Over at The Intercept, Jordan Smith has carefully followed Bill Richards’s appeal of his murder conviction to the California Supreme Court. Just over a week ago, she provided a helpful update in light of the recent oral argument that took place in Richards’s case. Here, we take a look at the role of prosecutors in introducing evidence predicated on junk science and defending it on appeal, using Richards’s case as an example. This excerpt from Smith’s piece underscores the key issues:

Junk science and the fallibility of expert opinion are key to Richards’s case. After two hung juries failed to convict him of his wife’s grisly murder, in a third trial San Bernardino County prosecutors introduced new evidence that Richards had supposedly bitten Pamela’s hand while murdering her. If the mark on her hand was in fact a human bite mark that matched Richards’s teeth, that would prove Richards was present when Pamela died, a circumstance Richards has consistently and vehemently denied.

Prosecutors called as a witness Dr. Norman “Skip” Sperber, a forensic dentist whose expertise in bite-mark evidence had been used in cases against serial killers Ted Bundy and Jeffrey Dahmer. Sperber testified that Richards’s dental pattern was so unique that out of 100 people, “one or two or less” would have a similar bite. Moreover, Sperber provided to the jury a blown-up image of the alleged bite mark covered by an overlay of Richards’s teeth and concluded that the mark was clearly “consistent” with Richards’s unique bite.

The problem is that there was no scientific underpinning to support Sperber’s conclusions. Bite-mark analysis relies on two conceits: that human dentition is unique — as unique as DNA — and that the skin is a suitable substrate on which to record that uniqueness. Unfortunately, the only recent empirical research on the reliability of bite-mark “science” has demonstrated that neither proposition is true.

Indeed, Sperber himself eventually not only retracted his opinion in the Richards case but reversed it. After the evidentiary hearing in which the State’s bite-mark evidence collapsed, the trial court granted Richards a new trial. But, the appeals court and the California Supreme Court rejected the trial court’s determination.

Richards has been able to come back to the California Supreme Court a second time on the strength of recent legislation specifically enacted in response to the ruling denying him relief. As Smith noted in an earlier article about the case, in 2014 “California became only the second state (Texas is the other) to codify a junk science statute . . . . [that] specifically allows for appeals based on ‘repudiated’ expert opinions or on evidence ‘undermined by later scientific research or technological advances.’” Providing long-incarcerated inmates access to the courts through such legislation may be vital in many other jurisdictions. Just last month, Keith Allen Harward, who served 33 years for a rape and murder he did not commit, was released in Virginia. DNA testing produced a “cold hit” that matched another individual—someone who was also a sailor stationed in the area at the time of the crime. Harward, however, was “convicted largely on the now-discredited findings of two experts who matched Harward’s teeth to bite marks left on the rape victim’s legs.” If DNA evidence had not been available, Harward may have needed a junk science statute to provide him with a meaningful opportunity to challenge his wrongful conviction.

Concerns about the scientific validity of bite-mark evidence have been raised prominently around the country in recent years. As Radley Balko has reported, alarm bells were initially set off by a 2009 National Academy of Sciences report that “singled out” this evidence “for some of its harshest criticism.” In April of this year, the Texas Forensic Science Commission published a report recommending that bite-mark comparison testimony not be permitted in criminal cases at this time. In the Commission’s words: “the overwhelming majority of existing research does not support the contention that bite-mark comparison can be performed reliably and accurately from examiner to examiner due to the subjective nature of the analysis.” While the Commission issued some harsh words for the American Board of Forensic Odontology (“ABFO”), the professional organization that continues to defend the practice and validity of bite-mark comparison, Smith points out the reality that “[s]ome of the harshest criticism comes from within the field itself—from forensic odontologists who now say the bite-mark evidence dentists for years have peddled in courtrooms is pure junk.”

While some in the public have noticed these major evidentiary developments about an entire branch of forensic “science” that resides at the root of many criminal convictions, few have asked why and how prosecutors continue to rely upon and defend such evidence in courtrooms around the country. Richards’s case is a prime example. A trial court judge had granted him habeas relief in 2009. But, the San Bernardino District Attorney’s Office appealed the ruling, giving the appellate courts the opportunity to revoke relief—an opportunity those courts took.

Not only did the State rely on questionable bite-mark evidence at Mr. Richards’s trial and defend that evidence in subsequent evidentiary hearings, but it also later claimed that the conviction should remain intact because this evidence was actually not crucial to the State’s case. The tactic of backing off of evidence after obtaining a questionable conviction with it—a common one—appeared to draw skepticism from California Supreme Court justices at the oral argument earlier this month. One justice wondered how the prosecution could be “asking us to conclude, even though the prosecution went out of its way to call Dr. Teeth, [that his testimony] really wasn’t that helpful?”

In April, the San Bernardino District Attorney Michael Ramos announced that his office had created a “Conviction Review Unit.” Given how his office has handled Richards’s case, it may be fair to conclude that the decision to start a conviction integrity unit was not a sincere one; instead, it looks like a political maneuver to garner positive press. If Ramos’s motivations were sincere, he probably would not have emphasized that there have been “zero exonerations” from San Bernardino County. If he prides himself on this number—which may reflect how vigorously the office fights to protect bad convictions from scrutiny more than anything else—his incentive seems to be to keep it in place. In that case, what exactly would the unit do if not harm defendants and compel them to waive critical rights during the review process?

Regardless, while the DA throws around the idea that his office “only convict[s] the guilty,” Mr. Richards awaits word from the California Supreme Court. And we await a time when prosecutors cannot capitalize on junk science at trial and defend shoddy convictions with sleight of hand on appeal. Public accountability is a necessary step towards that end. Let us look not just at the quality of the evidence introduced in criminal trials but also at the officers of the court willing to introduce it.

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