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IDEAS

Pseudoscience goes on trial

Yesterday’s ‘science’ and today’s exonerations cry out for a serious look at what evidence jurors should hear and see.

Ronald D. Qualls was tried and convicted twice in 1992 — two years before the introduction of DNA evidence. In February, a judge vacated his murder convictions.
Ronald D. Qualls was tried and convicted twice in 1992 — two years before the introduction of DNA evidence. In February, a judge vacated his murder convictions.Globe Staff/AP/Adobe

Back in 1979, the rape and murder of 75-year-old Concetta Schiappa in her own home shocked the small town of Milford.

Police and prosecutors zeroed in on what they saw as a crucial piece of physical evidence — two bite marks on the elderly woman, one on her abdomen and one on her thigh, both, according to testimony, “inflicted while the victim was alive.”

Schiappa’s nephew, Gary J. Cifizzari, then 22 years old, was charged with the crime.

At trial, “Three experts in the field of forensic odontology testified at length on the subject of the bite marks. All three stated that the bite mark on the victim’s abdomen matched the defendant’s dental imprint,” according to a decision issued by the Massachusetts Supreme Judicial Court in 1986 that affirmed Cifizzari’s conviction.

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The state’s highest court went into some detail on the bite mark testimony, because the admissibility of such evidence was “a question never before decided in the Commonwealth.” One witness, a professor at Tufts University and the “only state-appointed forensic dentist,” testified, “The teeth on this yellow model of [the defendant’s] upper jaw did make those marks within a reasonable degree of dental certainty.”

Cifizzari would spend more than 35 years in prison — until the actual science of DNA would trump the 1980s pseudo-science of bite marks. In 2019, the DNA on Sciappa’s nightgown was found to be a match for Michael Giroux, an upstairs neighbor of Schiappa. Giroux served time for another murder in 1991 but died a free man in 2014.

It took the dogged work of the Innocence Project, and a pro bono team from the law firm Ropes and Gray, to finally win exoneration for Cifizzari.

But how many others remain in prisons here and around the country convicted on what so many — prosecutors, judges, and “experts” — were convinced was state of the art “science,” until it wasn’t?

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And the list of what now constitutes basically junk forensics is getting to be a long one, according to Michelle Feldman, state campaigns director for the Innocence Project. In addition to bite mark analysis, that old staple of TV murder mysteries, the list now also includes footwear analysis (remember those Sherlockian plaster casts of footprints in the mud?), microscopic hair analysis, the matching of duct tape shreds, and less than complete fingerprints.

In a perfect world the Justice Department and the FBI would be playing a lead role in taking out the junk forensics trash. It hasn’t worked out that way.

“We were actually working with the Obama administration to come up with reliable federal standards [on forensics], but that effort has stopped,” Feldman said.

Before the effort ended, the FBI in 2015 admitted that 26 of its agents or analysts had given “erroneous statements” about microscopic hair analysis in hundreds of cases tried in 41 states. All of the cases reviewed involved hair analysis done prior to the kind of DNA testing of hair now used by the FBI.

In what would become its final report in 2016, the President’s Council of Advisors on Science and Technology found “a dismaying frequency of instances of use of forensic evidence” — mentioning bite marks, hair analysis, and shoe prints — “that do not pass an objective test of scientific validity.”

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A year later, the Justice Department, then under the stewardship of Attorney General Jeff Sessions, pulled the plug on the National Commission on Forensic Science, an independent panel of judges, lawyers, scientists, and law enforcement personnel that had advised the attorney general on issues related to scientific evidence in criminal trials.

The DOJ’s Science Advisory Board was abandoned in 2018, and Sessions pretty much told states and localities that when it came to sorting through the thicket of forensic evidence they were on their own.

Some states, such as Texas and New York, already had their own Forensic Science Commissions.

By the time Sessions was washing his hands of the whole messy business, the Texas Commission was already re-examining cases involving convictions that rested on bite mark evidence and microscopic hair analysis.

They had good reason to.

Steven Mark Chaney was convicted of a 1987 murder and sentenced to life in prison. When he was exonerated more than 30 years later, the Texas Court of Criminal Appeals found the “bite mark evidence, which once appeared proof positive of . . . Chaney’s guilt, no longer proved anything.”

The Texas Forensic Science Commission undertook a six-month investigation into the scientific basis of bite mark evidence ultimately recommending a moratorium in 2016 on its use in the courtroom. It also began an audit of past convictions.

“While Texas may be one of the first states to undertake a statewide review of bite mark comparison cases, it should not be the last,” the commission concluded, encouraging other jurisdictions to conduct a similar review “for the purpose of protecting against potential miscarriages of justice.”

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At least 30 wrongful convictions have been linked to bite mark analysis nationally, according to the Innocence Project, and others are still pending in courts around the country.

But sometimes you can’t keep a bad idea down. As recently as the February annual meeting of the American Academy of Forensic Sciences there was still room for the ever-shrinking Thomas Krauss Memorial Bitemark Session. (And, no, we’re not kidding about the name. In fact, it used to be the Bitemark Breakfast but that was before the “science” had come into question.) This year it was down to five papers from four presenters, one mysteriously called “Non-Bitemarks That I Have Known.”

