STORY:
"How bad science is undermining America's justice system," by reporter
John Schuppe, published by WXXV25 (NBC News) on January 23, 2019. (Jon
Schuppe writes about crime, justice and related matters for NBC News.")
GIST: "When Paul Aaron Ross returns to court for a new trial in the
2004 murder of a 26-year-old woman, prosecutors will rely on bite marks
to prove that he did it — even though the technique has been
discredited by dozens of scientists and multiple studies. Judges have said bite-mark evidence is fine to present, and
in American courtrooms, that is what matters ─ not the mounting body of
research questioning bite marks’ reliability, or the list of people
convicted on such evidence only to be exonerated later. Across the country, forensic techniques found tenuous by
independent researchers representing a variety of specialities —
including linking indentations found on a victim’s body to a suspect’s
teeth — are still being used as evidence to convict people. And that, critics say, can lead to wrongful convictions. “If we don’t have technologies that are objective,
repeatable and reliable, then we have no idea how many times we’re
making the wrong decision,” said Alicia Carriquiry, director of the
Center for Statistics and Applications in Forensic Evidence, a
government-funded project to measure the limits of forensic methods. “We
don’t even have a way to estimate how many times we’re making the wrong
decisions.”
Over the past decade, dozens of studies have warned of the inaccuracy of commonly used methods of forensic science. Some of the methods, including bite-mark comparisons and
blood-spatter analysis, are now considered by many researchers to be
scientifically dubious, responsible for dozens of wrongful convictions
and deserving no place in the criminal justice system. Others, such as shoe prints, fingerprints and ballistics
comparisons, can still be useful, the researchers say, but only with the
caveat that they do not provide definitive answers. However, law enforcement authorities continue to rely on
these methods, saying forensic examiners’ experience and intuition
should not be discounted. Judges, meanwhile, are wary of bucking prior
rulings, choosing to accept the methods as they always have rather than
risk failed prosecutions. There is no way to precisely measure how often a particular
technique is used, or to say exactly how many people have been
wrongfully convicted because of its use. The National Registry of Exonerations
has documented 553 cases
since 1989 in which someone was convicted on false or misleading
forensic evidence and later cleared. The growing list of exonerations
includes a Texas man whose 1987 murder conviction, based on bite-mark
evidence,
was thrown out in December, and an Illinois man
declared innocent in January in the retrial of a murder case that hinged on dubious ballistics evidence.But the exonerations likely represent only a fraction of the
cases in which faulty forensics sent innocent people to prison,
researchers say. “People continue to be exonerated, and we still see the
courts let it in,” said Brandon Garrett, a Duke University Law School
professor.
Patrick Pursley was acquitted of murder in January
2019 after he challenged ballistics evidence used to convict him two
decades earlier. In 2018, two men in Ohio, including a former police
sergeant, lost their appeals after being convicted of murder with the
help of bite-mark evidence. Blood-spatter evidence ─ which the National
Academy of Sciences says is plagued with “enormous” uncertainties ─ was
used in murder cases in Seattle and New Mexico in 2018 and in North
Carolina in 2017, and was upheld on appeal in 2018 in an Ohio assault
case. Men in Tennessee and Pennsylvania were convicted of murder last
year based, in part, on shoe-print evidence, which government
researchers have said is not dependable enough to match to a particular
shoe or person. The divide between science and justice has widened in the
nearly two years since the Justice Department under then-Attorney
General Jeff Sessions ended an Obama-era partnership with independent
scientists to improve forensics. In 2017, Sessions
disbanded the National Commission on Forensic Science,
which included researchers, scientists, lawyers, evidence examiners and
law enforcement officials, and replaced it with a Forensic Science
Working Group, which is housed within the Justice Department and is led
by a career prosecutor. Sessions stepped down in November, but others in the Trump
Justice Department share his view that scientists should not have
oversight of how forensic techniques are used by law enforcement. They
include Deputy Attorney General Rod Rosenstein, who
complained in August
that “forensic science has been under attack” by critics who took “an
erroneously narrow view of the nature of science and its application to
forensic evidence.” The critics — scientists, defense attorneys, those who
investigate wrongful convictions — say such moves have slowed the
momentum to abandon questionable forensics and bring courtrooms into the
21st century. “We are going backward,” said Betty Layne DesPortes, a
criminal defense lawyer in Virginia and former president of the American
Academy of Forensic Sciences, a professional association of forensic
examiners and lawyers. “We need to get past the trust-me phase and get
us to the show-us phase, because that’s what science is supposed to be ─
based not on faith, but on results.” ‘
