The topic of personal liability for forensic expert witnesses has been around for a couple of decades. I am not talking about an expert being sued by his/her client for negligent actions in the course of the employment (traditionally this is a simple tort claim based on the accused expert’s professional incompetence). FORENSIC experts in criminal courts have traditionally been considered “friends of the court” when speaking their minds on about evidence and their conclusions. Courts have allowed experts to claim whatever they feel is their “truth” on a criminal forensic matter with impunity. Regardless of the possibility of loss of life and liberty. Much like Radley Balko’s 8-01-2013 monograph on the protections for prosecutors travels into unethical methods and strategies, forensic experts have been riding the same coat tails by some sort of association or relationship. I suppose the higher courts interpretation by ruling in favor of expert immunity in exoneration cases is to prevent a hoard of EXPENSIVE law suits, huge rewards for damages and “chilling” effects on the these providers of scientific opinions. Even if they turn out to be wrong, incompetent, biased or simply following some belief of “getting the bad guy” in any way possible. I call this last, doing “the greater good” philosophy. This can be seen in the exonerations case reviews where multiple prosecution experts, having ALL lined up to support the guilt of a defendant, have ALL been wrong. Read on to see a current case fitting this scenario.
There is a new player in town.
Federal civil rights litigation against prosecutorial forensic experts is being exercised in a civil case in Illinois.
The first forensic step permitting this legal application occurred awhile back. Since being developed and refined for forensic use, it has produced a battle of applied science versus tradition methods in today’s courts.
The advent of DNA profiling in the 1990's led a few people to consider that the police sciences (fingerprints, impression evidence including bite mark comparisons might be heading for a serious fall. Initial attempts by criminal defendants exonerated via post-conviction genomic analysis were seldom successful as certain states and jurisdictions considered crime lab personnel or even independent contracting dentists immune by various theories. Most of the legalese projections were based on the tenet of jurisprudence protecting statements made under oath at trial. Absent some proof of perjury later brought against an expert, the veil of iron protection has been generally impervious to attack in civil litigation for money damages. Even the most outrageous cases are protected in certain jurisdictions.
Back to the present case I promised. Bennie Starks is from the Chicago suburb of Waukegan, in Lake County. He is upset
He is taking two forensic dentists who took a leading role in his conviction to court. To US Federal Court. The “Defendant Dentists” just got an opinion on their motion to dismiss Starks’ lawsuit. Its time for them to get a better lawyer. They are on the hook, along with the City of Waukegan and others for Sec. 1983 civil rights violations. Here’s the full opinion, but for economy of purpose I will describe what they are up against.
District Judge Gary Feinerman made the following holding on Stark’s viability in suing the arguably culpable dentists, Drs. Carl Hagstrom and Russell Schneider:
“Both dentists were involved in the investigation and trial as expert witnesses for the prosecution.” This nullifies any objection based on their involvement only was while on the witness stand.
The suit consisted of nine counts involving the City, a police serologist, five current or former police officers and the Drs. Some counts are selective for certain defendants. Here is a summary of the counts which the dentists are facing at trial.
(1) a § 1983 claim against all Defendants for violating Starks’s Fourteenth Amendment right to due process of law;
(3) a § 1983 claim against all Defendants for conspiracy to violate Starks’s constitutional rights;
(5) a state law malicious prosecution claim against all Defendants;
(7) a state law conspiracy claim against all Defendants;
(9) a state law indemnification claim against the City under 745 ILCS 10/9-102. Doc. 95.
Other notable comments by Judge Feinerman:
“The Dentist Defendants held themselves out as experts in forensic dentistry. Id. at ¶ 5. The prosecution hired the Dentist Defendants to compare an alleged bite mark on M.G.’s body with Starks’s teeth. Id. at ¶ 24. The Dentist Defendants reported that the bite mark had been made by Starks. Id. at ¶ 25. But they intentionally misapplied the methodology they purported to use, employed a method of comparison that has been rejected by the forensic dentistry community, and used flawed preservation and photography techniques. Id. at ¶ 26. Thus, while they told the prosecution that they could confidently attribute the bite mark to Starks, they were actually aware that they could not reliably make that identification. Id. at ¶ 27.”
“The appellate court [comment: during Starks’ final and finally successful appeal for exoneration] stated that “the bite mark evidence has been discredited by a report by two odontologists who examined it. The report states that the method used by the State’s forensic odontologists in 1986 has since been rejected by its own creators. The report also states that the State’s odontologists misapplied the methodology and used flawed preservation and photography techniques. Accordingly, we determine that the new DNA and bite mark evidence is of such a conclusive nature that it would probably change the result on retrial.” 975 N.E.2d at 77-78. The appellate court remanded the post-conviction petition to the trial court, instructing it to hold an evidentiary hearing to determine whether Starks’s aggravated battery conviction had denied him due process.”
And, regarding a conspiracy to wrongfully convict Starks, this statement from the judge cuts directly to the reasoning he used in his holding the defendants to stand trial on Sec. 1983:
“The complaint amply alleges that the Police Defendants, the Dentist Defendants, and Thomas-Boyd all worked to get Starks convicted for a crime he did not commit, and it is more plausible that they each made their contributions to that effort in the context of an agreement to secure a wrongful conviction than that, by some wild coincidence, everyone who came into contact with Starks’s case independently developed a desire to see him convicted and a willingness to lie in pursuit of that goal.”
The dental defendants motion also failed in arguing a statute of limitations flaw in the suit. After all the conviction trial was in 1986. The judge said Starks’ statute to file began running in 2013 when all charges were vacated against him. Sexual assault had been dismissed in 2006. A second lasted to 2013. Well, that did not work to well for them.
In closing this blog, the defendants attempted the “friend of the court defense”(they only testified in court) and “private actor” defense claim to dissociate them from the other defendant being “public actors.” This is trying to avoid the “color of authority” section of 1983 (commonly used against state authorities). Judge Feinerman stated:
“Like the Police Defendants, the Dentist Defendants point out that they enjoy absolute immunity for their trial testimony under Briscoe v. LaHue, [comment: the tried and true “friend” case helping experts in court]. This is true, and so they cannot be held liable on the basis of ¶ 36 of the complaint, which alleges that they “testified falsely at Plaintiff’s trial that the alleged bite mark on the victim could be reliably linked to Plaintiff to a reasonable degree of medical certainty when they knew that the information they had did not support such a statement.” But as with the Police Defendants, the complaint includes other allegations against the Dentist Defendants that are not covered by Briscoe, Doc. 95 at ¶¶ 24-27, and so Briscoe does not require dismissal of any count of the complaint.”
To be continued……..