When the law catches up with changes in science, it's good for justice.
In 2017, the State of Connecticut, acting through then Hartford State's Attorney Gail Hardy, agreed that the 2001 murder conviction of Alfred Swinton should be vacated based on new DNA findings and the discrediting of other crucial evidence connecting Swinton to the murder of 28-year-old Carla Terry.
Dr. Karazulas, a bite mark analyst who had provided critical testimony linking Swinton to the 1991 murder, had testified at trial, based upon a reasonable degree of scientific certainty, that Swinton "caused the bite mark that is depicted in the photographs" of the victim's breasts, and that the injury was inflicted "just before or at the time of death." Then, years later, Karazulas acknowledged that bite mark evidence has been discredited by the scientific community and that he no longer considered this to be a valid scientific basis for his testimony.
Additionally, DNA testing in 2015 and 2016 excluded Swinton from the male DNA samples collected on swabs taken off the bite marks on the victim, and from DNA from underneath the victim's fingernails and in her rape kit. But it was the fact that the odontology evidence connecting Swinton to the crime was now discredited — that bite mark comparisons are no longer considered reliable — that was largely responsible for his conviction being vacated.
As Chris Fabricant, then director of Strategic Litigation at the Innocence Project, remarked: "In the twilight of his long and distinguished career, Dr. Karazulas elevated the truth above personal considerations and now stands as an example of a forensic scientist honoring the duty to correct the record when new facts or data suggest that a miscarriage of justice has occurred."
Swinton, who was 51 years old and had no significant criminal record, always maintained his innocence and endured a lengthy trial in early 2001. He was convicted and sentenced to 60 years, and the appeal of that conviction was unsuccessful (State v. Swinton, 268 Conn. 781(2004)). His first claim on appeal was that the trial court had improperly admitted into evidence computer enhanced photographs and computer-generated exhibits without an adequate foundation. Specifically, he challenged the admissibility of two separate but related pieces of evidence: first, photographs of a bite mark on the victim's body that were enhanced using a computer software program known as Lucis, and second, images of the defendant's teeth overlaid, or superimposed, upon photographs of the bite mark that were made through the use of Adobe Photoshop, another computer software program.
Swinton argued that the state had not presented foundation testimony on the adequacy of these two programs for the task of matching his dentition with the victim's bite mark because the computer enhanced and computer-generated exhibits had been introduced through experts with no more than an elementary familiarity with the programs. In short, Swinton argued that the admission of this evidence violated his constitutional right to confrontation.
Applying a variety of factors, the court concluded that the state had laid an adequate foundation for the Lucis enhancements of the bite mark photograph and that the trial court had properly admitted into evidence the computer enhanced photographs. The court concluded, however, that the trial court had improperly admitted the superimposed images created by Adobe Photoshop, but that the evidentiary error was harmless. Karazulas' ultimate conclusion that Swinton was the biter did not rely upon the Adobe Photoshop overlays, "but instead depended on a studied comparison of properly admitted exhibits, such as the molds of the defendant's teeth, a wax impression taken from the molds, tracings of the defendant's dentition, and the enhanced and unenhanced photographs of the bite mark, as well as a persuasive impromptu demonstration in front of the jury. The Adobe Photoshop overlays served merely to augment the certainty of his conclusion."
Significantly, the issue of whether bite mark analysis is a sound forensic method capable of identifying a suspect was not raised on appeal. It was in 2009 that a landmark report by the National Academy of Sciences found that there is "no scientific basis for forensic odontologists (bite mark analysts) to proffer individualization testimony." Every other scientific entity that has examined bite mark analysis, including the President's Council of Advisors on Science and Technology and the Texas Forensic Science Commission, which recommended a ban on the use of bite mark evidence, have also condemned the use of bite mark analysis. In fact, the American Board of Forensic Odontologists, the accrediting board for bite mark analysts, no longer permits analysts to make a positive identification from bite mark comparisons. In an affidavit filed with the court, Dr. Karazulas acknowledged the scientific community's repudiation of bite mark analysis and maintained that he no longer believed that Swinton is the person who inflicted the bite mark on the victim.
