Michael Bowers has been one one of the heroes to shed light on the bite mark matching fraud. He has personally exposed a number of quacks, and contributed to the National Academy of Sciences report that found no scientific basis for the idea that bite marks on human skin can be definitively matched to one person, to the exclusion of everyone else.
Now, two bite mark specialists whom Bowers has criticized are suing him for stating at a conference that they contributed to a wrongful conviction.
Dentists Russell Schneider, of Waukegan, and Carl Hagstrom, of Fox Lake, filed their lawsuit against Michael Bowers, a dentist in California who is a frequent and sometimes acerbic critic of his fellow forensic odontologists for work that has led to numerous wrongful convictions . . .
The two dentists allege in their lawsuit that Bowers spoke at a conference of forensic dentists in Chicago earlier this year and included a case they worked on in a list of 10 wrongful convictions caused by bite-mark evidence. That, the two allege, was wrong and subjected them to ridicule and a loss of business.
I wrote a bit about this particular case in the Reason criminal justice issue. The prosecutor in the case? None other than Lake County, Illinois Assistant State’s Attorney and DNA fabulist Mike Mermel, who was recently forced to resign for comments he made in an unflattering profile in the New York Times.
When a DNA test in 2003 showed that the semen in the underwear of a 68-year-old woman didn’t belong to Bernie Starks, a man convicted in 1986 of raping . . . her, Mermel dismissed the results because the semen came from the victim’s clothing. Had it come from the woman’s vagina, Mermel said, “I would be standing over there advocating the side that the defense has in the case.”
Three years later, defense attorneys found the rape kit and tested semen recovered from the woman’s vagina. Again, there was no match. Mermel again wouldn’t budge, this time arguing that the woman must have had sex with someone else just before the rape.
In its brief to keep Starks in prison, the state cited Schneider and Hagstrom’s testimony as evidence of Starks’ guilt, despite the DNA evidence. Here’s their attorney:
They say Schneider stood up and told Bowers that Starks’ conviction was not reversed because of any of the bite-mark evidence, but Bowers “ignored plaintiff’s statement and did not retract his assertion that the Bennie Starks conviction was premised upon faulty bite-mark testimony.”
“Whether or not he had sexual intercourse with her … has nothing to do with my clients,” said Michael Krause, one of the attorneys for the two dentists, neither of whom returned calls for comment. “My clients feel that their reputations have been harmed by Bowers’ statements. It’s actually quite simple.”
He’s at least right about that last part. Starks’ attorney explains:
“The victim was attacked by one person who sexually assaulted her. We know that wasn’t Bennie Starks, so it wasn’t Bennie Starks who bit her,” said Jed Stone, one of Starks’ attorneys. “There is no other interpretation of this evidence that makes any sense and isn’t completely fanciful.”
Based on the DNA testing, the Illinois Appellate Court overturned Starks’ conviction in 2006. Because of Mermel’s posturing, Starks has yet to get a new trial. It’s reminiscent of Forrest Allgood keeping Kennedy Brewer in prison years after DNA testing cleared him because of Michael West’s claim that bite marks on the victim were a match with Brewer’s teeth. Allgood postulated that someone else must have raped the girl while Brewer held her down and bit her.
One intriguing thing about this lawsuit: In a defamation suit, the plaintiff must prove that the alleged defamatory statements are false. Assuming it isn’t tossed before it gets that far, it would be fascinating if the lawsuit became an inquiry into the scientific validity of bite mark evidence. Something tells me that Bowers would probably welcome that. The plaintiffs probably wouldn’t.
In other bite mark news, CNN’s Anderson Cooper recently aired a report on the topic on his show. Over at the Bite Marks Evidence blog, David Averill posts this incredible video from the report, in which bite mark specialist Lowell Levine defends bite mark testimony as “important and viable.” But when asked if there’s a way it can be validated with the scientific method, he responds, “I sure can’t think of it.”
It’s telling that Levine would be considered one of the country’s most respected bite mark witnesses. He too nearly helped convict an innocent man. From a 2004 article on bite mark testimony in the Chicago Tribune:
. . . a team of Massachusetts State Police officers turned to Levine in hopes of solving the gruesome murder of Irene Kennedy.
The 75-year-old grandmother had been beaten and stabbed two dozen times while on a morning stroll with her husband in a park outside Boston. The killer, who attacked Kennedy when she and her husband briefly took separate paths, left a bite mark on her breast.
The investigators drove from Boston to Levine’s office. Explaining the circumstances of the murder, they asked him to compare photos of the bite mark on Kennedy’s body with a copy of a mold made from the teeth of a suspect, Edmund Burke . . .
. . . in a sworn deposition taken in the lawsuit, Levine testified that after studying the materials in his office, he told the waiting officers he could not exclude Burke but would need additional information for a more definite opinion.
Three days later, Levine went to Boston to examine more evidence, asking police to provide him with enhanced photos of the bite wound. They did, and that, Levine said, was enough.
In his deposition, Levine said he concluded “to a reasonable scientific certainty” that Burke had left the bite on Kennedy’s breast.
Police searched Burke’s home, and arrested and jailed him. The county prosecutors called the bite mark the “most compelling evidence” in the case.
Less than six weeks later, though, officials had to admit they were wrong. DNA taken from saliva recovered on the bite mark was analyzed. A genetic profile was obtained, and prosecutors said it was not Burke’s. He was set free.
Levine insisted in the January 2003 deposition that he had been correct when he linked the bite mark to Burke, although he also hedged a bit, saying he had never made a definitive “match.”
Under questioning by a lawyer for Burke, who sued the police and Levine after he was cleared, Levine stood by his bite-mark analysis.
“Do you think he bit her breasts?” attorney Robert Sinsheimer, who represents Burke, asked Levine in the deposition.
“I think with a high degree of probability he did,” Levine said. He offered possible explanations for why the DNA did not match Burke, including that police who had handled the crime scene contaminated the DNA.
He also noted that another prominent forensic odontologist, Dr. Ira Titunik of New York, had examined the evidence and concurred in his opinion. Titunik confirmed that he had informally examined the evidence and agreed with Levine.
But then Levine’s analysis took another hit. In June 2003, some five months after Levine testified under oath and held fast to his bite-mark analysis, police announced they had made another arrest in Irene Kennedy’s murder.
The genetic profile derived from the bite mark, the police said, had been entered into a database. It hit on a convicted murderer.
I haven’t yet seen the entire CNN story. I hope they at least mentioned the Burke case before introducing Levine as an expert.