Monthly Archives: April 2014

Strategic Litigation at the Innocence Project: Fighting to Change the Law around the Leading Causes of Wrongful Conviction

by M. Chris Fabricant and Karen Newirth

The Innocence Project is seeking partners to litigate test cases involving unreliable forensic sciences and eyewitness misidentification.  Attorneys with cases of potential interest should contact the IP directly at the email address provided below. 

On the morning of November 3, 1984, 63-year-old Ione Cychosz was found dead in a vacant lot behind her home in Milwaukee, Wisconsin.  She had been raped, stabbed and beaten to death.  Bite marks were discovered all over her body, eight in total.  The spermatozoa cells discovered in a vaginal wash were too few for identification purposes and investigators had little other evidence that might lead to the identity of the perpetrator.  However, Dr. Lowell Thomas Johnson, a forensic dentist (or “forensic odontologist”), examined the body and determined that the bite marks had to have been inflicted by someone missing a front tooth.  Based on this information, police questioned local men who were missing teeth and had violent sexual assault convictions. They also questioned Robert Lee Stinson, whose backyard connected to Cychosz’s.  When detectives noticed Stinson was missing a front tooth, he was arrested and charged with first-degree murder.

The only direct evidence against Stinson at his 1985 trial was the bite mark testimony of two board-certified “Diplomates” of the American Board of Forensic Odontology (ABFO), Drs. Johnson and Raymond Rawson.  Dr. Johnson concluded that the bite marks “had to have been made by teeth identical” to Stinson’s, and claimed that there was “no margin for error” in his conclusion.  Dr. Rawson, former chairman of the Bite Mark Standards Committee of the ABFO, testified that the bite mark evidence was “high quality” and “overwhelming.”  Both experts testified “to a reasonable degree of scientific certainty,” that the bite marks on the victim had been inflicted at or near the time of death, and that Stinson was the only person who could have inflicted the wounds.  After examining Dr. Johnson’s workup, Dr. Rawson stated that the methods he used in gathering the evidence complied with the “standards of the American Board of Forensic Odontology.”

Stinson was convicted of murder and sentenced to life in prison.  He was 21-years-old; it would be 23 years before he was proven innocent by DNA evidence thanks to advances in DNA testing technology that allowed the sperm cells collected at the time of the crime to be tested.  Despite their erroneous conclusions in Stinson’s case, Drs. Rawson and Johnson remain board-certified Diplomates of the ABFO.  And despite the fact that bite mark comparison evidence contributed to this and at least a dozen other known wrongful convictions, bite mark comparison evidence remains admissible “scientific” evidence in every state that has decided the issue.  Indeed, Stinson’s direct appeal, a case of first-impression in Wisconsin on the admissibility of bite mark evidence, remains good law today.  See State v. Stinson, 134 Wis. 2d 224 (Ct. App. 1986).  Tragically and ironically, Stinson was cited by the Mississippi Supreme Court in affirming the conviction of another innocent man, Levon Brooks, who was convicted of the murder of a 3-year-old girl based on bite mark comparison evidence.  Brooks v. State, 748 So.2d 736 (Miss. 1999).  Brooks spent 16 years in prison before DNA proved his innocence in 2008.

Stinson and Brooks are just two of the countless innocent defendants whose convictions were based at least in part on unvalidated or misapplied forensic science.  Considering how infrequently bite mark evidence is introduced in criminal trials, this particular discipline is over-represented in wrongful conviction cases.  However many other unreliable forensic disciplines have been implicated in cases of wrongful conviction, including hair microscopy, fiber analysis, tire tread analysis, arson, “shaken baby syndrome”, dog scent lineups, and the list goes on.  Indeed, the misapplication of forensic science is the second leading contributor to wrongful conviction, playing a role in over 50% of the 306 wrongful convictions proved by post-conviction DNA testing.  The only more common contributing cause of wrongful convictions is eyewitness misidentification, which has played a role in nearly 75% of known wrongful convictions. Despite the lessons learned from DNA exonerations and the publication of the National Academy of Sciences’ report on the current state of forensic science, Strengthening Forensic Science in the United States: A Path Forward, (2009), unreliable “scientific” evidence continues to be widely accepted by criminal courts across the country.

