paper was obtained from the accused, Nielsen, in order to compare his footprints with the bare footprints in blood on the pavement at the scene of the murder. Comparisons between the prints were carried out by Dr. Louise Robbins, a physical anthropologist on the faculty at the University of North Carolina, and by Dr. Owen Facey, a scientist on the staff of the Metropolitan Police Forensic labo-ratory, London, England. Both Dr. Robbins and Dr. Facey came to the same conclusion. Based on a large number of measurements and shape characteristics, Dr. Robbins expressed her conclusion in these terms:

"The measurements, the number of measurements that fall within the range of variations of the series of footprints and especially the shape contour -- and I'm not talking about shape (indicating) fea-tures, but the shape contours of the footprint -- I might add with re-gard to the number of shape features that are examined, there is 67 I believe. So, 43 measurements and 67 shape features plus the acetate tracings, indicate that the person who made the footprints on the brown paper was the person who made the footprints in the colour photographs."

Question: "All right. Now, this is an opinion?

Answer:

"Yes, sir, it is.

Question:

"It is possible, is it not, doctor, that someone else other than the au-thor of the white footprints could have been the author of the blood-stained footprints?

Answer:

"It is possible, but highly remote."

Robbins was backed up by Dr. Facey, who'se evidence was described as follows by Justice Huband in his decision for the Appeal Court;

"Dr. Facey, a forensic investigator with Scotland Yard, noted the similar features of the two sets of prints, and concluded that it is mathematically unlikely that those characteristics would be found in any other person in a population the size of metropolitan Winnipeg.

"So that when you take all the different features into consideration, one ends up with the feeling that really, if you confine yourself to the male population of Canada -- sorry, male population of Winnipeg, it's so unlikely that you're going to find anyone else with this particular set of characteristics on both feet, that the person who made this set of prints also made the red prints in these two photo-graphs."

Question:

"There is a possibility, but you say it's very remote?

Answer:

"Yes, we never rule out the possibility that there is someone -- I haven't looked at all the people's feet in Winnipeg; it's just not possi-ble."

The absurdity of the bare-feet morphology evidence is evident in the passage of the Appeal Court decision where Huband observes: "One of the assailants of Paul Clear was in bare feet. It could well be sheer coin-cidence that when police officers attended at the Nielsen home six days after the disappearance of Paul Clear to obtain a statement the accused, Nielsen, was bare-footed. The evidence however goes further. It would seem that being unshod was not at all unusual for him. For example, the victim's mother, who had known Nielsen for some twelve years, testified that, "He went barefoot quite of-ten"."

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Now for the Court's ruling on the footprint evidence;

First, the grounds of appeal as set out by Huband:

"The accused, Nielsen, raised several issues on appeal, but the main thrust focused upon the footprint evidence. It was argued that Nielsen's footprints were illegally obtained on March 13, 1982, so that they might be compared to the footprints in blood at the scene of the crime. Further, objection was taken as to the admissibility of expert evidence from the two Crown witnesses, Dr. Robbins and Dr. Facey. These issues will be considered in due course, but I should preface that consideration by indicating that even if the footprint evidence were excluded on one ground or an-other, it would not make any difference to the outcome. Even without the footprint evidence the case against Nielsen is overwhelming. There is evidence of motive. The evidence is compelling that Nielsen's car was at the scene of the crime. The analysis of fibres adhering to the tarpaulin in which the victim's body was wrapped and buried, make it a virtual certainty that Paul Clear was conveyed to the gravesite in the Nielsen station wagon. The footprint evidence simply confirms an already convincing case. In my view, even in the absence of the footprint evidence, no reasonable jury, properly instructed, could come to any conclusion other than that Nielsen was guilty of murder as charged;

Second, the ruling on admissibility;

The admissibility of footprint evidence as to footprint comparisons: Counsel for Nielsen sought to exclude the evidence of both Dr. Robbins and Dr. Facey, the two expert witnesses called on behalf of the Crown, on the subject of footprints. The essence of the argument is that the process of comparing and identifying footprints has not yet achieved scientific acceptance. It was urged that opinion evidence should not be admitted when it is still uncertain whether there is professional consensus that the opinion emerges from valid scientific study.

At first blush there seems to be merit in the objection. Dr. Robbins, as well as Dr. Facey, first testified in a lengthy voir dire which was held to determine the admissibility of their evidence. Dr. Robbins is an anthropologist. She has been involved in the examination of footprints in anthropo-logical field studies where it becomes important to determine whether footprints represent one or two persons, or are part of a larger grouping of our ancient ancestors. Her interest in feet and foot-prints has also taken a more modern turn. She has collected and analyzed footprints from over' 1,000 individuals, and has become involved in identification and evaluation of comparative prints for investigative bodies, including the Federal Bureau of Investigation in the United States.

In the process of giving voir dire evidence Dr. Robbins expressed the view, flowing from her studies, that each individual has a unique footprint; that a combination of factors consisting of measurements and contours will be sufficient to provide absolute identification.

Whether this view is scientifically correct is open to question. There is simply not enough data and not enough scientific study of that data to establish the scientific validity of Dr. Robbins' opin-ion. There are grave dangers in allowing evidence to be tendered under the rubric of scientific opin-ion when its authenticity is still moot. Those dangers were expressed by O'Sullivan, J.A. of this court in his dissenting judgment in Regina v. Medvedew (1978), 43 C.C.C. (2d) 434, at 447:

"In the United States the general test for determining the admissibility of expert evidence in a case of a newly developed scientific technique is that set out in Frye v. U.S. (1923), 293 F. 1013 (at p. 1014):

'Just when a scientific principle or discovery crosses, the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must sufficiently established to have gained general acceptance in the particular field in which it belongs.'

"I do not know whether that test has been adopted in Canadian Courts or not but to me it makes sound sense and expresses a view in accord with the prin-ciples of the common law."

"But Dr. Robbins did come before the court as a genuine expert in terms of drawing compari-sons between different prints and noting similarities. She demonstrated how measurements could be made and what measurements are significant. She observed the oddities of shape and the contours of markings which will assist in an identification. Counsel for the accused, Nielsen, seemed to hold the view that if a witness could not qualify as a scientist then he or she could not qualify as an ex-pert. Expertise, however, is invaluable in a multitude of technical procedures, including the meas-urement of footprints and the identification of similarities in shape. So long as Dr. Robbins con-fined herself to the area of technical expertise without the gloss of a scientific theory around it, then her testimony was wholly admissible."

"In fact, such was the nature of her testimony. When she testified before the jury she described the measurements she had taken to compare the footprints made by Nielsen in paint on brown pa-per with the footprints etched in blood. She described unique features or characteristics which ap-peared in both prints, but she shied away from advancing a scientific theory that the footprints of no two human beings could be the same. On the contrary, after expressing her opinion that Nielsen was indeed the author of both sets of prints (based on similarities in measurement and morphology), Dr. Robbins declared that "it is possible, but highly remote" that a person other than Nielsen had been the author of the bloodstained footprints. There cannot be a miscarriage of justice in allowing the jury to hear admissible evidence, which is what they heard from Dr. Robbins."

"The expert testimony of Dr. Facey was not, even at the voir dire stage, clothed with the re-spectability of science or a scientific theory. Be noted the many similarities between Nielsen's foot-prints and those found on the concrete roadway, and he concluded that it was highly probable that they were made by the same person. Besides length and width, there are other indicators which will assist in identification, such as whether the toe pad leaves a mark, and whether the "stem" leading to the toe pad also leaves a mark or impression. The number of factors which corresponded led him to the conclusion that it was highly probable that the footprints were made by one and the same per-son. Dr. Facey's testimony was technical and based upon the unique knowledge and experience he had accumulated as a forensic scientist, but it was not put forth on the basis of an unproved scien-tific theory. It was admissible evidence, and it no doubt added to the already cogent body of evi-dence pointing towards Nielsen's guilt."

