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THE INNOCENT WHO ARE CONVICTED ON SO-CALLED EXPERT TESTIMONY

 

Imagine being charged, convicted, and serving years in prison for a crime you did not commit. As I have documented, this happens more than anyone cares to think about. With the advent of DNA evidence analysis, hundreds of individuals have been freed from prison based on DNA testing that proved their innocence; some of these exonerated individuals were on death row. How many people have been executed over the years for a crime they did not commit? We don’t know, but it is certainly more than a few. Some may argue that in an imperfect system, it is better to occasionally make the mistake of convicting an innocent person than to let the guilty go free. I challenge anyone with that perspective to honestly consider whether they would still believe that if the wrongly convicted innocent person was themselves or a member of their family. (And, besides if you convict an innocent person, then the actual perpetrator IS allowed to go free.)

DNA exonerations aside, what about persons who are convicted based on shoddy forensic evidence, questionable science, or dubious expert testimony. Many people are unaware that it is not unusual for a person to be convicted solely on the testimony of an expert. Case in point: This month a man who had served 25 years on California’s death row was freed after his conviction for the rape and killing of his girlfriend’s 2-year-old daughter. Pretty horrific crime. However, the man, who is now 68 years old, was convicted on false medical testimony according to the California Supreme Court.

At the trial, a forensic pathologist and numerous medical doctors testified that the child died as a result of sexual assault. What makes this particularly shocking is that years later, many of the doctors who testified, recanted. Turns out they had not actually reviewed the full medical records of the child, which would have informed these experts that their testimony was false. The records admitting the child to the hospital, which incredibly, the testifying experts had not reviewed, did not reveal any sexual assault. The evidence the experts testified to was actually a result of medical interventions at the hospital. This is truly egregious behavior on the part of these testifying experts. What expert would put a person’s life and freedom on the line so carelessly? We expect more from professionals but the reality is, these professionals are often paid a handsome sum to testify. I am not accusing the particular experts for carelessness in favor of personal benefit, but our justice system should deal with the fact that some testifying experts are in it for the money and will skew the testimony to the paying side, be it the prosecution or the defense.

A notable example of this is what happened in Mississippi. For two decades, beginning in the early 1990’s, a medical examiner and a dentist who claimed to be an expert in forensic bite mark evidence put themselves out for expert testimony across the state of Mississippi.  As an aside, bite-mark evidence is not supported by science or research as accurate or reliable evidence, and indeed has been strongly criticized by many scientists and scientific organizations including the National Academy of Sciences, but prosecutors continue to use it.  Many scientists consider bite-mark evidence to be nothing but junk science. But maybe that should be further addressed in another blog post.

Back to Mississippi. The self-styled expert duo managed to dominate the Mississippi courts unchecked as the “go-to” experts, making a lot of money along the way. Their testimony sent numerous people to prison, not only on questionable bite mark evidence but also on questionable “blood spatter” evidence (which should be the purview of physics, not medical evidence) and well, whatever they could put themselves out as experts on.  Based on the testimony of these two so-called experts, two men were convicted separately for two different but very similar murders based on bite mark evidence. In both cases, the two experts were adamant that the bites found on the victims were those of the defendant.  Years later DNA evidence led to another man—the same man—in both murders. The actual perpetrator eventually confessed and said he never bit either victim. After years in prison (one on death row), the two men convicted on no substantive evidence other than the alleged bite mark evidence were exonerated.

Unfortunately, Mississippi is not an outlier. This is a problem in every state. The Mississippi story stands out (and there was even a book written about it) only because it concerned two men dominating the expert testimony industry. In other states, as we saw in the California case discussed at the beginning of this post, it is usually experts acting on their own who may believe that their testimony is accurate and true, who sway juries on testimony that is questionable and, as we have seen, sometimes false.

How many others sit in prison, or even on death row, who were wrongly convicted on questionable expert testimony. We should take heed when a defendant protests his or her innocence even after years in prison…. maybe they are indeed innocent!

Orange County criminal defense attorney William Weinberg has been defending individuals accused of a crime for 25 years. He is passionate about his client’s rights. You may contact him for a complimentary consultation regarding your matter at 949-474-8008 or by emailing him at bill@williamweinberg.com.