Jingle Jangle)
By Jim Rix
[Editor’s Note: Blurb from the dust jacket: “Jingle Jangle: The Perfect Crime Turned Inside Out is a remarkable book, a page-turner that asks all the right questions, shocking us out of our complacency by exposing the deep flaws in our criminal justice system. It should be required reading for every college student in America.”
–Gary T. Lowenthal, Arizona State University law
professor & author of Down and Dirty Justice
Today’s excerpt can be considered an elaboration on a comment made this week on a recent Thor’s Day column: “There is an upcoming trial for an American hero Chris Kyle, in which each side will introduce their experts on PTSD. How can experts have two different opinions and call it science?”]
For Christmas one year in my teens I received a Ouija board. It was a simple toy consisting of a board and a pendulum—a pointed weight with a string attached. The board resembled a compass. The vertical axis was labeled YES and the horizontal axis NO. Points on the arcs between the axes were labeled with various other possibilities: UNLIKELY, LIKELY, MOST LIKELY, etc. The object of the game was for a player to hold the pendulum still with its point hovering slightly above the intersection of the axes and to ask the Ouija board a question. The pendulum, according to the instructions, would swing in the direction of the correct answer.
With eyes fixed on the motionless pendulum, I tried it.
“Am I fifteen years old?” In a short time the pendulum began swinging toward YES.
“Am I a senior in high school?” This time it pointed toward NO.
To my amazement, the Ouija board seemed to know everything. It answered question after question correctly and unequivocally.
Then I asked the Ouija board a very important question: “Does she like me?” “She” was the girl who sat next to me in French class.
YES, the Ouija board assured and delighted me.
After the holidays, however, much to my disappointment, the girl came to class wearing some senior’s class ring on a chain around her neck—the flag for “going steady.”
My confidence in the Ouija board was shattered. I tried it again, this time consciously and conscientiously holding the pendulum motionless. But, no matter how hard I tried to keep the pendulum still, in time it would begin swinging—always in the direction of my adolescent wishful thinking. Then my brother asked a question of no interest to me and to which only he knew the answer. The pendulum remained motionless. When he took hold of the string, the pendulum in no time began swinging toward the correct answer.
Well, it didn’t take long to figure out that the person holding the string was unconsciously directing the pendulum’s pointing. While the direction of the swing did not always correspond with reality, it always favored the holder’s predilection.
Bite mark analysis is no stranger to biased pendulums. Most of the third to last page of The Manual of Forensic Odontology is devoted to bias, defined to be “a process at any stage of inference tending to produce results that depart systematically from true values.” Several types of bias are listed:
Expectation bias: The expert expects to find a certain outcome,The authors of the section on guidelines and standards caution that this last bias is the worst kind, noting that experts whose opinions are influenced by expected remuneration are “anything but neutral, impartial and objective” and are commonly referred to as “hired guns.” Experts are advised in not so many words to keep their pendulums holstered, especially when cash is placed on their Ouija boards.
Influential bias: The expert believes that the hiring or referring agency is always right,
Second opinion bias: The expert is influenced by opinions of his colleagues,
Ego bias: The expert believes that his opinion is the only acceptable one, and
Remuneration bias: The expert can expect a sizable paycheck for rendering a favorable opinion.
My introduction to remuneration bias came at the very first seminar on bite mark analysis I attended. It was at the annual AAFS meeting in San Antonio, where I introduced the Krone bite mark evidence to Dr. Homer Campbell and he introduced me to [attorney] Chris Plourd. Chris and I chatted for awhile about the Krone case in the hall outside the meeting rooms before the lectures began. When Chris left to attend the one on serology, I attended the one on odontology.
The moderator introduced a series of speakers who presented various bite mark cases. Using two slide projectors, one speaker displayed a photo of a bite mark on one screen and a photo of the suspect’s dental model on a screen alongside it.
Raising his hand, the speaker asked the audience of seasoned and aspiring bite mark experts to do likewise, “if you think the suspect can be excluded.”
No hands appeared.
“Okay,” the speaker continued, hand still in the air. “Who thinks the suspect cannot be excluded?”
The audience’s pendulums remained motionless.
Then an obviously experienced and savvy expert realized that the speaker had left out one vital bit of information. “Who’s paying me?”
The sustained laughter from the experienced experts introduced me and the wannabes to the Ouija nature of bite mark analysis.
Hmm. They write about it, they joke about it—two suggestive clues. I wondered whether an experiment could be designed to actually demonstrate bias in this branch of forensic science—a sting, if you will, to expose what I believed to be odontology’s inherently pliable pendulum. A bite, a mark and a cast of someone’s teeth were needed.
