Last month, the U.S. Court of Appeals for the Seventh Circuit granted qualified immunity to Lowell Thomas Johnson and Raymond Rawson, the two bite mark specialists whose testimony helped convict Robert Lee Stinson of raping and murdering an elderly Wisconsin woman in 1984. Stinson spent 23 years in prison before DNA testing exonerated him in 2009. Further testing implicated a man named Moses Price, who then confessed to the crime.

The only real evidence against Stinson was the testimony of Johnson and Rawson, who claimed they could match bite marks on the victim’s body to Stinson, to the exclusion of everyone else. Johnson claimed that the marks on the woman “had to have been made by teeth identical in all of these characteristics” to Stinson’s. Rawson claimed the marks matched Stinson’s teeth “to a reasonable degree of scientific certainty.”

Stinson claims to have been severely beaten when he was arrested. Before trial, Stinson’s attorneys consulted with their own bite mark analyst. That analyst too claimed that the marks were a match to Stinson. So Stinson’s attorneys never called a witness to contradict Johnson and Rawson. They did attempt to draw attention to a line in a forensics journal about how some experts disagreed with the conclusions of bite mark analysts. The trial judge refused to let them. Stinson was convicted and sentenced to life in prison.

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I wrote a bit about Stinson’s case in my series on bite mark evidence that ran in February. The particularly remarkable thing about Stinson’s case is that in his appeal, he challenged the validity of bite mark analysis, claiming that there’s no scientific research to support its claims. In 1986, the Wisconsin Supreme Court conceded in a footnote that without the bite mark evidence, the state’s case against Stinson “may not have been sufficient to convict him.” But the court not only rejected Stinson’s appeal; the justices also spent a dozen paragraphs meticulously explaining why bite mark evidence is sound.

In one footnote, the justices pointed out that at the time of the decision, “bite mark comparison has received evidentiary acceptance in nineteen jurisdictions. No jurisdiction has rejected the admission of such evidence.”

This is true. But as I pointed out in my series this year, this is almost entirely due what you might call a judicial echo chamber that began with the 1975 case Marx v. California. In that case, a California appeals court admitted testimony from bite mark analysts who had done their analysis six weeks after the murder victim had been autopsied, embalmed and buried. Even so, the court did not perform an analysis of the scientific validity of the evidence. Indeed, it conceded that there was no scientific evidence to analyze. Instead, the California court simply stated that the trial judge had eyeballed the evidence and found it persuasive. To overrule the trial judge, the court concluded, “would be to abandon common sense.” As one critic of forensic analysis put it, Marx became a “global warrant” for bite mark evidence across the country.

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In the end, the Wisconsin Supreme Court concluded “that the evidence presented was sufficient to convince the jury, to a moral certainty, that there was no reasonable hypothesis of Stinson’s innocence.” The opinion was unanimous.

The Stinson case itself then became a case that prosecutors would cite in seeking to have bite mark evidence admitted and that appeals courts would cite in upholding its validity.

Of course, Stinson was innocent, although that wasn’t discovered until he’d lost 23 years of his life. In its decision last month, the unanimous Seventh Circuit panel found that unless Stinson can show that Rawson and Johnson knowingly fabricated evidence, the two dentists are protected by qualified immunity and can’t be sued. It isn’t enough that their expert testimony was self-evidently bogus; Stinson would have to prove that they didn’t believe their own nonsense. And barring some smoking-gun audio recording of the experts admitting as much, that’s next to impossible. From the opinion:

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Arriving at an unreasonable expert opinion may suggest negligence, perhaps even gross negligence, but it does not amount to the intentional fabrication of evidence. A mistake in forensic analysis—even an egregious mistake—is grievous given the stakes in this context, but an expert who renders a mistaken opinion is protected by qualified immunity. Fabricated opinion evidence, for which the expert might not have qualified immunity, must be both wrong and known to be wrong by the expert.
Stinson places special emphasis on the discrepancy between Dr. Johnson’s early hypothesis—that the murderer was missing the right lateral incisor—and his ultimate opinion that Stinson’s dentition matched the bite marks on Cychosz’s body. (Recall that Stinson was missing his right central incisor, the tooth just next to the right lateral incisor.) This discrepancy suggests that forensic odontology is not very precise (raising legitimate questions about its reliability), but it’s not evidence that Dr. Johnson knew his opinion was false—i.e., that it was a lie.
We acknowledge that it’s not easy to prove that an expert knowingly falsified an opinion. We also recognize that the first step toward proving that an expert was intentionally lying is proving that his opinion was wrong. But to conclude that an expert fabricated his opinion solely because it was wrong—even grossly wrong—would collapse the essential distinction between mistaken opinions (for which there is immunity) and fabricated opinions (for which there is not). Stinson’s fabrication claim is based entirely on the opinions of new experts that Drs. Johnson and Rawson were terribly wrong about the bite-mark evidence and that they used unreliable methods falling far below the standards of their profession. We do not second-guess this new opinion evidence, but it demonstrates at most that the odontologists acted unreasonably, not that they fabricated their opinions. Stinson has nothing else to support his evidence-fabrication claim.