Harold Levy...hlevy15@gmail.com;

WHY DID THE COURTS ACCEPT PROF LOUISE ROBBIN'S DUBIOUS "EXPERT" EVIDENCE SO READILY? SOME INSIGHTS; STEVE WEINBERG; CENTRE FOR PUBLIC INTEGRITY;

"A LAW PROFESSOR WHO TAUGHT A COURSE ON SCIENTIFIC EVIDENCE TOLD FRISBIE IT SEEMED THE ONLY STANDARD USED BY PROSECUTORS AND JUDGES ALLOWING ROBBINS TO TESTIFY AS AN EXPERT "IS THAT IT BE INCRIMINATING TO THE DEFENDANT.""

STEVE WEINBERG; CENTRE FOR PUBLIC INTEGRITY;

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Why were the courts so willing to accept Prof. Louise Robbins expert" testimony?

Some insight into this question can be gleaned in an article entitled "Anatomy of misconduct: There's much to learn when a trial goes wrong," by Steve Weinberg, which was published by The Centre for public Integrity;

"Not all questionable forensic evidence stems from lies, tied to pro-prosecution bias," Weinberg's article begins;

"So-called expert witnesses sometimes have weak credentials, or rely on hokum posing as science," it continues;

"Prosecutors around the nation used to retain the services of a University of North Carolina-Greensboro anthropology professor named Louise Robbins, who said she could match crime-scene footprints to the footwear of perpetrators. Few other forensic scientists endorsed the validity of Robbins' techniques. But prosecutors called on Robbins over and over, banking on the good will of the trial judge to certify her as an expert. Robbins helped convict defendants across the nation until her technique was shown to yield results that were no better than chance would have produced.

Robbins probably would have remained below the radar of most defense lawyers, legal scholars, journalists and general readers except for her involvement in an especially egregious case of prosecutorial zealotry. The case began in 1983, with the abduction of a 10-year-old girl from her comfortable home in DuPage County, part of the Chicago suburbs. When searchers found her body two days later, they saw she had been assaulted and murdered. Finally, more than a year later, prosecutors—under pressure from the girl's parents, elected officials and the citizenry at large—charged three men based on very questionable evidence. About a year after the arrests of Rolando Cruz, Alejandro Hernandez and Stephen Buckley, the trial began. Jurors found Cruz and Hernandez guilty, but deadlocked on Buckley. By the end of 1985, a career criminal named Brian Dugan had confessed to murdering the girl, acting by himself. He passed a lie detector test, and convinced numerous observers, including seasoned law enforcement officers, that he indeed abducted and murdered the victim. The prosecutors and the trial judge refused to believe Dugan, however. So Cruz and Hernandez sat on death row while their appeals proceeded. Buckley, meanwhile, wondered whether and when prosecutors would re-try him, based largely on Robbins' testimony about his shoes.

Chicago Sun-Times reporter Thomas Frisbie watched the case unfold. Like other observers, he thought Robbins' testimony against Buckley violated common sense, not to mention scientific principles. So he started contacting other anthropologists and forensic scientists in related fields. Every scientist Frisbie contacted demeaned her work. Robbins herself would not discuss the validity of her techniques in the Buckley case with Frisbie. A law professor who taught a course on scientific evidence told Frisbie it seemed the only standard used by prosecutors and judges allowing Robbins to testify as an expert "is that it be incriminating to the defendant."

DuPage County State's Attorney Jim Ryan finally announced during early 1987 that his office would not re-try Buckley, in large part because Robbins was suffering from a serious illness. "Apparently," Frisbie said, "Ryan could find no other expert who would support Robbins' conclusions." Robbins died later that year. Eventually, both Hernandez and Cruz would also be cleared.

The next year, an Illinois appellate court reversed the murder and sexual assault conviction of Dennis J. Ferguson. Robbins had been a prosecution witness. The appellate judges ordered a new trial for Ferguson largely because of their finding that Robbins' testimony was worthless. The judges added, however, that the prosecutor aggravated the situation by frequently misstating the evidence. The prosecutor iced that impermissible behavior with this passage from the closing argument: "You have to believe that they [prosecution witnesses] are all liars or fools, every one of them. And for you to find the defendant not guilty ... you have to believe he told you the truth. You have to feel his brothers told you the truth. And that all of the persons I just named are liars and fools. It is your decision." The appellate judges noted "For a prosecutor to inform a jury that in order to believe the defense witnesses the jury must find that each of the State's witnesses was lying is such a misstatement of law as to prejudice the defendant and deny him a fair trial."

Harold Levy...hlevy15@gmail.com;

RCMP SERGEANT ROBERT KENNEDY'S "BAREFOOT MORPHOLOGY" EVIDENCE: AS VIEWED BY A JUSTICE OF THE SUPREME COURT OF CANADA; WHY JUDGES MUST BE GATEKEEPERS;

"SGT. KENNEDY IS AN EXPERT IN FOOTPRINT IDENTIFICATION. HE COULD OPINE WHETHER A RUNNING SHOE IMPRINT IN THE MUD BESIDE A BODY WAS CONSISTENT WITH THE TYPE OF RUNNING SHOE WORN ON THE DAY IN QUESTION BY AN ACCUSED. BUT HERE THERE WAS NONE OF THAT; THERE WAS ONLY A BLOOD-STAINED BOOT. HOWEVER, SGT. KENNEDY HAD ALSO DEVELOPED A SIDELINE EXPERTISE TRYING TO IDENTIFY SUSPECTS BY THE IMPRINT LEFT BY FEET INSIDE SHOES OR BOOTS, SPECIFICALLY THE PATTERN LEFT BY THE WEIGHT-BEARING PORTIONS OF THE BARE FOOT ON THE INSOLE. (53) THE MAIN PROPONENT OF BAREFOOT MORPHOLOGY IN CANADA AND THE U.S. IS RCMP SGT. KENNEDY HIMSELF."

JUSTICE IAN BINNIE: SCIENCE IN THE COURTROOM; THE MOUSE THAT ROARED;

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Justice Ian Binnie, of the Supreme Court of Canada set out his views on the relevance of "barefoot morphology" - as propounded by RCMP Sergeant Robert Kennedy - in an article entitled "Science in the courtroom: the mouse that roared," published in the University of New Brunswick Law Journal, on January 1 2007.

Justice Binnie published these views in a section of his paper called - Difficulties with the Gatekeeper Function - which explored the judges role in protecting accused persons from unproven science;

"It must be admitted that many courts are continuing to have serious difficulties in digesting and evaluating scientific evidence, even rather crude scientific evidence," Justice Binnie wrote;

"This is for both institutional and procedural reasons," he continued;(50)

"Institutionally, judges hesitate to exclude such evidence in a jury case for fear of usurping the fact finding function of the jury. Procedurally, in a judge alone case, there is always a temptation to let the evidence in, fully understood or not, and for the judge to leave it to the end of the trial to determine what weight, if any, it is to be given. Either way, the result can be an enormous waste of time and money and, in some cases, a miscarriage of justice.

In 2005, for example, the media were full of reports of another wrongful conviction based on identification of an accused as a murderer by the novel science of barefoot morphology. (51) Mr. Dimitre Dimitrov, a Bulgarian immigrant living in Ottawa, had been convicted four years earlier of murdering his landlord, who was also Bulgarian, by beating him to death with a blunt instrument. There was some evidence of mutual hostility, but there was nothing to tie Dimitrov to the murder except, according to the prosecution, a pair of boots that were covered with stains of blood which the Crown alleged belonged to the victim. There were no eye witnesses. The onus was on the prosecution to connect the boots to the accused. Royal Canadian Mounted Police (RCMP) Sergeant Robert Kennedy testified that the impressions people's feet leave on the insoles of footwear are quite distinct and that by applying techniques of barefoot morphology he could say that Dimitrov was "likely" the usual wearer of the boots. (52)

Sgt. Kennedy is an expert in footprint identification. He could opine whether a running shoe imprint in the mud beside a body was consistent with the type of running shoe worn on the day in question by an accused. But here there was none of that; there was only a blood-stained boot. However, Sgt. Kennedy had also developed a sideline expertise trying to identify suspects by the imprint left by feet inside shoes or boots, specifically the pattern left by the weight-bearing portions of the bare foot on the insole. (53) The main proponent of barefoot morphology in Canada and the U.S. is RCMP Sgt. Kennedy himself.

