Justice Delayed (Innocent Prisoners Project)

by Marti Green

  “Is there any controversy over the source of marks on human skin?”

  “Yes. With any bite-mark analysis, a mark must first be identified as a bite mark, and then that the mark came from human teeth. A test given by the ABFO itself, not too long ago, presented to its members a series of photos of marks in human skin. There was considerable disagreement, including among the most experienced of its members, as to whether the marks depicted were bite marks and whether they came from humans or animals. Of the one hundred cases looked at by thirty-nine certified bite-mark analysts, they reached the same conclusion only four times.”

  “Are there others, to your knowledge, who consider bite-mark analysis to be junk science?”

  “Yes. Many dentists who previously testified in criminal trials about a bite mark are now recanting their testimony. Just last year, a high-ranking member of the White House Office of Science and Technology Policy called for the end of bite-mark evidence in criminal trials because it can’t stand up to scientific scrutiny. And a few months ago, the Texas Forensic Science Commission, which is made up of scientists, forensic dentists, and law-enforcement authorities, voted to recommend a ban on bite-mark analysis until there is scientific research to support such testimony. Of course, it’s only a recommendation, and not binding on courts, but it is expected to have a significant impact on its admissibility.”

  “Thank you, Dr. Bagley. I have no further questions.”

  Luckman stood up and walked to the witness. “Dr. Bagley, would you agree that the ABFO is the primary organization for training and setting standards in the field of forensic odontology?”

  “I would.”

  “And are you a member of the ABFO?”

  “I used to be. Not any longer.”

  “Weren’t you asked to leave?”

  “Yes. Because I didn’t agree with them.”

  “Wouldn’t you characterize yourself as an outlier?”

  “No.”

  “But doesn’t the ABFO still stand behind bite-mark analysis as an effective means of identifying perpetrators of a crime where there is evidence of a bite mark?”

  “They do. But I would say they are the ones who are outliers, in that their blind insistence is contrary to the scientific evidence.”

  “Yet, don’t most courts in the United States continue to accept testimony concerning bite marks?”

  “I expect that to change, given the recommendation of the Texas Forensic Science Commission.”

  “Please answer my question. Do most courts today accept testimony about bite marks?”

  “As far as I know, yes.”

  “Thank you. That’s all I have for you.”

  Dani stood. “I have no other witnesses, Your Honor. The defense rests.”

  “Mr. Luckman?” Judge Beiles asked.

  “I call Dr. Michael Forbes.” A small man entered the courtroom, also dressed neatly in a suit and tie, with black-framed glasses worn across his narrowly set eyes. The court reporter took his oath, and he gave her his name and address.

  “Please state your background.”

  “I received my DDS from Ohio State University College of Dentistry, have been trained in forensic odontology, and have been president of the American Board of Forensic Odontology for the past five years.”

  “Dr. Forbes, there has been testimony that bite-mark analysis is ‘junk science.’ Do you agree?”

  “Absolutely not. Admittedly, there have been some errors, but by and large, those come about when practitioners try to find a match when there’s insufficient detail in the bite mark. We’ve instituted rigorous standards to be followed, and when they are, a competent odontologist can, where there’s enough information in the bite mark, match it to a set of teeth.”

  “Yet, isn’t it true that the ABFO’s own study found a great deal of disagreement?”

  “The reports have exaggerated our disagreement. Again, with a detailed bite mark, matches can be accurately made.”

  “What about the report of the Texas Forensic Science Commission?”

  “It’s just a recommendation. Courts, even Texas courts, aren’t bound to follow it.”

  “Thank you.” Luckman turned toward Dani. “Your witness.”

  Dani approached Dr. Forbes. “Would you agree that DNA evidence is scientifically proven to be accurate?”

  “Yes, it’s been proven to be for many years now.”

  “Are you aware of any instances in which a conviction based on bite-mark analysis was overturned when DNA subsequently exonerated the prisoner?”

  “I am. It’s occurred a few times.”

