August 3, 2020 • 29 mins
Introducing Josh Dubin, civil rights and criminal defense attorney, and Innocence Ambassador to the Innocence Project in New York. On the debut episode of Wrongful Conviction: Junk Science, Josh explores bite mark evidence.
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.
Learn more and get involved.
https://www.wrongfulconvictionpodcast.com/junk-science
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
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
(00:24):
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 you're
(00:45):
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 is,
he is touching yours. He quickly begins accusing you of
raping and murdering someone. He says a name that you recognize.
(01:09):
It's your ex who you haven't been in contact with
for years. The one sitting closest to you who 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 that your ex was murdered.
(01:33):
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 of 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 least nine alibi witnesses. You
(01:57):
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 bite marks, that they can determine
(02:18):
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 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,
(02:40):
they let you 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 train into your mouth and tells
(03:01):
you 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 you
can leave the police station, but they also tell you you're
not to leave town. Three sleepless nights later, you're at
(03:24):
your house, 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. Your front door is blown off
(03:48):
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 ex who you haven't seen or spoken to
(04:09):
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
(04:30):
with the bite marks on the victim. They say things
to the jury that sound really impressive. There's a one
in a million chants 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
(04:50):
be completely buying this, and why not? It all sounds
so rational, so infallible. You're thinking, I'm really screwed here,
but you know you're innocent. Countless innocent men and women
have lived this horrific nightmare. Their wrongful convictions are based
(05:14):
on evidence presented by odentologists, the quote unquote scientific experts
and bitemark 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
(05:36):
to explore bitemark evidence. 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
(06:06):
April thirtieth, sixteen ninety two, a reverend by the name
of George Burrows was arrested and accused of torturing young
women into witchcraft. It was alleged that he would inflict
various forms of physical harm on them, pinching, strangling, and yes,
biting them. The evidence against Burrows was really thin, but
(06:27):
the only physical evidence were the alleged bite marks that
the prosecution claimed his teeth 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,
(06:50):
and then they were compared to what the court was
told were bite marks on the young girls. Burrows was
convicted and publicly hanged. While he stood on a ladder
waiting the tightening him 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
(07:13):
impossible for a witch, and so bite mark 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,
(07:37):
frenzied mob that was so 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
(07:58):
hadn't beiten anyone at all. That entire show that was
put on in that courtroom, the circus of forcing his
mouth open was nothing more than performance masquerading as science.
And yet bitemark evidence is still being used in courtrooms
across the country to convict innocent people of crimes they
(08:19):
did not commit.
Speaker 2 (08:22):
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 1 (08:33):
To tell us more about bitemark evidence, we have Chris
Fabricaon 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 2 (08:48):
We at the Innocence Project had an agenda about eliminating
the use of bitemark evidence and criminal trials.
Speaker 1 (08:56):
Chris, there's a case from the nineteen seventies, the People
versus Marx, which I believe is the first modern instance
of a bite mark on human skin being presented as evidence.
Can you tell us about this case.
Speaker 2 (09:10):
So Walter Marx was a weekend tenant of a woman
named Lovey Borzanski, 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 discovered the body on Sunday afternoon,
and they noticed that the victims nose had been indelicately
(09:36):
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
(09:58):
some history with aifying human bodies through dental records, which
is a totally different, unrelated sub discipline 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
(10:21):
order to have a mold taken of his teeth. Eventually,
he gave up and allowed the mold to be taken.
Speaker 1 (10:27):
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 3 (10:41):
Yeah?
Speaker 2 (10:42):
You know what's interesting about that is that they still
do exhumations and do that type of pattern matching today.
Speaker 1 (10:50):
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 chief 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 3 (11:13):
Yeah, precisely right.
Speaker 2 (11:14):
You're asking the critical questions that no court in the
country asked. For forty years, state after state after state
after state cited back to the Walter Marx decision as
evidence of not just that it's admissibility, but if it's
scientific reliability.
Speaker 1 (11:30):
This becomes the precedent, This becomes well, hey, bite mark
evidence was accepted in the Marks case, you should accept
it here and all of a sudden it just starts
to get accepted. How is that even possible?
Speaker 3 (11:42):
Because it worked.
