#145 Wrongful Conviction: Junk Science - Bite Mark Evidence

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 told you wait here. Two plainclothes detectives eventually come in. One sits across from you. 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.

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 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 least nine alibi witnesses. You tell this to the detectives, and this it's to 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 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, 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 rays into your mouth and tells you to bite down. The putty taste 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 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 its hinges by a swat team, and before you know what's happening, you're 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 in years. At your trial, the prosecution gets two experts and 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 bite marks on the victim. They say things to the

jury that sound really impressive. There's a one in a million chance 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 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. They're Wrongful convictions are based on evidence presented by odentologists, the quote unquote scientific experts and bite mark evidence. I'm Josh Duben, civil rights and criminal defense attorney and innocence ambassador to the Innocence Project in New York. Today on wrongful conviction junk science, We're going to explore

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. On April 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 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 Burrows 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 burrows teeth, the peaks, the angles of his molders, 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 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 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, 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 nights that the victims were allegedly tortured. George Burrows hadn't bitten 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 bite mark evidence is still being used in courtrooms across the country to convict innocent people of crimes

they did not commit. 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. To tell us more about bite mark evidence, we have Chris Fabricaun 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 bite mark evidence. We at the Innocence Project had an agenda about eliminating the use of bite mark evidence in criminal trials. Chris, there's a case from the nineteen seventies, the People Versus Marks, 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? So, Walter Marks was a weekend tenant of a woman named Lovey Brazonski, 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 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. Mr Marks looked good for it, but there wasn't really any evidence apart from the fact that he didn't show up for his usual weekends stay. So there was a group of dentists who had had some history with theifying human bodies through dental records, which is a totally different, unrelated subdiscipline of forensic dentistry, but they had had some interest in bite mark evidence and had been kind of looking for the right case to essentially

try this out. And interestingly, Mr Mark spent four months in jail on a contempt charge resisting the cord order to have a mold taken of his teeth. Eventually he gave up and allowed the mold to be taken no, 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. Yeah.

You know what's interesting about that is that they still do exclamations and do that type of pattern matching today. Doesn't common sense just dictate that when you bury a human body, the skin changes, it starts to wear, decompose. It just seems like intuitive that if there was a bite mark and you actually could compare 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. Yeah,

precisely right. You're asking the critical questions that no court in the country asked for forty years, state after state after state after state sited back to the Walter Mark's decision as evidence of not just that it's a missibility, but if it's scientific reliability, 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? Because it worked. 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 core, it admitted it, it got upheld on appeal, so it was good to go. 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, right, Yeah, you know. 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. 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, and torturing these young women from Florida State University, and they had witness 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

they could to prove his guilt. And they spent two full days presenting this bite mark testimony in the case. Why do you think that it is, Chris, People are hungry for every piece of news they could possibly get about Ted Bundy. Everybody believed he is guilty. The only physical evidence in that case was the bite mark, so it was touted as you know, bite marks are the thing that finally brought Bundy down. And after Ted Bundy um was convicted and using bite mark evidence, it really

just exploded all over the country. 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 bite mark can be used to identify the person that did the

biting 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 bite mark 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 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. So why doesn't bite mark evidence work? Why isn't it reliable? 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 and 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 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 intent or is it one in ten million people that might also match. So in d NA, we know you know fairly well how many other people are likely to share your DNA. We've done the statistical population frequencies to know and to believe that the human DNA is unique. We haven't done that with fingerprints or shoes, or tires or firearms, and

we certainly have not done with teeth. So you're saying that a bite mark 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, right, So you layer those problems on top of bite marks where you're trying to interpret an injury and 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're flexing at the time you're a bitten, the bite mark is gonna look one way. If your 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 a hundred pounds recently and has saggy skin as a result, right, the way the bite mark is going to appear on that person is going to be different than somebody who's you know, puffy from drinking right and their skins all taught and round, you know, and you try and bite into that and

you're just gonna engage a few teeth. So every time that the same teeth make a bite mark, it's gonna look different every single time, depending on the angle of the body, what type of struggle 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. Very

very persuasive, but totally guesswork. 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 with two front teeth that are fully intact and bite down and the bite mark can look like they are missing two front teeth can really get the skin to say anything that you needed to say. You can match a bite

mark to almost any suspect. But if this evidence is so unreliable, then what exactly makes these odentologists these bite mark experts so convincing that they're able to convince a judge or a jury of an innocent person's guilt. So you'll see these experts that are testifying in 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 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 that are highly highly accurate.

