The Washington PostDemocracy Dies in Darkness

Opinion Alfred Swinton is an innocent man. But your TV still says he’s a serial killer.

Alfred Swinton, after learning that the murder charges against him had been dismissed. (Sameer Abdel-Khalek, courtesy of the Innocence Project.)
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The show opens with a foggy camera lens panning across a street populated with ambulating black people, then shifts to the moon, then back to the people.

The slick voice of veteran journalist Bill Kurtis then starts a noirish narrative. “Five minutes’ drive from the capitol dome lies Hartford’s north end,” he says. “Tattered around the ages, but hard underneath. And dangerous.”

So begins the June 25, 2002, episode of “Cold Case Files,” titled “Mark of a Killer / Dead Ends.” The first half of the episode focuses on the investigation and prosecution of Alfred Swinton, a Connecticut man convicted in 2001 for the 1991 murder of Carla Terry, a 28-year-old prostitute who lived and worked in the Hartford area. Terry’s death was one of 15 similar homicides in the Hartford area between 1988 to 1992. All victims were young women, most were black or Latino and most were prostitutes. Over 20 minutes, the episode depicts how police, prosecutors and a resourceful bite-mark analyst built their case against Swinton, a 34-year-old appliance repairman, for the better part of a decade.

The problem is that Swinton was innocent. He was exonerated in March after serving 18 years in prison.

“Cold Case Files” ran on the A&E cable network for five seasons from 1999 through 2006, and was revived again last year for 10 episodes. The older episodes are still syndicated and available online at A&E’s website. As the name implies, most episodes look at how police, prosecutors and forensic specialists closed unsolved murders. Like other shows from the genre, “Cold Case Files” tends toward the sensational and generally portrays law enforcement officials and forensic specialists without much skepticism. To that end, these shows can be contributors to what’s known as the “CSI” effect, a general term for the public’s tendency to overestimate the abilities of forensic specialists. But while the shows in the “CSI” franchise are fictional, these shows are about real events. So their effects on viewers could be more potent.

Yet the show is “a treasure trove of potential innocence cases,” says Chris Fabricant, who, along with Vanessa Potkin, represented Swinton for the Innocence Project. “We currently have three cases that we found through one of those shows. We have one other bite-mark case, and we have a tool-mark case involving a man convicted of serial pipe bombings. But I feel like we could spend a week watching those shows and find a lot more clients.”

Kurtis, perhaps best known these days for his role on the NPR news quiz show “Wait Wait … Don’t Tell Me,” chronicles Terry’s murder in baleful tones — “darkness takes hold early, and neon spits to life. Tavern doors lurch open, and the regular crowd shuffles in.” Or — my personal favorite — “in the first hours of morning, night and day fight for control of the sky.”

It’s fitting that a tabloid documentary would memorialize Swinton’s conviction, because his case itself is a good example of the damage done by sensationalist media coverage, myopic law enforcement and dubitable forensics. It also speaks to the way the criminal justice system treats people with social disorders and cognitive disabilities. Swinton has a cognitive impairment that can cause him to behave in ways that are harmless, but odd. He can also be easily manipulated. So when the police told him that they needed his help, he likely took that very literally, and set out to help them. And Swinton has a strong urge to be informed, and to be seen as someone who is informed. To authorities, his awkward attempts to help looked like culpability.

Swinton was first put on the police radar because he had been seen at a bar talking to Terry on the night she died. But Terry left the bar with another man, and nobody saw her and Swinton together outside the bar. Instead, it was Swinton’s odd demeanor that, a few days after her body was found, led an anonymous caller to tell police that Terry had been teasing Swinton. The caller added that she “had a bad feeling” about Swinton, and that he was “a creepy kind of guy.”

Swinton had talked to Terry that night, along with several other women. He had also left them all with his business card — generally not the practice of a seasoned serial killer. Hartford police investigators James Rovella and Stephen Kumnick, who feature prominently in the “Cold Case Files” episode, were assigned to the case.

