Sotomayor Calls Out Junk Science in Alabama Bite-Mark Case

Is there a

constitutional right not to be convicted based on junk science? For years, the U.S. Supreme Court has failed to directly grapple with that question — so much so that Justice Sonia Sotomayor recently said that Congress and state legislatures should tackle the problem now instead of waiting on the courts to fix it.

On July 2, the court unanimously declined to review the case of Charles McCrory, who was convicted in Alabama in 1985 for the murder of his wife, based almost exclusively on bogus bite-mark testimony. Bite-mark analysis has been roundly discredited by scientists and, to date, is behind at least 39 wrongful convictions or indictments.

Bite-mark evidence is among a host of problematic, scientifically questionable forensic practices widely used in the criminal legal system. While a number of forensic practitioners have acknowledged the problem and sought to get their disciplines on firmer scientific footing, the law has not caught up. Ostensibly, courts are supposed to vet forensic evidence before trial, though because judges are not scientists — and most lack any science training — this is rarely effective, and they often allow even the most questionable science into evidence.

For people like McCrory subsequently convicted based on junk science, there is often no straightforward way for the courts to revisit or correct old cases based on outdated and debunked forensic practices. The law favors finality, so once someone is sent to prison, it becomes difficult to challenge a conviction based on junk science, and judges often deny appeals based on procedural matters without ever engaging with those flaws.

While the Supreme Court has occasionally acknowledged this problem, among her colleagues, Sotomayor was alone in calling out the crisis it has created. In a statement alongside the denial of McCrory’s appeal, Sotomayor described his case as a symptom of a broader problem.

“Hundreds if not thousands of innocent people may currently be incarcerated despite a modern consensus that the central piece of evidence at their trials lacked any scientific basis.”

“This petition raises difficult questions about the adequacy of current postconviction remedies to correct a conviction secured by what we now know was faulty science,” Sotomayor wrote. “Hundreds if not thousands of innocent people may currently be incarcerated despite a modern consensus that the central piece of evidence at their trials lacked any scientific basis.”

To date, a handful of states have created a direct avenue of appeal for defendants convicted based on junk or debunked science. Texas was first, and Sotomayor notes that the statute has been used to exonerate a man named Steven Mark Chaney, who was convicted on bogus bite-mark evidence. California has a similar statute, which was used to exonerate Bill Richards, also convicted on discredited bite-mark analysis. 

“These statutes,” Sotomayor wrote, “create an efficient avenue for innocent people convicted based on forensic science that the scientific community has now largely repudiated.”

A Flimsy Piece of Evidence

Throughout the nearly four decades since his wife’s murder, McCrory has maintained his innocence. In 2022, The Intercept published a lengthy investigation into McCrory’s case, detailing the flaws in the state’s case against him. The case has since attracted additional attention and media coverage, highlighting the problem of junk forensic science.

Julie McCrory’s body was found inside her home in Andalusia, Alabama, on the morning of May 31, 1985. Her head was bashed in, and she’d been repeatedly stabbed in the chest. The couple’s young son Chad, then 3 years old, was found unharmed in his crib. Police quickly zeroed in on McCrory as their only suspect: He and Julie were separated, and McCrory had been having an affair. At trial, the theory seemed to be that he’d savagely murdered Julie to be free from her.

The police investigation was cursory at best. Detectives searched McCrory’s home and car and found nothing to connect him to the bloody crime. Meanwhile, they ignored some evidence altogether, including two bedroom windows that were found open, but which investigators failed to dust for fingerprints. Police also failed to consider an alternate suspect, a man who worked at an excavating company bordering the McCrorys’ backyard and who, just weeks after Julie’s murder, committed a home invasion rape of another local woman. He was convicted and sent to prison for that crime.

Ultimately, the state latched onto a single piece of physical evidence against McCrory: a pair of small indentations on the back of Julie’s right arm, which prosecutors concluded was a bite-mark made by McCrory’s allegedly distinctive dentition.