The Ontario Court of Appeal concluded in 2003 that Sgt. Kennedy should have been stopped at "the gateway" by the trial judge. (54) His evidence of "barefoot morphology" failed to meet any of the criteria set out in Daubert and R. v. J.-L.J.: there was no serious test of Sgt. Kennedy's hypothesis, and as such there was no opportunity for peer review and no error rate could be established. The Court therefore set aside Dimitrov's original conviction on the basis that the trial judge had not performed a proper gatekeeper role. At the retrial in 2006, Dimitrov was readily acquitted."

Harold Levy...hlevy15@gmail.com;

PROFESSOR LOUISE ROBBINS LEGACY? HOW THE ONTARIO COURT OF APPEAL REJECTED SERGEANT KENNEDY'S "EXPERT" BAREFOOT IMPRESSION EVIDENCE;

"THE FACT, HOW-EVER, THAT AN ACCUSED PERSON'S FOOTPRINT IS "SIMILAR TO" THE BAREFOOT IMPRESSION IN A BOOT OR SHOE OUGHT NOT TO BE ADMISSIBLE AS POSITIVE IDENTIFICATION. AS SERGEANT KENNEDY HIMSELF ACKNOWLEDGES, HIS RESEARCH HAS NOT REACHED THE STAGE WHERE HE CAN MAKE A CATEGORICAL IDENTIFICATION FROM BAREFOOT IMPRESSIONS. THE FACT, HOW-EVER, THAT AN ACCUSED PERSON'S FOOTPRINT IS "SIMILAR TO" THE BAREFOOT IMPRESSION IN A BOOT OR SHOE OUGHT NOT TO BE ADMISSIBLE AS POSITIVE IDENTIFICATION."
ONTARIO COURT OF APPEAL":

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An expert's purported ability to identify who wore boots based on the wear pattern or footprint impression in the boots was successfully attacked in the Ontario Court of Appeal in the landmark Dimitrov case which came out of Ottawa;

Although the jury used this "expert"evidence to convict Mr. Dimitrov, the Ontario Court of Appeal overturned the conviction on December 24, 2003, and he was acquitted on the retrial;(Mr. Dimitrov was represented in the Ontario Court of Appeal by Toronto lawyer Frank Addario who I regard as a good friend and mentor;)

The headnote to the Court of Appeal Decision explains that in this appeal by Dimitrov from his conviction for second degree murder:

"The victim was Dimitrov's land-lord. The home was occupied by the landlord, his wife, Dimitrov, and another tenant named Tzenev. The issue was identification. The Crown relied upon certain evidence to show that the mur-derer was a person who lived in the house and that Dimitrov was the killer. Evidence was provided that neither the wife nor Tzenev had the opportunity to commit the offence and clean up immedi-ately afterward. Part of the evidence against Dimitrov was a pair of winter boots found inside the front hall closet of the house. They were spattered with the victim's blood. There was no blood on the sole of the shoes. The Crown relied on expert evidence to show that Dimitrov likely wore the boots. The evidence was from a police officer who was an expert in footwear and barefoot impres-sions in shoes. The officer admitted that his research did not reach the stage where he could make a categorical identification from barefoot impressions. Other witnesses testified that they never saw Dimitrov wear the boots. All the residents of the home used the closet. The boots fit Tzenev. The judge admitted the expert evidence. Dimitrov argued that its admission was a mistake because this area of identification was not a science. He argued that the judge gave insufficient weight to its ca-pacity to mislead the jury. Dimitrov also argued that there was opportunity and motive by the wife and Tzenev to commit the murder.

HELD: Appeal allowed. The conviction was set aside. A new trial was ordered. Apart from the offi-cer's testimony, there was no evidence that Dimitrov owned the boots. There was no evidence that the assailant wore the boots during the attack or that they were worn during the attack. The expert evidence did not exclude Tzenev as a wearer of the boots. If the killer borrowed the boots, their pat-tern would only reveal the foot impressions of the owner. The expert evidence did little to advance the case against Dimitrov. The slight probative value of the evidence was outweighed by its preju-dicial effect. There was a real risk that the jury was overawed by this testimony. The judge erred in admitting the expert evidence. However, based on the other evidence the verdict was not unreason-able, and an acquittal could not be granted."

Forthose readers who want the nitty-gritty, the portion of the appeal court decision relating to the question as to "Did the trial judge err in admitting expert evidence of the barefoot impression in the Eagle Rock boots," read as follows:

20 At trial, the Crown sought to introduce the evidence of Sergeant Robert Kennedy as an expert in footwear and barefoot impressions in shoes. Sergeant Kennedy testified that the areas of footprint and barefoot impression analysis are interconnected. Barefoot impression analysis is an extension of footprint impressions analysis; both rely on an analysis of the weight-bearing areas of a foot.

21 Sergeant Kennedy compares the weight-bearing areas in barefoot impressions to determine whether the foot impressions were made by the same person. In the case of barefoot impressions in shoes, Sergeant Kennedy compares the wear areas in shoes, as well as the outsoles and insoles of the shoes. Sergeant Kennedy achieves these comparisons though visual inspection, both with and without the use of a Luma light, UV light, or laser light. Sergeant Kennedy also photographs the shoes and uses enhanced photographs for comparison purposes; he also completes overlay drawings of the barefoot impressions he is comparing. Sometimes Sergeant Kennedy will compare an inked impression of a foot to a worn shoe; however, an inked impression is more helpful for comparison to a footprint in mud, blood or another substance. Sergeant Kennedy does not take or record meas-urements as he conducts these comparisons. However, he uses callipers in checking to see if a measurement from one footprint matches another.

22 Defence counsel acknowledged Sergeant Kennedy's expertise in the area of footwear impres-sions but opposed the admission of his testimony relating to barefoot impressions. The defence did not call any evidence to dispute footprint or barefoot impression analysis as an area of expertise nor was any evidence called to refute Sergeant Kennedy's qualifications.

23 After conducting a voir dire, the trial judge held that the evidence met the test established by the Supreme Court of Canada for the admission of expert evidence in R. v. Mohan (1994), 89 C.C.C. (3d) 402. He then exercised his discretion and admitted Sergeant Kennedy's evidence.

24 The appellant argues that the trial judge erred in admitting Sergeant Kennedy's evidence in relation to barefoot impressions because (i) it is not science; and/or (ii) the trial judge gave insuffi-cient weight to its capacity to mislead the jury.

25 After setting out a summary of Sergeant Kennedy's qualifications and testimony, we will con-sider the admissibility of his evidence.

Sergeant Kennedy's Qualifications
26 Sergeant Kennedy's experience and qualifications on the topics of footprint analysis and bare-foot impression analysis include extensive research, international lecturing and international board certification. Since 1994, he has worked full time for the R.C.M.P. Forensic Research Services de-partment in the area of barefoot impressions found at crime scenes.

27 Sergeant Kennedy is the past president of the Canadian Identification Society and is the chair of both the Footwear Certification Board and the International Association of Identifications, the latter being the body responsible for the international certification of forensic footwear examiners. He has given expert testimony on both footwear and barefoot impressions in various courts around the world. His expertise in barefoot impressions forms the basis for his certification as a footwear examiner.

28 In the area of barefoot impressions alone, Sergeant Kennedy has been qualified to testify in twenty-five to thirty cases around the world, including approximately five in Ontario. Most of the cases have involved barefoot impressions in shoes, such as the present case.

Sergeant Kennedy's Testimony
29 A pair of blood-spattered Eagle Rock boots was discovered inside the front hallway closet of the victim's house. Based on the size and nature of the stains, the bloodstain expert testified that the boots were close to the blood source at the time of the attack. DNA evidence established that the victim's blood was on the boots. There was also DNA on the boots from a second, unidentified per-son. The appellant's DNA was not found on the boots.

