Panoramic dental x-ray (Getty Images)

A couple months ago, I wrote about a decision from the U.S. Court of Appeals for the 5th Circuit, which held that expert witnesses Steven Hayne and Michael West, while perhaps grossly negligent, could not be sued by the two innocent men their testimony wrongly put in prison, because they were protected by qualified immunity. The wrongly convicted men had to show either recklessness or intentional misconduct, and the court found that what Hayne and West did in those cases didn’t meet that standard.

Last week, the U.S. Court of Appeals for the 7th Circuit issued its own ruling in a lawsuit against two bite-mark experts. This one turned out differently.

The case is from Wisconsin, and the wrongly convicted man is Robert Lee Stinson. I wrote about the case in a 2015 series on bite mark evidence. Here’s a summary:

One particularly striking example of how bite mark matching was back-ended into the criminal justice system came in a 1986 ruling by the Court of Appeals of Wisconsin. The case was the first time bite mark evidence had been introduced in the state. The court’s ruling was one of “first impression,” meaning that there was no precedent, and that its ruling in the case would likely establish one. In 1983, Robert Lee Stinson had been convicted of raping and murdering an elderly woman. The only physical evidence linking him to the crime was the testimony of two bite mark specialists: Lowell Thomas Johnson and Raymond Rawson.

Rawson at the time was on the ABFO’s Bite Mark Standards Committee. He had also co-authored the organization’s original guidelines for bite mark matching. Johnson performed the initial analysis in the Stinson case by placing a mold of the suspect’s teeth over photographs taken of some marks on the victim’s body. Johnson concluded that the marks “had to have been made by teeth identical in all of these characteristics” to the teeth of Robert Lee Stinson. Rawson went next, and confirmed that the marks matched Stinson’s teeth “to a reasonable degree of scientific certainty.”

Stinson appealed the admission of bite mark evidence in his trial. The Wisconsin Court of Appeals ruled against him. The court’s opinion was forceful and authoritative . . .

In the end, the Wisconsin Court of Appeals concluded that the reliability of the bite mark evidence in the case was sufficient “to exclude to a moral certainty every reasonable hypothesis of innocence.”

And yet the court was wrong. Stinson spent 23 years in prison before DNA testing exonerated him. Stinson never bit the victim. All of the argumentation about set-back incisors, flared teeth and the arch of the mouth, all of that evidence that screamed guilt — to a moral certainty no less — it was all nonsense. Yet the court never made any effort to correct its mistake. As Fabricant and Carrington point out in their article, State v. Stinson is still the controlling precedent for bite mark evidence in Wisconsin. That the man whose name appears in the case was actually innocent doesn’t seem to matter.

The DNA tests provided a match to a man already in prison, who then confessed to the crime. Rawson would go on to help convict another innocent man — Ray Krone in Arizona. Krone was nearly executed.

In September of 2015, Stinson actually lost in front of this same appeals court. A panel for the court found that while bite-mark testimony may be unreliable, and that the expert in this case may have been exceptionally bad, in order to get past qualified immunity, Stinson had to show that they deliberately fabricated evidence. That’s an extremely difficult hurdle to clear, and they ruled that Stinson fell short. This is essentially the same thing that the 5th Circuit court found in the lawsuit against Hayne and West.

Stinson re-filed his lawsuit with new claims. The bite-mark experts (and the police officer who investigated the case) again moved for summary judgment based on qualified immunity. But this time a federal district court judge found that when viewing the evidence in a light most favorable to Stinson, a jury could find that Rawson and Johnson had manufactured the evidence against him. They appealed, and that’s where we get to last week’s decision.

By a 7-4 vote, the court ruled in Stinson’s favor, albeit on a fairly complicated procedural issue involving when a federal appeals court can or can’t review a federal district court’s denial of qualified immunity. The interesting parts of both the majority opinion and the dissent come when the judges are discussing the high bar a plaintiff must clear in order to even get in front of a jury. As I wrote above, they basically have to prove malicious intent. But the majority ruled that intent can be proven with circumstantial evidence.