  “Would you be surprised if I told you it was more than twenty-five times?”

  “No.”

  “Would it surprise you that in one of those cases, the odontologist testified that the chance of someone else making that mark was four point one billion to one? Or that in another case, the expert said that the defendant’s teeth matched the bite mark to a reasonable degree of scientific certainty? And in another case, that the chances were a million to one that someone else made the bite mark? And that in each of those cases, the expert was proven wrong by DNA?”

  “When that happens, invariably it was because the odontologist wasn’t sufficiently trained, or wasn’t diligent enough. We at the ABFO work hard to ensure those people understand their mistakes and correct them.”

  “Do you believe that everyone’s teeth are unique?”

  “I do.”

  “What scientific tests can you point to that support that notion?”

  “Through the experience of a body of analysis.”

  “Subjective analysis, right?”

  “I suppose.”

  “Thank you. You can step down now.”

  As he left the courtroom, Luckman said, “I have no more witnesses, Your Honor.”

  “Okay. Let’s take a break for lunch now, and I’ll hear closing arguments at two thirty.”

  In the past, when Dani was on trial or arguing an appeal, she had a junior associate with her. Now, she was alone. She left the courthouse and wandered down the streets looking for a place to grab a bite. She hated eating by herself, but she had no choice. On the second block, she spotted an inviting café and went inside. A table for two by the window was empty, and she grabbed it, then pulled out her phone and began scrolling through her e-mails and texts. There were two texts from Tommy, both asking her to call him as soon as she could. She was about to dial his number when the waitress came over with a menu. Dani thanked her, then called Tommy.

  “What’s up?” she asked when he answered.

  “I have a lead on Tony Falcone.”

  Dani brightened. “Where is he?”

  “North Carolina. And listen, if I have the right guy, he just got out of jail three years ago for raping a young woman.”

  “Are you serious?”

  “Yep. He was convicted eighteen years ago and sentenced to fifteen to twenty.”

  “How come no one was able to find him before this?”

  “Because he went by different names. His real name is Axel Bonetti, but he’s gone by three or four different names. Maybe more, but that’s all I’ve found.”

  “How did you track him down?”

  There was a hesitation on the phone before Tommy answered, “Don’t ask how. I just did.”

  Dani knew she’d never change Tommy. Despite his years with the FBI—or maybe because of that—he was a risk-taker, doing whatever it took to get what he needed, even if the methods were sometimes questionable. She’d tried to pull him back over and over, to no avail. Still, perhaps she was complicit, since she never hesitated to use the information he gave her.

  “Are you heading out there?”

  “Yeah. This afternoon. I hope to see him tonight.”

  After she hung up, she tried to tamp down the excitement bubbling up in her. Tony Falcone—or Axel Bonetti, or whatever he was called—had been a person of interest from back when the crime occurred. To learn that he’d been im
prisoned since then—and for a violent crime—intensified that interest. Dani wanted to believe that Tommy would find something incriminating, something that would point to him as the man who’d climbed up a ladder on a moonlit night and taken Kelly Braden from the bedroom. But she knew from years of searching for clues that it wouldn’t be easy to prove. And, if she didn’t win this hearing, she might never get the opportunity to try.

  Promptly at 2:30 p.m., Judge Beiles took the bench and called on Luckman for his closing argument.

