15 minutes to read

One of the things that bothers me the most about most law enforcement officers, and most prosecutors, and many judges is that they never have any doubts.

About anything.

They don’t doubt that they’re right, when they’re wrong. They don’t doubt that they already know who did what — who committed what crime, who aided and abetted, who was an accessory after the fact, who is lying, and who might be telling the truth (usually because their story supports the officer, or DA’s, presuppositions) — even when they’ve got the wrong person. And it’s nearly impossible to change their minds by pointing to some piece of reality.

Especially if that piece of reality only comes to light after they’ve made up their minds.

A brief pause for those who cannot read English, before moving on to the rest of this article. Note that I said, “most law enforcement officers, and most prosecutors, and many judges.” In English, this does not mean the same thing as “all law enforcement officers, and all prosecutors, and all judges.” It does mean “more than a few” of each of those categories of persons. The problem is systemic, and pandemic (or, by now, endemic), but not every member of the aforementioned classes is infected.

The fact that some are free of infection does not mean there is no need to discuss the problem. Nor does it mean that I fit the typical stereotype — the belief in the reality and universal application of that stereotype being actually symptomatic of the infection — of some kind of embittered criminal defense attorney upset because I can’t put more criminals back on the streets.

In fact, if you do read English, you’ll quickly recognize that I’m not talking about putting criminals back on the streets at all. I’m not talking about criminals. And I’m not talking about streets.

I’m talking about returning innocent people, who have been wrongly incarcerated, to their families, to friends, to the possibility of a free life.

This is a little much for most in the law enforcement community, most prosecutors, and many judges.

This problem was brought to my attention by a February 1st front-page story in the San Francisco Daily Journal, which usually arrives in my office a few days after whatever date appears below the nameplate.

Ha! Who am I kidding? I’ve known about this problem from at least the time I began interning with a criminal law specialist who practiced criminal defense.

Anyway, the Daily Journal story begins like this:

William Richards is serving a 25 years to life [sic] sentence behind bars for murdering his wife. Sixteen years ago, a jury unanimously pegged him as the person who strangled her to death and then crushed her skull with a cinder block at the couple’s camper in a remote area of San Bernardino County. The evidence against Richards was spotty….

The story goes on to tell how two different juries could not agree whether he was guilty. He was finally convicted after a fourth trial, when an “expert” testified, based on a distorted photograph of an alleged bite mark on his wife’s hand, that he killed her. [1]A trial between the two that did not result in a conviction was halted when a judge recused himself. The “bite mark” allegedly matched his “unusual dental structure.”

Years later, technology had advanced enough to remove the distortions in the photograph. The same “expert” now says Richards could not have made the mark, and, in fact, the “expert” could not even say that it was a bite mark.

Two juries had already been unable to decide Richards was guilty. Would the fourth jury have convicted Richards without the conclusive statement of a “forensic dental expert” that his wife’s dead hand contained a bite mark that “matched” his “unusual dental structure”?

Many judges and lawyers around the United States think not. But the California Supreme Court, which since the demise of the Bird Court has almost never found an error — even outright misconduct doesn’t faze them — egregious enough to overturn a verdict in a murder case, doesn’t agree.

According to the California Supreme Court,

The most significant issue here is whether a conviction is based on “false evidence” [citation omitted] when it depends in part on the opinion of an expert witness, and posttrial advances in technology have raised doubts about the expert’s trial testimony without conclusively proving that testimony to be untrue. [2]In re Richards, 55 Cal. 4th 948, 952, 150 Cal. Rptr. 3d 84 (2012).

Let that sink in for a minute. The “most significant issue” is not whether an innocent man is in prison, but whether his conviction was based on “false evidence” just because we now know the evidence is almost-certainly false, but there is a shred of a possibility that it might not be.

The “expert” has stated, under penalty of perjury, that “his trial testimony regarding the statistical frequency of petitioner’s dentition was not based on scientific data.” [3]Id. at 951. In fact, he wasn’t even an expert on bite marks on dead people: he was a practicing dentist. His testimony was

based solely on his experience as a practicing dentist, and expressly without the benefit of any scientific studies. [4]Id. at 955. 

In other words, he pulled it out of his ass. [5]Since the trial, apparently, it appears that the “practicing dentist” may have obtained further training. Later in the Supreme Court opinion, when discussing the 2007 habeas writ — the trial itself occurred in 1997 — the court refers to him as “Forensic Dentist Sperber,” which it had not done before. Based on what he knows now, after becoming a Forensic Dentist, as opposed to just a “practicing” dentist, he states he “would not now testify as I did in 1997.” Id. at 956. Other forensic dental experts said that they weren’t sure the mark is a bite mark, but if it were, it would exclude Richards as the person who made it. One expert could not be certain, but did not think it was more than “possible” that it was a bite mark, and consistent with Richards’ teeth. Id. at 956-957.

And now the “practicing dentist,” Dr. Sperber, is “no longer certain that the lesion on the victim’s hand was a bite mark.” [6]Id. at 951.