Early in the investigation, Swinton comes off as a man with absolutely nothing to hide. Oddly, this only seems to make Rovella and Kumnick more suspicious. For example, when the detectives first showed up to ask Swinton about Terry’s death, he immediately invited them in to his apartment. On “Cold Case Files,” Kumnick calls this “a bizarre reaction.” When Swinton voluntarily answers the detectives’ questions, Rovella says, “Was he free and speaking? Probably a little freer than he should have been if he’s a suspect.” Swinton then invites the detectives to look around his place. They find nothing incriminating. But this, Kurtis intones, “did little to allay the detectives’ growing suspicion that Al Swinton is their killer.”

Swinton did do one thing that probably should have raised the investigators’ suspicions: He claimed he had been out of town the weekend of Terry’s murder. The police already had witnesses saying that he was in Hartford. It isn’t clear why Swinton did this. Perhaps he was confused. Perhaps he was nervous. Perhaps he misremembered. It’s certainly understandable why that might make police want to investigate him further. The odd thing is that it seems to have been Swinton’s openness and willingness to cooperate that convinced Rovella and Kumnick he was their killer. “You don’t want to get tunnel vision,” Rovella says, “but this guy was sending out all the signals.” Kumnick chimes in, “We walk to the car, and we look at each other, and we know. He’s done it. And the key is, okay, how do we prove it?”

The detectives next obtained a warrant for hair, saliva, blood and bite-plate samples from Swinton. Yet despite the violent nature of the crime, the police weren’t able to match Swinton’s hair or blood to any biological material found on or near Terry’s body. So they brought a bite-mark analyst, a dentist named Lester Luntz, who took a plaster mold of Swinton’s teeth. Luntz then compared the molds to photos of the bite mark on Terry’s breast and proclaimed them a match. To hammer home the point, Rovella tells “Cold Case Files” that Swinton has a telltale, inward-facing tooth among both his upper and lower teeth. This, in other words, was a slam dunk.

We know today that bite-mark matching is hokum. There has been no scientific research to substantiate either of the underlying premises of the field — that we all have a unique bite pattern, and that even if we did, human skin is capable of recording and preserving that uniqueness in a way that makes it traceable to one person, to the exclusion of others. The scientific research that has been done undermines both claims. But the courts have yet to catch up to the science. So bite-mark analysts still get to testify, where they’re often able to persuade jurors. And the pop culture perpetuation of the bite-mark mythology is a big reason why.

Other evidence implicating Swinton falls apart under scrutiny. First, in talking with the detectives, Swinton also mentioned that he knew four of the other women who had recently been slain in the Hartford area. There’s a pretty good explanation for this, says Fabricant: There were just a few bars that catered to low-income black people in that part of the city. Swinton and the women he mentioned were all black, and from the same general part of Hartford. Those bars are where Swinton met them. Swinton mentioned that he had known the women because he was concerned that several women he knew had ended up dead.

Second, on both “Cold Case Files” and in court, the police said that in early interviews, Swinton revealed details about Terry’s death that were known only to law enforcement and to Terry’s killer. Specifically, Swinton said that the killer had “beat on her,” which, according to the state, was a detail that had not yet been made public. But before he had made that statement the police had shown Swinton pictures of Terry’s body (photos that “Cold Case Files” gratuitously displays over and over). The photos make it pretty clear that Terry had been beaten.

Six weeks after Swinton was indicted in 1991, a judge threw out the charges, citing the inadequacy of the bite-mark evidence. But the judge didn’t do that because of doubts about the ability to match a plaster dental mold to bite marks in a crime scene photo. Instead, to implicate Swinton with the bite mark as the only physical evidence, the state would also have to show that the bite attributed to him had been administered near the time that Terry died.

Swinton then became somewhat obsessed with solving the murder. He would show up at the police station and ask to talk to Rovella and Kumnick about the case. The investigators didn’t see this as the act of a socially maladjusted man who felt bad about a woman’s murder and perhaps wanted to help them solve the case, but the antics of cold-blooded killer rubbing their noses in his crime. “He got his kicks doing that,” Kumnick says, “knowing that we knew he killed, and he was going to walk out each day he came in.” The narrator Kurtis can barely contain his contempt. He tells viewers that Swinton “seems to delight in the fact that he got away with it.”