  Luckman stood. “Your Honor, Georgia law is clear that there is a very high burden on a defendant who brings an extraordinary motion for a new trial based on the discovery of new evidence. He must prove that he only learned of this evidence after the trial, and it was not because of his lack of due diligence; that it’s so material that it would probably produce a different result if it had been introduced at his trial; that it’s not cumulative; and that it’s not evidence in which its sole purpose is to impeach the credit of a witness at his trial. Failure to demonstrate any one of these requirements must result in a denial of a new trial. Defendant has introduced two specific witnesses that he claims constitute new evidence. The first is Lisa Hicks Montague, who has recanted her testimony from the trial in which she identified the defendant as the man in her room who attacked her. The Supreme Court of Georgia has made it clear that recantation testimony should be given very little weight without proof that the witness’s trial testimony was the purest fabrication. Lisa Montague didn’t lie at the trial. She testified as to what she believed to be true at the time. Her changing her mind now doesn’t come close to meeting the requirement for admitting recantation testimony. Furthermore, Ms. Montague is not now saying that the defendant wasn’t the man she saw. She’s saying she doesn’t know who it was. As such, it would not be so material as to likely change the outcome of the trial. The next allegedly new evidence is testimony from a bite-mark analyst, calling into question the testimony given by Dr. Fein at the defendant’s trial. As such, its effect is to impeach the credit of Dr. Fein, and for that reason is not considered evidence to justify a new trial. For both these reasons, the defendant’s motion must be denied. Thank you.”

  Luckman sat down, and Dani stood. “Your Honor, Jack Osgood was convicted of the murder of Kelly Braden and assault of Lisa Hicks, and sentenced to die, because of three pieces of evidence, and only three pieces of evidence. First, Lisa Hicks, then five years old and awakened from her sleep, testified that Mr. Osgood was the man she saw in her darkened room. Today, she has admitted under sworn testimony that the only reason she thought it was her neighbor was because of his size—he was the biggest man she knew. The State has argued that the recanting of her testimony should be given no weight because we haven’t shown that her testimony at the trial was the purest fabrication. Although that might be relevant in most circumstances, it should not be so when the witness was only five years old at the time of her testimony. She was too young to appreciate the importance then of being certain of what she saw. Second, the State dismisses the testimony of Dr. Bagley as simply attempting to impeach the prosecution’s expert on bite marks. That’s not the case at all. The State’s expert testified about the science of bite-mark analysis. That science has changed. When Dr. Fein testified, there had been no scientifically based research of bite marks made on human skin. When Dr. Fein testified, a highly respected forensic science commission hadn’t made a recommendation to halt bite-mark analysis in criminal proceedings until there is science to support its admissibility. Both of those circumstances shed a new light on bite-mark analysis, a light that didn’t exist at the time of the trial. Finally, the only other evidence tying Mr. Osgood to the attacks was his bat, with traces of Lisa Hicks’s blood. The same bat that had his initials carved into it, yet was wiped clean of fingerprints. Just three pieces of evidence, and now two have been called into question. There can be no doubt that had Ms. Montague not testified she saw Mr. Osgood in her room, and had the jury heard testimony that the scientific community recommended a moratorium on bite-mark analysis because of its lack of a scientific foundation, there is a high probability the verdict would have been different. For these reasons, the motion for a new trial should be granted. Thank you.”

  “Okay, counselors,” Judge Beiles said, “you’ll have my decision within a week.”

  “Your Honor,” Dani said, “Mr. Osgood’s execution is scheduled to take place in ten days.”

  The judge nodded. “Thank you for reminding me. I hereby order the execution stayed, pending my decision.”

  There was nothing left for Dani to do but pack up her bags and head for home.

  CHAPTER

  24

  Tommy pulled up to the vinyl-sided ranch home just north of Asheville, North Carolina, a little past 7:00 p.m. Even in the dark, the light from the lampposts showed that the paint around the windows was peeling, and toys littered the front lawn. A beat-up, blue Chevy Colorado was parked in the driveway. He walked up to the front door, rang the bell, then waited. He always enjoyed looking at landscaping when he visited other homes, but just some scraggly burning-bush hedges grew under the front windows.

  This didn’t seem like the South, Tommy thought, as he zipped up his jacket. It was almost as cold here as it had been when he left New York.

  Moments later, the door was opened by a thin woman dressed in tight-fitting jeans with holes by her knees. Her dull brown hair was pulled back in a ponytail, and bangs framed her gaunt face. A toddler, no more than two, had his arms wrapped around her legs.

  “Who are you?” she asked.

  “Is Axel home?”

  “Who wants to know?”

