Author Archives: Mark Godsey

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A Special Thanksgiving Message…

…from the Ohio Innocence Project (Originally posted on Facebook):

Today the Ohio Innocence Project is thankful for YOU, our followers! A year ago, our page had less than 2,000 likes and now we have nearly 5,000 because you all have taken the time to support us and share our message. Your support is essential to our efforts. By liking and sharing our posts and photos, you are bringing attention to a problem that many still don’t realize exists: wrongful conviction. Your efforts have made ours more effective, and for that we are immensely grateful.

To show our thanks, we’d like to share with you some messages from the individuals you have enabled us to help…

CE Thanks

-Clarence Elkins (exonerated in 2005 after spending 7.5 years in prison)DG thanks

-Dean Gillispie (released in 2012 after spending 20 years in prison)

RJ Thanks

-Ricky Jackson (exonerated in 2014 after spending 39 years in prison)

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Dead Bodies and Live Minds: How Investigating a Real Murder Can Inspire Curiosity in the High School Classroom

By Seán Arthurs’

Recently published in Social Education

There are lots of reasons why adolescents are drawn to television shows about crime, forensics, and the intersection of the two. The Hollywood characters and intriguing crime-related plot lines, the drama and suspense around motive and planning, the surprises and accountability of forensic science, and the satisfaction in seeing a wrongdoer brought to justice are certainly among those reasons. However, I hypothesize that there is something more fundamental that draws a youth audience to these shows: people like to solve mysteries. Humans, and particularly adolescents, are naturally curious. We like looking at different pieces of a puzzle and figuring out how those pieces fit together. We like using clues, testing assumptions, and coming up with our own hypotheses around motive, execution, and escape in order to move from suspects to perpetrator. continue reading

Can’t Complain: How Post-Conviction Procedure Rules Inhibit Truth Finding


JURIST Guest Columnist Daniel J. Wright of the Law Offices of Daniel Wright discusses how post-conviction procedure rules hinder the ability to seek truth in faulty sentences… old criminal law court

Those accused of a serious crime are entitled by the Sixth Amendment to the United States Constitution to representation by an attorney. This right extends in most states not only to the initial trial, but also to at least one level of direct review. In many states, more than half of the criminal docket is handled by public defenders or attorneys appointed by the court to defend the indigent.

Following a conviction and appeal, there may or may not be further review of the judgment by way of a permissive appeal to the state’s highest court. Review is normally discretionary, and the highest courts emphasize that they are not merely courts of “error correction.”

But some kinds of errors escape this form of review, and are only correctable later by way of post-conviction proceedings. These would include allegations that the defendant did not receive effective assistance of counsel, for example, either at trial or on direct review. In some states, post-conviction representation is offered through the public defender’s office to prisoners, just as at trial. For example, Maryland offers post-conviction counsel to defendants through the public defender’s office.

Typically, post-conviction cases involve the most serious crimes—murder, armed robbery, burglary, and so on—and prisoners with the longest sentences. This is because prisoners with shorter sentences parole out of the system before their post-conviction cases can be heard by the courts. Non-violent criminals in Maryland are generally eligible for parole after serving 25 percent of their sentence. Even defendants convicted of a crime of violence are parole eligible after serving half their sentences. However, the most serious crimes can result in life sentences, life without parole (LWOP), or a term of years stretching past the life expectancy of the defendant (death-in-prison, or DIP). A defendant convicted of murder in Maryland typically receives a life sentence, plus another twenty years consecutive if a handgun was used in the crime. A second-degree murder or carjacking defendant may receive a sentence of more than a hundred years.

LWOP and DIP sentences are disproportionately [PDF] applied to minorities.The defendants typically are between the ages of 18 and 30 and normally lack a strong educational background. They seldom come from families able to afford private legal representation.

Overworked public defenders often meet with their clients only a few times before trial. This leads to a hands-off approach by many defendants. They allow the attorney to do his job and are not actively involved in their defense. Likewise, when a direct appeal is taken from a trial court’s judgment, it is not unusual for the appellate attorney to develop the arguments and draft the brief without substantial input from the defendant, who may be locked up in a prison hundreds of miles away from his attorney. Communication can be difficult in both directions. Post-conviction proceedings can be equally as difficult.

When all the appeals are exhausted, and the initial post-conviction proceeding is completed, the defendant for the first time is faced with the reality that he alone is now responsible for any efforts to overturn his conviction and win his freedom. At this point, the defendant’s attorney may for the first time hand over the file. A freedom of information request for police files may take a year or more and may be prohibitively expensive.

