September 11, 2023 • 31 mins
Like other forms of junk science used in criminal trials, bite mark evidence does not benefit crime victims or their loved ones. So why is it treated like credible science. It turns out that the charade of bite mark evidence is actually older than the United States.
Kate Judson, Executive Director of the Center for Integrity in Forensic Sciences, updates Josh Dubin's Wrongful Conviction: Junk Science.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Hey, folks, Kate Judson here, I'm a lawyer and the
executive director of the Center for Integrity and Forensic Sciences.
We're back with an episode of Junk Science, a series
we first released in twenty twenty. Each episode highlights ways
that inaccurate or misinterpreted forensics can result in a wrongful conviction.
(00:22):
This week's episode focuses on bitemark evidence, a forensic specialty
that is thankfully falling out of favor as more and
more courts realize its shortcomings. But that doesn't mean that
it's totally gone or that the legal system doesn't still
feel its influence. To me and others familiar with bitemark evidence,
(00:42):
the name doctor Michael West will ring some bells. He's
an infamous bitemark analyst whose questionable assertions in court have
led to many wrongful convictions. He claimed that he could
find bitemarks and other marks on skin that no one
else could find using alternative light source photography, thing that
is unsupported by scientific evidence. This concept is another dimension
(01:05):
of what you'll hear discussed in this episode that increasingly
sophisticated methods of evidence collection don't do a thing to
ensure accurate interpretation. Only By revealing and changing the underlying
systemic problems, can we ensure reliability.
Speaker 2 (01:31):
Imagine this. You're at your house. You're standing at the
stove making dinner. You hear a knock at the door.
It's the police. They ask you your name. They've been
looking for you. The first thing you think is, oh, no,
something must have happened to a friend or someone in
my family. An officer looks you in the eye. They
(01:55):
need to ask you some questions. What is it? What happened?
They won't tell you. You'll need to go down to
the police station. You agree to go with them, and
you ask them over and over what's the problem. You're
putting a small windowless room and you're very anxious, and
(02:16):
you're told you wait here. Two plain closed detectives eventually
come in. One sits across from you, or a rickety
table separates you from him. The other comes to your
side of the table and he sits so close to
you that his knee is touching yours. He quickly begins
accusing you of raping and murdering someone. He says a
(02:39):
name that you recognize. It's your ex who you haven't
been in contact with for years. The one sitting closest
to you, tells you the murder happened last night and
that the only way you can help yourself is to
just admit what you did. He asked you where you
were yesterday. At first, it's not easy to remember the
mundane details of the past day. You were just told
(03:02):
that your ex was murdered. But you take a deep
breath and you try to focus. You were at work
all day. On your way home, you went to the
grocery store. Then you stopped and had a bureau with
some friends at a local bar. Then you got gas
at the gas station. You ran into one of your neighbors.
You can remember sitting there across from those detectives at
(03:25):
least nine alibi witnesses. You tell this to the detectives,
and this gets them even more pissed. They say, look,
we don't believe you. We know you killed this woman.
They tell you that the victim has bite marks all
over her neck, on her shoulder, her inner thigh, and
her arm. They tell you that the killer left those
(03:47):
bite marks that they can determine who committed this crime
just by taking a dental impression of their teeth and
matching it to the bite marks on the victim. And
if you're so innocent, they say, if this is there's
some big mix up and you didn't really do this,
let us just take an impression of your teeth. Fine,
let's do it. After more forceful accusations, they let you
(04:11):
sit there, and sit there, and sit there. A few
hours later, they send a man into the room wearing
a white lab coat, and he certainly looks the part
of a dentist. He takes out two metal bite plates
and fills them with a silly putty like substance. He
pushes these cold trays into your mouth and tells you
(04:33):
to bite down. The putty tastes like plastic. It hugs
your teeth, then quickly firms up and drives. Then it's
pulled from your mouth and there is a perfect impression.
The cops come back in and they tell you can
leave the police station, but they also tell you you're not
to leave town. Three sleepless nights later, you're at your house,
(04:56):
laying awake in bed, and you're really overcome by anxiety.
You're wondering, do I need an attorney or does that
make it look like I may have actually done something wrong?
How do I act what am I supposed to do?
And then your dog starts barking. This time they don't knock.
(05:16):
Your front door is blown off its hinges by a
swat team, and before you know what's happening, you are
on the ground. You can clearly hear one of these
cops yell at you don't fucking move. Your face is
being pushed into the carpet. You're being handcuffed. You're told
you're being charged with the rape and murder of your
(05:37):
ex who you haven't seen or spoken to in years.
At your trial, the prosecution gets two experts in bite marks,
called odentologists, an impressive sounding title for a forensic dentist,
and they explain how the ridges, angles, peaks, and valleys
of your teeth, these unique characteristics, perfectly matched with the
(06:02):
bite marks on the victim. They say things to the
jury that sound really impressive. There's a one in a
million chances that these bite marks are anyone else's but
the defendants, they say, and we know that to a
degree of scientific certainty. The jury seems to be completely
(06:22):
buying this, and why not? It all sounds so rational,
so infallible. You're thinking, I'm really screwtier but you know
you're innocent. Countless innocent men and women have lived this
horrific nightmare. Their wrongful convictions are based on evidence presented
(06:47):
by odentologists, the quote unquote scientific experts and bite mark evidence.
I'm Josh Duben, civil rights and criminal defense attorney, an
innocent ambassador to the Innocence Project in New York. Today
on wrongful conviction junk science, We're going to explore bitemark evidence.
