AuthorZalman, Marvin
PositionMichael West, Allan Warnick - Editorial

Table of Contents Introduction 750 I. A Tale of Two Dentists 757 II. A Brief, Critical Review of Bite Mark Evidence 774 III. A Critique of Epidermis and Enamel 788 IV. Unreasoned Reasons 808 V. Conclusion: The Counterattack on Reason and Evidence 820 Controversy over the admissibility of bite mark evidence in criminal prosecutions has generated ample scientific, legal, and popular literature. (1) Perhaps the most curious document to come out of the ongoing debate is a risibly titled editorial, Epidermis and Enamel-Insights into Gnawing Criticisms of Human Bitemark Evidence ("Epidermis and Enamel"), published in a forensic science journal and authored by eleven forensic odontologists. (2) The eleven-page editorial article sought to dampen criticism of bite mark evidence generated by a wave of exonerations in which testimony by forensic dentists played a role. (3) The article, while acknowledging the exonerations, (4) offers a shotgun, or perhaps a blunderbuss, blast of defensive arguments rather than a rifle shot that hits the central critique: that bite mark evidence is such an unreliable pattern-comparison or feature-comparison method that courts should rule the technique inadmissible. (5) The central theme of Epidermis and Enamel seems to be (it is never clearly asserted) that because wrongful convictions almost always result from a combination of errors generated by a variety of actors, (6) and because "[t]he legal community has an obligation to safeguard against invalid and unreliable testimony," (7) and perhaps because forensic odontologists have helped to exonerate some of the wrongfully convicted, (8) and because forensic odontologists are taking steps to improve their practices (9)--bite mark analysis should continue to be admissible. A parallel central argument is that while "mistakes have been made in the past" by forensic odontologists "critics ignore the progress made by changes in standards, terminology, and the steps to inhibit bias." (10) The editorial's one page review of standards, guidelines, knowledge transfer and education, research, certification, proficiency, and casework, however, does nothing to answer the mounting and powerful scientific evidence showing bite mark evidence to be inherently unreliable. (11)

Along with this central argument, Epidermis and Enamel also argues that erroneous judgments by some forensic odontologists do not represent the professional norm; (12) criticizes its critics by denigrating their motives; (13) includes testimonials of favorable writers; (14) positions forensic odontology as a "self-correcting" life science, (15) challenges the Texas Forensic Science Commission's call for a bite mark evidence moratorium; (16) and lists ways in which the bite mark analysis of forensic odontologists is becoming more proficient, (17) while suggesting in passing that bite mark evidence be admitted only in unusual cases. (18) What is most telling about this defense of bite mark analysis is what is missing. (19) Epidermis and Enamel offers no rejoinder to the substantive criticisms about the scientific basis or reliability of bite mark evidence (20) which was raised by the National Research Council's 2009 report on forensic science (21) or by a major review of the scientific critique of bite mark evidence by Saks et al. (22)--both of which are cited in the editorial--or with the critical analysis by the President's Council of Advisors on Science and Technology, (23) which is not cited. (24)

The spectacularly weak reasoning at the center of Epidermis and Enamel, by purportedly self-correcting life scientists, (25) along with its often-defensive tone and defamatory criticism of innocence organizations, leads us to explore in greater depth the professional and organizational dynamics and the psychological factors that led this well-educated group into a logical cul-de-sac. Our goal is to understand why some portion of the forensic odontology community arduously resists the findings of critical scientific inquiry, and in so doing, shed some light on rear-guard action against forensic science reform by other forensic examiners and scientists. (26)