Supporting declarations by other dental experts agreed, based on the newly available [sic] computer technology, that the prosecution’s expert had testified inaccurately at trial. [7]Id. at 952 (emphasis added).

Let’s put all that into plain English: The testimony of the “dental expert” at trial was not true. To the extent that it was based on any evidence — and, remember, the most important parts of it were pulled out of his ass, rather than coming straight from the horse’s dentition “expert’s” mouth — it was based, at best, on faulty evidence, misinterpreted. The Court calls this testimony “inaccurate.”

How can it be anything but “false evidence”?

The California Supreme Court says it’s not, that’s how. And unlike ordinary human beings, the California Supreme Court is unconstrained by either reality, or the possibility that an innocent man is rotting in jail based on untrue testimony presented to a jury after two other juries had refused to convict.

What we have now, the Supreme Court says, is not false evidence. It’s “newly discovered” [sic] evidence. And because it’s only “newly discovered” [sic] evidence, the possibly innocent guy only gets another trial based on true evidence if the “new evidence points unerringly to innocence or reduced culpability.” [8]Id. (emphasis added).

In other words, we don’t need proof beyond a reasonable doubt regarding guilt here; we need proof beyond a reasonable doubt regarding innocence.

Nothing like flipping the old Constitution on its head, eh?

Other evidence, by the way, pointed to the possibility of either accidental contamination, or deliberate planting of evidence. A blue fiber allegedly matching Richards’ shirt was found under the fingernail after the autopsy. It was not present during the autopsy. A hair found under one of the victim’s fingernails did not match either her, or Richards. Newer, more-advanced DNA testing, revealed that there was DNA from multiple males on the cinder block that may have been used to crush the victim’s skull, but none of Richards’ DNA was found on that cinder block.

The Court’s decision that the evidence discussed above is new evidence, rather than false evidence, is very important. It’s what allows the court to say that, however likely it is that Richards is innocent, he doesn’t get a new trial. If the evidence were false,

it does not matter why evidence if false or whether any party to the proceeding knew it was false. So long as some piece of evidence at trial was actually false, and so long as it is reasonably probable that without that evidence the verdict would have been different, habeas corpus relief is appropriate. [9]Id. at 961 (emphasis in original).

So what does “false” mean? Most of us would probably consider this question to be pretty clear: “false” means “not true.”

The Supreme Court, however, is anything but “most of us.” Based on their ruling in this case, it’s not even clear they are human beings. As they put it:

[I]t may be that expert witness opinion testimony in a criminal trial is later proved to be objectively untrue. If, with hindsight, a critical component of the prosecution’s case is objectively untrue, then the validity of any resulting guilt finding is called into question. It does not matter why it was untrue, the fact that it was untrue, coupled with the fact that it affected the outcome of the trial, casts a doubt over the verdict of guilt. In such circumstances, the law places the importance of integrity in criminal trials above the public’s interest in the finality of the judgment. [10]Id. at 962, citing In re Hall, 30 Cal. 3d 408, 424, 179 Cal. Rptr. 223 (1981) (underlining added; italics in original).

You can see why it would be important to ensure no one thought that the evidence at trial was “false,” just because the “practicing dentist” was probably not qualified to offer an opinion, and testified after becoming a Forensic Dentist that what he said at the trial was not true and therefore he wouldn’t say it again today.

When an expert witness gives an opinion at trial and later simply has second thoughts about the matter, without any significant advance having occurred in the witness’s field of expertise or in the available technology, it would not be accurate to say that the witness’s opinion at trial was false. Rather, in that situation there would be no reason to value the later opinion over the earlier. [11]Id. at 963 (emphasis in original).

But this isn’t about “second thoughts.” There was an advance in available technology. That’s one reason why the “practicing dentist” came to realize his testimony at the trial was not true. The other reason is that, even if we don’t credit the significant advance in the field of expertise that allowed a better analysis of the alleged bite mark, the “practicing dentist” had apparently finally learned about the field of expertise, and become a “Forensic Dentist.” Even if we say there was no significant advance in the field, there certainly was a significant advance in the witness’s knowledge of the field! Whereas he pulled the false evidence out of his ass at trial, he now would never testify as he did then.

Because what he said at trial was not true. It was false. It was evidence. It was thus false evidence.

It’s just that the Court thinks there’s no reason to value an opinion based on a knowledge of the field more than an opinion based on no knowledge of the field.

None. Because, as the California Supreme Court stated,

If, and only if, a preponderance of the evidence shows that an expert opinion stated at trial was objectively untrue, the false evidence standard applies. [12]Id. at 963.


If you’ve read this blog for even a few days, you probably know how we interpret “preponderance of the evidence.” It depends on whether it is the prosecution, or the defense, which has the burden of proof. Here, the burden is on the defense, so “preponderance” is a very high burden — somewhere just beyond “beyond a reasonable doubt” and just shy of “absolute objective certainty.”

At any rate, Richards’ innocence is a Kantian ding an sich, or “thing in itself”: something which we can never know. Thus, the defense can never overcome a preponderance-of-the-evidence burden.