  Tommy handed her his card. She held it close to her face and squinted as she read the words.

  “What do you want with Axel?”

  “Just to ask him a few questions.”

  “He ain’t done nothing wrong.”

  “I didn’t say he did. Is he home?”

  The woman turned and screamed out, “Axel! Someone here for you.”

  Tommy heard loud footsteps, then a large man appeared at the door. He was at least six two and heavily muscled. Prison muscles, Tommy thought.

  “Axel Bonetti?” Tommy asked.

  The man nodded.

  “Did you once go by the name of Tony Falcone?”

  Bonetti’s eyes narrowed, and his mouth turned down in a frown. “Not in a long time. Why you asking?”

  “Mind if I come in so we can talk a bit?”

  “Matter of fact, I do. We can talk right here.” He turned to the woman. “Go on in now, Carly, and take A.J. with you.” When they were gone, Bonetti stepped outside, closed the door behind him, and sat down on the front stoop. He took out a cigarette from a pack in his shirt pocket, lit it with a lighter, took a deep puff, then asked, “So, what is it you want from me?”

  “Do you remember doing odd jobs in Stone Ridge, Georgia, about twenty-two, twenty-three years ago?”

  “I did odd jobs in a lot of places back then. Can’t remember every one.”

  “This one was special. A girl disappeared from a home you worked on. Someone took her from the bedroom and killed her.”

  Bonetti broke out in a smile. “Well, hot damn, you’re here because you think it was me.”

  Tommy stared at him. “You think this is funny?”

  “No, sir, not what happened to that poor girl. I remember her. A pretty thing. Read about it in the papers. What’s funny is you wasting a trip coming all this way. I was long gone when she disappeared.”

  “You were sent to prison for rape.”

  “A misunderstanding. Girl said yes, then changed her mind when her daddy found out about it.”

  “That’s not what the jury thought. Why don’t you tell me where you were when Kelly Braden was murdered, and I’ll check it out?”

  “You remember where you were on a particular day twenty years ago?”

  “You said you were long gone. Where’d you go after Stone Ridge?�
�

  “Here and there. It was a good haul. Probably went on a bender for a few weeks, then headed here to North Carolina. Asheville was always good for picking up work.”

  “Anyone you remember working for back then?”

  “I barely remember what name I used back then.”

  “Why did you keep changing your name?”

  Bonetti shrugged. “Why not? I enjoyed trying on different names then, seeing what fit best. My daddy was a mean SOB. I didn’t particularly like carrying his name.”

  Tommy spent another half hour grilling Bonetti, trying to lock down dates and places he traveled to after leaving Stone Ridge, hoping to get something concrete he could latch onto. He came away with nothing. He would call Captain Cannon and give him Bonetti’s address. Maybe he could shake something out of him.

  The next morning, as soon as Tommy arrived in the office, he placed a call to Captain Cannon.

  “I need your help,” Tommy said when Cannon got on the phone.

  “How?”

  “I located Tony Falcone, although he goes by the name Axel Bonetti now.”

  Tommy heard a whistle on the phone. “How’d you manage that?”

  “I had a source track him down. Here’s the interesting thing. He was in prison fifteen years for raping a girl.”

  “I can guess what’s coming. You want me to interview him.”

  “That’s right. I just got back from seeing him, and he claimed to have no memory of where he was back then, but maybe you’d have more success.”

  “Look, I told you before, Osgood is guilty. I don’t have the manpower to send my guys out on a wild-goose chase.”

  “But he raped a girl. Doesn’t that tell you something?”

  “That’s not the MO for Kelly Braden.”

  “But it says he’s capable of violence.”

  “I’m sorry, Tommy. I can’t help you.”

  “My colleague just finished a hearing on a new trial for Osgood. She thinks it looks good for him. If that happens, she’s going to bring up Bonetti. I’ve seen her in court often enough to know that if no one checks him out, she’ll point fingers at the poor investigation. I’m just telling you this to give you a heads-up.”