Court Strips Immunity From Bite Mark Experts Who Put Wrong Man In Jail For 23 Years

Legal Issues

from the junk-scientists-junked dept

We’ve discussed the junk science masquerading as forensic science in criminal cases. Coming in slightly ahead of chatting with psychics is “bite mark analysis.” According to these so-called experts, each bite mark is just as unique as a fingerprint. But if so, why have so many cases been overturned when actual science — usually DNA evidence — is examined? Bite mark analysts have no answers. Fortunately, there’s been less and less reliance on this highly-questionable evidence over the years.

But bite mark analysis was in vogue long enough to do serious damage to people’s lives. The 7th Circuit Appeals Court has just decided a wrongly imprisoned man can continue with his civil rights lawsuit against the two forensic odontologists who allegedly conspired to fabricate their expert opinions. Here’s how the plaintiff spent most of the last quarter-decade, from the opening of the court’s decision [PDF]:

Robert Stinson spent twenty?three years in jail for a murder he did not commit. No eyewitness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson’s dentition matched the teeth marks on the victim’s body, and a jury found Stinson guilty.

The court chronicles the long path law enforcement — aided by two dentists — took to Stinson in prison for a murder he didn’t commit. The opinion, somewhat unfortunately, doesn’t question the use of bite mark analysis as evidence. Instead, it focuses on the fabrication and other missteps/misconduct allegedly perpetrated by the analysts as they assisted law enforcement and prosecutors in building the murder case.

Dr. Lowell Johnson was the first dentist to be brought in. Examining photos of bite marks on the victim’s body, Johnson informed officers the suspect would have a missing or broken lateral incisor — a tooth one over from the upper front teeth. When Stinson was interviewed by officers at his home, they noticed he had a missing right front tooth, which is not the same tooth as indicated by their bite mark expert. Nevertheless, they persisted.

After they finished their interviews, the two detectives met at the front of the house, and Jackelen told Gauger, “We have him.” The detectives then went back to speak with Stinson and intentionally said something to make Stinson laugh so that his teeth would be visible. When Gauger saw that Stinson had a missing upper front tooth, he thought, according to his later memoir, The Memo Book, published long after Stinson’s conviction, “There it was. The broken front tooth and the twisted tooth just like on the diagram and pictures.” (At his deposition in this case, however, Gauger said that the missing tooth was on the upper right side and to the right of the front tooth.)

[…]

On November 15, 1984, Gauger and Jackelen met with Johnson. The November 15 police report states that Johnson said the offender would have a missing or broken right central incisor (i.e., the upper right front tooth). That is the same tooth that the detectives had observed that Stinson was missing when they questioned him.

Then came more “expert” work from law enforcement’s expert:

The next day, the detectives interviewed and photographed two other men with at least one missing or broken tooth. Johnson ruled them out as suspects in Cychosz’s murder based only on looking at the photographs. Stinson’s odontological expert in the current case, Dr. Michael Bowers, states there was no scientific basis for Johnson to exclude these two men by just looking at photographs.

Despite Stinson missing the wrong tooth, the dentist and law enforcement continued to build a case against him. Dr. Johnson had another sketch of the bite marks drawn up — again with the missing lateral incisor. Then this drawing simply vanished. Dr. Johnson referred to it in court during a pre-trial hearing, while remarking Stinson’s teeth (with the missing incisor, rather than lateral incisor) matched up with the imprints and missing sketch — a statement that followed Johnson’s 20-second “examination” of Stinson’s teeth.

A cast of Stinson’s teeth was ordered by the court. Johnson examined the cast and claimed it was a match — again, despite the wrong tooth being missing. Law enforcement officers used this assertion to push for a search warrant but the DA pushed back, saying there still wasn’t enough probable cause despite the declared “match.”

So, Dr. Johnson brought in a friend of his — Dr. Raymond Rawson — to act as a second bite mark expert. Rawson reviewed the bite mark evidence in a Las Vegas hotel room and unsurprisingly sided with his longtime friend and colleague. Dr. Rawson did not personally examine Stinson’s mouth at any time. Johnson prepared an “expert report” on these findings and submitted it to the court with Rawson’s approval.