Willful scientific illiteracy’: A little after noon on June 24, 2004, a fisherman on Canoe
Creek Lake in Blair County, Pennsylvania, found the bound, beaten and
sexually abused body of Tina Miller near a boat launch. Suspicion
focused on Ross, who’d been with Miller nearby the night before. There were no witnesses to the killing, leaving authorities
to build a case on circumstantial evidence: a man who said he had
dropped Miller and Ross off near the boat launch, former girlfriends who
said he’d abused them, a mark found on one of Miller’s breasts, and
items collected from the scene ─ including a shoe print and a beer
bottle. None of it definitively linked Ross to the murder, and Ross
denied killing Miller, asserting that another man had picked her up in a
truck. But prosecutors argued that, taken collectively, the evidence
proved his guilt. He went to trial in 2005, and a bite-mark examiner helped seal his conviction. The examiner, Dr. Dennis Asen, was a dentist with 25 years
of experience identifying bodies by their teeth and examining bite
marks. On the stand, he recalled viewing Miller’s body at the morgue and
concluding that her breast bore patterns of a bite mark. He took a
photograph of it and made an “overlay tracing” that he uploaded to a
computer and compared with molds of Ross’ teeth and the teeth of four
other suspects, including three who’d been in contact with Miller in the
hours before her death. Asen said he found the mark “very highly
consistent” only with Ross’ teeth. Asen acknowledged, however, that he
couldn’t say with 100 percent certainty that Ross had made the mark. The
defense hired its own bite-mark examiner, who said he was unable to
determine whether Ross left the mark.
Ross was convicted of first-degree murder and sentenced to
life in prison. But the conviction was overturned by an appeals court
that ruled the trial court had “abused its discretion” in refusing to
give Ross’ lawyer more time to prepare, and allowing the former
girlfriends’ testimony. Prosecutors plan to try Ross again, but the
process has stalled amid a battle over the bite-mark evidence. Defense lawyers, including members of the New York-based
Innocence Project, have cited government reports and academic studies,
including
from the National Academy of Sciences,
the President’s Council of Advisors on Science and Technology and
the Texas Forensic Science Commission.
The reports have shown that no one has sufficiently proven that human
bite marks are unique, or that skin is a reliable material to record
them ─ or that forensic dentists can reliably identify a human bite mark
in the first place. “This is evidence…that has been accepted for 40 or 50 years.” “Today there is absolutely no way for us to know how often a
forensic dentist is right and how often he is wrong,” Dana Delger, an
Innocence Project lawyer, told Blair County Judge Jolene Kopriva at a
pre-trial hearing for Ross in 2016. The county’s district attorney, Richard A. Consiglio, has
defended bite-mark evidence, saying the authors of scientific reports
lack “real world” experience. He has pointed out that no court in any
state has ruled against admitting it. “This is evidence, your honor, that has been accepted for 40
or 50 years, not quite as old as I am, but 40 or 50 years, maybe
longer, accepted by courts everywhere,” Consiglio told Kopriva in 2016. The judge sided with prosecutors.
“Although the use of bite-mark evidence is beginning to face
challenges, it would be premature for this court to order that the
methodology is no longer generally accepted in the relevant scientific
community,” Kopriva wrote in March 2017 .
The Innocence Project responded with a blog post — since deleted — that described the case as an example of
“willful scientific illiteracy among the judiciary.” Kopriva imposed a gag order preventing either side from talking publicly about the case outside of court. Ross’ attorneys appealed Kopriva’s decision to the
Pennsylvania Supreme Court, which in November sent it back to a lower
court to decide, a process that could take months. Ross, who has been in state prison for more than 13 years,
did not respond to written requests for comment; his lawyers, citing the
gag order, advised him not to speak.
A question of blood: Just after midnight on Christmas Eve in 2006, Brad Jennings
called police in Texas County, Missouri, to report that he’d found his
wife, Lisa, dead of a gunshot wound to the head, his revolver under her
body. He told investigators they had fought the night before, and he
believed she had taken her life. The local coroner and law enforcement
authorities agreed, listing suicide as the cause of death. A few months later, Lisa Jennings’ younger sister contacted
the Missouri State Highway Patrol and said she believed Brad had killed
Lisa. Sgt. Dan Nash began looking through the crime-scene photos and was
drawn to an image of Lisa’s right hand. On it was a single drop of
blood. Nash later acknowledged in court that at the time he had
little formal training in blood-spatter analysis. It’s a method of
reconstructing a crime by looking at the shape and pattern of blood left
at the scene, including the speed and direction blood travels and how
that changes depending on the type of injury, the victim’s final
movements and the victim’s proximity to a shooter. The National Academy
of Sciences has described “enormous” uncertainties about the technique,
and the Texas Forensic Science Commission has raised “serious questions”
about the education and training of blood-pattern examiners.