(07:10):
Like other forms of junk science used in criminal trials,
bitemark evidence does not benefit crime victims or their loved ones,
So why is it treated like credible science. It turns
out that the charade of bitemark evidence is actually older
than the United States. On April thirtieth, sixteen ninety two,
(07:41):
a reverend by the name of George Burrows was arrested
and accused of torturing young women into witchcraft. It was
alleged that it would inflict various forms of physical harm
on them, pinching, strangling, and yes, biting them. The evidence
against Burrows was really thin, but the only physical evidence
where the alleged bitemarks that the prosecution claimed his teeth
(08:05):
left on the flesh of his victims at his trial,
Reverend Burroughs was pulled by the face around the courtroom
and his mouth was pride open. A stick was used
to point out the unique characteristics of Burrow's teeth, the peaks,
the angles of his molars, and then they were compared
to what the court was told were bite marks on
(08:25):
the young girls. Burrows was convicted and publicly hanged. While
he stood on a ladder awaiting the tightening of a
noose around his neck, he prayed. He recited the Lord's Prayer,
and a collective gasp, like a creeping wave, rolled through
the crowd that had gathered to watch his hanging. Because
the Lord's Prayer was considered impossible for a witch, and
(08:50):
so bitemark evidence was born in the bloodthirsty hysteria of
the Salem witch trials, Burrow's recitation of the Lord's Prayer
should have been a sign that something was wrong with
his conviction, that he wasn't a witch after all, Because
it turns out the angry, frenzied mob that was so
(09:11):
quick to accuse, convict, and hang George Burrows had in
fact executed an innocent man. Twenty years after he was
put to death, George Burrows was declared innocent. He was
in another town altogether on the knights that the victims
were allegedly tortured. George Burrows hadn't beten anyone at all.
(09:33):
That entire show that was put on in that courtroom,
the circus of forcing his mouth open was nothing more
than performance masquerading as signs. And yet bite mark evidence
is still being used in courtrooms across the country to
convict innocent people of crimes they did not commit.
Speaker 3 (09:54):
Every single case that my department has gotten involved in
has ended up in reversal of the conviction, or exclusion
of the evidence, or withdrawal of the evidence because it's
so grossly unreliable.
Speaker 2 (10:05):
To tell us more about bitemark evidence, we have Chris
Fabricn from the Innocence Project here with us today. Throughout
his twenty year legal career, Chris has worked on countless
cases in which innocent men and women spent decades in
prison because of bitemark evidence.
Speaker 3 (10:20):
We at the Innocence Project had an agenda about eliminating
the use of bitemark evidence in criminal trials.
Speaker 2 (10:28):
Chris, there's a case from the nineteen seventies, the People
versus Marx, which I believe is the first modern instance
of a bitemark on human skin being presented as evidence.
Can you tell us about this case?
Speaker 3 (10:42):
So, Walter Marx was a weekend tenant of a woman
named Lovey Brazanski, and so the first time since he
had had this lease, he did not spend the night
on the weekend, and that same weekend the murder victim
turned up dead. Police discouvers the body on Sunday afternoon,
and they noticed that the victims nose had been indelicately
(11:09):
put bitten off, and the cartilage of the nose on
the victim's face had left the impression of what appeared
to be tooth marks. Mister Marx looked good for it,
but there wasn't really any evidence apart from the fact
that he didn't show up for his usual weekend stay.
So there was a group of dentists who had had
(11:31):
some history with identifying human bodies through dental records, which
is a totally different, unrelated subdiscipline of forensic dentistry. But
they had had some interest in bitemark evidence and had
been kind of looking for the right case to essentially
try this out. And interestingly, mister Mark spent four months
in jail on a contempt charge resisting the court order
(11:54):
to have a mold taken of his teeth. Eventually he
gave up and allowed the mold to be taken.
Speaker 2 (12:00):
Now, let me stop you. There didn't like six or
eight weeks pass before they were able to compare the
impression on Walter Mark's teeth to the victim. And hadn't
she already been buried and they had to exhume her body?
Speaker 4 (12:14):
Yeah.
Speaker 3 (12:14):
You know what's interesting about that is that they still
do exclamations and do that type of powdern matching today.
Speaker 2 (12:22):
Doesn't common sense just dictate that when you bury a
human body, the skin changes, it starts to wear and decompose.
It just seems like intuitive that if there was a
bite mark and you actually could compare a teeth to it,
that it wouldn't be, you know, worth anything to make
that comparison after a body had been buried for that long.
Speaker 4 (12:45):
Yeah, precisely right.
Speaker 3 (12:46):
You're asking the critical questions that no court in the
country asked for forty years, State after state after state
after state cite it back to the Walter Marx decision
as evidence of not just that it's amissibility, but if
it's signed tipic reliability.
Speaker 2 (13:02):
This becomes the precedent. This becomes well, hey, bite mark
evidence was accepted in the Marx case, you should accept
it here, and all of a sudden, it just starts
to get accepted. How is that even possible?
Speaker 4 (13:14):
Because it worked.
Speaker 3 (13:15):
You know, the criminal justice system is an efficient, eating
and killing machine of largely poor people of color, and
whatever facilitates that process, it's going to be used as
long as courts admitted and bite mark evidence was introduced
as evidence. The court admitted it, it got upheld on appeal,
so it was good to go.
Speaker 2 (13:35):
So bite mark evidence was officially accepted in the Marx
case and now it has been ingested, if you will,
into the criminal justice system. But it became acceptable to
the general public because of the Ted Bundy case.
Speaker 4 (13:50):
Right, yeah, you know.
Speaker 3 (13:51):
I mean I sometimes say that Ted Bundy ended up
having many more posthumous victims than any other serial killer
that we can be aware of, because that his trial
led to the widespread use of bite mark evidence all
over the country.
Speaker 2 (14:04):
So for those of our listeners who don't know, but
I feel like it's safe to say, most dude, Ted
Bundy was one of the most infamous serial killers in
US history, and his murder trial was actually the first
criminal trial to ever be televised in the United States. Now,
there was overwhelming evidence that proved Bundy was guilty of killing, raping,
(14:28):
and torturing these young women from Florida State University. And
they had eyewitnessed testimony of him, you know, comings in
the murder scene, leaving the murder scene. They had things
that he had stolen from the homes of these women.
And there was sort of like a beltz in suspenders
moment where they wanted to make sure they did everything
(14:50):
they could to prove his guilt. And they spent two
full days presenting this bitemark testimony in the case. Why
do you think that it is, Chris.
Speaker 3 (15:00):
People are hungry for every piece of news they could
possibly get about Ted Bundy.
Speaker 4 (15:06):
Everybody believed he's guilty.
Speaker 3 (15:08):
The only physical evidence in that case was the bitemark,
so it was touted as you know, bite marks are
the thing that finally brought Bundy down. And after Ted
Bundy was convicted and using bitemark evidence that really just
exploded all over the country.