The trial began, with the state offering nothing but two dentists and some highly-questionable bite mark examinations as evidence.

The prosecution did not offer any evidence of motive, nor did it produce any eyewitness testimony that connected Stinson to Cychosz’s murder. Some testimony suggested that Stinson had given conflicting versions of his whereabouts on the night of Cychosz’s death. Stinson’s counsel moved to exclude any forensic odontology evidence from trial, but that request was denied. Johnson testified at trial that the bite marks on Cychosz must have been made by teeth identical in relevant characteristics to those that Johnson examined on Stinson. Rawson testified that Johnson performed “a very good work?up” and that he agreed with Johnson’s conclusion to a reasonable degree of scientific certainty that Stinson caused the bite marks on Cychosz’s body.

Stinson got locked up for the next 23 years and Dr. Johnson went on to use this case to further his career as a forensic expert, despite the ringing up a person with the wrong missing tooth on murder charges. Twenty-three years later, experts not named Rawson or Johnson examined the so-called evidence.

[A] panel of four forensic odontologists reanalyzed the bite mark evidence and concluded that Stinson could not have made the bite marks found on Cychosz. DNA testing of blood found on Cychosz’s clothing also excluded Stinson. Stinson’s conviction was vacated on January 30, 2009, and he was released from prison. The State of Wisconsin dismissed all charges against him that July. In April 2010, the Wisconsin State Crime DNA Database matched the DNA profile of the blood found on Cychosz’s clothing with that of a convicted felon, Moses Price. Price later pled guilty to Cychosz’s murder.

Another expert had more to say about the state’s supposed experts:

Stinson’s expert in this case, Dr. Bowers, reviewed the bite mark evidence and concluded that the bite marks found on Cychosz excluded Stinson. Consistent with the panel, Bowers concluded that Johnson’s and Rawson’s explanations of why a bite mark appeared on Cychosz’s body where Stinson has a missing tooth has “no empirical or scientific basis and does not account for the absence of any marks by the adjacent, fully developed teeth.” Bowers believed that the methods Johnson and Rawson used “were flawed and did not comport with the accepted standards of practice in the field of forensic odontology at the time.” Bowers concluded that “to a reasonable degree of scientific certainty as a forensic odontologist … Johnson and Rawson knowingly manipulated the bite mark evidence and Stinson’s dentition to appear to ‘match’ when there was in fact no correlation between Stinson’s teeth and the bite marks inflicted on Cychosz’s body.”

At this point, the Appeals Court can’t rule on the issue of qualified immunity for the law enforcement officers involved in this case, but it can take away the absolute immunity asked for by the state’s dental experts. As the court notes, the allegations all concern pre-trial evidence preparation. Statements made in court usually confer absolute immunity, but nothing like that shields state experts from actions taken prior to the case going to court. As the court here sees it, Stinson has alleged more than enough to continue with his lawsuit. It quotes the lower court’s decision summary of the actions taken by the two dentists, which raises serious questions about the fabrication of evidence.

The evidence in the record about Johnson’s shift regarding which tooth was missing after the detectives thought they had their man, the lack of a sketch at the John Doe hearing, Johnson’s call to Rawson, Rawson’s extremely brief initial review of the physical evidence in Las Vegas, and the existence of gross errors in Johnson’s and Rawson’s review of the physical evidence (which another expert says could not be honestly made) provides enough to allow Stinson to get Johnson, Rawson, and Gauger before the jury for evaluation.

These two dentists will now have to face the court and defend themselves against charges they fabricated evidence and conspired (along with officers) to withhold exculpatory evidence from the defendant. There’s a lot at stake here with 23 years of prison time involved. This doesn’t make Stinson whole again, but it at least gives him a shot at receiving something in exchange for the two dozen years the government took away from him.

Filed Under: forensic science, immunity, robert stinson