This photo from the scene of Lisa Jennings’ death fueled an investigator’s suspicion that she hadn’t taken her own life.Crime scene photo The drop of blood made Nash suspicious: If Lisa had held the gun in her right hand, why wasn’t there more blood on it? That question became central to a new investigation that viewed Jennings not as a grieving widower but as a murder suspect. Jennings denied shooting his wife. He turned over to police a
bathrobe and slippers he was wearing that night. Analysts found Lisa’s
blood. Jennings explained that it had gotten on the robe when he held
her body after finding her dead. But Nash also said the blood on the robe fit the characteristics of “blowback” from a nearby gunshot. Nash concluded Lisa had been murdered, and he laid out his
case at Jennings’ 2009 murder trial, which ended with a conviction.
Jennings was sentenced to 25 years in prison. Six years into the sentence, a lawyer working on Jennings’
behalf discovered evidence that authorities had failed to share with his
defense team: tests that turned up no traces of gunshot residue on
Jennings’ robe ─ undercutting the assertion that he had pulled the
trigger. In 2016, Jennings’ lawyers asked for the conviction to be
thrown out. That request prompted a round of legal arguments that
brought new scrutiny on the original blood-spatter analysis. Jennings’ lawyers hired Joseph Slemko, a 30-year Canadian
police officer and longtime bloodstain pattern analyst. Slemko examined
the crime-scene photos and concluded that the blood patterns did not
indicate that Jennings had killed his wife. He cited research showing
Nash had been wrong to assume Lisa’s hand should have had more blood on
it. It was “clearly a suicide,”
Slemko said. Jennings’ conviction was thrown out in February 2018, and prosecutors decided not to try him again. “It’s been a while, but I’m sure glad to get out of there,” Jennings
told reporters
after his release. He said it was hard not to lose hope in prison. “You
wonder sometimes if anything will ever happen. But we made it. That’s
all that matters.” Now Jennings is suing the investigators who built the case
against him, saying he suffered “indescribable mental anguish” in
prison. Citing the pending litigation, Jennings’ lawyers would not
let him comment. The Missouri State Highway Patrol, where Nash is still
employed, declined to comment.
Convicted on garbage: While critics say bite-mark and blood-spatter evidence have
no place in the criminal justice system, there is also mounting scrutiny
of less contentious forms of evidence — fingerprints, ballistics, shoe
prints — that researchers say should be used only if authorities
acknowledge their limitations. Used correctly, these “pattern matching” techniques can be
paired with other evidence to link a suspect to a crime — or exclude
one, experts say. Used improperly, these methods can help build a case
against the innocent. In 1982, a teenage couple, Annette Cooper and Todd Schultz,
were murdered and dismembered in West Logan, Ohio, a small town outside
Columbus. Police focused on Dale Johnston, Annette’s stepfather, who
lived on a nearby farm. They suspected him of killing the couple out of
jealousy. Near the bodies, investigators found what they believed was a
shoe print in mud. They sent a photograph and a casting of it to an FBI
examiner, along with boots belonging to Johnston. The examiner could
not determine whether the boot made the mark ─ or whether the mark was a
boot print at all. He sent the specimens to a North Carolina forensic
anthropologist who concluded that one of Johnston’s boots made the mark.
Investigators also found a witness who, after being
hypnotized, a technique sometimes used by law enforcement to enhance
memories, said he remembered seeing Johnston force the couple into a
car.
Johnston insisted that he was innocent. But those two pieces
of evidence turned the case against him. The FBI examiner testified at
Johnston’s trial before a three-judge panel that he couldn’t find a
match between his boot and the impression from the scene. But
prosecutors also presented a deposition from the North Carolina
anthropologist in which she said “it appears” that the heel of
Johnston’s boot “could have indeed made that impression.” Johnston was
convicted in 1984 and sentenced to die. After nearly six years on death row, Johnston’s conviction
was thrown out after an appeals court found that the hypnosis techniques
were unreliable and that prosecutors withheld evidence that Johnston
could have used in his defense. Further legal challenges led a court to
find that police had seized Johnston’s boots improperly, leaving the
shoe-print evidence unusable. The case fell apart, and in 1990 Johnston
was freed. Since Johnston’s exoneration, footwear analysis has been the
subject of warnings from researchers, including, most recently, the
National Academy of Sciences and the
President’s Council of Advisors on Science and Technology, which said such comparisons rely on an examiner’s subjective determination and are not supported by scientific studies. Tom Tyack, the lawyer who represented Johnston at his original trial, said he was a victim of forensic fraud.