To sell this theory, the state employed famed forensic dentist Richard Souviron, a star prosecution witness in the recent and sensational trial of serial killer Ted Bundy. Although Souviron initially said he couldn’t definitively link the two marks on Julie’s arm to McCrory, at trial he was unequivocal that they did indeed match.

More than three decades later, Souviron recanted his testimony. He provided an affidavit to McCrory’s lawyers, Chris Fabricant of the Innocence Project and Mark Loudon-Brown of the Southern Center for Human Rights, who presented it at a 2021 evidentiary hearing in Andalusia. “As a forensic odontologist I no longer believe the individualized teeth marks comparison testimony I offered in his case was reliable or proper,” Souviron wrote. “I no longer believe, as I did at the time of trial, that there is a valid scientific basis for concluding that the injury found on the skin of the victim in this case, assuming that the injury is in fact teeth marks, could be ‘matched’ or otherwise connected to a specific individual, such as Mr. McCrory.”

Fabricant and Loudon-Brown also presented testimony from two leading forensic dentists who were once bite-mark true believers but now admitted that the discipline lacked any scientific underpinning and was not valid evidence. They agreed to testify for free, they told the court, because they felt they had a duty to correct the record.

Cynthia Brzozowski, an experienced forensic dentist from New York, testified in court stating that she felt a sense of duty to speak out in cases like McCrory’s.

Rather than presenting new evidence, prosecutors argued that McCrory was guilty based on the bite mark evidence presented at trial, now referred to as “teeth marks.” They claimed that jurors could have reached the same conclusion even without expert testimony. The judge and the Alabama Court of Criminal Appeals sided with the state, denying McCrory’s request for a new trial.

Despite efforts to appeal to the Supreme Court, McCrory’s case was not reviewed. Justice Sotomayor explained that while due process claims like McCrory’s have not been thoroughly addressed in federal courts, state legislatures have the power to address issues of wrongful convictions based on unreliable forensic evidence.

The validity of bite-mark evidence has been widely discredited, but some courts, including those in Alabama, continue to uphold convictions based on this flawed practice. Outdated post-conviction procedures and legal statutes have not kept up with advancements in forensic science, leaving many defendants like McCrory without a proper avenue to challenge their convictions.

Alabama prosecutors argue that because bite-mark evidence was accepted in the 1980s, it should still be considered valid. They claim that McCrory should have raised concerns earlier, despite the lack of scientific consensus on the discipline at the time.

The evolving nature of scientific understanding makes it challenging for individuals like McCrory to challenge their convictions based on new evidence. Sotomayor emphasized the need for a more proactive approach to addressing issues of flawed forensic evidence in the criminal justice system.

Evidence that an entire mode of forensic analysis lacks scientific basis is distinct from evidence that may raise doubts about a witness’s credibility or motives for testifying.

According to Fabricant, Sotomayor’s acknowledgment is significant as it marks the first instance where a Supreme Court Justice has acknowledged the troubling history of wrongful convictions resulting from the reliance on unreliable forensic science in criminal proceedings. Fabricant, who has authored a book on the subject, emphasized the importance of Sotomayor’s concurrence in shedding light on the pervasive issue of miscarriages of justice caused by the use of junk science.

Fabricant and Loudon-Brown, McCrory’s legal representatives, have lodged an appeal in federal district court highlighting the same concerns presented to the Supreme Court. Despite Alabama’s argument for dismissing the appeal, Sotomayor appears to be signaling to the district court to carefully examine McCrory’s case.

In an email to The Intercept, McCrory’s attorneys expressed gratitude for Justice Sotomayor’s recognition of the flawed bitemark evidence that led to McCrory’s conviction, as well as the subsequent recantation by the expert witness. However, they emphasized that McCrory, an innocent man, remains incarcerated after nearly four decades. They affirmed their commitment to pursuing justice for McCrory through the federal court system and urged the State of Alabama to address this injustice.

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