Legally, however, the situation is most difficult. The defendant has already been convicted and finished a post-conviction proceeding. Any further review is discretionary at best. Judges are often very reluctant to grant post-conviction relief. In states where judges are elected, public opinion often supports a tough-on-crime approach that is anything but defense-friendly.

Nevertheless, when the defendants review their transcripts and court papers, sometimes years after the trial, errors often are revealed. Sometimes this is because the prisoner—with time on his hands—spends months or even years educating himself on the law and reviewing the details of his case. The prisoners sometimes form study groups to help each other learn. Maximum-security prisoners are not always let out of their cell every day, and often have limited access to a law library. For them to learn the applicable law of their case can take years. And yet, even under the horrific circumstances of America’s prisons, many do just that.

Jarmal Johnson was incarcerated for more than 16 years when he discovered that he had been convicted of a crime for which he had not been indicted by the grand jury. He was indicted for Attempted Murder, but convicted of Assault with Intent to Murder, a different crime with different elements. Maryland’s highest court ultimately vacated the conviction. His prior attorneys had simply not noticed the discrepancy.

Edwin Pile faced three trials. One trial resulted in a hung jury, the second judgment was overturned on appeal, and the third resulted in a conviction. He had different lawyers. After 20 years of incarceration, his personal review of his docket records revealed that a judgment of acquittal had been entered in the first trial to his crime of conviction in the third—a clear Double Jeopardy violation. This only came to light, however, because his attorney died and the firm sent him his file. He reviewed all the papers from his trial for the first time almost two decades after his conviction.

The case of John Artis involved faulty jury instructions concerning the definition of reasonable doubt. Mr. Artis fought for more than 20 years against the trial judge’s instructions to the jury concerning reasonable doubt. The court has now conceded that the instructions were erroneous, yet at every turn in the road over the course of more than a decade of appeals the defendant faced resistance, disbelief and stonewalling over his claims of error, from both the prosecutors, the courts, and even his own court-appointed attorney.

Some prisoners benefit from a change in the law. Prior to 1981, courts in Maryland routinely informed jurors that the judge’s instructions were merely advisory and not binding. The jurors were free to disregard the instructions of the judge. This situation was overturned in the early 1980s and made retroactive about 30 years after that. State prosecutors tried to argue, for example, that Jarmal Johnson had waived his right to object to being convicted of a crime for which he wasn’t indicted.

Similarly, prosecutors sometimes try to raise high evidentiary bars to post conviction defendants. Rules may require defendants to produce transcripts of trials when files have long since been discarded. The file of Edwin Pile was missing from the clerk’s office, yet state officials tried to have the case dismissed because a transcript was not compiled.

Federal rules require an inmate to bring a post-conviction challenge to a state court conviction within 12 months. This is an unrealistic time frame given the delays in state courts and the reality that prisoners rarely will have their paperwork available to them in that time, yet such a challenge can normally only be made by a prisoner on his own.

Joseph Miller was convicted of armed robbery in 1988 and sentenced to life without the possibility of parole under Maryland’s repeat offender statute. A review of his case, however, showed that his court appointed attorney had not made an opening statement, not made a closing statement and failed to ask a single question of any witness. The situation came to light more than 25 years after the initial trial. Maryland rules, however, impose higher legal standards on attempts to reopen post conviction proceedings and prevent them altogether if an inmate hasn’t filed within the first ten years.

The legal system cannot be faulted for giving priority to defendants facing trial for the first time. However, post-conviction procedures impose an array of rules that, however well intended, prevent a court from seeking the truth. The reality is that often an inmate’s own efforts years after the fact will uncover errors at his trial. For a variety of reasons these efforts are not likely to occur soon after the initial trial. Concepts such as waiver and time limits on filing petitions (such as 12 months at the federal level) fail to reflect the grim reality that errors are made at trial, often significant errors, and they cannot necessarily be brought to light in the same time frame as a small claims case or landlord-tenant matter. These rules are in derogation of the truth seeking function of the court, yet are imposed on inmates who are often seeking review of life-without-parole or death-in-prison sentences.

Daniel Wright is an attorney in the State of Maryland. He has been practicing law for 35 years and concentrates on trial work, including criminal trials and post conviction. He is a graduate of the University of Wisconsin Law School.