30 Sergeant Kennedy's role in the investigation was to compare the barefoot impressions from various shoes known to belong to the victim, Dimitre Tzenev, Faith Veltchev and the appellant, to the barefoot impressions in the Eagle Rock boots.

31 Sergeant Kennedy testified that:

* the victim did not make the impressions in the Eagle Rock boots
* Faith Veltchev did not make the impressions in the Eagle Rock boots
* Dimitre Tzenev did not make the impressions in the Eagle Rock boots
* the appellant likely made the impressions in the Eagle Rock boots.

32 Sergeant Kennedy testified that it was "likely" that the person who regularly wore the Eagle Rock boots was the same person who regularly wore the green leather shoes seized from the appel-lant at the time of his arrest. He qualified this conclusion, however, by noting that the impression was "not clear enough to do a high probability or high likelihood". Although he testified that he could exclude both Dimitre Tzenev and Faith Veltchev as likely wearers of the boots, he agreed that the boots would have fit Tzenev.

33 Sergeant Kennedy also testified that "somebody else could have worn this shoe, but it is not likely somebody else did". He stated that there was no indication in the impression in the boots that anyone other than the usual wearer of the boots had in fact worn the boots, but admitted that he could not eliminate the possibility that the boots had been worn by someone else for a period of "five or ten minutes to an hour". Sergeant Kennedy expected to be able to detect that a person other than the usual wearer of the boots had worn the boots after about one hour of wear.

34 Sergeant Kennedy testified that his research suggests that feet leave distinctive impressions inside shoes and boots. His opinions in the instant case were based upon a comparison of the weight-bearing areas from shoes known to belong to each of the victim, Faith Veltchev, Dimitre Tzenev and the appellant to the foot impression in the boots. He compared the shape and placement of each toe, the separation between the large toe and the other toes, the slope and angle of the meta-tarsal ridge between the toe ball and the ball of the foot, the ball of the foot and its weight-bearing arch, the arch length, and the width of the heel. He testified that the sureness of his opinion varies with the clarity of the foot impression. In this case, the impressions were relatively clean and clear, although not clear enough for a "high likelihood" opinion.

35 Sergeant Kennedy testified that until research is complete, barefoot impression analysis in shoes is not a positive means of identification but it is a valuable tool to establish the likelihood of someone wearing shoes and to eliminate particular individuals as wearers of shoes.

Analysis
36 As noted above, the appellant challenges the admissibility of Sergeant Kennedy's evidence on two grounds. The first relates to the general field of barefoot impression analysis and requires the determination of a threshold question, namely, whether such evidence is capable of forming the subject matter of expert testimony. The second involves the application of the Mohan criteria to de-termine whether, in the circumstances of this case, the trial judge properly exercised his discretion in admitting the evidence.

(i) Reliability
37 Novel scientific theories or techniques are subject to "special scrutiny"; so, too, is the novel application of established or recognized scientific techniques. The threshold question that arises in relation to the admissibility of either is well established: the court must be satisfied that the evi-dence proffered is capable of being the subject of expert evidence. That is, the court must be satis-fied, as a threshold matter, that the proposed evidence is, indeed, "science". The burden is on the party putting forth the expert, in this case the Crown, to establish its reliability on a balance of prob-abilities. See R. v. Terceira (1998), 123 C.C.C. (3d) 1 at 21 (Ont. C.A.); aff'd (1999), 142 C.C.C. (3d) 95 (S.C.C.).

38 In R. v. J-L.J. (2000), 148 C.C.C. (3d) 487 (S.C.C.) at paras. 34 and 28, respectively, the Su-preme Court of Canada noted that the admissibility of expert evidence is highly case specific and that the trial judge is to take seriously the role of "gatekeeper". The court set out the following fac-tors that should be considered in determining threshold reliability: (1) whether the theory or tech-nique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error or the existence of standards; and (4) whether the theory or technique used has been generally accepted within the scientific community.

39 In Terceira, supra, this court also held that threshold reliability must be determined in each case and noted that whether the results presented and the methods used are reasonably reliable are factors that may be considered in determining reliability.

40 Although footprint impression evidence is routinely accepted by courts3, the same cannot be said of evidence of barefoot impressions in shoes. Barefoot impression evidence was admitted in Regina v. Légère (1994), 95 C.C.C. (3d) 139 (N.B. C.A.)4. In Légère, the appellant appealed from convictions on four counts of first-degree murder. While there was other evidence connecting the appellant to the first three murders, the only evidence connecting the appellant to the fourth murder was barefoot impression evidence. In this case, a bloody footprint was found at the crime scene and a pair of boots that had been thoroughly washed was found at the same motel where the victim's car was found. The Crown sought to introduce evidence to show that the boots belonged to the accused and thus to connect the accused to the crime scene. One of the grounds of appeal was that the trial judge erred in allowing into evidence expert opinions as to the probability that the appellant's feet impressions were in the pair of boots because the expert witnesses could not offer any scientific or mathematical calculation as to the chance the impressions in the boots could have been made by someone other than the appellant. The appellants also argued that the facts upon which the experts based their opinions could only support an opinion that the impressions in the boots were similar to impressions that would be made by the appellant's feet. One of the experts was Sergeant Kennedy. Sergeant Kennedy's evidence was confirmed by Special Agent William Bodziak of the F.B.I. and Dr. Bettles, a podiatrist.

41 In holding the evidence to be admissible, the court stated:

The evidence given by the experts was technical, and based upon the knowledge and experience that they had accumulated in their field. It was not put forward on the basis of any unproven scientific theory. It was admissible evidence, again to be weighed by the jury in their determination beyond a reasonable doubt of the guilt of the accused ... (p. 161)

42 In Légère, the court appears to have dealt with the cumulative expertise of all three experts. Further, there were two distinctive facts that connected the accused to the boots in issue: the ac-cused had a callus on his right foot, caused by a cracked sole on the right boot, and there was a small nail protruding in the left boot that caused a mark in the boot and on the appellant's left heel.

43 Such evidence was not ultimately admitted in the recent case of State v. Jones, 541 S.E. (2d) 813 (S.C. 2001), however. The State wished to lead evidence to connect the appellant to a pair of steel-toed boots that had allegedly left a bloody footprint at the scene of two murders. To this end, the State had both Sergeant Kennedy and Agent Derrick qualified in the area of barefoot impression analysis. The trial judge admitted their evidence; the appellant was convicted. The Supreme Court of South Carolina overturned the conviction on the basis that the trial judge erred in admitting into evidence the opinions based on barefoot impression analysis. The court held that the study of bare-foot insole impressions was unreliable and that it is premature to accept that there is a science of "barefoot insole impressions".

44 In rejecting Sergeant Kennedy's evidence, the court noted at para. 5:

While Kennedy testified that he had published several peer-reviewed articles, he also testified that he was still in the process of collecting data in order to deter-mine which standards were appropriate for comparison purposes. Further, he candidly acknowledged that earlier work in this area had been discredited.

45 The court also held that there was insufficient evidence to show that: (1) the technique had been published and peer-reviewed; (2) the method propounded had been applied to this type of evi-dence in the past; and (3) the method was consistent with recognized scientific laws and proceed-ings. In short, the court concluded that "it is premature to accept that there exists a science of bare-foot insole impressions'".5

46 Barefoot impression evidence must be carefully evaluated on a case-by-case basis to deter-mine its admissibility. Based on the current state of the jurisprudence, such evidence may be admis-sible where there are distinctive features of the barefoot impression that can connect the footwear to the accused's feet, as in Légère. It may also be admissible to show that an accused person has not worn a particular pair of shoes or to eliminate persons as regular wearers of shoes. The fact, how-ever, that an accused person's footprint is "similar to" the barefoot impression in a boot or shoe ought not to be admissible as positive identification. As Sergeant Kennedy himself acknowledges, his research has not reached the stage where he can make a categorical identification from barefoot impressions.