The academic forensic community may still tolerate such eccentricities, but the criminal justice system doesn’t have that luxury. Junk science allowed into evidence means the possibility of wrongful convictions. That means states are faced with a two-fold challenge — keeping out such evidence going forward and in many cases looking back to undo the harm already done.

Massachusetts got its own Forensic Science Oversight Board just last year as part of the 2018 Criminal Justice Reform Act. The panel issued its first report last December which focused on the management of the state police crime lab — a high priority under its legislative mandate.

But to do the kind of deep dive into, say, the use of bite mark evidence that Texas did “would require multiple stakeholders to cooperate,” said Oversight Board member Lisa Kavanaugh, Innocence Project director for the Committee on Public Counsel Services. “And right now the board does not even have subpoena power.”

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In the meantime, riding herd over the current use of junk forensics remains largely a matter of case law — decisions rendered by the state Supreme Judicial Court from time to time as it wrestles with individual cases. In much the same way the high court first ratified the admissibility of DNA evidence in 1994, it would later narrow the use of partial fingerprint evidence in 2005 and again in 2010.

If all of that sounds like ancient history, it isn’t. Certainly not to Ronald D. Qualls, who was tried and convicted twice in 1992 — two years before the introduction of DNA evidence — for the murder of Roosevelt “Tony” Price and his brother Ronald “Dallas” Price. Both brothers were shot while sitting in a car in Roxbury. In a dying declaration Tony Price told police the shooter was a guy named Junior Williams.

According to papers filed recently by Suffolk County District Attorney Rachael Rollins’s Integrity Review Bureau and the Boston College Innocence Program, Williams was stopped by Boston police about two hours after the murders and was wearing a sweatshirt with what they believed to be blood stains.

Forensics at the time proved only that the blood type was B — the same as that of the Price brothers but also the same as Williams’s own blood type.

A recent retesting of Williams’s sweatshirt for DNA proved the blood stain a match for that of Tony Price.

In February, a judge vacated Qualls’s murder convictions.

“A jury that heard scientific proof that Tony Price’s DNA was on Junior Williams’ sweatshirt would likely credit Tony’s dying declaration that Junior Williams shot him,” the recent court filings argued.

Yes, science — state-of-the-art science — matters.

“When wrongful convictions are overturned as a result of unreliable science — like the Cifizzari case — there should be an all-stakeholder analysis of what went wrong and how to prevent these tragedies from happening in the future,” said Radha Natarajan, executive director of the New England Innocence Project.

It’s been more than five years since the “FBI agreed that the ‘science’ of microscopic hair analysis was unreliable,” she added. “But as to how we go back and find cases and who’s going to find them — so far, it’s totally voluntary.”

The office of Middlesex County District Attorney Marian Ryan has a pilot program now working in conjunction with the state police crime lab to look back at cases that involved microscopic hair analysis.

Rollins’s Integrity Review Bureau has a broader mandate to look back at cases for a variety of reasons, including forensics — as it looked back at the evidence that led to the conviction of Ronald Qualls.

And of course, it’s well within the purview of the new state Forensic Science Oversight Board to undertake the kind of review its Texas counterpart has recommended — looking back, but also looking to the future.

“To prevent wrongful convictions, there needs to be an effort to weed out unreliable scientific practices as well as limit or exclude unreliable testimony or argument,” Natarajan said.

Judges are the ultimate gatekeepers of what gets admitted as evidence. But in 2013 when the Supreme Judicial Court looked at advancing science around memory and recall, it brought together a group of experts to study eyewitness identification as it related to those scientific developments. According to the Innocence Project, eyewitness “misidentification” played a role in 79 percent of wrongful convictions.

As a result of the study group’s work — and its support by the SJC — not only have police practices changed, but so did the jury instructions judges are now required to use in cases that rely on eyewitness identification. They now include such phrases as, “The mind does not work like a video recorder. A person cannot just replay a mental recording to remember what happened. Memory and perception are much more complicated.”

Such a court-backed study group could certainly be a model for looking at an expanded list of once well-regarded “science” that now belongs on the scrap heap of legally permissible evidence.

It could be a job for the new Oversight Board with its rare mix of scientists and lawyers.

“There’s such a difference between science and the law,” Natarajan said. “There’s a disconnect. There needs to be more training, support, and resources for the bench and bar to comprehend and address issues of scientific reliability.”

There are many things this nation’s adversarial system of justice does well. But setting the appropriate guardrails on what constitutes reliable science in the courtroom is still very much a work in progress.

Meanwhile, jurors raised on a steady diet of “CSI,” now in reruns, and “Forensic Files” fully expect every violent crime to be tied up in neat little forensic bows. But in an art-imitates-life moment, the executive producer of the new “Forensic Files II” promises that junk science will have no place in the latest iteration of the show.

If even Hollywood is ready to abandon its pursuit of junk forensic science, surely the real world of criminal justice can’t be too far behind.

Rachelle Cohen can be reached at rachelle.cohen@globe.com.