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“I’ll fight ‘til my knuckles bleed for others on death row”: The remarkable story of a man once sentenced to die

From: by Sean Dunne and Jack Shuler

Wrongfully accused & sentenced to die, now Derrick Jamison is free — and fighting back

Derrick Jamison dresses keenly. Tonight he’s wearing black slacks and polished black loafers with a Cincinnati Reds jersey over a long-sleeve black t-shirt, a large silver cross dangling from a chain around his neck. A brand new flat-brimmed Reds ball cap presses down a large shock of hair that just peaks out from beneath. Derrick is black, six foot four, and almost always grinning. He stands out in most places, but he really stands out in this section of the baseball stadium of mostly white males.

“I’m looking forward to this! It’s been a long time,” Derrick says as we all sit down in the Great American Ballpark, just behind the Mets dugout. “There sure are a lot of Mets fans here. You think they travel with the team?” he says aloud, and then taps a guy in front of him on the shoulder who’s wearing a Tom Seaver jersey. “Are y’all following the Mets around the country?” he asks sincerely.

The Mets fan barks dismissively, “No. I live here,” and turns back around, quickly working into the conversation he’s having with another fan that he was at Game 7 of the 1986 World Series between the New York Mets and the Boston Red Sox. While he was at that game in 1986, Derrick Jamison was on Ohio’s death row.

Since 1977, there have been 155 death row exonerations. Derrick is number 119. In all, he spent twenty years inside, seventeen of them on death row. He had six stays of execution, one of which came just 90 minutes before death. He had already had his last meal and made arrangements for his body.

And yet, here he is now at a Reds game on a cool September evening, on the same day that Pope Francis addressed Congress and called for the abolition of the death penalty. A month from now, on October 25, it will be the ten-year anniversary of his release from prison.

For Derrick though, celebrating that release is a mixed bag. He’s living proof of what’s at stake when we talk about the problems of the death penalty. Derrick was accused of the brutal murder of a Cincinnati bartender named Gary Mitchell,who was killed during a robbery in 1984. Two months later, Derrick was arrested for robbing a Gold Star Chili restaurant, and was wearing Pony shoes, as had been Mitchell’s killer. When a man named Charles Howell was arrested for being an accomplice to the murder, he claimed that Derrick was the killer. Howell got a reduced sentence for his testimony.

Derrick was sentenced to death on October 25, 1985, becoming one of 26 people sentenced to death in Hamilton County, Ohio, between 1981 and 1992. For context, this one county sentenced more people to death than 18 of the 38 states that enforced capital punishment during this time period.

But witness descriptions of the suspects didn’t match Jamison’s actual appearance. When one eyewitness to the robbery and murder was shown photos he identified two men—neither was Derrick Jamison. This evidence was suppressed by the police department. In 2000, Derrick was granted a new trial and a Federal judge said that the prosecutor working on the case, Mark Peipmeier, withheld evidence. The charges were dismissed in 2005.

According to the Innocence Project, over one-third of death row exonerees haven’t been adequately compensated. When Derrick was released, the prison gates were opened, and that’s about it. He received no restitution, no support. Despite enduring six stays of executions, eating what he was told was his last meal each time, and being 90 minutes away from his execution, Derrick received no compensation, because Ohio could claim he would have been incarcerated anyway for robbing the Gold Star Chili restaurant.

A few years later, Derrick was walking across the street from the justice center in Cincinnati and he passed Piepmier. He looked over and it was clear that he recognized him.

“He knew he was wrong, but I don’t hold in anger. How you gonna enjoy life like that? I saw those prison guards and their anger,” he pauses. “They killing people and then going home and kissing their kids goodnight.” Derrick says his faith got him through. And, perhaps, his kindness, his gentle demeanor. While in prison, he helped organize care packages for other inmates who did not have support from the outside. On the way into the ballpark, despite his limited resources, he stopped to talk to a homeless man and then gave him a dollar.

Derrick has a lot that he could be angry about. While on death row, his mother and father passed away—he blames their early deaths on the stress of his situation. “The death penalty not only kills inmates,” he says, “it kills families.” In some strange ways, though, he has a new family—that of death row exonerees, a group that forms a singular tribe of the once-incarcerated. They meditate daily not only on their newfound freedom, but on the fact that they were almost killed.

“Just to be clear, you know, I’m not just an exoneree, I’m an abolitionist. I got friends who are still inside.” After spending 20 years of his life in the system, Derrick spends his time trying to change it. He has spoken in every death penalty state and has travelled to other countries to fight against the U.S. death penalty. “I’ll fight ‘til my knuckles bleed for others on death row,” he says, “but I can’t go back to visit them. I can’t have that door close behind me again.”