Speaker 2 (15:39):
There's something about teeth and dentists that gets associated with reliability, right,
I mean, we've all heard about dental records being used
to identify crime victims accident victims, and that sign seems
to be real, But that's very different from saying that
a bitemark can be used to identified the person that
(16:01):
did the biting.
Speaker 3 (16:02):
Right, The identification of human remains through dental records is
kind of a trojan horse for the forensic dentistry crowd
to get into court on bitemark evidence, and I've seen
it firsthand in lots of dentists. Conflating these two subdisciplines
is the same thing. You identify people by their teeth,
(16:22):
and you identify people by the bite marks those teeth make,
and that kind of makes sense until you actually think
about it. The two techniques have nothing whatsoever to do
with each other.
Speaker 2 (16:33):
So why doesn't bitemark evidence work? Why isn't it reliable?
Speaker 3 (16:38):
Bite marks are totally different because you're interpreting an injury
on skin that has almost nothing to do with teeth
at all, And so all of the little individual, theoretically
unique differences in teeth that you're pointing out, the cracks,
the bevels, the crookedness or the straightness or the missing
tooth or this or that that you can think of,
that would be different from mouth to mouth or not
(16:58):
reflected in the skin whatsoever. But even if you can
say with some confidence that these two things can be associated,
then you have to answer the question is it one
in ten or is it one in ten million people
that might also match. So in DNA, we know you
know fairly well how many other people are likely to
(17:19):
share your DNA. We've done the statistical population frequencies to
know and to believe that the human DNA is unique.
Speaker 4 (17:27):
We haven't done that with fingerprints or shoes.
Speaker 3 (17:29):
Or tires or firearms, and we certainly have not done
those with teeth.
Speaker 2 (17:34):
So you're saying that a bitemark and a suspect's tooth
might appear to match, but many other people's teeth might
match that same bite mark, so it's not a unique match.
Speaker 3 (17:45):
Right, So you layer those problems on top of bite
marks where you're trying to interpret an injury in human skin,
where all skin is different, right, old people, young people,
thin people, heavy people. All these things make a difference
in individual skin characteristics. If you are flexing at the
time you were bitten, the bite mark's going to look
(18:05):
one way. If your arm was relaxed at the same time,
it would look a different way. Right, And if you
think about somebody who may be lost one hundred pounds
recently and has saggy skin as a result, right, the
way the bite mark is going to appear on that
person's going to be different than somebody who's you know,
puffy from drinking, right, and their skin's all taut and round,
you know, and you try and bite into that and
(18:25):
you're just going to engage a few teeth. So every
time that the same teeth make a bite mark, it's
going to look different every single time, depending on the
angle of the body, what type of struggle it was,
what type of person that you're dealing with. All of
these things are variables that change every single time. So
it's just fundamental speculation, you know, just guesswork that's proffered
as science.
Speaker 4 (18:46):
Very very persuasive, but totally guesswork.
Speaker 2 (18:49):
I read that someone can be missing their front teeth
bite down on human skin, and the bite mark can
make it appears if they actually have two front teeth,
and that someone would two front teeth that are fully
intact and bite down and the bitemark can look like
they are missing two front teeth.
Speaker 3 (19:10):
Can really get the skin to say anything that you
needed to say, you can match a bitemark to almost
any suspect.
Speaker 2 (19:16):
But if this evidence is so unreliable, then what exactly
makes these odentologists, these bitemark experts so convincing that they're
able to convince a judge or a jury of an
innocent person's guilt.
Speaker 3 (19:30):
So you'll see these experts that are testifying and using
a lot of scientific terminology plus a lot of obscure
dental terminology, and the testimony just becomes opaque, and you
just kind of turn off your brain and your critical thinking.
And the experts sounds so persuasive because they have ten thousand.
Speaker 4 (19:49):
Different ways to record a bite mark.
Speaker 3 (19:50):
Some of them go so far as harvesting tissue they
call it from dead bodies and mounting them on silicone rings,
and they use ultra violet photography and digital photography and
black and white photography, and they use very very precise
dental molds, and they use dental materials that are highly
highly accurate. All that's very impressive, it's just totally meaningless.
(20:12):
There's massive distinction between collecting data and interpreting data and
what a lot of junk science relies on a very
very precise and impressive methods of collecting data and very
very light on interpreting the data.
Speaker 2 (20:31):
And so the evidence of these so called expert odentologists
sound strong because of all the jargon and technology, and
in our society we're told to trust people in white
lab codes, and these guys, these odentologists, really do appear
to be experts.
Speaker 3 (20:49):
When an expert witness gets on the stand, they don't
just start testifying, Right, what's the first thing that they do?
Speaker 4 (20:55):
Right?
Speaker 3 (20:55):
You go through their credentials cvs that are over twenty
pages long, apearances on sixty minutes presentations at the American
Academy of Forensic Sciences. This board membership, that board membership.
The credentials are off the.
Speaker 2 (21:08):
Chain, right, So the jury hears all of these impressive credentials,
and why should they dispute it, And suddenly they start
believing that these so called experts must know what they're
talking about, that they're presenting solid scientific fact.
Speaker 3 (21:25):
It takes a very very critical thinker and an independent
thinker not to be lulled into a sense of, you know,
addicating your responsibility. And there's always two strikes against any
defendant that walks into criminal court and is on trial.
You know, most of the people in the courtroom believe
that he or she is guilty already, the bias that
(21:48):
most Americans walk into court with with the idea that
the person that is on trial is guilty as charged.
Speaker 2 (21:55):
Chris, I've heard of so many convictions where bitemark evidence
was used to gain the conviction and it was later
proven that the injuries weren't even human bites at all.
They were things like insect bites and animal bites or
you know, bruises, something else entirely.
Speaker 3 (22:17):
One of the fundamental claims by bitemark experts, these forensic dentists,
is that they, through their training and experience, have the
ability to discern a human bitemark from other types of injuries.
What we can say in science is that if experts
look at the same evidence and largely come to similar
(22:38):
the same conclusions, there's some reliability in the technique. And
there was a study that was done about four years ago,
and what this was was a survey of the self
identified top forensic dentists in the country, was about forty
of them, and they did a survey of one hundred
different injuries and they wanted to see if there are
(22:59):
inter raidar liability.