Speaker 2 (11:43):
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 admit it. And bite mark evidence was
introduced as evidence, the admitted it, it got upheld on appeal,
so it was good to go.
Speaker 1 (12:03):
So bite mark evidence was officially accepted in the Marks
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 3 (12:18):
Right, Yeah, you know.
Speaker 2 (12:19):
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 1 (12:32):
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,
(12:56):
and torturing these young women from Florida State University. And
they had eyewitness testimony of him, you know, coming to
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 belts and suspenders
moment where they wanted to make sure they did everything
(13:17):
they could to prove his guilt. And they spent two
full days presenting this bitemark testimony in the case. Why
do you think that is, Chris.
Speaker 2 (13:28):
People are hungry for every piece of news they could
possibly get about Ted Bundy.
Speaker 3 (13:33):
Everybody believed he's guilty.
Speaker 2 (13:35):
The only physical evidence in that case was the bitemark,
so it was touted as you know, bitite marks are
the thing that finally brought Bundy down. And after Ted
Bundy was convicted of using bitemark evidence, it really just
exploded all over the country.
Speaker 1 (14:06):
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 identify the person that
(14:28):
did the biting, right.
Speaker 2 (14:30):
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, and
you identify people by the bitemarks those teeth make. And
(14:54):
that kind of makes sense until you actually think about it.
The two techniques have nothing whatsoever to do with each other.
Speaker 1 (15:00):
So why doesn't bitemark evidence work? Why isn't it reliable?
Speaker 2 (15:05):
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 reflected
(15:25):
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
(15:46):
share your DNA. We've done the statistical population frequencies to
know and to believe that the human DNA is unique.
Speaker 3 (15:54):
We haven't done that with fingerprints or shoes.
Speaker 2 (15:56):
Or tires or firearms, and we certainly have not done
the with teeth.
Speaker 1 (16:01):
So you're saying that a bite mark and a suspects
tooth might appear to match, but many other people's teeth
might match that same bite mark, so it's not a unique.
Speaker 2 (16:11):
Match, 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
(16:32):
to look 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 that 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
(16:53):
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 variable. Is that change every single time,
So it's just fundamental speculation, you know, just guess work
that's proffered as science.
Speaker 3 (17:13):
Very very persuasive, but totally guesswork.
Speaker 1 (17:16):
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 2 (17:37):
Can really get the skin to say anything that you
needed to say. You can match a bitemark to almost
any suspect.
Speaker 1 (17:43):
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 2 (17:57):
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 different ways to record a bite mark. Some of
(18:18):
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.
Speaker 3 (18:37):
All that's very.
Speaker 2 (18:37):
Impressive, it's just totally meaningless. There's massive distinction between collecting
data and interpreting data, and what a lot of junk
science relies on very very precise and impressive methods of
collecting data and very very light on interpreting the data.
Speaker 1 (18:58):
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 2 (19:16):
When an expert witness gets on the stand, they don't
just start testifying. Right, what's the first thing that they do?
Speaker 3 (19:22):
Right?
Speaker 2 (19:22):
You go through their credentials cvs that are over twenty
pages long, appearances on sixty minutes presentations at the American
Academy of Forensic Sciences, This board membership, that board membership.
The credentials are off the.
Speaker 1 (19:36):
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 2 (19:52):
It takes a very very critical thinker and an independent
thinker not to be lulled into a a sense of,
you know, abdicating 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
(20:14):
bias that most Americans walk into court with with the
idea that the person that is on trial is guilty
as charged.
Speaker 1 (20:22):
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
bruises something else entirely.
Speaker 2 (20:44):
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.
Can say in science is that if experts look at
the same evidence and largely come to similar the same conclusions,
(21:06):
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
A forensic dentists in the country. It was about forty
of them, and they did a survey of one hundred
different injuries and they wanted to see if there are
inter radar reliability.
Speaker 1 (21:28):
So when a bunch of odentologists looked at different kinds
of injuries, did they agree about whether or not they
were looking at photographs of human bite marks.
Speaker 2 (21:36):
These top bitemark 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 1 (21:50):
This study should have been the end of bite mark
evidence and courtrooms in this country, right, I mean, why
wasn't it?
