COMMENTARY: "Another judge rules in favor of bite mark evidence, for the same misguided reasons," by Radley Balko, published by The Washington Post on March 16, 2017.
GIST: "Six weeks ago, I wrote about a case in Pennsylvania in which a prosecutor was attempting to use bite mark evidence in the murder trial of Paul Aaron Ross. This, despite the fact that every scientific panel to review bite mark analysis to date has found no scientific basis for its underlying premises: a) that human dentition is unique, and b) even if (a) were true, that human skin is capable of recording and preserving bite marks in a way that preserves that uniqueness in a usable way. So far, the discipline has been found to be scientifically unreliable by the National Academy of Sciences, the Texas Forensic Science Commission, and the President’s Council of Advisors on Science and Technology. The latter two panels have called for barring bite mark evidence from criminal trials. Experiments by University of Buffalo scientists Mary and Peter Bush have also found no scientific basis for bite mark analysis. Unfortunately, none of this seems to matter to the courts. Also of apparently little interest to the courts are the more than two dozen people wrongly arrested or convicted due to bite mark testimony. To date, every single court in the country to hear a challenge to bite mark evidence has shot that challenge down. Bite mark analysis is winless in scientific reviews, but it is undefeated in court. This week, Blair County Judge Jolene G. Kopriva not only rejected Ross’s challenge to the bite mark evidence the state wants to use against him, she refused to even hold an evidentiary hearing to let Ross make his argument. From the Altoona Mirror: In testimony during Ross’ 2005 trial, an Allentown orthodontist told the jury that Ross’ dental impression was “very highly consistent” with the mark found on Miller’s body. Defense attorney Thomas Dickey said Wednesday that he was disappointed with Kopriva’s ruling. “It’s basically saying that because we’ve always let this evidence in, then we’re going to still let it in,” Dickey said. That is exactly what it means. As I explained in my series on bite mark evidence a couple of years ago, this is the primary reason courts have been allowing bite mark evidence for decades — because previous courts have allowed it. A California appeals court was the first to allow it in 1975. That opinion explicitly noted that bite mark evidence was not scientific, but, oddly, just a matter of “common sense.” Other courts then began citing that case, sometimes by mistakenly noting that the court did find the evidence to be scientifically credible. Since then, most courts uphold bite mark evidence by simply citing other courts, despite the fact that none of them attempted an actual scientific analysis of the practice. At this point, no judge wants to be the first to say all of those other judges are wrong. Never mind the overwhelming evidence that they are. And that includes Judge Kopriva.........Kopriva now joins a long list of judges who have gotten this wrong. She’s also the latest example of why we need to stop entrusting judges to be the gatekeepers of science in the courtroom. There’s a reason why they’re judges, and not scientists. Judges are trained in law. They work in chambers, not laboratories. They rely on judicial opinions, not peer-reviewed studies. When it comes to distinguishing good science from bad, they simply aren’t up for the job. As I’ve argued before, DNA testing was a wake-up call to the problems in the criminal-justice system, not a panacea. It is only dispositive of guilt in a small percentage of cases. But the problems that led to the wrongful convictions in those cases undoubtedly pervade the entire system. Going forward, DNA testing at the onset of an investigation will make the verdicts in that small percentage of cases more reliable. But if we don’t fix the problems we’ve discovered, they’ll persist in the remaining cases, with no DNA testing to correct them. All of which is to say have a limited window opportunity to get this right. So far, we’re failing."
The entire commentary can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/