Speaker 2 (23:01):
So when a bunch of vote intelligences looked at different
kinds of injuries, did they agree about whether or not
they were looking at photographs of human bite marks?
Speaker 3 (23:09):
These top bite mark experts in the country, they were
all over the place. So even just as a threshold matter,
as we're talking about what's a bitemark and what is
in a bite mark, it's junk science at that level too.
Speaker 2 (23:23):
This study should have been the end of bite mark
evidence and courtrooms in this country, right, I mean, why
wasn't it?
Speaker 3 (23:29):
It depends on really, you know, do you want the
cynical answer or do you want the long term answer.
The cynical answer is that courts don't care. Any tool
that is used successfully to prosecute indigent defendants in our
criminal justice system is almost always going to be available
to the prosecution and continue to be available to the
(23:49):
prosecution once it's become admissible in the first place, and
it's almost impossible to unwind it and to walk back
all that legal precedent. The prosecutors have a duty to
do justice, and that part of that to be never
using unreliable evidence in the case.
Speaker 4 (24:03):
But that's not the way it's done. Once it's amissible.
Speaker 3 (24:05):
The prosecutors are going to continue to fight for its
admissibility because it's useful to get convictions.
Speaker 2 (24:10):
Right. The prosecutor who says, you know what, I feel
uncomfortable presenting a case that is built on junk science
is unfortunately the exception to the rule, and a very
rare exception at that. And I think what our listeners
need to understand is that prosecutors are often told go
(24:32):
get a conviction, and what matters to them is the win,
and the mentality is when it all costs, even if
it means presenting information that is known to be unscientific, unreliable, unsubstantiated,
including bitemark evidence. At the beginning of this episode, I
(25:08):
asked you to imagine yourself accused of a murder. The
victim had bitemarks all over their body. The prosecution brought
out a parade of experts. They presented what sounded like
unimpeachable scientific fact. You're sitting there knowing that you're innocent,
yet these so called facts about bitemarks are being used
(25:30):
to turn a jury against you. These supposed experts are
still being used to wrongly convict people all over the country.
There are people sitting on death row right now whose
cases are based on the junk science of bitemark evidence.
The good news is that lawyers like Chris Fabricaon are
(25:52):
working with the Innocence Project to overturn cases that are
based on bitemark evidence.
Speaker 3 (25:57):
Our objectives were was to eliminate the use of bite
mark evidence generally, which you know, sadly we still have
an accomplished that goal, but also defined the many many
victims of this junk science and that are still incarcerated
around the country. You know, we still have five different
cases that we're working on right now with people that
are in prison and on death row. We have two
(26:19):
death row clients and one case that's about to go
to trial in another capital case in Pennsylvania that's also
you know, trying to use bite mark evidence.
Speaker 2 (26:28):
The wheels of justice grind slowly, but there is hope
Chris's attempt to eliminate bitemark evidence from our criminal justice
system is indeed paying off. One of Chris's clients, Shila Denton,
who was wrongfully convicted based on bite mark evidence, was
released from prison this past April.
Speaker 3 (26:49):
Sheila Denton was convicted fifteen years ago for the homicide
of a drug dealer in Georgia. The state's theory was
that Sheila Denton, who's you know, weighed in about one
hundred and ten hundred and fifteen pounds, had manually strangled
this crack dealer who's maybe about one hundred and eighty
(27:10):
pounds man, and there was an injury on her arm,
and there was an injury on the victim's arm. The
forensic dentist in the case, a guy named Tom David,
said it was probable that Sheila Denton had bitten the victim,
and it was also probable that the victim had bitten
Sheila Denton, and that was essentially the only evidence in
(27:30):
the case. So Sheila Denton was fairly quickly convicted.
Speaker 2 (27:33):
But when the case was overturned, Chris was able to
convince not only the judge but also the odentologists who
testified for the prosecution that bitemark evidence is nothing but
junk science.
Speaker 3 (27:46):
You know, for an expert who drank the kool aid
for many years and has been declared an expert witness
in courts around the country and takes a lot of
personal and professional pride in the forensic identology practice, you know,
I mean and busting bad guys asked apect of their
civic duties to come to the realization that they were wrong,
(28:06):
that everything that they had talked about and everything that
they believed in was bullshit. That's very, very powerful, and
you need more of that in forensics.
Speaker 2 (28:18):
You might be wondering how you can help besides being
a more critical and informed jour The Innocence Projects Policy
Department works in all fifty states to pass laws that
facilitate releasing innocent people from prison and preventing wrongful convictions.
Sign up for their newsletter so you can see the
policies that are being proposed in your community. There's an
(28:42):
expression that I like to use in wrongful incarceration cases,
which is that pressure breaks pipes. These exonerations don't come easy.
They're usually the result of a grueling fight, and your
voice matters. What I mean by that is, make noise
about the junk science of bitemark evidence. Write a letter
(29:04):
to your local criminal court judges about how inaccurate it is.
Send them articles about its flaws. Write an op ed.
Judges are human, they can be persuaded, and you have
the power to help change their minds by speaking up.
You have learned from this episode, how dangerous one case,
(29:24):
one legal precedent can be in infecting our system of
justice with junk science. All it takes is one more
to write that wrong. And if you wind up as
a juror in a criminal case and you find yourself
presented with something that is touted as science, ask tough
questions of your fellow jurors when you're deliberating. Approach it
(29:46):
with a healthy degree of skepticism. Demand answers to tough questions.
If something doesn't make sense, give the defendant the benefit
of the doubt. After all, isn't that what the presumption
of innocence is all about. If you do that, if
you demand real proof beyond a reasonable doubt and it
(30:07):
doesn't meet that standard, you might just prevent the next
wrongful conviction. Next week, we'll explore the junk science of
blood spatter analysis with award winning journalist Pamela Koloff from
Pro Publica and The New York Times. Pam has written
(30:29):
extensively about this kind of evidence. As part of her research,
she actually became a certified blood spatter analyst. Wrongful Conviction
Junk Science is a production of Lava for Good Podcasts
in association with Signal Company Number One. Thanks to our
executive producer Jason Flahm and the team at Signal Company
(30:50):
Number One executive producer Kevin Wardis and senior producers Karen
Kornhaber and Brit Spangler. Our music was composed by Jay Ralph.