Two years later, a freelance journalist named Karon Haller wrote a profile of Swinton in Connecticut magazine that would become a key piece of evidence against him. Haller (who died of breast cancer in 2005) had tried multiple times to persuade Swinton talk to her before he finally agreed. He showed up late, dressed in a suit and tie — an outfit Haller describes on “Cold Case Files” as “dressed to kill.” Haller then plied Swinton with (according to her own testimony) “several” glasses of whiskey before prodding him about Terry’s death.

To Haller’s surprise, Swinton had brought with him a file of newspaper clippings about Terry’s murder, as well clippings about the deaths of the four other women he knew. It seems clear now that Swinton saw Haller’s interest as an opportunity to clear his name, perhaps even to persuade Haller to investigate some of his own theories about who may have been responsible for the murders. Haller saw it differently. She tells “Cold Case Files” that Swinton collected the clippings to “relive a fantasy.” She also tells the show that Swinton displayed no sadness over the deaths. If that was true, it could well have been attributable to his awkwardness — or perhaps to the fact that by then, Haller had gotten him drunk.

For the most part, the interview was mostly a rambling, incoherent mess. Swinton waxed philosophical, complained about his lot in life and offered various theories about who may have killed Terry and the other women, and why. The only thing Swinton consistently and repeatedly said throughout the interview was that he was innocent, and that he was being framed for Terry’s death. Curiously, Haller omitted Swinton’s protestations of innocence from her Connecticut magazine article, which ran under the headline, “The Suspect, Alfred Swinton. The Judge Set Him Free. But His Own Words Make You Wonder.” The only vaguely incriminating statement Swinton made to Haller came toward the end of the interview. Haller asked Swinton why the killer didn’t just stop hurting women. According to Haller, Swinton answered in the first person, “If I knew that I could stop tomorrow. If I knew that I would stop tomorrow.” The audio recording played in the “Cold Case Files” is grainy and polluted with background noise, and it’s at least possible that Swinton says “I could stop him tomorrow.” It’s also possible that this is what Swinton meant, and just misspoke or failed to enunciate. Again, he’d had several whiskeys. In any case, that statement would only further seal Swinton’s fate, and later be cited by the Connecticut Supreme Court in an opinion rejecting Swinton’s request for a new trial.

Seven years after his initial arrest, Swinton was arrested again. Investigators had turned to a company called Image Content Technologies, which claimed it could scan old photographs, then use patented software called Lucis, which outlined details that would otherwise be impossible to see. At this point in the show, a Connecticut crime lab official says that they would only have used the company’s technology if it was “100 percent accurate” and that “there can’t be any chance that it would create an artifact or give us misinformation.”

They then brought in another bite-mark analyst named Gus Karazulas. The image was “put it into the computer, and Lucis brought the mark out beautifully,” Karazulas says on the show. The alleged new details convinced Karazulas that Swinton was undoubtedly the source of the bite on Terry’s breast.

But he would still need to show when the bite had been administered. Karazulas then resorted to some bizarre methodology: He used the plaster mold of Swinton’s teeth to “bite” his own arm. He then timed the bite as it changed colors, and recorded the point at which it was the same color as the photographed bite on Terry’s breast. By Karazulas’s calculations, the bite had to have been administered 10 minutes before Terry’s death.

There are lots of problems with this experiment. First, it was based on the assumption that the color of a bruise or an abrasion doesn’t change after death. That isn’t true. Second, the color a wound takes on in a photograph can vary widely depending on factors such as the lighting in the room where the photo was taken, the angle of the camera, the white balance setting of the camera, and what colors surround the wound itself. To match his own wound to Terry’s wound to a shade of color precise enough to estimate her death within a few minutes, Karazulas would have had to have replicated all of those variables. He also would have had to have applied the same amount of pressure to his own wound that Terry’s assailant applied when inflicting hers. And the entire experiment assumed that Karazulas’s body would react to a bite in the exact way Terry’s did.