Photos of the bite from the Krone case were plentiful, and I acquired a cast of the teeth of one of my dentist’s patients. But who would be the mark? For the experiment to be meaningful, a bona fide board-certified expert would have to be found.
Using the Krone case bite mark was risky. Prior to and during the second trial, propaganda under the guise of a newsletter entitled The Ray Krone Story was disseminated by some shady person to everyone listed on the ABFO [American Board of Forensic Odontology] membership roster. It was highly likely that a candidate selected from this list would recognize the bite mark, for a picture of it had appeared in one issue of the newsletter. The dilemma was resolved when the shady person noticed that Dr. Michael West’s name was not on that ABFO roster. He had been serving his suspension at the time and was thereby spared The Ray Krone Story.
In reinstating Dr. West a majority of ABFO members presumably must have felt that he had locked away his Ouija board and would keep his pendulum under control.
In any event, Dr. West was again a board-certified odontologist recognized by his peers as a bona fide bite mark expert. I selected him, hoping that he had not become familiar with the Krone case bite mark through one of his colleagues.
To complete the experiment, Dr. West would have to be given a plausible reason for comparing the dental model with the bite mark. Now, I’m not very good at pretense. The reason has to do primarily with Dad’s belt. But also I remember Mom’s observation that “the problem with lying is that you must always remember what you said.” Indeed, most fabricators are tripped up by inconsistencies in their stories, especially as their stories become more elaborate. The story concocted for the experiment would necessarily have to be somewhat detailed.
Enter ace private investigator Phil Barnes. I asked Phil to investigate the murder of a college coed who had not really been murdered (in fact, she didn’t exist), but which fictitious murder involved a bite mark. Phil accepted the challenge with enthusiasm. He made extensive notes on the unsolved crime so as not to be tripped up by unexpected questions from Dr. West.
Phil left the following message on Dr. West’s answering machine:
Hello. This is Phil Barnes. I’m investigating a murder that involved a bite mark. You’ve been highly recommended. If interested, send your CV to…He provided a post office box number in Zephyr Cove, Nevada, a fax number and the phone number of an unused phone line in my office that he had borrowed for his business, Phil Barnes, Private Investigator. He was rarely in the office, though. An answering machine took his calls.
The next morning, while enjoying his morning cup of tea, Phil studied Dr. West’s twenty-five page curriculum vitae, which had arrived via fax late the previous evening. Phil’s fax machine was in his home, where he did most of his work. Phil noted that Dr. West had testified seventy-two times, mostly in the courts of southern states but also in a few to the north and west: Ohio, Michigan, California and Washington. Thirty-three of his seventy-two court appearances involved bite marks.
Phil thought it was good that his mark had yet to have a case in Nevada, where his unsolved murder had occurred. Phil added to his notes that the victim attended the University of Nevada in Reno.
However, one item noted in the CV concerned Phil. In the section “Mississippi Supreme Court Opinions,” the case Mississippi v. Calvin Banks was described by the single word, “baloney.” Phil feared that Dr. West, having that expertise, might detect the same in Phil’s ruse.
Dr. West had included an e-mail address with his CV. Phil responded accordingly, detailing Reno’s snaggletooth murder, which had some similarities to a Phoenix murder of the same name:
Dr. West—I was very impressed with your credentials. Thank you. I have bite mark evidence to be evaluated. Briefly, my client’s daughter was raped and murdered three years ago. She was a college student who worked nights as a waitress in a bar/grill. She was found stabbed to death in the bar’s kitchen early one morning after working the evening shift. The PD botched the investigation and ceased investigating the crime when the lead detective accepted a job in another city. The family wants the murder solved and retained me six months ago.I thought Phil’s e-mail satisfactorily stroked Dr. West’s pendulum. Phil started with flattery appealing to possible ego bias. He then included sufficient detail about the suspect to elicit any influential bias that might exist. All scientific evidence other than the bite mark was cleverly excluded so that the level of Dr. West’s expectation bias would not be tainted with the thought that he might be up against solid forensic evidence like DNA. Testing second opinion bias was not advisable since having Dr. West contact one of his colleagues might put the kibosh on the entire operation. Last, but not least, Phil opened the door to remuneration bias.
The PD wasn’t able to make a case against their prime suspect. Another suspect was a bartender. He wasn’t working the night of the murder and had an alibi. His fingerprints were found on the condom machine in the restroom. (No semen was found on the victim.) He claimed the fingerprints were there because he was the one responsible for loading the condom machine. This guy left town shortly after the murder.
I’ve located two witnesses who saw him in the bar the night of the murder. DNA from blood found at the scene matched only the victim. DNA from the left breast, where she was bitten, was contaminated and proved worthless.