You can follow me on Instagram at dubin dot Josh.
Follow the Wrongful Conviction podcast on Facebook and on Instagram
at Wrongful Conviction and on Twitter at wrong Conviction
Hey, folks, Kate Judson here, I'm a lawyer and the
executive director of the Center for Integrity and Forensic Sciences.
We're back with an episode of Junk Science, a series
we first released in twenty twenty. Each episode highlights ways
that inaccurate or misinterpreted forensics can result in a wrongful conviction.
(00:22):
This week's episode focuses on bitemark evidence, a forensic specialty
that is thankfully falling out of favor as more and
more courts realize its shortcomings. But that doesn't mean that
it's totally gone or that the legal system doesn't still
feel its influence. To me and others familiar with bitemark evidence,
(00:42):
the name doctor Michael West will ring some bells. He's
an infamous bitemark analyst whose questionable assertions in court have
led to many wrongful convictions. He claimed that he could
find bitemarks and other marks on skin that no one
else could find using alternative light source photography, thing that
is unsupported by scientific evidence. This concept is another dimension
(01:05):
of what you'll hear discussed in this episode that increasingly
sophisticated methods of evidence collection don't do a thing to
ensure accurate interpretation. Only By revealing and changing the underlying
systemic problems, can we ensure reliability.
Speaker 2 (01:31):
Imagine this. You're at your house. You're standing at the
stove making dinner. You hear a knock at the door.
It's the police. They ask you your name. They've been
looking for you. The first thing you think is, oh, no,
something must have happened to a friend or someone in
my family. An officer looks you in the eye. They
(01:55):
need to ask you some questions. What is it? What happened?
They won't tell you. You'll need to go down to
the police station. You agree to go with them, and
you ask them over and over what's the problem. You're
putting a small windowless room and you're very anxious, and
(02:16):
you're told you wait here. Two plain closed detectives eventually
come in. One sits across from you, or a rickety
table separates you from him. The other comes to your
side of the table and he sits so close to
you that his knee is touching yours. He quickly begins
accusing you of raping and murdering someone. He says a
(02:39):
name that you recognize. It's your ex who you haven't
been in contact with for years. The one sitting closest
to you, tells you the murder happened last night and
that the only way you can help yourself is to
just admit what you did. He asked you where you
were yesterday. At first, it's not easy to remember the
mundane details of the past day. You were just told
(03:02):
that your ex was murdered. But you take a deep
breath and you try to focus. You were at work
all day. On your way home, you went to the
grocery store. Then you stopped and had a bureau with
some friends at a local bar. Then you got gas
at the gas station. You ran into one of your neighbors.
You can remember sitting there across from those detectives at
(03:25):
least nine alibi witnesses. You tell this to the detectives,
and this gets them even more pissed. They say, look,
we don't believe you. We know you killed this woman.
They tell you that the victim has bite marks all
over her neck, on her shoulder, her inner thigh, and
her arm. They tell you that the killer left those
(03:47):
bite marks that they can determine who committed this crime
just by taking a dental impression of their teeth and
matching it to the bite marks on the victim. And
if you're so innocent, they say, if this is there's
some big mix up and you didn't really do this,
let us just take an impression of your teeth. Fine,
let's do it. After more forceful accusations, they let you
(04:11):
sit there, and sit there, and sit there. A few
hours later, they send a man into the room wearing
a white lab coat, and he certainly looks the part
of a dentist. He takes out two metal bite plates
and fills them with a silly putty like substance. He
pushes these cold trays into your mouth and tells you
(04:33):
to bite down. The putty tastes like plastic. It hugs
your teeth, then quickly firms up and drives. Then it's
pulled from your mouth and there is a perfect impression.
The cops come back in and they tell you can
leave the police station, but they also tell you you're not
to leave town. Three sleepless nights later, you're at your house,
(04:56):
laying awake in bed, and you're really overcome by anxiety.
You're wondering, do I need an attorney or does that
make it look like I may have actually done something wrong?
How do I act what am I supposed to do?
And then your dog starts barking. This time they don't knock.
(05:16):
Your front door is blown off its hinges by a
swat team, and before you know what's happening, you are
on the ground. You can clearly hear one of these
cops yell at you don't fucking move. Your face is
being pushed into the carpet. You're being handcuffed. You're told
you're being charged with the rape and murder of your
(05:37):
ex who you haven't seen or spoken to in years.
At your trial, the prosecution gets two experts in bite marks,
called odentologists, an impressive sounding title for a forensic dentist,
and they explain how the ridges, angles, peaks, and valleys
of your teeth, these unique characteristics, perfectly matched with the
(06:02):
bite marks on the victim. They say things to the
jury that sound really impressive. There's a one in a
million chances that these bite marks are anyone else's but
the defendants, they say, and we know that to a
degree of scientific certainty. The jury seems to be completely
(06:22):
buying this, and why not? It all sounds so rational,
so infallible. You're thinking, I'm really screwtier but you know
you're innocent. Countless innocent men and women have lived this
horrific nightmare. Their wrongful convictions are based on evidence presented
(06:47):
by odentologists, the quote unquote scientific experts and bite mark evidence.
I'm Josh Duben, civil rights and criminal defense attorney, an
innocent ambassador to the Innocence Project in New York. Today
on wrongful conviction junk science, We're going to explore bitemark evidence.
(07:10):
Like other forms of junk science used in criminal trials,
bitemark evidence does not benefit crime victims or their loved ones,
So why is it treated like credible science. It turns
out that the charade of bitemark evidence is actually older
than the United States. On April thirtieth, sixteen ninety two,
(07:41):
a reverend by the name of George Burrows was arrested
and accused of torturing young women into witchcraft. It was
alleged that it would inflict various forms of physical harm
on them, pinching, strangling, and yes, biting them. The evidence
against Burrows was really thin, but the only physical evidence
where the alleged bitemarks that the prosecution claimed his teeth
(08:05):
left on the flesh of his victims at his trial,
Reverend Burroughs was pulled by the face around the courtroom
and his mouth was pride open. A stick was used
to point out the unique characteristics of Burrow's teeth, the peaks,
the angles of his molars, and then they were compared
to what the court was told were bite marks on
(08:25):
the young girls. Burrows was convicted and publicly hanged. While
he stood on a ladder awaiting the tightening of a
noose around his neck, he prayed. He recited the Lord's Prayer,
and a collective gasp, like a creeping wave, rolled through
the crowd that had gathered to watch his hanging. Because
the Lord's Prayer was considered impossible for a witch, and
(08:50):
so bitemark evidence was born in the bloodthirsty hysteria of
the Salem witch trials, Burrow's recitation of the Lord's Prayer
should have been a sign that something was wrong with
his conviction, that he wasn't a witch after all, Because
it turns out the angry, frenzied mob that was so
(09:11):
quick to accuse, convict, and hang George Burrows had in
fact executed an innocent man. Twenty years after he was
put to death, George Burrows was declared innocent. He was
in another town altogether on the knights that the victims
were allegedly tortured. George Burrows hadn't beten anyone at all.