Speaker 2 (21:56):
It depends on really, you know, do you want the
cynical answer or do you want the long term answer.
Thisical 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 prosecution
(22:18):
once it's become amissible 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 should be never using unreliable
evidence in the case.
Speaker 3 (22:30):
But that's not the way it's done.
Speaker 2 (22:31):
Once it's amissible, the prosecutors are going to continue to
fight for its admissibility because it's useful to get convictions.
Speaker 1 (22:37):
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
(22:59):
get a convict, 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
(23:34):
asked you to imagine yourself accused of a murder. The
victim had bite marks 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
(23:56):
to turn a jury against you. These sports 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
(24:17):
working with the Innocence Project to overturned cases that are
based on bitemark evidence.
Speaker 2 (24:23):
Our objectives were was to eliminate the use of bitemark
evidence generally, which you know, sadly we still have an
accomplished that goal, but also to find 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
(24:44):
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 1 (24:54):
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 bitemark evidence, was released
from prison this past April.
Speaker 2 (25:15):
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 was weighed in at about one
hundred and ten hundred and fifteen pounds, had manually strangled
this crack dealer who was maybe about one hundred and
eighty pound man, and there was an injury on her arm,
(25:40):
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
the case. So Sheila Denton was fairly quickly convicted.
Speaker 1 (25:59):
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 2 (26:11):
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 aspect of their civic
duties to come to the realization that they were wrong,
(26:32):
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 1 (26:44):
You might be wondering how you can help besides being
a more critical and informed jourm The Innocence Projects Policy
Department works in all fifty states. The pass laws that
facilitate releasing innocent people from prison and preventing wrong convictions.
Sign up for their newsletter so you can see the
policies that are being proposed in your community. There's an
(27:08):
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
(27:30):
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,
(27:50):
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
(28:12):
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
(28:33):
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
(28:54):
extensively about this kind of evidence. As part of her research,
she actually became I'm a certified blood spatter analyst. Wrongful
Conviction Junk Science is a production of Lava for Good
Podcasts and association with Signal Company Number One. Thanks to
our executive producer Jason Flam and the team at Signal
(29:15):
Company 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 Josh.
Follow the Wrongful Conviction podcast on Facebook and on Instagram
at Wrongful Conviction, and on Twitter at wrong Conviction
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
(00:24):
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 you're
(00:45):
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 is,
he is touching yours. He quickly begins accusing you of
raping and murdering someone. He says a name that you recognize.
(01:09):
It's your ex who you haven't been in contact with
for years. The one sitting closest to you who 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 that your ex was murdered.
(01:33):
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 of 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 least nine alibi witnesses. You
(01:57):
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 bite marks, that they can determine
(02:18):
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 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,
(02:40):
they let you 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 train into your mouth and tells
(03:01):
you 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 you
can leave the police station, but they also tell you you're
not to leave town. Three sleepless nights later, you're at
(03:24):
your house, 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. Your front door is blown off
(03:48):
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 ex who you haven't seen or spoken to
(04:09):
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
(04:30):
with the bite marks on the victim. They say things
to the jury that sound really impressive. There's a one
in a million chants 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
(04:50):
be completely buying this, and why not? It all sounds
so rational, so infallible. You're thinking, I'm really screwed here,
but you know you're innocent. Countless innocent men and women
have lived this horrific nightmare. Their wrongful convictions are based
(05:14):
on evidence presented by odentologists, the quote unquote scientific experts
and bitemark 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
(05:36):
to explore bitemark evidence. 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
(06:06):
April thirtieth, sixteen ninety two, a reverend by the name
of George Burrows was arrested and accused of torturing young
women into witchcraft. It was alleged that he would inflict
various forms of physical harm on them, pinching, strangling, and yes,
biting them. The evidence against Burrows was really thin, but
(06:27):
the only physical evidence were the alleged bite marks that
the prosecution claimed his teeth 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,
(06:50):
and then they were compared to what the court was
told were bite marks on the young girls. Burrows was
convicted and publicly hanged. While he stood on a ladder
waiting the tightening him 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
(07:13):
impossible for a witch, and so bite mark 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,
(07:37):
frenzied mob that was so 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
(07:58):
hadn't beiten anyone at all. That entire show that was
put on in that courtroom, the circus of forcing his
mouth open was nothing more than performance masquerading as science.