To fight against the admission of evidence that we know leads to wrongful convictions, including unreliable eyewitness identification testimony, the Innocence Project created the Strategic Litigation Unit in 2012.  For many years we have engaged litigation and legislative advocacy aimed at reforming the way courts evaluate the reliability of eyewitness identification evidence.  This work has resulted in two landmark decisions, State v. Henderson, 208 N.J. 208 (2011), and State v. Lawson, 352 Or. 724 (2012), in which the supreme courts of New Jersey and Oregon, respectively, overhauled their states’ tests for determining the admissibility and treatment of eyewitness identification evidence in criminal trials.  With the creation of Strategic Litigation the Innocence Project is now litigating around the other leading causes of wrongful conviction, particularly unreliable and unvalidated forensic sciences.

The wrenching injustices endured by men like Robert Lee Stinson and Levon Brooks are both correctable – and preventable.  Scientific integrity can and must be brought to the American criminal justice system.  A free society cannot continue to tolerate the routine admission of sworn expert testimony we know – as a matter of science – to be false.  Nor can we turn away from the prisoners whose convictions rest on what we now know was demonstrably false “scientific” evidence admitted at trial as evidence of guilt.

The Innocence Project’s work on these issues is not done alone.  We collaborate with the defense bar and attorneys pursuing post-conviction innocence claims to identify and litigate against the admissibility of unreliable forensic and eyewitness identification evidence.  The Strategic Litigation Unit partners with defense counsel in all stages of litigation, including pre-trial Frye/Daubert hearings; we lend amicus support in appellate and post-conviction litigation, and consult with attorneys litigating eyewitness identification and forensic science cases nationwide.  Consider this essay an invitation to work with us toward these reasonable and indeed moral goals.  Attorneys with cases implicating this work should contact the Innocence Project directly.

M. Chris Fabricant

Director, Strategic Litigation



Karen Newirth

Senior Fellow, Strategic Litigation



NOTE: Potential innocence claims in North Carolina should be directed to the North Carolina Innocence Inquiry Commission, or to one of the following organizations:

North Carolina Center on Actual Innocence
PO Box 52446
Shannon Plaza Station
Durham, NC 27717
Phone: 919-489-3268

The Duke Center for Criminal Justice and Professional Responsibility
Duke University School of Law
PO Box 90360
Durham, NC 27708
Phone: 919-613-7241

Wake Forest University Law School and Innocence and Justice Clinic
1834 Wake Forest Road
Winston-Salem, NC 27109
Phone: 336-758-6111

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Meeting with lab analysts and forensic pathologists prior to trial

Lab analysts at the State Crime Lab and forensic pathologists and toxicologists at the Office of the Chief Medical Examiner (OCME) are available to discuss cases with attorneys prior to trial. These experts can provide important information about the tests that were performed, the limitations of those tests, and the possibility of doing additional testing. Attorneys and lab analysts can also review the reports that were received in discovery to make sure all lab reports have been provided.

A pretrial conference is an opportunity to ask basic questions and clarify which issues are actually in dispute. Attorneys may be concerned about appearing uninformed when asking such questions, but it is better to appear uninformed at a pretrial conference than before the jury. Also, it would be an analyst’s folly to assume that an attorney asking basic questions at a pretrial meeting does not have a good understanding of the forensic analysis in question.

Defense attorneys can meet with analysts without the District Attorney being present. State Crime Lab analysts will make a notation in the communication log in the lab file that a pretrial meeting with defense counsel occurred. A similar notation would be made if the analyst met with members of the District Attorney’s office.  Attorneys and other team members who attend should decide prior to the meeting whether to reveal any trial strategy or simply seek information and should avoid any unnecessary comments.

At a pretrial conference, an analyst can explain language or notations in reports. The meaning of language in reports may be different from what the attorney expects. Analysts can also explain limitations of tests that were used. For example, in a case where ingestion of a particular substance could provide either a defense or be used for mitigation evidence but the toxicology report contains a negative result for that substance, the analyst may be able to explain whether additional testing could be useful. In tests for some substances, the level of detection is set so that only a potentially lethal amount of that substance would be detected. This information about the limitation of a screening test may provide the attorney with information needed to determine what additional testing should be done. Attorneys should also consider whether to bring their expert to these meetings, or at minimum, should consult with their expert about topics that should be discussed prior to the meeting.

Analysts at other crime labs may or may not be willing to schedule pretrial conferences. To schedule a meeting with an analyst from the State Crime Lab, call Margie McLamb at 919-662-4500. To schedule a meeting with a forensic pathologist or toxicologist from the OCME,call 919-743-9000.

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