(09:33):
That entire show that was put on in that courtroom,
the circus of forcing his mouth open was nothing more
than performance masquerading as signs. And yet bite mark evidence
is still being used in courtrooms across the country to
convict innocent people of crimes they did not commit.
Speaker 3 (09:54):
Every single case that my department has gotten involved in
has ended up in reversal of the conviction, or exclusion
of the evidence, or withdrawal of the evidence because it's
so grossly unreliable.
Speaker 2 (10:05):
To tell us more about bitemark evidence, we have Chris
Fabricn from the Innocence Project here with us today. Throughout
his twenty year legal career, Chris has worked on countless
cases in which innocent men and women spent decades in
prison because of bitemark evidence.
Speaker 3 (10:20):
We at the Innocence Project had an agenda about eliminating
the use of bitemark evidence in criminal trials.
Speaker 2 (10:28):
Chris, there's a case from the nineteen seventies, the People
versus Marx, which I believe is the first modern instance
of a bitemark on human skin being presented as evidence.
Can you tell us about this case?
Speaker 3 (10:42):
So, Walter Marx was a weekend tenant of a woman
named Lovey Brazanski, and so the first time since he
had had this lease, he did not spend the night
on the weekend, and that same weekend the murder victim
turned up dead. Police discouvers the body on Sunday afternoon,
and they noticed that the victims nose had been indelicately
(11:09):
put bitten off, and the cartilage of the nose on
the victim's face had left the impression of what appeared
to be tooth marks. Mister Marx looked good for it,
but there wasn't really any evidence apart from the fact
that he didn't show up for his usual weekend stay.
So there was a group of dentists who had had
(11:31):
some history with identifying human bodies through dental records, which
is a totally different, unrelated subdiscipline of forensic dentistry. But
they had had some interest in bitemark evidence and had
been kind of looking for the right case to essentially
try this out. And interestingly, mister Mark spent four months
in jail on a contempt charge resisting the court order
(11:54):
to have a mold taken of his teeth. Eventually he
gave up and allowed the mold to be taken.
Speaker 2 (12:00):
Now, let me stop you. There didn't like six or
eight weeks pass before they were able to compare the
impression on Walter Mark's teeth to the victim. And hadn't
she already been buried and they had to exhume her body?
Speaker 4 (12:14):
Yeah.
Speaker 3 (12:14):
You know what's interesting about that is that they still
do exclamations and do that type of powdern matching today.
Speaker 2 (12:22):
Doesn't common sense just dictate that when you bury a
human body, the skin changes, it starts to wear and decompose.
It just seems like intuitive that if there was a
bite mark and you actually could compare a teeth to it,
that it wouldn't be, you know, worth anything to make
that comparison after a body had been buried for that long.
Speaker 4 (12:45):
Yeah, precisely right.
Speaker 3 (12:46):
You're asking the critical questions that no court in the
country asked for forty years, State after state after state
after state cite it back to the Walter Marx decision
as evidence of not just that it's amissibility, but if
it's signed tipic reliability.
Speaker 2 (13:02):
This becomes the precedent. This becomes well, hey, bite mark
evidence was accepted in the Marx case, you should accept
it here, and all of a sudden, it just starts
to get accepted. How is that even possible?
Speaker 4 (13:14):
Because it worked.
Speaker 3 (13:15):
You know, the criminal justice system is an efficient, eating
and killing machine of largely poor people of color, and
whatever facilitates that process, it's going to be used as
long as courts admitted and bite mark evidence was introduced
as evidence. The court admitted it, it got upheld on appeal,
so it was good to go.
Speaker 2 (13:35):
So bite mark evidence was officially accepted in the Marx
case and now it has been ingested, if you will,
into the criminal justice system. But it became acceptable to
the general public because of the Ted Bundy case.
Speaker 4 (13:50):
Right, yeah, you know.
Speaker 3 (13:51):
I mean I sometimes say that Ted Bundy ended up
having many more posthumous victims than any other serial killer
that we can be aware of, because that his trial
led to the widespread use of bite mark evidence all
over the country.
Speaker 2 (14:04):
So for those of our listeners who don't know, but
I feel like it's safe to say, most dude, Ted
Bundy was one of the most infamous serial killers in
US history, and his murder trial was actually the first
criminal trial to ever be televised in the United States. Now,
there was overwhelming evidence that proved Bundy was guilty of killing, raping,
(14:28):
and torturing these young women from Florida State University. And
they had eyewitnessed testimony of him, you know, comings in
the murder scene, leaving the murder scene. They had things
that he had stolen from the homes of these women.
And there was sort of like a beltz in suspenders
moment where they wanted to make sure they did everything
(14:50):
they could to prove his guilt. And they spent two
full days presenting this bitemark testimony in the case. Why
do you think that it is, Chris.
Speaker 3 (15:00):
People are hungry for every piece of news they could
possibly get about Ted Bundy.
Speaker 4 (15:06):
Everybody believed he's guilty.
Speaker 3 (15:08):
The only physical evidence in that case was the bitemark,
so it was touted as you know, bite marks are
the thing that finally brought Bundy down. And after Ted
Bundy was convicted and using bitemark evidence that really just
exploded all over the country.
Speaker 2 (15:39):
There's something about teeth and dentists that gets associated with reliability, right,
I mean, we've all heard about dental records being used
to identify crime victims accident victims, and that sign seems
to be real, But that's very different from saying that
a bitemark can be used to identified the person that
(16:01):
did the biting.