And yet bitemark evidence is still being used in courtrooms
across the country to convict innocent people of crimes they
(08:19):
did not commit.
Speaker 2 (08:22):
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 1 (08:33):
To tell us more about bitemark evidence, we have Chris
Fabricaon 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 2 (08:48):
We at the Innocence Project had an agenda about eliminating
the use of bitemark evidence and criminal trials.
Speaker 1 (08:56):
Chris, there's a case from the nineteen seventies, the People
versus Marx, which I believe is the first modern instance
of a bite mark on human skin being presented as evidence.
Can you tell us about this case.
Speaker 2 (09:10):
So Walter Marx was a weekend tenant of a woman
named Lovey Borzanski, 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 discovered the body on Sunday afternoon,
and they noticed that the victims nose had been indelicately
(09:36):
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
(09:58):
some history with aifying human bodies through dental records, which
is a totally different, unrelated sub discipline 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
(10:21):
order to have a mold taken of his teeth. Eventually,
he gave up and allowed the mold to be taken.
Speaker 1 (10:27):
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 3 (10:41):
Yeah?
Speaker 2 (10:42):
You know what's interesting about that is that they still
do exhumations and do that type of pattern matching today.
Speaker 1 (10:50):
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 chief 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 3 (11:13):
Yeah, precisely right.
Speaker 2 (11:14):
You're asking the critical questions that no court in the
country asked. For forty years, state after state after state
after state cited back to the Walter Marx decision as
evidence of not just that it's admissibility, but if it's
scientific reliability.
Speaker 1 (11:30):
This becomes the precedent, This becomes well, hey, bite mark
evidence was accepted in the Marks case, you should accept
it here and all of a sudden it just starts
to get accepted. How is that even possible?
Speaker 3 (11:42):
Because it worked.
Speaker 2 (11:43):
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 admit it. And bite mark evidence was
introduced as evidence, the admitted it, it got upheld on appeal,
so it was good to go.
Speaker 1 (12:03):
So bite mark evidence was officially accepted in the Marks
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 3 (12:18):
Right, Yeah, you know.
Speaker 2 (12:19):
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 1 (12:32):
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,
(12:56):
and torturing these young women from Florida State University. And
they had eyewitness testimony of him, you know, coming to
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 belts and suspenders
moment where they wanted to make sure they did everything
(13:17):
they could to prove his guilt. And they spent two
full days presenting this bitemark testimony in the case. Why
do you think that is, Chris.
Speaker 2 (13:28):
People are hungry for every piece of news they could
possibly get about Ted Bundy.
Speaker 3 (13:33):
Everybody believed he's guilty.
Speaker 2 (13:35):
The only physical evidence in that case was the bitemark,
so it was touted as you know, bitite marks are
the thing that finally brought Bundy down. And after Ted
Bundy was convicted of using bitemark evidence, it really just
exploded all over the country.
Speaker 1 (14:06):
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 identify the person that
(14:28):
did the biting, right.
Speaker 2 (14:30):
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, and
you identify people by the bitemarks those teeth make. And
(14:54):
that kind of makes sense until you actually think about it.
The two techniques have nothing whatsoever to do with each other.
Speaker 1 (15:00):
So why doesn't bitemark evidence work? Why isn't it reliable?
Speaker 2 (15:05):
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 reflected
(15:25):
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
(15:46):
share your DNA. We've done the statistical population frequencies to
know and to believe that the human DNA is unique.
Speaker 3 (15:54):
We haven't done that with fingerprints or shoes.
Speaker 2 (15:56):
Or tires or firearms, and we certainly have not done
the with teeth.
Speaker 1 (16:01):
So you're saying that a bite mark and a suspects
tooth might appear to match, but many other people's teeth
might match that same bite mark, so it's not a unique.
Speaker 2 (16:11):
Match, 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
(16:32):
to look 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 that 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
(16:53):
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 variable. Is that change every single time,
So it's just fundamental speculation, you know, just guess work
that's proffered as science.
