Op-Ed: When Courts Uphold Bad Science, Innocent People Stay in Prison

Would you like to live in a country where a defendant has a right to challenge scientifically invalid forensic evidence after conviction?

California Innocence Project marchers listen to exoneree Ken Marsh before starting the walk toward Sacramento. Marsh was exonerated after serving 21 years in prison on a false conviction based largely on erroneous forensic science. (Photo: Courtesy California Innocence Project)

Apr 29, 2013

In 1997, I was hired as a forensic defense expert to review bitemark evidence used against Bill Richards at his fourth trial for murder, held in San Bernardino, California.

By the time I was retained as a new expert, Bill had finally been convicted of murdering his wife, Pamela, and sentenced to 25 years to life. His attorney planned to present my anti-bitemark testimony during a request for a new trial.

My opinion focused on the prosecution’s use of an expert who virtually identified Mr. Richards as the biter.

The bitemark expert hired for Richards’s defense stated that the injury was a bitemark possessing no details of Mr. Richards’s front teeth.

My opinion would have stated that the purported human bitemark was an injury of undetermined cause.

After reviewing the crime scene and autopsy photos, I read the fourth trial transcripts. I discovered that Pamela’s body had been left unattended at the scene in a desolate rural area. Death investigators arrived the next morning, finding Pamela’s body partially buried by roaming dogs.

Both dentists reviewed the evidence and new photography and retracted their original opinions. The new technology had convinced them the injury was not a human bitemark.

I knew that this lapse of normal procedure eliminated any chance of determining Pamela’s time of death (TOD). The prosecution substituted the first responder’s observations (Bill made a late night 911 call when he arrived home after work finding his wife dead) for a TOD.

The court’s admitting this as the only available TOD was alarming to me. The officer had no relevant training and could not perform the well-established standard procedures.

Still, the motion for a new hearing was quickly denied. The judge stated that after four trials, she saw no reason to address any new motions for additional trials.

Years later, in 2008, I was asked to assist the California Innocence Project (CIP) in Bill’s ongoing post-conviction appeals.

Things had changed a bit for me. Additional training in crime-scene analysis allowed me to expand my investigations into crime photography. New use of digital software (Adobe Photoshop) corrected the photographic distortions present in the only injury picture and reshaped its proper configuration.

Both dentists reviewed the evidence and new photography and retracted their original opinions. The new technology had convinced them the injury was not a human bitemark. One opined that it looked like a dog bite.

Furthermore, new DNA testing had occurred of the murder weapon, and hair had been obtained from Pamela’s fingernails. An unknown DNA male profile derived from both excluded Bill as the contributor.

A recent California Supreme Court opinion on Bill’s appeal determined this new evidence was insufficient proof of innocence. It also declared an opinion that the proof available to defendants arguing their innocence must reach a certainty greater than the “beyond reasonable doubt” used at Bill’s final trial.

The progress of forensic science and changes in its technology affiliated with criminal conviction has fallen on deaf ears in California.

This is incredibly discouraging, and highlights the intellectual disconnect between scientific advances and our legal system.

Should courts be required to review previous convictions when new scientific evidence becomes available? Reason it out in COMMENTS.

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