If I focus on the issue not raised, it is because I authored the unanimous Supreme Court opinion upholding Swinton's judgment of conviction. My regret at the loss of years of freedom Swinton experienced is palpable. Thankfully, Swinton was not charged with a capital offense, and did not have to sit on death row until 2015 when the Supreme Court finally declared the death penalty unconstitutional. The Innocence Project assisted in gaining his release.
Fast forward to the recent ruling by the United States Supreme Court denying Robert Roberson's request for a new trial. Roberson, 56, was convicted in 2002 of shaking his 2-year-old daughter, Nikki, to death at his home in Palestine, Texas. Prosecutors presented brain swelling as evidence, which was considered to be proof of child abuse at the time. Roberson's attorney argued there is evidence that shows Nikki died from pneumonia. "She was a very sick child given inappropriate medication. She also at some point in the night fell out of bed and bumped her head."
His attorney added that Roberson has autism, and he was arrested and convicted because he had a non-typical reaction to his daughter's death. "There was no crime," she said. "And you have this highly impaired, inexperienced father who wakes up in the morning to find his child n]ot breathing, turning blue, and he rushes her to the hospital, and it is immediately judged as uncaring and guilty because he doesn't show neurotypical emotions." In short, as stated by his counsel, "Texas seems poised to execute a man who committed no crime, except that he was a man with autism who was unable to explain the very complicated medical condition of his two-year-old child." The United States Supreme Court did not give an explanation for its denial of Roberson's request, He was sentenced to death and because he has already exhausted appeals through Texas state courts, he must now rely on Gov. Greg Abbott to grant clemency.
Mr. Roberson is not alone in his dilemma. For half a century, babies' unexplained, sometimes fatal injuries have been blamed on shaken baby syndrome; hospitals report roughly 1,300 cases a year and hundreds of parents and caregivers are prosecuted annually. The science behind this label has increasingly come under suspicion, and the label has come under attack, especially when there is no obvious physical evidence of assault. A shaken baby syndrome diagnosis often is made by way of a process of elimination of other possible causes of trauma. In short, it is a diagnosis embraced once a diagnostician runs out of options.
While shaken baby syndrome is generally accepted in pediatrics, it is controversial in the biomechanics community, again especially when there is no sign of physical evidence of assault. In essence, biomechanics scientists disagree on whether shaking alone can create forces strong enough to cause the intracranial trauma needed to properly identify and diagnose the syndrome.
Just recently, a New Jersey appellate court agreed with a lower court judge who had declared shaken baby syndrome "junk science," a ruling that barred prosecutors from bringing it up in the Middlesex County cases of two fathers who challenged their child abuse indictments. In State v, Nieves and State v. Chifelli, Judge Greta Gooden Brown, writing for a three-judge panel that reviewed the cases, noted: "The evidence supports the finding that there is a real dispute in the larger medical and scientific community about the validity of shaking only SBS/AHT theory, despite its seeming acceptance in the pediatric medical community...Where the underlying theory integrates multiple scientific disciplines, as here, the proponent must establish cross-disciplinary validation to establish reliability. The state failed to do that here" (2023 WL 5947996).
In the 20 years since Roberson's trial, medical science has evolved. Even Dr. Norman Guthkelch, the doctor who initially proposed the shaken baby syndrome hypothesis, has disavowed it. In fact, in 2012, Dr. Guthkelch pleaded for a review of shaken baby convictions, saying, "I am frankly quite disturbed that what I intended as a friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent people. We went badly off the rails."
These are just two examples of the law catching up with science. Science changes and, except for being certain that our undeniably round planet is not the center of the universe, will largely continue to do so. Ultimately, good science is good for justice, and something justice should want to use. But the growth in knowledge when it comes to science and justice should be the beginning, not the end, of the journey. Let's just hope we don't execute anyone while we continue to evolve in our thinking.
Copyright 2023. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune [https://www.law.com/ctlawtribune/2023/10/11/junk-science-and-the-evolution-of-criminal-convictions/], reprinted by permission
Originally published by 11 October, 2023
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