Tonight provides Derrick with a temporary break in this fight. Tonight he’s most concerned with his Cincinnati Reds. It’s been a rough season. They’ve traded away starting pitchers Johnny Cueto and Mike Leake. And it shows. They’re at the bottom of the National League Central and the Mets are at the top of the East.

After the Reds got one back to tie the game in the sixth, one of the Mets tossed a ball to our section that was caught by the Mets fan wearing the Tom Seaver jersey. Derrick is delighted to be so close, and after the fan shows it off to one of his friends, he shoves the ball into the side pocket of his cargo shorts. Derrick asks him if he can see it. “No!” he yells back to Derrick, barely turning to look at him.

“There are some rude people in this world,” Derrick mutters under his breath.

Throughout the game, Derrick talks openly about his experience in prison among this crew of Mets fans. He tells a story of his basketball team, the one made of death row inmates who could beat the guards when the general population couldn’t.

At the end of the 7th inning, as the Mets jog off the field to their dugout, second basemen Danny Murphy tosses a ball several rows behind Derrick, there’s a mad scramble, and Derrick, along with Jack and Sean, the authors of this article, turn to their right to see who would catch it. Almost immediately after turning to follow the ball’s path, Sean sees that the ball has been knocked forward by fans competing to catch it and sticks his left hand out to catch it.

Derrick asks, “Where did the ball go?”

“Right here,” Sean says, handing the ball to Derrick. “Now you have your own.”

Derrick is ecstatic.

Soon after, a man who was sitting in our row a few seats down from us approaches Derrick after watching us take photos with the ball.

“Didn’t you talk at our church on Martin Luther King Day?”

“Yes, I did,” he replies.

“I recognized you. It’s good to see you. Congratulations!”

Derrick Jamison’s presence is testimony—an argument for abolishing the death penalty. Exonerees like Derrick give people a name and a face, a story to attach to the numbers and often vague pronouncements about capital punishment.

But since 2005, Derrick’s life has been rough at times. He struggles financially and psychologically, mostly with the personal trauma of being so close to death, and so often.

In the soft glow of the lights in the 8th inning, thumbing the caught ball in his hands, none of that matters. And it doesn’t matter that the Reds are losing. It’s just a game. There will be more chances, more games.

Sean Dunne is assistant professor of Sociology at Shawnee State University. He has published articles in The Irish Times, The Irish Independent, Z Magazine, and elsewhere.

Jack Shuler is author of three books including “The Thirteenth Turn: A History of the Noose” (PublicAffairs, 2014). His writing has appeared in Salon, The Atlantic, Los Angeles Times, Truthout, among others. He teaches at Denison University.

Click here to read the original publication.


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Wrongful Imprisonment: Reuven Fenton on the Horror of Prison for Women


By Jillian Kramer

Reuven Fenton (pictured) recently sat down for an interview with Glamour Magazine to discuss his new book Stolen Years.

At this very moment, the National Registry of Exonerations—a database of wrongful conviction cases from the last 26 years—lists 1,679 innocent men and women who went to prison. In his new book, Stolen Years, reporter Reuven Fenton profiles 10 of them, telling their harrowing stories of imprisonment and how they were set free. “As you’re reading this, an impossible-to-document number of wrongly convicted people are sitting in prison, and only a small fraction will ever get out,” Fenton writes. “If this book helps fuel a burgeoning conversation about lives destroyed by our win-at-all-costs criminal justice system, I’ve done my job.”

We sat down with Fenton to find out what inspired him to write this book, and how women are really treated when they enter the system.

Glamour: Your book, Stolen Years, tells the stories of 10 men and women who served prison sentences for crimes they didn’t commit. How did you choose this subject matter for a book? What about it intrigues you?

Fenton: I cover all sorts of breaking news for the New York Post, and one type of story that I’ve covered more and more frequently in recent years is the exoneration story—when a man or woman who served decades in prison is found by a judge to have been wrongfully convicted and is freed. If you’ve ever had the opportunity to witness this in a courtroom, it’s something you never forget.

A few years ago, I covered the exoneration of a man named David Ranta, who served two decades for killing a rabbi in Brooklyn. And let me tell you, the sight of Ranta being able to walk over to his daughter in that courtroom and hug her for the first time as a free man was easily one of the most moving things I’ve ever seen.