(ii) Relevance

47 The Mohan test requires that expert evidence meet four criteria in order to be admissible: rele-vance, necessity, the absence of any exclusionary rule, and a properly qualified expert. Relevance is the only criterion in issue in this appeal.6

48 Relevance is a matter to be decided by the judge as a question of law. In determining rele-vance, the first step is to determine whether the evidence is logically relevant in the sense that it is so related to a fact in issue that it tends to establish it. If so, the judge must decide, among other things, whether its probative value is overborne by its prejudicial effect, including whether it is mis-leading in the sense that its effect on the trier of fact is disproportionate to its reliability. See Mohan at p. 411.

49 When considering the probative value of Sergeant Kennedy's evidence, it is important to keep in mind that the boots themselves were admissible. Their relevance is clear - the boots were found inside the front closet of the victim's home which tends to establish the proposition that someone who lived with the victim was involved in his death or the effort to conceal the evidence of the murder in the garage or both.

50 What fact in issue tends to be established by Sergeant Kennedy's evidence that the appellant was the likely wearer of the Eagle Rock boots?

51 Apart from Sergeant Kennedy's evidence, there is no evidence that the appellant owned the boots or that they belonged to him. Those who testified on this point said that they had never seen the appellant wear the boots. All residents of the home used the front hallway closet in which the boots were found.

52 There is no evidence that the assailant wore the Eagle Rock boots during the attack, as op-posed to the boots simply being in the garage when the assault took place. The bloodstains on the upper portion of each boot are inconsistent with the boots being shielded by a pant leg. This sug-gests that the boots were not worn at the time of the attack. However, when Sergeant Brown was asked about the staining on the upper portions of the boots, he speculated that the staining could have occurred if the assailant wore pants with short legs when committing the assault. It should also be noted that this pattern of spatter staining was also found on another pair of shoes found in the garage, the "L.A. Gear" shoes.

53 Sergeant Kennedy's evidence eliminated the victim and Faith Veltchev as regular wearers of the boots. However, it did not eliminate Tzenev as a wearer of the boots - the boots fit him and, as Sergeant Kennedy himself observed, other persons could have worn the boots for a limited period of time without affecting the patterns he observed. If the killer just borrowed the Eagle Rock boots, the patterns in the boots might still only reveal the foot impressions of the owner. The boots may have been worn by someone else at the time of the murder, or the boots may have been sitting in the garage, unworn, at the time of the murder. Sergeant Kennedy's evidence cannot exclude these pos-sibilities.

54 In the absence of evidence that the footwear belonged to the appellant and was worn at the time of the offence, the evidence about the Eagle Rock boots logically could do little to advance the case against the appellant. This fact distinguishes the case at bar from Légère. In Légère, there was evidence connecting the accused to the boots in that not only had the accused's feet made a mark or impression on the boots but the boots had made marks on the feet of the accused as well. Further, the bloody footprint in Légère suggests that the boots had been used in the commission of the of-fence.

55 In any event, in our view, the slight probative value of Sergeant Kennedy's evidence was out-weighed by its prejudicial effect. The risk that the jury might be over-awed by Sergeant Kennedy's expertise was a real one in this case. The evidence occupied a day and was augmented by diagrams, a lengthy discussion of the study of barefoot analysis and technical language about anatomy and laboratory procedures.

56 In light of the significant issues as to reliability of the evidence, its lack of logical relevance and the risk of distortion in the fact-finding process, the trial judge erred in principle in admitting Sergeant Kennedy's evidence. Having regard to this conclusion we must decide whether to order a new trial or whether to give effect to the appellant's argument of unreasonable verdict and order an acquittal.

Mr. Dimitrov's lawyer is on record as saying that the best day of his legal career came Oct. 29, 2005, when his client was acquitted of the 1996 murder.

After a 1999 conviction, four-and-a-half years in prison and a successful appeal, Dimitrov was finally exonerated -- 10 years after being charged on the dubious scientific evidence which the Court of Appeal fortunately rejected;

What better example of the danger inherent in allowing jurors to be exposed to relatively unsubstantiated "expert testimony."

Harold Levy...hlevy15@gmail.com;

LOUISE ROBBINS: DOES HER WORK LINGER ON? THE ROYAL CANADIAN MOUNTED POLICE (RCMP) CONNECTION;

"BY THE TIME ROBBINS DIED IN 1987, APPEALS COURTS HAD OVERTURNED MANY OF THE CASES IN WHICH SHE HAD TESTIFIED. AND THE AMERICAN ACADEMY OF FORENSIC SCIENCES, IN A RARE REBUKE OF ONE OF ITS MEMBERS, CONCLUDED HER COURTROOM WORK WAS NOT GROUNDED IN SCIENCE.

BUT IN A LABORATORY AT THE HEADQUARTERS OF THE ROYAL CANADIAN MOUNTED POLICE IN OTTAWA, THE EFFORT TO DETERMINE IDENTITY FROM FEET AND SHOES IS GETTING NEW LIFE.

SGT. ROBERT KENNEDY, A VETERAN FINGERPRINT ANALYST, SAYS HE CAN TELL WHO WORE A SHOE BY COMPARING IMPRESSIONS LEFT ON AN INSOLE WITH A PERSON'S FOOT.

KENNEDY CALLS IT "BAREFOOT MORPHOLOGY." LIKE ROBBINS, HIS WORK HAS HELPED PROSECUTORS OBTAIN CONVICTIONS;"

STAFF REPORTERS: FLYNN REPORTERS FLYNN MCROBERTS, STEVE MILLS, AND MAURICE POSSLEY;

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Chicago Tribune staff reporters Flynn McRoberts, Steve Mills and Maurice Possley reported in a section of a massive story headed "Unproven Techniques sway courts, erode justice" that RCMP Sergeant Robert Kennedy had tried to place footprint identification on a scientific basis;

"Distinguishing the forensic fringe from the cutting edge can be difficult enough; keeping a debunked science from re-entering the courts can be even tougher," the October 17. 2004, portion of the article began.

"North Carolina anthropologist Louise Robbins helped send more than a dozen defendants across the country to prison or to Death Row with her self-proclaimed power to identify criminals through shoe prints," the article continued;

"On occasion she even said she could use the method to determine a person's height, sex and race.

By the time Robbins died in 1987, appeals courts had overturned many of the cases in which she had testified. And the American Academy of Forensic Sciences, in a rare rebuke of one of its members, concluded her courtroom work was not grounded in science.

But in a laboratory at the headquarters of the Royal Canadian Mounted Police in Ottawa, the effort to determine identity from feet and shoes is getting new life.

Sgt. Robert Kennedy, a veteran fingerprint analyst, says he can tell who wore a shoe by comparing impressions left on an insole with a person's foot.

Kennedy calls it "barefoot morphology." Like Robbins, his work has helped prosecutors obtain convictions.

"I know there've been questions about this. Louise Robbins was a real problem," Kennedy said in an interview in his office. But "you don't want to just let an area of forensic science go by the wayside. It's good evidence."

Unlike Robbins, Kennedy has tried to base his work in science. Since the early 1990s, he has been visiting army bases and other sites to build a database of footprints that now exceeds 10,000 sets.

In the 1998 trial of Jeffrey Jones in South Carolina, Kennedy's work proved crucial to sending Jones to Death Row.

Police investigating a double murder believed a boot that had left a bloody impression in the victims' kitchen belonged to the killer. They matched the impression to a boot found in a house that Jones shared with another man, James Brown, who admitted his role in the killings. In exchange for a life sentence, Brown testified against Jones.

No physical evidence linked Jones to the crime, and he denied involvement. Though the boots were size 9 1/2 and Jones wore between an 11 and 11 1/2, prosecutors said he was wearing them when the murders were committed.

At the trial, South Carolina crime lab analyst Steven Derrick, who had never before testified to such a comparison, said he examined the boot insole and an impression from one of Jones' feet.

Derrick concluded that the only way someone else's foot could have made the impression on the boot insole would be if the person had precisely the same foot characteristics--such as the shape and the distance between toes.

Derrick also testified that he had not made a comparison with the feet of Brown, who claimed the size 9 1/2 boots were too big for him.