Intent is, after all, most often proven circumstantially. See, e.g., Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (stating that a meeting of minds “may need to be inferred even after an opportunity for discovery, for conspirators rarely sign con‐ tracts”); United States v. Nocar, 497 F.2d 719, 725 (7th Cir. 1974) (“As courts have frequently pointed out, knowledge and intent must often be proven by circumstantial evidence.”). Rarely will there be an admission of subjective intent. The intent to fabricate is a question of fact that the district court concluded could be inferred in Stinson’s favor by the evidence in the record at summary judgment, and the defendants’ challenge to whether that is true is the type of appeal forbidden by Johnson.

Here’s the circumstantial evidence, interpreted most favorably to Stinson: The investigating officer met with the expert Johnson ahead of time. From the marks on the victim’s body, Johnson determined that the killer was missing a specific tooth. The officers went looking for suspects and brought in Stinson, a man they had wrongly suspected of a previous murder. Stinson was missing a tooth, but it wasn’t the tooth that Johnson said should have been missing. Johnson then changed his opinion. He now claimed that the bite mark indicated that the person who inflicted it was missing the same tooth that Stinson was missing. They then called in Rawson, who backed up Johnson’s conclusions. And again, both experts were wrong. Stinson was innocent. For the majority, this was enough for a reasonable jury to infer a conspiracy to fabricate evidence.

The dissent disagreed.

Accepting these facts as true establishes only that Drs. Johnson and Rawson were grossly negligent in declaring that Stinson’s dentition matched the bite marks on the victim’s body. In other words, their opinions were objectively unreasonable, and egregiously so. But an error in forensic analysis—even a grossly unprofessional error—is not a due process violation. Fabricating evidence to convict an innocent person is a clear due-process violation, but a due process claim based on an allegation that an expert fabricated his opinion requires evidence from which a reasonable jury could infer that the opinion was both wrong and that the expert knew it was wrong at the time he gave it. In other words words, it requires evidence that the expert was not just badly mistaken but that he lied. So Stinson needed at least some circumstantial evidence to support an inference that Drs. Johnson and Rawson knew that he was not the killer and implicated him anyway.

This again is essentially the standard that the majority applied in the lawsuit against Hayne and West. And it’s one that is almost impossible to meet. Johnson changed his opinion about which tooth was missing after police brought him the man they thought committed the crime. That man was innocent. If that isn’t enough to infer that Johnson fabricated evidence, nothing is — at least nothing short of a secret recording of some expert proclaiming, supervillain-like, “I knew he was innocent, but I lied to get him convicted, anyway!”

In the end, these cases demonstrate the folly of qualified immunity. Robert Lee Stinson, along with Kennedy Brewer and Levon Brooks (the two men wrongly convicted with the help of Hayne and West) incurred immeasurable pain and suffering due to the incompetence of expert witnesses who engaged in analysis that not only has no basis in science but that scientists have said has been refuted when subjected to scientific principles. And yet, all this time later, four things remain true:

  1. It remains nearly impossible for wrongly convicted people to hold junk science practitioners accountable in court.
  2. To this day, prosecutors still use and defend bite-mark evidence, and courts still allow it into evidence.
  3. To this day, no court in the United States has upheld a challenge to the validity of bite-mark evidence.
  4. When it comes to the controlling case law on whether bite-mark evidence should be allowed in court, the Stinson decision is still the authority in Wisconsin, and Brewer is still the authority in Mississippi.

When an innocent person is convicted, the legal system seems to bend itself into contortions to shield the expert witnesses who helped convict that person from liability. That’s understandable. If expert witnesses are subjected to real liability for their opinions, they’ll be reluctant to testify. Some should be reluctant. But it might discourage more legitimate experts, too. So instead, the system also feels obligated to shield obvious quacks from the extremely sympathetic people they’ve harmed. Here, there was a rare win for a wrongly convicted man. But he’ll still need to convince a jury. And for every Robert Lee Stinson, there are many more Kennedy Brewers and Levon Brookses.

The odd thing is, all of this could be prevented, or at least diminished. If the courts diverted half the time and energy they spend cleaning up after these charlatans toward preventing them from testifying in the first place, there would be far fewer sympathetic exonorees to file lawsuits.

Unfortunately, that’s a lesson the courts seem incapable of learning.