Speaker 3 (16:02):
Right, The identification of human remains through dental records is
kind of a trojan horse for the forensic dentistry crowd
to get into court on bitemark evidence, and I've seen
it firsthand in lots of dentists. Conflating these two subdisciplines
is the same thing. You identify people by their teeth,
(16:22):
and you identify people by the bite marks those teeth make,
and that kind of makes sense until you actually think
about it. The two techniques have nothing whatsoever to do
with each other.
Speaker 2 (16:33):
So why doesn't bitemark evidence work? Why isn't it reliable?
Speaker 3 (16:38):
Bite marks are totally different because you're interpreting an injury
on skin that has almost nothing to do with teeth
at all, And so all of the little individual, theoretically
unique differences in teeth that you're pointing out, the cracks,
the bevels, the crookedness or the straightness or the missing
tooth or this or that that you can think of,
that would be different from mouth to mouth or not
(16:58):
reflected in the skin whatsoever. But even if you can
say with some confidence that these two things can be associated,
then you have to answer the question is it one
in ten or is it one in ten million people
that might also match. So in DNA, we know you
know fairly well how many other people are likely to
(17:19):
share your DNA. We've done the statistical population frequencies to
know and to believe that the human DNA is unique.
Speaker 4 (17:27):
We haven't done that with fingerprints or shoes.
Speaker 3 (17:29):
Or tires or firearms, and we certainly have not done
those with teeth.
Speaker 2 (17:34):
So you're saying that a bitemark and a suspect's tooth
might appear to match, but many other people's teeth might
match that same bite mark, so it's not a unique match.
Speaker 3 (17:45):
Right, So you layer those problems on top of bite
marks where you're trying to interpret an injury in human skin,
where all skin is different, right, old people, young people,
thin people, heavy people. All these things make a difference
in individual skin characteristics. If you are flexing at the
time you were bitten, the bite mark's going to look
(18:05):
one way. If your arm was relaxed at the same time,
it would look a different way. Right, And if you
think about somebody who may be lost one hundred pounds
recently and has saggy skin as a result, right, the
way the bite mark is going to appear on that
person's going to be different than somebody who's you know,
puffy from drinking, right, and their skin's all taut and round,
you know, and you try and bite into that and
(18:25):
you're just going to engage a few teeth. So every
time that the same teeth make a bite mark, it's
going to look different every single time, depending on the
angle of the body, what type of struggle it was,
what type of person that you're dealing with. All of
these things are variables that change every single time. So
it's just fundamental speculation, you know, just guesswork that's proffered
as science.
Speaker 4 (18:46):
Very very persuasive, but totally guesswork.
Speaker 2 (18:49):
I read that someone can be missing their front teeth
bite down on human skin, and the bite mark can
make it appears if they actually have two front teeth,
and that someone would two front teeth that are fully
intact and bite down and the bitemark can look like
they are missing two front teeth.
Speaker 3 (19:10):
Can really get the skin to say anything that you
needed to say, you can match a bitemark to almost
any suspect.
Speaker 2 (19:16):
But if this evidence is so unreliable, then what exactly
makes these odentologists, these bitemark experts so convincing that they're
able to convince a judge or a jury of an
innocent person's guilt.
Speaker 3 (19:30):
So you'll see these experts that are testifying and using
a lot of scientific terminology plus a lot of obscure
dental terminology, and the testimony just becomes opaque, and you
just kind of turn off your brain and your critical thinking.
And the experts sounds so persuasive because they have ten thousand.
Speaker 4 (19:49):
Different ways to record a bite mark.
Speaker 3 (19:50):
Some of them go so far as harvesting tissue they
call it from dead bodies and mounting them on silicone rings,
and they use ultra violet photography and digital photography and
black and white photography, and they use very very precise
dental molds, and they use dental materials that are highly
highly accurate. All that's very impressive, it's just totally meaningless.
(20:12):
There's massive distinction between collecting data and interpreting data and
what a lot of junk science relies on a very
very precise and impressive methods of collecting data and very
very light on interpreting the data.
Speaker 2 (20:31):
And so the evidence of these so called expert odentologists
sound strong because of all the jargon and technology, and
in our society we're told to trust people in white
lab codes, and these guys, these odentologists, really do appear
to be experts.
Speaker 3 (20:49):
When an expert witness gets on the stand, they don't
just start testifying, Right, what's the first thing that they do?
Speaker 4 (20:55):
Right?
Speaker 3 (20:55):
You go through their credentials cvs that are over twenty
pages long, apearances on sixty minutes presentations at the American
Academy of Forensic Sciences. This board membership, that board membership.
The credentials are off the.
Speaker 2 (21:08):
Chain, right, So the jury hears all of these impressive credentials,
and why should they dispute it, And suddenly they start
believing that these so called experts must know what they're
talking about, that they're presenting solid scientific fact.
Speaker 3 (21:25):
It takes a very very critical thinker and an independent
thinker not to be lulled into a sense of, you know,
addicating your responsibility. And there's always two strikes against any
defendant that walks into criminal court and is on trial.
You know, most of the people in the courtroom believe
that he or she is guilty already, the bias that
(21:48):
most Americans walk into court with with the idea that
the person that is on trial is guilty as charged.
Speaker 2 (21:55):
Chris, I've heard of so many convictions where bitemark evidence
was used to gain the conviction and it was later
proven that the injuries weren't even human bites at all.
They were things like insect bites and animal bites or
you know, bruises, something else entirely.
Speaker 3 (22:17):
One of the fundamental claims by bitemark experts, these forensic dentists,
is that they, through their training and experience, have the
ability to discern a human bitemark from other types of injuries.
What we can say in science is that if experts
look at the same evidence and largely come to similar
(22:38):
the same conclusions, there's some reliability in the technique. And
there was a study that was done about four years ago,
and what this was was a survey of the self
identified top forensic dentists in the country, was about forty
of them, and they did a survey of one hundred
different injuries and they wanted to see if there are
(22:59):
inter raidar liability.
Speaker 2 (23:01):
So when a bunch of vote intelligences looked at different
kinds of injuries, did they agree about whether or not
they were looking at photographs of human bite marks?