Kennedy vouched for Derrick's work as well as the field of barefoot morphology, testifying that he talked Derrick through the comparison process.

In 2001, the South Carolina Supreme Court reined in such evidence, ruling there was insufficient science to support it. The court ordered the state to either try Jones again or set him free.

Even with the ruling, prosecutor Dayton Riddle said he would use the insole evidence again when he takes Jones back to trial.

"That's good science, despite the fact it got reversed," Riddle said. "I think what happened there is that I was a little bit ahead of the curve.""

Harold Levy...hlevy15@gmail.com;

LOUISE ROBBINS AND CINDERELLA: WHEN FANTASY COLLIDES WITH JUSTICE;

"IN PEOPLE V. PALATE (CT. APP. 1981) 174 CAL. RPT. 59, A MURDER CASE, ROBBINS TESTIFIED ABOUT "CINDERELLA ANALYSIS"--MATCHING THE INSOLES OF SHOES FOUND AT A CRIME SCENE WITH THE INSOLES OF THE ACCUSED'S SHOES. SHE TESTIFIED THAT IT WAS "HIGHLY IMPROBABLE" THAT ANYONE OTHER THAN PALATE COULD HAVE WORN THE GRAVEST SHOES; THE PROBABILITY OF ANOTHER PERSON WITH THE SAME FOOT FEATURES BEING AT THAT LOCATION AT THAT TIME WOULD BE "ASTRONOMICAL." TESTIFYING FOR THE DEFENSE, A PODIATRIST STATED THAT THE DEFENDANT'S FEET PATTERNS WERE "UNIQUE TO ABOUT 60 PERCENT OF THE POPULATION" AND THAT THE WEAR PATTERNS ON THE GRAVEST SHOES "WERE 'COMPLETELY DIFFERENT' FROM [THE] DEFENDANT'S SHOES." EVEN THOUGH ROBBINS HAD NEVER BEFORE QUALIFIED AS AN EXPERT ON "CINDERELLA" ANALYSIS, NOR PUBLISHED ANY WORKS ON THE SUBJECT, HER TESTIMONY WAS ADMITTED AND THE DEFENDANT WAS CONVICTED."

MICHAEL BURT: THE "CINDERELLA EXPERT":

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Lawyer Michael Burt, formerly of the San Francisco Public Defender Office, described Louise Robbins as "the Cinderella expert" in a paper called "Forensics as Mitigation" which he delivered to a death penalty conference in 2000;

Burt effectively he married the fantasy of the Cinderella legend with the fantasy of Robbin's testimony;

Here are some excerpts:

"The United States Supreme Court's latest prosecutorial immunity case, Buckley v. Fitzsimmons, (1993) 509 U.S. 259, 262 offers another illustration of the misuse of scientific evidence. In 1983, Buckley was indicted for a highly-publicized Illinois murder. The critical evidence was a bootprint left by the killer on the door of the eleven-year-old victim's home when he kicked it in. Experts from the county and state crime labs, as well as from the Kansas Bureau of Identification, were unable to identify Buckley's boot as the source of the print. Ignoring these government experts, prosecutors obtained, or shopped for, a "positive identification" from Dr. Louise Robbins.

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Robbins, an anthropology professor, had developed her own method of foot comparisons, including insole comparisons ("Cinderella Evidence"). Her method differed from traditional shoeprint or footprint comparisons. No one else could do what she claimed to be able to do. Indeed, William Bodziak, the FBI's top shoeprint expert, testified against her in several trials. In one capital murder case, State v. Johnston1986 WL 8799 at *9 (Ohio App. Aug. 6, 1986) (comparison of plaster cast and accused's boot), modified in part, rev'd in part, 529 N.E.2d 898 (Ohio 1988), reh'g denied, 534 N.E.2d 850 (Ohio 1988), later proceeding, 580 N.E.2d 1162 (Ohio App. 1990), Bodziak compared a plaster cast of a purported footprint found in a muddy riverbank with three boots seized from the defendant. He was unable to determine whether the print was made by a boot or a bare foot. In contrast, Robbins testified not only that it was a bootprint, but also that it matched one of the defendant's boots in several important details. Later, Bodziak commented: "There was no evidence whatsoever of any recognizable portion of a boot. It literally looked like they had poured plaster over a bunch of rocks." Mark Hansen, Believe It or Not, A.B.A. J., June 1993, at 64, 65 Johnston was sentenced to death.

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In People v. Palate (Ct. App. 1981) 174 Cal. Rpt. 59, a murder case, Robbins testified about "Cinderella Analysis"--matching the insoles of shoes found at a crime scene with the insoles of the accused's shoes. She testified that it was "highly improbable" that anyone other than Palate could have worn the gravest shoes; the probability of another person with the same foot features being at that location at that time would be "astronomical." Testifying for the defense, a podiatrist stated that the defendant's feet patterns were "unique to about 60 percent of the population" and that the wear patterns on the gravest shoes "were 'completely different' from [the] defendant's shoes." Even though Robbins had never before qualified as an expert on "Cinderella" analysis, nor published any works on the subject, her testimony was admitted and the defendant was convicted.

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In State v. Maccia (N.C. 1984) 316 S.E.2d 241 Robbins matched tennis shoes found at a crime scene with the defendant's footprint exemplars, even though the crime scene shoes were a size nine and the defendant wore a ten-and-a-half or eleven.

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(EXPERTISE): Other experts have argued that Robbins' method lacked a scientific foundation. Her unsupported claims that her technique was more accurate than fingerprints, her lack of empirical testing, and her failure to publish her findings did not prevent her from testifying in numerous trials, including several capital cases. See e.g., People v. Knights 212 Cal. Rpt. 307, 312 (Cal. App. 1985) (matching defendant's footprint exemplar with photographs of bloody sockprints); People v. Barker (1981) 170 Cal. Rpt. 69 (matching defendant's shoes with plaster casts and photographs of shoeprints found at scene) In only one case, People v. Ferguson(Ill. App. 1988) 526 N.E.2d 525, appeal denied, 530 N.E.2d 254 (Ill. 1988) was her testimony rejected, because there was no evidence that "any one other than Robbins employed the theory used to make the identification in this case." At the retrial, the trial court entered a directed verdict of acquittal. In 1987, a panel of anthropologists and lawyers rejected her method as unreliable.

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BAD SCIENCE: Robbins' testimony, in itself, raises serious questions. Nevertheless, she easily met the qualification standards for an expert witness: university appointment, doctorate in anthropology, and board certification in forensic anthropology by the American Board of Forensic Anthropology. In addition, none of her critics challenged her sincerity, although several reports mention exorbitant fees, such as nearly $9,000 in one case. Nevertheless, such testimony should never be admitted in a capital case.

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PROSECUTION BIAS:In order to rely on Robbins' testimony, the prosecutors in Buckley ignored other experts. One detective, who resigned because he believed the wrong people had been charged, explained:

The first lab guy says it's not the boot. . . . We don't like that answer, so there's no paper [report]. We go to a second guy who used to do our lab. He says yes. So we write a report on Mr. Yes. Then Louise Robbins arrives. This is the boot, she says. That'll be $10,000. So now we have evidence; See Barry Siegel, Presumed Guilty: An Illinois Murder Case Became a Test of Conscience Inside the System, L.A. Times, Nov. 1, 1992 (Magazine), at 18, 20.

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Buckley's trial ended in a hung jury...his codefendants, however, were convicted. Although a convicted child-slayer, whose DNA matched that of the assailant, confessed to the crime several years ago, the codefendants have only recently been freed--again due to DNA tests--after spending a decade in prison....."