Then, after the hearing, there was this big, chaotic press conference and reporters were asking Ranta questions like, “How does it feel to be out of prison?” and, “What’s the first thing you plan on doing as a free man?”

And these are all perfectly good questions to ask, because this was a breaking news story and the press needed the relevant soundbites. But I remember thinking, man, this guy’s got a whole story to tell and we’re not even scraping the surface.

That’s where the idea for this book stemmed. Anyone who’s ever been wrongfully imprisoned is in a unique position to tell one of the most incredible stories one can tell—if he or she is up to it. I decided I’d profile 10 exonerees and give each of them a magazine story-length amount of space to tell their tale. I could easily have written an entire book about a single case, but if I’d done that I wouldn’t have accomplished my second objective: showing how wrongful convictions can happen to people of all walks of life, for so many different reasons.

Glamour: How did you choose which cases to highlight?

Fenton: One of the saddest things about wrongful convictions is how frequently they occur. Some studies say the number of innocent men and women currently doing time at U.S. prisons at as high as five percent. That’s potentially 100,000 innocent inmates—a staggering number.

I had certain criteria in mind for this book. I wanted to profile people who’d been locked up for at least 10 years and who’d been exonerated within the past few years. I also wanted each of my subjects to be from a different state.

And it was important for me to include women, because women aren’t typically thought about when it comes to wrongful conviction. I think this is largely because far more men than women go to prison, and therefore more men than women get exonerated. But this doesn’t make women’s stories of wrongful imprisonment any less compelling. In the end I ended up profiling two women and found their stories to be among the most riveting.

Glamour: What made these women’s stories so riveting?

Fenton: More than anything, what struck a chord for me was the way they spoke about their estrangement from their children. It’s extremely difficult to maintain relationships with family, especially when you’re handed a life sentence as these women were. So one can only imagine what it’s like being a mother, watching your kids visit you less and less frequently until they stop visiting altogether.

Glamour: Are there any common themes—beyond wrongful conviction, of course—between each of these cases?

Fenton: I was expecting at least some of the people I profiled to be broken versions of their past selves. After all, they’d been through the worst kind of hell.

What I wasn’t expecting, and was delighted to find out, was that all 10 of my subjects showed an incredible triumph of the human spirit. They all had a positive outlook on life, both in and out of prison. Each believed in their heart that they’d be free one day. Despite seeing the justice system fail them so horrifically, they still believed that their freedom was a fundamental right, almost in a cosmic sense.

And each of them, once they got exonerated, refused to brood over the years they had lost. They just wanted to hit the road running, catching up on all they missed and rebuilding their lives. Since getting out, some have started families, others have built successful businesses. Even the ones that haven’t been as successful still keep pushing, because they’re determined to make the most of the time they have left.

Glamour: What did you learn about how women, specifically, are sometimes treated in the legal system?

Fenton: Women suffer all sorts of horror in prison that men are spared from. And this is becoming an increasingly relevant issue as the number of women inmates in jails and prisons continues to grow.

Let’s start with the scariest issue: sexual assault in prison. At the worst prisons, one in four women gets sexually assaulted while serving out her sentence. A considerably higher percentage of women have experienced incidents when male corrections officers solicited them for sex in exchange for special treatment, or with threats of discipline if they refused.

Neither of the women I profiled had this happen to them, at least not that I know of. But Debra Brown of Utah did speak about the time she opened a pantry door in the prison kitchen where she worked and caught a female inmate performing a sexual act on a male officer. Later, the officer warned Debra to keep her mouth shut.

An issue related to sexual assault is that of unreasonable searches. Many female inmates suffered sexual abuse before they went to prison, and become retraumatized when they have to strip down and get full-body searches. Although the Fourth Amendment is supposed to guarantee them the right to refuse these searches, they often don’t know their rights.

Glamour: How is women’s health affected in prison?

Fenton: Women’s health is another major issue. All kinds of research has found that women inmates often have more severe health problems than men, often due to issues tied to poverty, drug use and sexual assault. Women inmates also suffer higher rates of mental illness than men. Yet prisons don’t always take this into account. They don’t necessarily provide the needed hygiene products for women who are menstruating. They often fail to give pregnant women proper care.

Women who want abortions run into all sorts of barriers. I read about one case in a New York facility in which the prison waited so long to schedule an inmate’s abortion that the legal 24-week limit passed, and then it was too late.