For those familiar with the innocence movement's history, the analogy of prosecutorial resistance to DNA post-conviction testing in the 1990s and 2000s comes readily to mind. Several authors have described the often bizarre lengths to which prosecutors went to block post-conviction DNA testing or to deny the results of exonerating DNA tests. (27) Others went beyond structural and cultural explanations to explore prosecutorial resistance in psychological terms. (28) Aviva Orenstein draws on cognitive bias research and explains prosecutorial resistance by the unconscious and non-volitional category of denial, described as "a deeper, more emotional mechanism that our unconscious uses to screen out unpleasant realities and the resultant distressing feelings." (29) As a defense mechanism that masks certain realities which are "too terrible to be true," denial has the paradoxical quality of being partial because the denier has to know the "terrible" reality at some level. (30) "Denial need not be absolute"; it can take the form of minimizing a reality but is always a distortion of truth. (31) Denial is wrapped up in the denier's self-identity. (32) "That the prosecutor has invested time and energy into proving the prisoner's guilt and has learned to think of the accused as a bad guy affects the prosecutor's ability to see mistakes and fosters denial." (33) The prosecutor's "impossible" dual role as an advocate and as a minister of justice sets up a psychological bind wherein the "duty to do justice itself inspires denial." (34)

In a similar vein, Susan Bandes locates the source of prosecutorial denial in the value of loyalty to one's group, which in evolutionary terms is essential for human solidarity and survival. (35) In complex societies group loyalty may conflict with other values, (36) but in any event "loyalty is shaped and continually reinforced in a social context, through psychological mechanisms," which include both emotional rewards and fears of enforcement mechanisms such as banishment. (37) Those who join a group, share its goals, and thrive within it "are likely to internalize and adopt as their own not only the goals of the organization but its internal culture, beliefs, and ways of thinking about problems. Information that threatens this mutually beneficial symbiosis may be warded off at a very early stage in an individual's thought process." (38) The complementary psychological categories explicated by Orenstein and Bandes (39) may tap into similar neurological and social processes, which in turn help explain irrational thinking or even socially immoral decisions, as less than fully volitional.

To understand how DNA exonerations in the 1990s challenged the worldview and self-image of prosecutors and other criminal justice actors including forensic odontologists, one must enter (or reenter) a world in which the reality that a small percentage--but nevertheless thousands--of innocent people are convicted of felonies every year was inconceivable. (40) So inconceivable that even reform-oriented criminal defense litigators considered such a scenario to be unreal. (41) But the realization that wrongful convictions occur with regularity led swiftly to new thoughts and policies that upset the complacent world view of many criminal justice actors. (42) The literary and jurisprudential scholar, Stanley Fish, nicely captures how deeply felt is one's sense of betrayal to a changed world. In the film version of How to Succeed in Business Without Really Trying, (43) a comedy about the ethical underbelly of the American business world, (44) the boss's nephew, working in the mail room and expecting nepotistic advancement, cries out "That's not fair!" when the boss declares that promotion will henceforth be based on merit. (45) On the surface the line is humorous, but Fish digs deeper to ruminate on the way in which high order concepts like fairness are shaped by context and expectations. (46) The nephew sees the rules of the game he has lived by, in which family relationship is a component of merit, as suddenly changing:

In effect he is reacting just as the elder son in a hereditary monarchy might react were he to be told just before the king died that from now on we're going to do it differently and hold elections. In both cases the disappointment is more than personal; it extends to the overturning of a whole way of life, complete with a tradition, a set of expectations, obligatory routines, normative procedures, in-place hierarchies, and so on. And when a new way of life is forcefully introduced, the sense of betrayal is cosmic, and the terms in which it is expressed are abstract and universal.... (47) One might sympathize with people whose expectations, status, and way of life are upended, although responses to such deep changes have also produced ugly reactions that are judged harshly by history. (48) These attempts to plumb the deeper sources of resistance to change, which might include patently unreasoned argument, lead us to seek a deeper explanation of forensic odontologists' resistance to the scientific critique of bite mark analysis.

The arguments of Epidermis and Enamel are so transparently weak that we are led to explore the forces that have generated such resistance to forensic science reform. Thus, while we critique Epidermis and Enamel as the weakly reasoned polemic that it is, it should be read as part of a larger counter attack by some "industry" forensic scientists against the movement to place the forensic sciences on a more scientific base, to improve the reliability of some feature-comparison disciplines, and where needed, to remove weaker methods from use by prosecutors and courts.

This Article proceeds as follows: Part I, A Tale of Two Forensic Dentists, compares the lurid career of Michael West, a...

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