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Harold Levy...hlevy15@gmail.com;

THE DEBUNKING OF LOUISE ROBBINS; ANOTHER REVERED EXPERT (LIKE CHARLES SMITH) TOPPLED; AS TOLD BY MARK HANSEN; AMERICAN BAR ASSOCIATION JOURNAL;

"BY HER OWN ACCOUNT, ROBBINS APPEARED AS AN EXPERT, MOSTLY FOR THE PROSECUTION, IN MORE THAN 20 CRIMINAL CASES IN 11 STATES AND CANADA OVER THE NEXT 10 YEARS UNTIL A LOSING BATTLE WITH BRAIN CANCER FINALLY FORCED HER OFF THE WITNESS STAND. SHE DIED IN 1987 AT THE AGE OF 58. BY THEN, HER TESTIMONY HAD HELPED SEND AT LEAST A DOZEN PEOPLE TO PRISON. AND IT MAY HAVE PUT ONE MAN ON DEATH ROW.

THERE'S JUST ONE CATCH. ROBBINS WAS THE ONLY PERSON IN THE WORLD WHO CLAIMED TO DO WHAT SHE SAID SHE DID. AND HER CLAIMS HAVE NOW BEEN THOROUGHLY DEBUNKED BY THE REST OF THE SCIENTIFIC COMMUNITY.

REPORTER MARK HANSEN: AMERICAN BAR ASSOCIATION JOURNAL;"

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Reporter Mark Hansen's classic article on Louise Robbins appeared in the American Bar Association Journal in June 1993 under the apt heading "Believe it or not."

"Louise Robbins had but one claim to fame: She could see things in a footprint that nobody else could see," the article began.

"Give her a ski boot and a sneaker, for instance, and Robbins contended that she could tell whether the two shoes had ever been worn by the same person," it continued;

"Show her even a portion of a shoeprint on any surface, Robbins maintained, and she could identify the person who made it.

It might sound amusing, coming as it did from an anthropology professor who once astounded her colleagues by describing a 3.5 million-year-old fossilized footprint in Tanzania as that of a prehistoric woman who was 5 1/2 months pregnant.

It might also be considered harmless, had it remained a subject of academic speculation at the University of North Carolina at Greensboro, where Robbins taught anthropology courses and collected footprints from her students for comparison. By 1976, however, Robbins had taken her quirky ideas out of the classroom and into the courtroom, where her amazing feet-reading abilities seemed to dazzle juries and made her something of a celebrity on the criminal trial circuit. Newspapers called her a female "Quincy." She was profiled in the ABA Journal. Her techniques were even touted in the pages of Time magazine.

By her own account, Robbins appeared as an expert, mostly for the prosecution, in more than 20 criminal cases in 11 states and Canada over the next 10 years until a losing battle with brain cancer finally forced her off the witness stand. She died in 1987 at the age of 58. By then, her testimony had helped send at least a dozen people to prison. And it may have put one man on death row.

There's just one catch. Robbins was the only person in the world who claimed to do what she said she did. And her claims have now been thoroughly debunked by the rest of the scientific community.

Melvin Lewis, a John Marshall Law School professor who keeps track of more than 5,000 expert witnesses, dismisses Robbins' work as "complete hogwash."

"It barely rises to the dignity of nonsense," he said.

And FBI agent William Bodziak, one of the world's leading authorities on footprints, said that Robbins' theories were totally unfounded.

"Nobody else has ever dreamed of saying the kinds of things she said," he explained.

Robbins' story, as reported last year by the CBS news program "48 Hours," provides a graphic illustration of how far some prosecutors and defense lawyers are willing to go to find an expert witness to bolster a case. It also shows how easily one self-proclaimed expert with little or no credence in the scientific community can make a mockery out of the criminal justice system.

"It's frightening to me that something like that could go as far as it did," said Lewis, who runs a school-sponsored referral service that puts lawyers in touch with qualified experts. "Her so-called evidence was so grotesquely ridiculous, it's necessary to say to yourself, if that can get in, what can't?"

Today, nearly six years after her death, some of the legal ramifications of Robbins' testimony are still being felt.

Stephen Buckley, who spent three years in an Illinois jail awaiting trial for the 1983 murder of a 10-year-old Chicago-area girl, is suing prosecutors for allegedly violating his civil rights.

Buckley's first trial, in 1985, ended in a hung jury, despite Robbins' testimony that a bootprint left on the victim's kicked-in front door had been made by him. He was freed in 1987, but only because Robbins was then too sick to testify at his retrial.

Dale Johnston is also suing prosecutors after spending six years on Ohio's death row, due at least in part to Robbins, for the 1982 murders of his teen-age stepdaughter and her fiance.

Robbins testified at Johnston's 1984 trial that a muddy impression in the cornfield where the victims' dismembered bodies were found came from the heel of Johnston's cowboy boot. He was released from prison in 1990 after an appeals court ruled that the boots on which Robbins based her testimony couldn't be used against him.

Yet Buckley and Johnston might consider themselves lucky, in light of what has happened to Vonnie Ray Bullard.

Bullard is still serving a life sentence in a North Carolina prison for the 1981 murder of another man after Robbins testified that a bare footprint outlined in the victim's blood was his. Having exhausted his appeals, based largely on Robbins' testimony, Bullard won't be eligible for parole until the year 2001.

Other experts can match feet with footprints or shoes with shoeprints, provided that the two samples being compared share enough of the same ridge details or random characteristics. But Robbins was alone in claiming that she could tell whether a person made a particular print by examining any other shoes belonging to that individual.

Robbins built her reputation on the theory that footprints, like fingerprints, are unique. It was her contention that, because of individual variations in the way people stand and walk, everyone's foot will leave a distinct impression on any surface, including the inside sole of his or her shoe. Those impressions, she contended, show up as "wear patterns" on the bottom of every shoe.

"Footprints are better indicators for identifying people than fingerprints," Robbins told the ABA Journal in July 1985. "With a footprint, you use the entire bottom surface of the foot. With the fingerprint, you only use the tip of the finger."

Robbins' claims were hotly contested from the moment she first set foot in a courtroom. Shortly before her death, a panel of more than 100 forensic experts concluded that her footprint identification techniques didn't work. In hindsight, her theories may seem patently absurd.

In fact, many of her colleagues have been saying as much since 1978, when Robbins joined a scientific expedition at Laetoli, Tanzania, then the site of one of the most important archaeological discoveries ever made. During that expedition, according to her colleagues, Robbins misidentified one set of prehistoric human footprints as belonging to an antelope and concluded that another set of footprints had been made by the prehistoric woman who was 5 1/2 months pregnant. She also claimed to have found fossilized cobwebs that other members of the expedition said did not exist.

Tim White, an anthropology professor at the University of California at Berkeley who was also a member of the expedition, said it was hard enough to determine that the footprints they found were indeed human. But it was impossible to tell if any of the prints had been made by a woman, let alone one who was 5 1/2 months pregnant, he said.

"Her observations were unreliable, she was overly imaginative and she was incredibly suggestible regarding the interpretation of evidence," White said. "She kept saying things that could not be documented, and for very good reason. It was all in her mind."

"It truly reveals her as someone who was willing to go to any extremes to come up with an interesting story," said University of Chicago anthropology professor Russell Tuttle, who has studied Robbins' work and appeared opposite her in court. "She'd say anything anybody wanted her to say."

But that didn't keep Robbins from being qualified as an expert, with no known exceptions, from the time she first testified for the prosecution in the arson trial of a Pennsylvania man in 1976, until her last known appearance in court, once again as a prosecution witness, at the 1986 murder trial of a Chicago man.

In some cases, like Bullard's, her testimony may have been cumulative. In other cases, like Buckley's and Johnston's, it constituted the only physical evidence linking the defendant to the crime.

Prosecutors usually succeeded in getting her testimony admitted by portraying Robbins as a pioneer in a new field of science and by putting on testimonials as to her character and credentials from one or two of her peers. One prosecutor noted that it took 400 years for Galileo's theories to win acceptance. Another pointed out that fingerprint evidence also was considered a new science just 80 years ago.

Since Robbins had no competition, her testimony was difficult to refute. But defense lawyers depicted her variously as a fraud, a charlatan, an opportunist and a hired gun. And they presented other experts who testified that there was no scientific basis for any of the claims she made.