The exoneree Debra Brown, who I mentioned earlier, got breast cancer and cervical cancer while locked up. Her experiences were horrifying in a number ways, and it’s an absolute miracle she survived. In one instance, she went to see her doctor about the cervical cancer and he asked her how she was doing on her meds to keep the breast cancer from returning. She was like, “What meds?” The pharmacy had lost the paperwork or something.

Glamour: In chapter nine, we read about Ginny LeFever, a woman who went to prison for more than two decades for killing her soon-to-be-ex husband based on—quiet honestly—laughable evidence. Her story begs the question: Is there a bias against women?

Fenton: Whether this particular case suggests a bias against women is up for debate. But I would like to point out something:

The weird thing about Ginny LeFever’s case is that the toxicologist—who turned out to be a total fraud—claimed she had killed her husband in this really elaborate way. He said she inserted arsenic pellets into his rectum, then locked him in a room bombed with fumigant and finally just beat the living daylights out of him.

Her alleged bungled attempts at murder remind me of a cartoon, like Wile E. Coyote always devising these crazy ways to capture the Road Runner and always messing it up.

LeFever has always maintained that her husband ingested a bottle of antidepressants in an apparent attempt to kill himself, and that’s how he died. And you have to wonder why her explanation was so much less believable than the toxicologist’s.

Well, we know that in the weeks and months leading to her husband’s death, Ginny had been having a very tough time dealing with the guy. He’d been showing up to her house at odd hours and sending her stalky messages. She was in a very vulnerable place.

Unfortunately, that sort of vulnerability can be interpreted as a motive to murder somebody. And that’s where the prosecutor had a leg up against the defense. So despite all sorts of evidence to the contrary, and despite the couple being days away from finalizing their divorce, the prosecutor was able to convince a jury that this woman hated her husband so much that she killed him.

And you have to ask yourself whether it was ethical for the prosecutor to use a woman’s vulnerability as a weapon against her, just to win a case.

Glamour: When telling each story, what was your goal? What do you want readers to take away from the book?

Fenton: I just think there’s no better way to change something that needs fixing than through stories. That’s what journalism is all about. The public responds to drama.

Let’s say the big story of the week is about war in the Middle East. You can cite statistics and draw up charts until you’ve made your point ad nauseam, but nothing is going to stir people to bring change if they aren’t moved on a gut level. That’s where stories come in—real, in-depth stories about people who have been treated unjustly.

I spend the bulk of Stolen Years telling these stories, trying to give readers—and myself—a sense of what if feels like to go to prison for a crime you didn’t commit. I wanted people to know how itchy the prison scrubs are, how bad the food is—and what it’s like to be stabbed 73 times by Aryan Nation thugs, as Drayton Witt was in chapter five.

Then the final chapter, the backbone of the book, is the call to action. That chapter analyzes the top causes of wrongful convictions and suggests ways to help—for instance, volunteering with innocence organizations that are often two-man teams desperately in need of help. Or reaching out to elected officials. Stuff that really does make a difference if enough people get involved.

My hope is that by saving my call to action for the end of the book, readers will be so moved by the stories that they’ll actually be motivated to help.

Nearby New York City? You can attend a special reading and snag a signed copy of Fenton’s book, Stolen Years: Stories of the Wrongfully Imprisoned, at 7 P.M. on Nov. 12 at the Mysterious Bookshop, 58 Warren St. Otherwise, follow Fenton on Twitter at @reuvenfen for future events and more information on his book. The book is available beginning Nov. 10.

Another Texas Exoneration Calls Bite Mark Evidence Into Question

From: Texas Monthly

Steven Chaney became the twenty-sixth person to be wrongly convicted or indicted based on bite mark evidence. The two dental experts who testified against him have also testified in numerous other cases—and they’ve been wrong before.

By Michael Hall

After serving 28 years in prison, Steven Chaney walked away a free man last Monday when a Dallas judge overturned his 1987 murder conviction. The clincher that sent Chaney to prison nearly three decades ago? Bite mark testimony, given at his trial by two forensic odontologists. The clincher that secured his freedom? Discredited bite mark testimony.

The outcome of Chaney’s case is yet another notable strike against the controversial practice of using bite marks to secure convictions. For decades, testimony from forensic dentists—who inspect the injuries of victims and attempt to match them to the dental patterns of alleged perpetrators—has been admissible in court. Often, this testimony is the prosecutor’s only physical evidence.