On some level, this opinion makes some sense. To start allowing witnesses to be sued for making honest mistakes would provide a disincentive to testifying. If we’re talking about charlatans and quacks, we want such a disincentive. But it could also prevent good witnesses from coming forward.

The problem is that this case didn’t exist in a vacuum. The courts allowed fraudulent experts to put a man in prison. But the courts now say that because the courts made that mistake, the man who was wrongly imprisoned can’t sue those experts.

Moreover, Raymond Rawson and Lowell Thomas Johnson didn’t just use bogus science in this one case; they also were evangelists for bite mark evidence. They actively tried to persuade other judges and other appeals courts to accept bite mark evidence. And they (and others like them) have been enormously successful.

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In fact, Raymond Rawson would go on to help convict another innocent man — Ray Krone spent a decade in prison and was nearly executed after he was convicted of killing Phoenix waitress Kim Ancona. Krone was exonerated by DNA evidence in 2002. Over the years, Rawson has authored dozens of articles about bite mark analysis published by forensic journals. He was president of the American Board of Forensic Odontology, the leading advocacy group for bite mark analysts. He co-wrote the group’s original guidelines for bite mark matching. He has taught bite mark analysis and served as a consultant to local governments. He even won a seat in the Nevada state Senate.

Lowell Thomas Johnson has also been a fierce advocate for bite mark matching. In May 2008, Johnson was profiled in USA Today for starting a database of human dentition that he claimed would provide scientific validation for his field. (It didn’t.) That article appeared about a year before Johnson would learn that a man he helped convict two decades ago had been proved innocent by DNA testing.

It took more than three decades, but over the past several years, actual scientists have finally started testing the claims of bite mark analysts. And as we’ve pointed out on several occasions here at The Watch, those scientists are showing that bite mark analysis is a fraudulent field. Even the ABFO’s own effort to show that its accredited analysts used sound science backfired and showed precisely the opposite. When given photos of marks on human skin, the analysts couldn’t even come to a consensus on whether marks were made by human teeth. Last July, a senior-level science adviser to President Obama said that bite mark evidence should be “eradicated” from the courtroom. The same month, Judge Gary Feinerman of the United States District Court for the Northern District of Illinois found that “There appears to be little, if any, scientifically valid data to support the accuracy of bite mark comparison, and the data that does exist is damning.” He went on to call bite mark analysis “transparently fraudulent” and compared the field to astrology.

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But just as with Stinson, Feinerman found that bite mark analysts who testify are protected by qualified immunity. In fact, he ruled that the very quackery of the field protects its practitioners from liability.

It would be akin to saying that an astrologer “falsified” his conclusion that, because the planets are in a particular alignment, the defendant must have committed the crime, or to complaining that a palm reader grossly deviated from professional standards by mistaking the heart line for the head line.

Keep in mind, Feinerman wrote this in an opinion that denied a wrongly convicted man the opportunity to sue the experts Feinerman was comparing to palm readers and astrologists.

This might all be dismissed as an outrageous and unjust but anachronistic quirk in the annals of our criminal justice system — like fugitive slave trials, or the use of phrenology — except for one huge problem: To date, not a single state court in the United States has rejected bite mark evidence. In Wisconsin, Stinson is still good law. It’s still cited by prosecutors in other states when they want to argue for the validity of bite mark evidence. (Such as Mississippi Attorney General Jim Hood in the case of Eddie Lee Howard.)

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If you were to look up the Stinson case on a legal database like Lexis or Westlaw, you wouldn’t even know that he had been exonerated. You’d see the Wisconsin Supreme Court’s through defense of bite mark matching in 1986, and you’d think that was the end of the story. (And if you didn’t know better, you’d probably find it pretty convincing.) That’s true of the other bite mark exonerations, too.

And it isn’t as if the courts merely haven’t had the chance to revisit the issue. In 2012, an appeals court in Texas once again upheld the validity of bite mark evidence. So did a Pennsylvania judge in 2011. In 2013, a state judge in New York did the same, siding with a prosecutor in the Manhattan DA’s office who has become a fierce public advocate for bite mark analysts. The courts and public officials aren’t ignoring this issue. They’re doubling down on it.

Robert Lee Stinson wants the courts to extract a reckoning from the men who wrongly put him in prison. Our system doesn’t allow that. But before you can have a reckoning with fraudulent expert witnesses, the system would first have to admit that it was wrong to allow them to testify. And yet despite all the exonerations, critiques and science debunking bite mark analysis, that’s still something no state court has been able to do.

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