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All Bark but No Bite

Loaded on April 15, 2021 by Douglas Ankney published in Criminal Legal News May, 2021, page 49
Filed under: junk science. Location: Texas.

by Douglas Ankney

Adam Freeman, an ex-president of the American Board of Forensic Odontology (“ABFO”), has vehemently criticized bitemark-matching evidence. Freeman was deeply disturbed upon discovering that when ABFO-certified experts examined case files, they rarely agreed that the bitemarks were human – and even less so that the mark came from the same human. And a 2009 National Academy of Sciences report sounded the alarm about bitemark matching: The bitemark-matching procedure wasn’t developed by scientists subjected to a peer review process demanding consistent standards, reproducible results, and objective measures – the procedure was developed by law enforcement officers. And now that it has become known that numerous defendants were wrongfully convicted based on bitemark evidence, a number of former experts in the field have recanted their testimony and denounced the practice as “junk science.” Yet the evidence is still permitted in courts.

According to Chris Fabricant, the Innocence Project director of strategic litigation, it is left to the discretion of individual judges whether to allow the evidence. “We’ve got (three current) pretrial capital cases where bitemark evidence was proffered by the prosecutors,” Fabricant was quoted by The Legal Examiner in December 2020.

Progress is being made, however. The odontology board that certifies forensic odontologists now states that when it comes to matching bitemarks to a particular suspect, the only options are: “the suspect is excluded,” “the suspect is not excluded,” or “inconclusive.” That’s radically different from the conclusions of the purported experts who testified at the trial of Jeffery Moldowan, claiming the “chances are 2.1 billion to 1” that an individual other than Moldowan made the bitemarks. (Maldowan served 12 years in prison before being acquitted at a retrial after one expert recanted her testimony.)

In 2016, Texas’ Forensic Science Commission called for a ban on bitemark-matching evidence but has no authority to enforce it. And in Florida in September 2020, their conviction review unit exonerated a man who was convicted 37 years ago on bitemark evidence. The unit identifies cases underpinned by junk science like bitemark evidence. Fabricant said that while some of the recently elected prosecutors are pledging to establish similar conviction review units in their own states, it is not the norm. And with the election of President Biden who claims to trust science, there is cautious optimism that he will revive the Obama-era review of all the pattern-matching techniques used by the FBI, including bitemark comparisons. 

 

Source: legalexaminer.com

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  2. A Primer on Overcriminalization, by David Reutter
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  8. Seventh Circuit Vacates Sentence Where District Court Improperly Imposed Leadership Enhancement, by Douglas Ankney
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  10. D.C. Circuit Highlights Racial Disparity Concerns With First Step Act After District Court Erroneously Denies Relief, by Dale Chappell
  11. D.C. Department of Forensic Sciences Firearms Examination Unit Under Fire, by Derek Gilna
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  18. Wyoming Supreme Court: District Court Abused Discretion by Granting State’s Dismissal of Charges Without Prejudice and Refiling to Gain Tactical Advantage, Remands for Dismissal With Prejudice, by Douglas Ankney
  19. Fourth Circuit: Employment Restriction for Supervised Release Overbroad and Impermissible Delegation of Power to Probation, by Dale Chappell
  20. Texas Court of Criminal Appeals: Good Faith Exception Inapplicable to Unsworn Search Warrant, by Anthony Accurso
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