Two months ago I located the suspect. When asked for a sample teeth impression so that he could be excluded, he refused. Subsequently, I was able to locate his dentist and “borrow” his dental model. I also have photos of the bite injury. I desire to obtain an expert’s opinion. If interested, let me know your fee and where to send the material.
Phil
The reply arrived the next day:
Phil, my retainer is $750. If your bartender is NOT your man the dental model and photos of the bite mark should very easily exclude him. Mail to Dr. Michael H. West…So far so good—the package was on its way—dental model, photos and retainer.
Dr. West opined quickly. The day the package arrived he sent an e-mail asking Phil to call to discuss the opinion. Phil arrived at his computer late that evening after a few beers. Though anxious to hear Dr. West’s opinion, he thought it best to wait until morning to call him. So far he had not talked directly with Dr West and he wanted to have a clear head and time to study his notes thoroughly to anticipate any questions Dr. West might ask about the crime.
“Hello.”
“Dr. West, Phil Barnes.”
“Ah, good to speak with you, Phil,” came the affable greeting in a slow Southern drawl. “I got your package. I didn’t get a chance to check if those photos were life sized. They appear to be.”
Phil knew they were but responded, “I was told they’re one-to-one, but you’d have to check that out.”
“Well, this is a unique bite. It should be very easy to exclude this man—to say ‘no, it’s not possible that he did this bite.’”
Indeed it should, Phil thought, listening intently.
“Looking at the injuries on the breast, I note that it would appear that what we would call tooth number ten, the upper lateral incisor, should be rotated…and sure enough it’s rotated in his mouth.” Then after a short pause, Dr. West said, “I cannot exclude this man.”
Phil remained silent, thinking, So much for the experiment if the weak opinion, “not excluded,” is as good as it gets.
Dr. West left the bite mark and asked, “Tell me the story. How did the investigation go awry?”
“Uh…I got into it recently.” Phil stumbled a bit, thumbing through his notes. “Uh…basically the investigating detective…uh…got onto the wrong track…uh…put all his marbles into the one basket…uh…went after the wrong guy and…uh…that went dry and…uh…then he lost interest in the case and…uh, uh…you know…took another job elsewhere…”
Dr. West interrupted, “How far y’all from Las Vegas? I know an odontologist who works with the Vegas police, Ray Rawson.”
“Quite a ways,” Phil answered, somewhat taken back.
Getting Dr. West’s Las Vegas colleague involved would result in a stinging pendulum for Phil. He immediately realized that a change in jurisdiction was in order. “But the crime took place in Idaho,” he said.
Phil scratched out “Reno” and wrote “Idaho.” Fortunately, Phil knew that the University of Idaho was in Moscow, if asked.
“Oh…Idaho…” said Dr. West. “We’re talking about Idaho…”
“Yeah, I’m representing the family,” Phil continued. “They have a place on Lake Tahoe. At Incline Village. The daughter was away at college at the time. I’m just helping them…just wanting to see if I’m on the right track…”
“Oh, you’re on the right track,” Dr. West assured him.
“Really?” said Phil, trying to hide his surprise.
“You got the right guy!”
Phil listened intently to the rest of the doctor’s gobbledygook. “The breast is conical shaped and it’s very flexible. Looking at the bite mark in a two-dimensional photograph, you don’t have a rubber stamp effect like taking the teeth and setting them down. One has to take into consideration the folding and flexing of the skin as these teeth bite into the flesh. There’s going to be a lot of distortion of the skin. But I can find unique characteristics not only of the upper jaw but also of the lower. He has a space between lower front teeth and when you use that to line it up you’ll see the lateral and canine come into play and then the centrals. They all have the right spacing. You’ve got much more distortion in the uppers. When you think about how the lower jaw swings, it would crush the tissue up above up into the inside of the upper teeth. To me it’s very obvious.”
Because of “liability” considerations, Dr. West was reluctant to write a report until the suspect was arrested. He ended the conversation by assuring Phil that he would come up with something that would help Phil convince the authorities to arrest the man.
Over the next few weeks, Phil monitored West’s progress with the bite mark. At one point Phil was concerned that West was having trouble making it match.
“This bite mark is very complicated,” Dr. West e-mailed. “I believe there are two bites, one slight, the other severe. The interplay between the skin and the closing teeth and the wrapping around and the distortion of the skin by the biting teeth will give the best results for comparison.” He wanted to know if the breast tissue had been excised or if the body could be exhumed. It hadn’t and it couldn’t, Phil reported, adding “cremation” to his notes.