Chaney was on trial for the murder of John Sweek, a drug dealer found stabbed to death on his kitchen floor. Chaney, a construction worker, had been one of Sweek’s customers. During the trial, Homer Campbell, a forensic dentist from Albuquerque, told the court that there was a “reasonable dental certainty” that the bite marks on Sweek’s arm came from Chaney. Jim Hales, chief dental consultant for the Dallas County Medical Examiner’s Office, piled on with an alarming statistic: that there was a “one to a million chance” someone other than Chaney was the biter. Even though Chaney had nine alibi witnesses, the jury placed considerable stock in the word of these experts. One juror, when asked why he voted for Chaney’s guilt, said, “The bite mark.”

But now, in an affidavit filed with the court, Hales has admitted what critics of bite mark evidence have been saying for years: even an expert can’t reliably match bite marks to teeth.

Conclusions that a particular individual is the biter and their dentition is a match when you are dealing with an open population are now understood to be scientifically unsound. Under today’s scientific standards, I would not, and could not, testify to a reasonable medical/dental certainty as I testified at the time of trial nor could I testify that there was a ‘one to a million’ chance that anyone other than Mr. Chaney was the source off the bite mark.

Chaney’s lawyers—Julie Lesser, with the Dallas County Public Defender’s Office, and Barry Scheck of the Innocence Project—challenged the conviction, citing Texas’s junk science law, passed in 2013, which says that a conviction can be attacked in a writ of habeas corpus if there is new science that contradicts the science that was used at trial.

The truth is, there was never any conclusive data or rigorous studies to back up bite mark evidence, which has been under fire from scientists and defense lawyers ever since it was first allowed in court in 1974. Tests of bite mark evidence reliability have found error rates between 12 and 64 percent, but since no court ever ruled against its admissibility, it was allowed.

Bite marks are nothing like DNA profiles.

Forensic odontologists sometimes can’t even agree on whether marks found on – skin—a malleable, inconstant medium—came from teeth or not. The first official red flag about bite mark evidence came in 2009 when a report from the National Academy of Sciences said, “The scientific basis is insufficient to conclude that bite mark comparisons can result in a conclusive match.” Around that time a husband and wife team of researchers at SUNY Buffalo began doing research on bite marks using cadavers, and after more than a dozen studies, they found that “statements of dental uniqueness with respect to bitemark analysis in an open population are unsupportable.” In other words, bite marks are nothing like DNA profiles—and there are certainly no statistics to back up accurate comparisons between sets of teeth, like Hales did when he said there was a “one to a million chance” anyone but Chaney was the biter.

It was significant that Dallas County DA Susan Hawk concluded that “the bite mark evidence that was critical to [Chaney’s] conviction has been discredited”—he is now the twenty-sixth person to have been wrongly convicted or indicted based on bite mark testimony—but county prosecutors knew about his case for months. All summer long the Texas Forensic Science Commission—which for the past five years has been blazing a trail of state-wide criminal justice reforms via numerous investigations of labs and forensic disciplines—has been looking into bite marks after a complaint was filed by Chaney’s lawyers, who asked the commission to “exercise its statutory mandate to investigate and report on ‘the integrity and reliability’ of bite mark evidence.” The FSC has already held one meeting to look into bite marks—last month in Dallas—and Chaney’s name came up often. His name will come up again when the FSC convenes again next month in Fort Worth.

One of the things Chaney’s lawyers asked the FSC to do is go back and vet cases where bite mark testimony was used in Texas in the same way the FSC has been re-investigating old hair microscopy cases. When it does so, the commission will find other troublesome Texas cases, including three that Campbell (now deceased) and/or Hales handled at the same time as Chaney’s.

One of those cases involved two men convicted for the rape and murder of Juanita White in Waco in 1986. When investigators found what they believed to be bite marks on White’s body, they took a dental mold of a suspect named Calvin Washington and drove it to Dallas for Hales to inspect. His conclusion? Washington’s teeth matched the wounds on White’s body. But the story didn’t end there. Investigators began to suspect Washington had an accomplice, a man named Joe Sidney Williams, and they made a mold of his teeth too. This mold—along with Washington’s mold and White’s autopsy photos—was sent to Campbell, who saw things differently than Hales: Williams was the biter, not Washington. Prosecutors chose to go with Campbell’s identification, not Hales’s, and in August 1987 Williams went on trial. The only physical evidence were the bite marks. Campbell identified four of them on White’s body and said Williams’s teeth were consistent with an injury on her hip. “The research states that there are no two people that have the same position [of their teeth],” Campbell testified, though no such research has ever been done. Williams was found guilty, as was Washington in a later trial where almost the same evidence was presented.