The defense fails on the preponderance standard because — and here the Supreme Court misrepresents the evidence before it —

Dr. Sperber and three other experts cast doubt on Dr. Sperber’s trial testimony. These experts were uncertain that the lesion was a human bite mark; if it was, they all — including Dr. Sperber — agreed that the petitioner’s teeth did not definitively match the lesion. [13]Id. at 964.

First off, the experts did not say they were uncertain. Except for one who admitted that although he did not believe it was a human bite mark, he was uncertain that it was not a human bite mark, the rest of the experts, including Dr. Sperber (the “practicing dentist” at trial), did not believe it was. And they agreed that if it was, it didn’t match Richards.

In other words, the testimony at trial was not true. It constituted false evidence. Furthermore, “[t]hree of these experts…relied on the availability of new technology.” [14]Id. at 964. Remember what was said above about a significant advance in new technology and false evidence? Apparently, the California Supremes don’t.

Well, okay, that’s about as unfair as the California Supreme Court’s characterization of the evidence. It’s not that the California Supreme Court does not remember this stuff about technological advances. It’s that it doesn’t matter. Because even though the experts said that it proves Sperber’s trial testimony was objectively untrue, the non-expert-non-forensic-dentists on the Court disagree.

Part of this is because the experts have an understanding of science, and the Court apparently does not. When questioned, the experts said “there is no match” to Richards’ teeth, even if this is a bite mark, which they did not believe. But, sure, it’s possible. Just like it’s possible that I will retire next week after I win the lottery.

At the risk of being repetitive, this means the defense has not met the preponderance-of-the-evidence burden: there’s still that very unlikely chance that it actually was a bite mark, and if it was, even though the experts don’t think it matches Richards’, well, it’s possible. When there are possibilities stacked on top of possibilities — however unlikely — the defense has not proven anything by a preponderance of the evidence.

The Court’s response to the dissent — yes, there is a dissent — on this point is so absurd that after I stopped laughing, I realized I can’t even go into it without turning this already-long blog post into a book. Suffice it to say that it again involves misrepresenting the evidence before it, and adds an incommensurate analogy.

The Court then goes on to explain how the evidence against Richards “pointed persuasively to Richards’ guilt.” [15]Id. at 968.

Which, obviously, is why it took three juries before the prosecution could obtain a conviction — and only the third jury, by the way, heard the bite mark evidence.

The dissent here points out that the Court has set a new standard for expert testimony, examining it in a different way than it does all other testimony. The dissent uses the example from a prior case [16]In re Hall, supra. where eyewitnesses to a crime later recanted their testimony. The basis of the recantation was that they “never got a good look at the person who shot” their brother. [17]In re Richards, supra, at 972, citing In re Hall, supra, at 417. As the dissent notes, in Richards, the “practicing dentist” is being treated differently. He never got a good look at the alleged “bite mark impression,” and, when new technology (plus additional training and experience) allowed him to do so, he recanted. Just like the brothers in Hall. [18]In re Richards, supra, at 974. Dr. Sperber didn’t just change his mind, but would now “rule [Richards] out.” [19]Id.

I can’t really explain why the California Supreme Court would want to keep a possibly innocent person in prison for the rest of his life. I can only suspect it’s based on the fact that California’s court system abandoned the concept of Justice a long, long time ago. In its place, we have the concept of “finality.”

“At a certain point the music has to stop, and a case just has to be closed,” Weisberg told the paper. “We’re afraid that lots of people who were not unjustly convicted are going to be encouraged to frame their case as the injustice of the century.”

Or, to put it another way,

[T]oo many prosecutors spend their time fighting against finding and preventing wrongful convictions because the incentives are all wrong. They’re afraid that if they lose one case, it will cast doubts on their infallibility and make people question the legitimacy of the criminal justice system.

But this attitude — and behavior — itself calls into question the legitimacy of the criminal justice system.

It has raised a growing concern about whether prosecutors are out to seek justice, as they are sworn to do, or to win cases at all costs.

“There is a litany of cases where some prosecutors have fought to keep convictions rather than work to find justice,” said Michael Benza, a law professor at Case Western Reserve University who also represented Brett Hartman. The state executed Hartman in November for the slaying of a woman in Summit County.

“It’s very difficult for some prosecutors to admit that they have made a mistake,” Benza said. “If you make a mistake in this case, how many other mistakes have you made?”

Admitting mistakes have been made, and going back to correct mistakes when we find them, however, does not mean the whole system will collapse. If anything, it transforms a broken system into one that works.

“Finality” is no reason to hang onto a broken system which takes away the freedom of possibly innocent criminal defendants. That’s why — in word, at least — we demand “proof of guilt beyond a reasonable doubt.”

“Finality” should not stand in the way of Justice. Especially when we know that it is that very decision regarding “finality” that imprisons innocent people and thereby creates the greatest Injustice.


Leave a comment:

Your email address will not be published. Required fields are marked *

Free ePamphlet

Sign up for my newsletter and receive a free ePamphlet on "How to Hire a Criminal Defense Lawyer."

Recent Posts