By her own admission, Robbins never took or taught a course on shoeprint identification techniques or the wear patterns of shoes. She never conducted a blind test of her abilities, published her findings in a scientific journal or submitted her work to peer review. And she never accounted for such things as manufacturing differences in shoewear construction, dynamic changes in a person's foot or the effect of various surfaces on the quality of a shoeprint.

"She may well have believed what she was saying," said C. Owen Lovejoy, an anthropology professor at Kent State University who testified on behalf of Buckley, "but the scientific basis for her conclusions was completely fraudulent."

Tuttle said he concluded after hearing her testify at a 1983 murder trial in Winnipeg that Robbins was "either a crook or a self-deluded quack."

Robbins didn't always testify for the prosecution and her testimony didn't always win the case for the side that hired her. On the other hand, she was always willing to make a positive identification that nobody else was willing or able to make, and her conclusions consistently supported the case of the side for which she was testifying.

Several lawyers cite her testimony on behalf of the defendant in a North Carolina murder trial in 1985 as one of the most telling examples of her work. Other witnesses had testified that they saw the defendant go into a dry cleaning store where a clerk was murdered and come out a few minutes later. And the state's own experts had matched two bloody shoeprints in the store with the defendant's shoes.

But Robbins testified that the shoeprints had been made by two people other than the defendant, both of whom were wearing the same size shoes as the defendant.

The defendant was subsequently convicted and sentenced to death, but was awaiting resentencing in May as a result of a 1990 ruling by the U.S. Supreme Court holding that North Carolina's capital sentencing scheme was unconstitutional. McKoy Jr. v. North Carolina, 110 S. Ct. 1227.

Bodziak never saw those prints. But he did examine the same evidence as Robbins in two cases. And both times, the FBI expert concluded that Robbins was flat out wrong.

In Johnston's case, Robbins and Bodziak both compared three plaster casts of bootprints taken at the scene of the murders with three pairs of cowboy boots belonging to the defendant. Both agreed that two of the prints could not have been made by the defendant's boots.

The third print was unidentifiable to Bodziak, who said he couldn't even determine through computer enhancement if the impression had been made by a boot or a bare foot. Yet Robbins positively identified the print as having come from the left heel of one of Johnston's boots.

"There was nothing there," Bodziak said. "There was no evidence whatsoever of any recognizable portion of a boot. It literally looked like they had poured plaster over a bunch of rocks."

In Buckley's case, Bodziak and Robbins both compared the defendant's boots with the bootprint left on the victim's front door. Robbins said the print was definitely Buckley's. Bodziak says it definitely was not.

"They're different in a lot of ways," Bodziak said of the two samples. "They don't even come close" to matching.

To this day, Robbins still has at least one supporter who backs her work unequivocally.

Thomas Knight, a former Illinois prosecutor who used Robbins as an expert in the case against Buckley, describes her as one of the least controversial experts he has ever encountered. The fact that she alone could do what she did, he says, is a testament to her ability, dedication and hard work.

"I would rank her credibility as a witness and her integrity as a scientist right at the top," he said.

Knight, who now has a private civil practice outside of Chicago, also contends that Robbins has been made a scapegoat by a collection of people with ulterior motives, primarily those who hope to discredit her testimony as a means of getting the convictions she helped secure overturned.

Bodziak has his own ax to grind, Knight suggests, because Robbins was able to identify footprints that he couldn't identify, an assertion that the FBI expert flatly denies.

"She was a terrific person who's been terribly maligned by some of the things that have been said about her," Knight said. "I think it's really sad, and I intend to do whatever I can to set the record straight."

"I don't think he has any other choice" but to defend Robbins, Bodziak responded. "Maybe he really believes her."

Even some of Robbins' once-staunchest defenders now express doubts about the validity of her work.

Ellis Kerley, a retired professor of anthropology at the University of Maryland who used to vouch for Robbins' abilities on the witness stand, today concedes that he was "a little surprised" by some of the things she said in court.

"The question you have to ask in any scientific examination is whether the interpretation has gone beyond the underlying data," he said. "It strikes me that that must be what happened in Louise's case."

Courts have different standards for the admission of scientific evidence. Many state and federal courts still follow the so-called Frye rule, named after a landmark federal appeals court decision in 1923 barring the use of results from an early form of lie detector test against a criminal defendant. Frye v. U.S., 293 F. 1013.

Under the Frye rule, expert testimony must be based on a well-recognized scientific principle or discovery that has "gained general acceptance in the particular field in which it belongs" in order to be admitted.

Since 1975, however, when Congress enacted new rules of evidence, several state and federal courts have liberalized the standards governing the use of expert witnesses. Those rules essentially permit any expert who is qualified in his or her field to testify in a case, as long as the testimony is relevant and it helps the jury understand the evidence or determine the facts.

Critics of the 1975 rules contend that what they call the "let it all in" approach to the admission of expert testimony has allowed the courts to become mired in all sorts of unsubstantiated scientific claims and dubious forms of expertise. They say that judges and juries are too easily swayed by the likes of someone like Robbins, a grandmotherly professor with the right academic credentials, a scientist's demeanor and a matter-of-fact delivery on the witness stand.

But proponents of the more flexible standard argue that much of the evidence needed to prove a scientific claim in court is generally regarded as being on the cutting edge of science. They point out that much of what is universally accepted as science today was once considered to be outside of the scientific mainstream. And they suggest that judges and juries are fully capable of making the distinction between a legitimate scientific claim and an unfounded one.

The appellate record on Robbins is mixed.

In 1980, a California appeals court upheld the conviction of a man whom she linked to the rape, robbery and assault of three elderly women through shoeprints left at the scene of the crimes, finding that Robbins was an expert in her field. People v. Barker, 113 C.A.3d 743.

Bullard's conviction also was affirmed in 1984 by the North Carolina Supreme Court. It held that new scientific methods are admissible if they are reliable, which it said was the case with respect to Robbins' techniques. Any rebuttal testimony, the court said, goes to the weight of the evidence, not to its admissibility. State v. Bullard, 312 N.C. 129.

Under that standard, which remains in effect, Robbins could still testify in North Carolina if she were alive today, according to Carl Barrington Jr., Bullard's defense lawyer.

But not in Illinois. An appeals court there threw out the conviction of a man on murder, armed robbery, sexual assault and home invasion charges in 1988 on the grounds that Robbins' techniques didn't meet the "general acceptance" test set forth in Frye. People v. Ferguson, 172 Ill. App. 3d 1.

"While there is arguably a scientific basis in Robbins' theory (i.e., measurement techniques), her theory is not only not generally accepted in her scientific community, but is also not shared with any other member of her field," the court said.

Johnston's conviction also was overturned by an Ohio appeals court in 1986, but not on the basis of Robbins' testimony. The court held that Robbins met the test of admissibility under the state's rules of evidence, which require that expert testimony be "relevant and helpful to the finders of fact." State v. Johnston, 1986 WL 8799 (Ohio App.).

The judge at Johnston's second trial suppressed the boots, along with other evidence he found had been illegally obtained, in a ruling that was affirmed by an appeals court in 1990.

Now the U.S. Supreme Court has agreed to enter the debate by taking up the case of Daubert v. Merrell Dow Pharmaceuticals, the culmination of a 10-year battle in the federal courts over the admissibility of evidence alleging to show that the anti-nausea drug Bendectin causes birth defects.

The case stems from the dismissal of two federal suits against Merrell Dow, the maker of Bendectin, brought by the parents of two San Diego boys who were born with birth defects. Those suits were dismissed after two California courts refused to allow a jury to hear evidence purportedly linking the mothers' use of the drug during pregnancy with their sons' birth defects.

The narrow issue before the Court in Daubert is whether Congress' adoption of the new evidence rules in 1975 supersedes the judicially created Frye rule of 70 years ago. But the Court is widely expected to set a definitive standard for the admission of scientific evidence or, at the very least, clear up some of the confusion and inconsistency that exist now.

Although the decision will apply only to the federal courts, most state courts look to the High Court for guidance.

The Court heard oral arguments in the case on March 30. A ruling is expected by early summer."

Harold Levy...hlevy15@gmail.com;