But both Campbell and Hales were wrong, a fact not found out until 2000, when the semen in the rape kit was compared to the DNA profile of another man. It matched the new suspect and Washington was freed. (Williams had been freed in June 1993 because testimony from a jailhouse informant had been ruled inadmissible.) The two men served a total of 19 years in prison for a murder they had nothing to do with—all based on bogus bite mark testimony.

The third case is even more troubling because it involved an execution. The defendant’s name was David Spence, and he was, oddly enough, Juanita White’s son. (For more on this labyrinthian case read “The Murders at the Lake.”) Spence was convicted in two trials, in 1984 and 1985, of the murders of three Waco teens and given the death penalty. The only physical evidence against him: bite marks on the bodies of two of the victims. The expert who testified: Homer Campbell. Spence, Campbell said, was “the only individual” to a “reasonable medical and dental certainty” who could have bitten the women. According to jurors, Campbell’s words were powerful. “We had life-size pictures of the marks and a cast of [Spence’s] teeth brought into the jury room,” remembered one juror afterward. “The testimony—‘everyone’s bite mark is different, like a fingerprint’—was very convincing.”

Spence’s appellate lawyers tried to attack Campbell’s methods with other forensic odontologists. One, Thomas Krauss, a former president of the American Board of Forensic Odontology (ABFO), said Campbell’s methodology was “well outside the mainstream.” Krauss helped the lawyers set up a blind panel of five odontologists to analyze the autopsy photos and vet Campbell’s work by comparing the marks with dental molds from Spence and four other subjects. The results were astonishing. Though the five experts identified several patterns that were possibly bite marks, they couldn’t say much more. One of them said the photos were too poor in quality to compare to the molds. A second wrote that the marks were “more likely than not made by insects or artifacts.” A third thought that some of the marks were probably bite marks, but he couldn’t match any of the molds to them. Two of the experts did indeed match one of the marks to one of the molds, but it was not Spence’s. It belonged to a housewife from Phillipsburg, Kansas. Unfortunately for Spence, the study wasn’t completed until after the deadline for Spence’s writ. He was eventually executed, despite numerous questions about his guilt—the biggest coming from the fact that the only physical evidence against him came from Campbell.

Campbell made at least one other embarrassing mistake that we know of. In 1984, a few years before he testified against Spence and Chaney, he was asked by a lieutenant in the sheriff’s department in Coconino County, Arizona, for help in identifying the body of a young woman found alongside I-40 near Flagstaff. The lieutenant had a hunch the girl was a missing runaway from Jacksonville, Florida, named Melody Cutlip, who had left home in 1981. Campbell compared the corpse’s teeth with those in a photo of Cutlip that he enlarged. “They matched exactly,” he told the Ocala Star-Banner. Cutlip’s family was notified and the corpse was buried in a Williams, Arizona, cemetery under a headstone with her name. In 1986, Cutlip contacted her mother. She was alive. Campbell was wrong.

A review of old bite mark cases will almost certainly reveal more false identifications, simply because of the nature of the way experts thought and testified. As Hales said in his affidavit in Chaney’s case:

At the time of the trial in December 1987 both the ABFO guidelines and the scientific field of Forensic Odontology supported use of the terms match and biter to relate a suspected person to a bite mark and it was permissible for experts to testify to a reasonable degree of medical/dental certainty that an individual was the biter in a case.

And indeed, if you go back and look at old cases, the word “match” is constantly used by experts, dating back to that very first 1974 case (“The bite mark matches the teeth reproduced in the model”). If experts didn’t say “match,” they said words that meant the same thing: “no question in my mind” (the defendant bit the victim); “it could be no one but [the defendant] that bit this girl’s arm.” Sometimes, as Hales did in Chaney’s trial, they would go further and use statistics, even though no studies had ever been done. Campbell did it in a 1977 Arizona case, when he testified that marks found on a murder victim’s breasts and a model he’d made of defendant’s teeth were “consistent,” which he then quantified by saying, “The probability factor of two sets of teeth being identical in a case similar to this is, approximately, eight in one million, or one in 125,000 people.”

Statements like these were, in Hales’s own contemporary words, “scientifically unsound”—opinions from well-intentioned experts with little to guide them but their own eyes and their own experience. (We reached out to Hales, who declined to comment for this article.) Campbell himself acknowledged the basic problem with bite mark analysis during the Joe Sidney Williams trial in 1987, when he was asked about its inherent subjectivity. “It is subjective,” he said. “I’ll admit it.”

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