All that's very 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. 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. When an expert witness gets understand, they don't just start testifying. Right, what's the first thing that they do? Right? 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 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. It would take the very very critical thinker and 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 and

is on trial. You know, most of the people in the courtroom believe that he or she is guilty already. The bias that most Americans walk into court with with the idea that the person that is on trial is guilty as charged. Chris, I've heard of so many convictions where bite mark 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.

One of the fundamental claims by bite mark experts, these forensic dentists, is that they, through their training and experience, have the ability to discern human bite mark from other types of injuries. We hand say in science is that if experts look at the same evidence and largely come two similar or 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 is about forty of them, and they did a survey of a hundred different injuries and they wanted to see if they're inter radar reliability. 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? 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 bite mark and what isn't a bite mark, it's junk science at that level too. This study should have been the end of bite mark evidence in courtrooms in this country, right, I mean, why wasn't it? It depends on really, you know, do you want the cynical answer or do you want the long term answer. The 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 once it's become admissible in the first place, and it's almost impossible to unwind it and to walk back all that legal precedents. The prosecutors have a duty to do justice, and that part of that should be never using unreliable evidence in

the case. But that's not the way it's done. Once it's admissible, the prosecutors are going to continue to fight for its admissibility because it's useful to get convictions. 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 get a convey action, and what matters to them is the win, and the mentality is when at all costs, even if it means presenting information that is known to be unscientific, unreliable, unsubstantiated, including bite mark evidence. At the beginning of this episode, I 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 bite marks are being used to turn a jury against you. The suppose spurts 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

signs of bite mark evidence. The good news is that lawyers like Chris Fabricon are working with the Innocence Project to overturned cases that are based on bite mark evidence. 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 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 death row clients in one UM case that's about to go to trial, in another capital case in Pennsylvania that's also you know, you're trying to use bite mark evidence. The wheels of justice grind slowly, but there is hope Chris's attempt to eliminate bite mark evidence from our criminal

justice system is indeed paying off. One of Chris's clients, Sheila Denton, who was wrongfully convicted based on bite mark evidence, was released from prison this past April. Sheila Denton was convicted fifteen years ago for the homicide of a jard

dealer in Georgia. The state's theory was that Sheila Denton, who's you know, weighed in and about a hundred and ten hundred fifteen pounds had manually strangled this crack dealer was maybe about a hundred and eighty pound man, and there was an injury on her arm, and there was

an injury on the victim's arm. The forensic dentists 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. 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 bite mark evidence is nothing but junk science. 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 odentology practice, you know what I mean In busting bad guys aspect of their civic duties, to come to the realization that they were wrong, that everything that they had talked about, everything that they believed in,

was bullshit. That's very, very powerful, and you need more of that in forensics. You might be wondering how you can help besides being a more critical and informed journe The Innocence Projects Policy Department works in all fifty states. The past laws the facilitate releasing innocent people from prison and preventing wrong ful convictions. Sign up for their newsletter so you can see the policies that are being proposed

in your community. There's an 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 bite mark evidence. Write a letter to your local criminal court judges about how inaccurate it is, Send them articles

about its flaws. Right and 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, 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 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 doesn't meet that standard,

you might just prevent the next wrongful conviction. Okay. 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 extensively about this kind of evidence. As part of her research, she actually became him a certified blood spatter analyst. Wrongful Conviction Jung Science is a production of Lava for Good Podcasts in association

with Signal Company Number One. Thanks to our executive producer Jason Flom and the team, it's Signal Company number One Executive producer Kevin Wardis and senior producers Karen Cornhaber and Brit Spangler. Our music was composed by j Ralph. You can follow me on Instagram at dubin Dot. Josh followed the Wrongful Conviction podcast on Facebook and on Instagram at Wrongful Conviction and on Twitter at wrong Conviction