"About a year ago, I published a four-part series
on the use of bite mark evidence in criminal cases. To summarize, the
series pointed out that there has never been any scientific research to
support the notion that human bites are individually unique, and that
even if this was true, there’s also no research to support the notion
that human skin is capable preserving bite marks in a useful way. What
little scientific research that has been done in fact
undermines both assumptions. Nevertheless, the courts have been allowing
bite mark evidence for four decades, and to date, not a single court in
the country has ruled in favor of a challenge to its admissibility. Since then, an internal study
by the American Board of Forensic Odontology (a group for bite mark
analysts) further cast doubt on the legitimacy of the discipline,
finding widespread disagreement even among the most experienced analysts
over basic questions like what is and isn’t a bite mark. Moreover, the
Texas Forensic Science Commission is now casting a skeptical eye on the validity of bite mark analysis, and a senior science advisor to President Obama has called for its eradication from the courtroom. There have also been a couple federal court cases
in which judges have essentially declared the entire discipline to be a
fraud, though both came in ruling that were only tangentially related
to the legitimacy of bite mark analysis.
But the most recent news
concerns the New York trial of Clarence Dean. In 2013, attorneys for
Dean asked for a hearing on the scientific admissibility of the bite
mark evidence that prosecutors wanted to introduce at his trial. Judge
Maxwell Wiley granted them the hearing. This was significant because it
was the first such hearing ever conducted, even though bite mark
evidence has been used in criminal cases since the 1970s. Previous
courts had upheld its validity by denying challenges to its validity
made during appeals and in post-conviction petitions.The hearing also
came just as the aforementioned scientific research was beginning to
unravel the core principles of bite mark analysis. In parts three
and four of my series, I noted that the Manhattan prosecutor in that
case, Assistant District Attorney Melissa Mourges, was not advocating
for admitting bite mark evidence in the Dean case, she had become an
evangelist for bite mark analysis in general. That evangelism included
speaking at conferences and symposiums, and launching pointed, often
very personal attacks at skeptics, including longtime bite mark
critic Michael Bowers, and Mary and Peter Bush, the scientists whose
research had begun to expose the field as fraudulent. Mourges’s brief
for the hearing in the Dean case was rife with misleading claims and in
some places, outright deception. ........As noted, since
that decision there have been some major new developments, all of which
cast further doubt on the validity of bite mark analysis. In light of
those developments, Clarence Dean’s attorneys asked Wiley for another
hearing. Last week, the Manhattan DA’s office sent Wiley a remarkable
memo, informing him that they would be withdrawing the evidence. That’s
good news for Clarence Dean. But it also means we’ll have to wait for
another day before the first court in America declares bite mark
evidence inadmissible (not that there’s any guarantee Wiley would have
done so). The memo itself is an incredible read.
It wasn’t written by Mourges herself — it was written by Deputy Bureau
Chief Robert Ferrari — but it’s an amusingly angry and blustery defense
of both Mourges and bite mark analysis. It actually begins by accusing
Mourges’s critics of sexism, claiming Dean’s attorneys made “ad feminam attacks
on an Assistant District Attorney.” It isn’t clear which criticisms of
Mourges the Manhattan DA’s office finds sexist. But as I noted in my
series, according to several people in attendance, it was actually Mourges who made crude comments about Mary Bush’s physical appearance during a presentation at a 2014 ABFO event in Seattle. The
memo goes on to bite mark analysis for three pages before finally
informing Wiley that the state will be withdrawing the bite mark
evidence in Dean’s case. Ferrari’s explanation for this decision is
that the bite mark evidence has “relatively slight probative value” in
the Dean case, which makes one wonder why they fought so hard to
introduce it in the first place. Most of the arguments Ferrari
makes in defense of bite mark evidence are similar to those Mourges made
in her original brief that I examined in my series, so I won’t go into
them here. (Fun aside: The memo also twice attacks the credibility of my
reporting by referring to me as a mere “blogger.” Horrors!) But
in the few places where he addresses the new developments, he’s just as
slippery as Mourges..........Meanwhile, since Wiley’s September 2013 upholding bite mark evidence, two more people convicted based primarily on such evidence have been exonerated and freed. Between them, they had served 45 years in prison. Earlier this year, a Pennsylvania judge also threw out another conviction. And in Mississippi, the state’s supreme court has granted a hearing on the admissibility of bite mark analysis to death row inmate Eddie Lee Howard. (That court has shot down challenges to bite mark evidence numerous times in the past.) The
Manhattan DA’s office has been among the most vocal supporters of bite
mark evidence. That office now appears to be on the defensive. That’s a
good sign. But it comes only after four decades of bite mark evidence
being used to win convictions. Here’s the nub of the problem: So far,
every scientific organization and scientist to officially weigh in on
bite mark evidence has determined that it lacks any scientific
foundation, and shouldn’t be used in court. And so far, every court to
hear a challenge to the scientific validity of bite mark evidence has
rejected that challenge. That seems like a pretty compelling reason to
rethink our practice of entrusting judges to be the gatekeepers of
scientific evidence." (Radley
Balko blogs about criminal justice, the drug war and civil liberties
for The Washington Post. He is the author of the book "Rise of the
Warrior Cop: The Militarization of America's Police Forces.")Wednesday, January 13, 2016
Bulletin: Junk bite-mark pseudo-science): Another great read from Radley Balko of 'The Watch' - Washington Post - who has been raging about junk bite-mark pseudo-science for ages: His current column is headed: "In angry, defensive memo, Manhattan DA’s office withdraws bite mark evidence." ..."The Manhattan DA’s office has been among the most vocal supporters of bite mark evidence. That office now appears to be on the defensive. That’s a good sign. But it comes only after four decades of bite mark evidence being used to win convictions. Here’s the nub of the problem: So far, every scientific organization and scientist to officially weigh in on bite mark evidence has determined that it lacks any scientific foundation, and shouldn’t be used in court. And so far, every court to hear a challenge to the scientific validity of bite mark evidence has rejected that challenge. That seems like a pretty compelling reason to rethink our practice of entrusting judges to be the gatekeepers of scientific evidence." (Bravo Radley! Must, Must Read. HL);