Phil was encouraged that Dr. West was leaning toward the multiple bite theory because that was how Rawson had misinterpreted the bite. But in the end the doctor proved just how good he was. Returning to the one-bite interpretation, he produced a videotape with accompanying audio that persuasively demonstrated the match. West rotated the midline a half-tooth counterclockwise from Rawson’s bite number one. This view meant that one mark would have to accommodate the “suspect’s” two front teeth. West demonstrated this orientation nicely by explaining that the right front tooth was slightly chipped and that the wear pattern on the left front tooth caused only half of it to leave a mark. For the lower arch, West showed how the spacing between the teeth matched the spacing in the photograph. He then demonstrated the flexing of the breast by pushing the life-size photo from behind into the upper and lower teeth casts respectively. Marks that didn’t quite match were the result of “dragging” as the bite was being made. The overall demonstration was quite convincing.
Showing how the three marks that essentially led to the conviction of Ray Krone lined up with three of the “suspect’s” teeth, Dr. West stated, “Notice as I flex the photograph across these teeth how it conforms to the outline very nicely. The odds of that happening if these weren’t the teeth that created this bite would be almost astronomical.”
West’s final remark was, “I feel very confident that there are enough points of unique individual characteristics in this study model to say that these teeth inflicted this bite mark.”
The bite on the mark, alter ego Phil Barnes went into hiding.
During the West sting, Dr. West mentioned that he’d recently been interviewed by 60 Minutes for a segment they were doing about him. As soon as West’s videotape was in hand I contacted a producer at 60 Minutes and detailed Phil Barnes’s caper. The producer was very interested and I immediately forwarded a copy of the videotape to him. He liked it, but it was too late to include it and the show exposing Dr. West’s pendulum was aired a month later. The show profiled two of West’s triumphs, Tony Keko and Kennedy Brewer.
Brewer was convicted of the rape and murder of a young girl based on West’s testimony that numerous marks on the victim’s body matched Brewer’s upper teeth pattern. The jury ignored the fact that no corresponding lower teeth marks were present. “How can we have ‘forty some’ bite marks all left by the upper teeth?” asked Dr. Richard Souviron, who testified in Brewer’s defense. “It’s so outrageous that it’s hard for any normal person to comprehend.” Souviron believed that the marks were in fact insect bites. “He [West] got a set of teeth from a suspect the police said [did it], and he took that model of the man’s mouth and placed them on the ant bites and made it fit!” Subsequent DNA tests proved conclusively that the young victim was raped by two men and that Brewer was not one of them. “I never testified that Mr. Brewer raped or sodomized her,” West told Steve Kroft on 60 Minutes. “I testified that Mr. Brewer bit her.” Despite the DNA evidence Kennedy Brewer remained on Death Row.
Eddie Castaing, Tony Keko’s defense attorney, told 60 Minutes about what Castaing believed was Dr. West’s blue light magic, the West Phenomenon. “This was the case of the disappearing bite mark. It wasn’t there on the day of the death in the autopsy photographs and it wasn’t there on the day of exhumation [fourteen months later] until [West] put the [blue] light on it—then it appeared. Then it disappeared ten days later. That wasn’t a bite mark. That was a case of the Emperor’s New Clothes.” When asked why the jury was unable to see through Dr. West’s blue light phenomenon, Castaing added that West is “very persuasive—a dangerous, dangerous witness” for defendants….
Bias is such a subtle thing. We’re all infected with it to some degree. But some cling on to it with religious fanaticism. My experience with Dr. West leads me to believe that he is in denial. He genuinely believes that what he sees is reality. He has given convincing lectures on many of his cases and techniques, including one on his use of the blue light in the Keko case to show how he exhumed the body, examined it and like magic found a bite mark on the victim’s shoulder. He seems to sincerely believe that his skeptical colleagues are either “ignorant” or harbor “personal jealously” and appears to fancy himself an “expert for the truth.” I think he truly believes that he is a qualified expert on everything: bite marks, gunshot residue, gunshot reconstruction, bloodstains, bleach spills, use of ultraviolet light in detecting evidence, crime scene investigation and—in the case of a sandwich—baloney. The real West phenomenon is that he apparently believes his own baloney….
Bite mark analysis, like fingerprint identification, could be a science. Both require pattern recognition. But fingerprint identification is supported by the principles of mathematical statistics. Finding twenty concordant points absent a single non-concordant point, verified independently by one’s peers, is statistically very powerful. Unless bite mark analysis employs similar scientific principles, supported by blind testing and peer review, it will never rise above junk science and guesswork.
Identification of human remains through dental records is extremely reliable, but unless and until bite mark analysis demonstrates similar reliability, I suggest it be dropped as a scientific discipline or that the ABFO replace the “A” in their acronym with an “O” and become the OBFO, the Ouija Board of Forensic Odontology. Their motto could be, “Your guess is as good as mine.”
%2BCourtroom%2BScene%2BRawson.gif) |
| Drawing for Jingle Jangle by Rob Esmay [Note the expert's ouija board] |
| Copyright © 2015 by Jim Rix |
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