Speaker 3 (23:09):
These top bite mark experts in the country, they were
all over the place. So even just as a threshold matter,
as we're talking about what's a bitemark and what is
in a bite mark, it's junk science at that level too.
Speaker 2 (23:23):
This study should have been the end of bite mark
evidence and courtrooms in this country, right, I mean, why
wasn't it?
Speaker 3 (23:29):
It depends on really, you know, do you want the
cynical answer or do you want the long term answer.
The cynical answer is that courts don't care. Any tool
that is used successfully to prosecute indigent defendants in our
criminal justice system is almost always going to be available
to the prosecution and continue to be available to the
(23:49):
prosecution once it's become admissible in the first place, and
it's almost impossible to unwind it and to walk back
all that legal precedent. The prosecutors have a duty to
do justice, and that part of that to be never
using unreliable evidence in the case.
Speaker 4 (24:03):
But that's not the way it's done. Once it's amissible.
Speaker 3 (24:05):
The prosecutors are going to continue to fight for its
admissibility because it's useful to get convictions.
Speaker 2 (24:10):
Right. The prosecutor who says, you know what, I feel
uncomfortable presenting a case that is built on junk science
is unfortunately the exception to the rule, and a very
rare exception at that. And I think what our listeners
need to understand is that prosecutors are often told go
(24:32):
get a conviction, and what matters to them is the win,
and the mentality is when it all costs, even if
it means presenting information that is known to be unscientific, unreliable, unsubstantiated,
including bitemark evidence. At the beginning of this episode, I
(25:08):
asked you to imagine yourself accused of a murder. The
victim had bitemarks all over their body. The prosecution brought
out a parade of experts. They presented what sounded like
unimpeachable scientific fact. You're sitting there knowing that you're innocent,
yet these so called facts about bitemarks are being used
(25:30):
to turn a jury against you. These supposed experts are
still being used to wrongly convict people all over the country.
There are people sitting on death row right now whose
cases are based on the junk science of bitemark evidence.
The good news is that lawyers like Chris Fabricaon are
(25:52):
working with the Innocence Project to overturn cases that are
based on bitemark evidence.
Speaker 3 (25:57):
Our objectives were was to eliminate the use of bite
mark evidence generally, which you know, sadly we still have
an accomplished that goal, but also defined the many many
victims of this junk science and that are still incarcerated
around the country. You know, we still have five different
cases that we're working on right now with people that
are in prison and on death row. We have two
(26:19):
death row clients and one case that's about to go
to trial in another capital case in Pennsylvania that's also
you know, trying to use bite mark evidence.
Speaker 2 (26:28):
The wheels of justice grind slowly, but there is hope
Chris's attempt to eliminate bitemark evidence from our criminal justice
system is indeed paying off. One of Chris's clients, Shila Denton,
who was wrongfully convicted based on bite mark evidence, was
released from prison this past April.
Speaker 3 (26:49):
Sheila Denton was convicted fifteen years ago for the homicide
of a drug dealer in Georgia. The state's theory was
that Sheila Denton, who's you know, weighed in about one
hundred and ten hundred and fifteen pounds, had manually strangled
this crack dealer who's maybe about one hundred and eighty
(27:10):
pounds man, and there was an injury on her arm,
and there was an injury on the victim's arm. The
forensic dentist in the case, a guy named Tom David,
said it was probable that Sheila Denton had bitten the victim,
and it was also probable that the victim had bitten
Sheila Denton, and that was essentially the only evidence in
(27:30):
the case. So Sheila Denton was fairly quickly convicted.
Speaker 2 (27:33):
But when the case was overturned, Chris was able to
convince not only the judge but also the odentologists who
testified for the prosecution that bitemark evidence is nothing but
junk science.
Speaker 3 (27:46):
You know, for an expert who drank the kool aid
for many years and has been declared an expert witness
in courts around the country and takes a lot of
personal and professional pride in the forensic identology practice, you know,
I mean and busting bad guys asked apect of their
civic duties to come to the realization that they were wrong,
(28:06):
that everything that they had talked about and everything that
they believed in was bullshit. That's very, very powerful, and
you need more of that in forensics.
Speaker 2 (28:18):
You might be wondering how you can help besides being
a more critical and informed jour The Innocence Projects Policy
Department works in all fifty states to pass laws that
facilitate releasing innocent people from prison and preventing wrongful convictions.
Sign up for their newsletter so you can see the
policies that are being proposed in your community. There's an
(28:42):
expression that I like to use in wrongful incarceration cases,
which is that pressure breaks pipes. These exonerations don't come easy.
They're usually the result of a grueling fight, and your
voice matters. What I mean by that is, make noise
about the junk science of bitemark evidence. Write a letter
(29:04):
to your local criminal court judges about how inaccurate it is.
Send them articles about its flaws. Write an op ed.
Judges are human, they can be persuaded, and you have
the power to help change their minds by speaking up.
You have learned from this episode, how dangerous one case,
(29:24):
one legal precedent can be in infecting our system of
justice with junk science. All it takes is one more
to write that wrong. And if you wind up as
a juror in a criminal case and you find yourself
presented with something that is touted as science, ask tough
questions of your fellow jurors when you're deliberating. Approach it
(29:46):
with a healthy degree of skepticism. Demand answers to tough questions.
If something doesn't make sense, give the defendant the benefit
of the doubt. After all, isn't that what the presumption
of innocence is all about. If you do that, if
you demand real proof beyond a reasonable doubt and it
(30:07):
doesn't meet that standard, you might just prevent the next
wrongful conviction. Next week, we'll explore the junk science of
blood spatter analysis with award winning journalist Pamela Koloff from
Pro Publica and The New York Times. Pam has written
(30:29):
extensively about this kind of evidence. As part of her research,
she actually became a certified blood spatter analyst. Wrongful Conviction
Junk Science is a production of Lava for Good Podcasts
in association with Signal Company Number One. Thanks to our
executive producer Jason Flahm and the team at Signal Company
(30:50):
Number One executive producer Kevin Wardis and senior producers Karen
Kornhaber and Brit Spangler. Our music was composed by Jay Ralph.
You can follow me on Instagram at dubin dot Josh.
Follow the Wrongful Conviction podcast on Facebook and on Instagram
at Wrongful Conviction and on Twitter at wrong Conviction
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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