“It’s either science or it isn’t,” assistant state’s attorney John Massameno tells “Cold Case Files.” “It either works or it doesn’t.” The problem, though, as is often case case in “pattern matching” fields of forensics, is that they aren’t science, and because they aren’t science, they aren’t subject to the rigors of scientific inquiry. Karazulas, for example, wasn’t blindly given plaster molds of the teeth of multiple people and asked to identify which matched those in the photo. He was given only the plaster mold of Swinton, along with the knowledge that Swinton was the chief suspect.

Yet the evidence was enough to convince Connecticut prosecutors, judges and ultimately a jury. Massameno inadvertently gets at one of the biggest problem with these areas of forensics — because they’re highly subjective, guilt or innocence often hinges not on sound science, but on which experts are most persuasive to jurors. “They were able to render their verdict with confidence I think in large part because of the enormous confidence that Dr. Karazulas exhibited in his own conclusion.” The show then ends with Karazulas confidently telling the camera that “if I make a mistake, a man goes away for the rest of his life. So there are no difficulties, no tests that we cannot bear to make sure we don’t convict an innocent person.”

During Carla Terry’s autopsy, medical examiners saved scrapings from under her fingernails and took swabs of the bite mark on her breast, as well as her anus and vagina. At the time, DNA testing wasn’t advanced enough to use on those samples. But in 2014, tests showed that saliva in the bite mark belonged to someone other than Terry, but it wasn’t Alfred Swinton. The vaginal and anal swabs, as well as tests on material found under Terry’s fingernails, also showed foreign DNA — but again, it wasn’t Swinton’s.

To his credit, Karazulas issued an affidavit in 2016 retracting all of his testimony from Swinton’s 2001 trial — both his matching of Swinton to the bite mark, and his testimony about the time the bite was inflicted.

Swinton was released from prison last year after a Connecticut judge vacated his conviction. But even then, he remained under house arrest. Prosecutors vowed to retry him for Terry’s death, and insisted that he was still a suspect in the deaths of four other women. (There is zero evidence to connect Swinton to those other crimes, save for his volunteering to the police that he knew them. DNA testing on the biological material available from those killings has excluded him.)

One last bit of testing finally cleared Swinton’s name. During a search of Swinton’s apartment complex after Terry’s murder, police found a box of clothes in a basement accessible to all of the building’s tenants. They found a black bra in that box that Terry’s aunt would later claim she had given to Terry to wear on the night she was killed. The aunt’s story about the bra changed several times, but it weighed heavily into the state’s case. In closing arguments, prosecutors called it an “enormous and extremely important piece of evidence,” and told jurors that Swinton had taken the bra as a trophy that he could use later to relive the murder and “make him high again.” Testing for “touch DNA” on the bra last year was negative for DNA from either Swinton or Terry. Prosecutors finally agreed in March to dismiss all charges against Swinton.

Before his dip into true crime noir, Bill Kurtis was a seasoned journalist with shelves full of awards, including Emmys and Peabodys. He also won the Thurgood Marshall Award for his reports on the flaws in the Illinois death penalty. Fabricant has tried to contact Kurtis to ask whether “Cold Case Files” plans to pull the “Mark of Murderer” episode from its archives, or at least add an addendum to the show noting that Swinton was actually innocent. The latter could be turned into a useful lesson about the trappings of pseudo-science and the willingness of police, prosecutors and the media to buy into it. I also reached out to Kurtis through his production company, which produces not only “Cold Case Files” but a number of other true crime programs. No response yet. Oddly, the A&E “Real Crime” blog posted an entry last year about the scientific shortcomings and recent criticism of pattern-matching forensics, including bite-mark analysis. But the post fails to mention how A&E’s programming has contributed to those problems.

Swinton uses a walker today. As he left the courtroom earlier this year after the charges against him were dismissed, Terry’s aunt approached him, swore at him and spat on him. Perhaps one can understand her pain, if not her inability to understand the lack of evidence against Swinton. But the episode of “Cold Case Files” feels like even more of an insult. It’s still out there. It’s been watched on YouTube alone more than 130,000 times since being uploaded in September. That means that, unless it’s pulled, the episode is still spreading ignorance. It’s still touting Karazula as a hero, and fostering misconceptions about bite-mark evidence. And it’s still falsely portraying Alfred Swinton as a serial murderer of women.