“I honestly believe that the whole idea that you can do this stuff and have it make sense scientifically is garbage,” he said. Johnston left prison with virtually nothing; he and his wife
divorced, she was ostracized and hospitalized for mental illness and
they lost their farm, said James Owen, one of his lawyers. His younger
stepdaughter was put in foster homes before eventually being placed back
in her mother’s care. Both women remain traumatized, Owen said. “What they did to me they can do to anybody.” After leaving prison, Johnston lived with his mother and
eventually got remarried. But he continued to live under a cloud of
suspicion until 2008, when a convicted sex offender admitted that he’d
killed the couple. A second man pleaded guilty to helping dismembering
the bodies. Johnston sought compensation from authorities for his
wrongful conviction, but he was repeatedly denied on legal
technicalities. In December, Ohio lawmakers passed a law that could
enable Johnston to finally receive a payout. But he is 85 and suffering
from the early stages of dementia, a family spokesperson said. Johnston
could not be reached for comment. Interviewed about his ordeal in 1992, Johnson said his wrongful conviction cost him everything. “What they did to me they can do to anybody. That’s the
scary part,” Johnston told the CBS News television show “48 Hours.”
“They can convict anybody that they set out to convict if they choose to
abuse part of the process.”
Things haven't changed much: Lots of work, and not much to show for it. That is the story of the past decade: Researchers have
repeatedly warned about the shortcomings of forensic science, forensic
examiners have accused the researchers of disregarding the benefits of
such methods, and the criminal justice system has resisted doing things
differently. After DNA analysis triggered a wave of exonerations that
exposed many forensic methods as flawed, politicians sought advice on
how to make things better. The National Academy of Sciences
in a 2009 report
called for an overhaul of the forensic sciences, including the creation
of a federal agency with the power to oversee the work of forensic
scientists and enforce national standards. But Congress didn’t act on it, leaving all changes voluntary and subject to the whims of state and local authorities. Then in 2013 the Obama Justice Department
created the National Commission on Forensic Science, an advisory panel that aimed to pick up where the National Academy of Sciences left off. Its
recommendations, too, were voluntary. “There was a lot more talk than action mostly because we
didn’t get the independent agency,” said Suzanne Bell, who sat on the
commission and chairs West Virginia University’s Department of Forensic
and Investigative Science. Obama then asked his Council of Advisors on Science and Technology to investigate. The result was
a 2016 report
that drew public attention back to the issue, repeating many of the
concerns raised by the National Academy of Sciences seven years earlier. But the recommendations faced resistance from the Department of Justice under Obama. The FBI
accused researchers of making “broad, unsupported assertions” and of making unscientific judgments itself. Then-Attorney General Loretta Lynch
said her agency would reject the council’s conclusions.
“Forensic science is under attack.” In 2017, under President Donald Trump, the Justice
Department disbanded the National Forensic Science Commission
altogether. In its place, then-Attorney General Sessions
named a former state prosecutor to head a new Forensic Science Working Group with a more limited mission: coming up with
“uniform language” for federal experts’ testimony. William Fitzpatrick, the district attorney in Onondaga
County, New York, who is a member of the New York Forensic Science
Commission, said he welcomed more research but was wary of losing the
ability to use bite-mark and blood-spatter evidence, which remained
useful despite being marred by inexperienced examiners. Fitzpatrick said
he was even more concerned about attempts to undermine the validity of
“tried and true” methods like fingerprint and ballistics comparisons. “Part of the story is how forensic science is under attack,
and it’s fair to say, yes, and sometimes for good reason,” Fitzpatrick
said. “But I think more generally that prosecutors are under attack.” Karen Kafadar, a co-director of the Center for Statistics
and Applications in Forensic Evidence, said the reform effort isn’t
meant to undermine solid cases. “But when evidence is presented with shockingly little
probability, I think it would be wise for people to be very cautious,”
Kafadar said. There have been scattered attempts to improve forensic
science, and some examiners have started changing the way they testify,
describing the limits of how certain they can be that evidence points to
a suspect, researchers say. However, Kafadar said, “for the most part, things haven’t changed much.”
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