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
Wrongful Conviction: Junk Science is a production of Lava for Good™ Podcasts in association with Signal Co No1.
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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
(00:44):
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
(01:05):
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
(01:26):
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
(01:49):
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
(02:11):
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
(02:33):
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
(02:56):
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,
(03:18):
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
(03:38):
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
(04:00):
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,
(04:23):
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
(04:44):
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
(05:10):
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.
(05:32):
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.
(06:06):
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
(06:27):
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
(06:50):
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
(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 nights that the victims were allegedly tortured. George Burrows
(07:58):
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
(08:19):
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
(08:40):
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
(09:02):
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
(09:26):
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
(09:47):
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
(10:10):
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
(10:31):
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
(10:53):
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,
(11:13):
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
(11:35):
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
(11:56):
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
(12:17):
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
(12:37):
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
(13:00):
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
(13:21):
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
(13:44):
um was convicted and using bite mark evidence, it really
just exploded all over the country. There's something about teeth
(14:07):
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
(14:29):
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
(14:49):
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
(15:09):
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
(15:32):
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
(15:54):
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
(16:15):
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,
(16:35):
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
(16:55):
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
(17:18):
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
(17:39):
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
(18:00):
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
(18:24):
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
(18:46):
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
(19:06):
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
(19:27):
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
(19:47):
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
(20:09):
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
(20:32):
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,
(20:53):
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
(21:16):
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
(21:38):
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
(22:00):
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
(22:21):
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
(22:42):
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,
(23:03):
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,
(23:33):
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
(23:55):
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
(24:15):
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
(24:36):
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
(24:58):
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
(25:22):
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
(25:45):
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,
(26:08):
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,
(26:28):
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
(26:51):
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.
(27:15):
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
(27:35):
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.
(27:56):
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
(28:18):
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,
(28:45):
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
(29:07):
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
(29:29):
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
(00:44):
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
(01:05):
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
(01:26):
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
(01:49):
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
(02:11):
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
(02:33):
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
(02:56):
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,
(03:18):
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
(03:38):
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
(04:00):
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,
(04:23):
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
(04:44):
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
(05:10):
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.
(05:32):
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.
(06:06):
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
(06:27):
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
(06:50):
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
(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 nights that the victims were allegedly tortured. George Burrows
(07:58):
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
(08:19):
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
(08:40):
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
(09:02):
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
(09:26):
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
(09:47):
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
(10:10):
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
(10:31):
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
(10:53):
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,
(11:13):
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
(11:35):
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
(11:56):
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
(12:17):
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
(12:37):
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
(13:00):
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
(13:21):
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
(13:44):
um was convicted and using bite mark evidence, it really
just exploded all over the country. There's something about teeth
(14:07):
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
(14:29):
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
(14:49):
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
(15:09):
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
(15:32):
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
(15:54):
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
(16:15):
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,
(16:35):
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
(16:55):
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
(17:18):
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
(17:39):
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
(18:00):
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
(18:24):
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
(18:46):
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
(19:06):
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
(19:27):
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
(19:47):
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
(20:09):
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
(20:32):
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,
(20:53):
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
(21:16):
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
(21:38):
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
(22:00):
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
(22:21):
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
(22:42):
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,
(23:03):
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,
(23:33):
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
(23:55):
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
(24:15):
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
(24:36):
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
(24:58):
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
(25:22):
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
(25:45):
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,
(26:08):
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,
(26:28):
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
(26:51):
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.
(27:15):
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
(27:35):
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.
(27:56):
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
(28:18):
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,
(28:45):
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
(29:07):
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
(29:29):
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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