The Wrongful Conviction of Keith Allen Harward & the Wrongheadedness of Bite Mark Evidence

Yesterday, 

Virginia Attorney General Mark R. Herring (D) on Wednesday asked the state supreme court to declare a former sailor [Keith Allen Harward] innocent in the 1982 rape of a Newport News woman and murder of her husband, saying DNA evidence proved he wasn’t the perpetrator.

Specifically, DNA testing was done of numerous pieces of evidence found at the crime scene, including cigarette butts and a towel the victim wrapped herself in after the attack.

The results exonerated Harward but identified another sailor from the area, Jerry L. Crotty, as the likely perpetrator, according to the attorney general’s brief to the state supreme court. Crotty died in 2006 in an Ohio prison where he was serving time for a 2002 abduction, Herring said in the brief. The chances that the DNA profile belonged to someone other than Crotty were “greater than the world population,” he said.

While good forensic will likely lead to Harward’s release 33 years after he was incarcerated, it was likely bad forensics that led to his conviction.

While hair and semen samples failed to connect Harward to the crime,

two experts testified that bite marks on the woman’s body matched his dental records. Harward never admitted guilt.

Bite mark evidence used to be seen as reliable as fingerprints evidence,* but 

Research over the past decade has questioned​ basic assumptions at the center of bite-mark analysis: that teeth, like fingerprints, are unique to a person, and that bite marks can be reliably recorded on skin.

A study presented last year by the American Board of Forensic Odontology, which accredits forensic dentists and sets guidelines for the field, showed striking disagreement among practitioners on a fundamental question in bite-mark comparison​: whether an injury is, in fact, the result of a bite.​

Adam Freeman, a Westport, Conn., dentist and president-elect of the ABFO, and Iain Pretty, a professor at the University of Manchester School of Dentistry, asked accredited dentists with an average of 20 years of experience to look at photos of injuries from 100 real cases.

The dentists were asked to decide whether the injuries were bite marks or not, or suggestive of bite marks. In most cases, the 38 dentists who completed the study couldn’t agree on whether they were looking at bite marks, Dr. Freeman said. They unanimously agreed on a mere four cases.

As a result of this and similar research, back in February,

The ​Texas Forensic Science Commission, made up of scientists, practitioners and law-enforcement authorities, voted in favor of a ban that would remain in effect until research could show, among other things, that forensic dentists know a bite mark when they see one. The commission can only make recommendations, but its findings are likely to influence judges considering the admissibility of bite-mark evidence throughout the country, legal experts said.

Will the Harward case grease the wheels on this process. Brandon Garrett, a University of Virginia law professor and expert in wrongful convictions, thinks so:

“It’s going to have systemic repercussions for revisiting cases with outdated forensics in Virginia, but also hopefully stimulate a national discussion about forensics,” Garrett said. “People like Mr. Harward shouldn’t have to wait three decades.”…

“It’s more evidence that this bite-mark evidence should never be used in court,” Garrett said.

______________________

*Which itself is less reliable than once thought.

-CM