Speaker 3 (17:13):
Very very persuasive, but totally guesswork.
Speaker 1 (17:16):
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 2 (17:37):
Can really get the skin to say anything that you
needed to say. You can match a bitemark to almost
any suspect.
Speaker 1 (17:43):
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 2 (17:57):
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 different ways to record a bite mark. Some of
(18:18):
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.
Speaker 3 (18:37):
All that's very.
Speaker 2 (18:37):
Impressive, it's just totally meaningless. There's massive distinction between collecting
data and interpreting data, and what a lot of junk
science relies on very very precise and impressive methods of
collecting data and very very light on interpreting the data.
Speaker 1 (18:58):
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 2 (19:16):
When an expert witness gets on the stand, they don't
just start testifying. Right, what's the first thing that they do?
Speaker 3 (19:22):
Right?
Speaker 2 (19:22):
You go through their credentials cvs that are over twenty
pages long, appearances on sixty minutes presentations at the American
Academy of Forensic Sciences, This board membership, that board membership.
The credentials are off the.
Speaker 1 (19:36):
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 2 (19:52):
It takes a very very critical thinker and an independent
thinker not to be lulled into a a sense of,
you know, abdicating 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
(20:14):
bias that most Americans walk into court with with the
idea that the person that is on trial is guilty
as charged.
Speaker 1 (20:22):
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
bruises something else entirely.
Speaker 2 (20:44):
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.
Can say in science is that if experts look at
the same evidence and largely come to similar the same conclusions,
(21:06):
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
A forensic dentists in the country. It was about forty
of them, and they did a survey of one hundred
different injuries and they wanted to see if there are
inter radar reliability.
Speaker 1 (21:28):
So when a bunch of odentologists looked at different kinds
of injuries, did they agree about whether or not they
were looking at photographs of human bite marks.
Speaker 2 (21:36):
These top bitemark 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 1 (21:50):
This study should have been the end of bite mark
evidence and courtrooms in this country, right, I mean, why
wasn't it?
Speaker 2 (21:56):
It depends on really, you know, do you want the
cynical answer or do you want the long term answer.
Thisical 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 prosecution
(22:18):
once it's become amissible 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 should be never using unreliable
evidence in the case.
Speaker 3 (22:30):
But that's not the way it's done.
Speaker 2 (22:31):
Once it's amissible, the prosecutors are going to continue to
fight for its admissibility because it's useful to get convictions.
Speaker 1 (22:37):
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
(22:59):
get a convict, 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
(23:34):
asked you to imagine yourself accused of a murder. The
victim had bite marks 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
(23:56):
to turn a jury against you. These sports 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
(24:17):
working with the Innocence Project to overturned cases that are
based on bitemark evidence.
Speaker 2 (24:23):
Our objectives were was to eliminate the use of bitemark
evidence generally, which you know, sadly we still have an
accomplished that goal, but also to find 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
(24:44):
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 1 (24:54):
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 bitemark evidence, was released
from prison this past April.
Speaker 2 (25:15):
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 was weighed in at about one
hundred and ten hundred and fifteen pounds, had manually strangled
this crack dealer who was maybe about one hundred and
eighty pound man, and there was an injury on her arm,
(25:40):
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
the case. So Sheila Denton was fairly quickly convicted.
Speaker 1 (25:59):
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 2 (26:11):
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 aspect of their civic
duties to come to the realization that they were wrong,
(26:32):
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 1 (26:44):
You might be wondering how you can help besides being
a more critical and informed jourm The Innocence Projects Policy
Department works in all fifty states. The pass laws that
facilitate releasing innocent people from prison and preventing wrong convictions.
Sign up for their newsletter so you can see the
policies that are being proposed in your community. There's an
(27:08):
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
(27:30):
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,
(27:50):
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
(28:12):
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
(28:33):
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
(28:54):
extensively about this kind of evidence. As part of her research,
she actually became I'm a certified blood spatter analyst. Wrongful
Conviction Junk Science is a production of Lava for Good
Podcasts and association with Signal Company Number One. Thanks to
our executive producer Jason Flam and the team at Signal
(29:15):
Company 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 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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