Netflix ‘The Innocence Files’: Bite Marks, Bad Memories and Bad Cops ☆☆☆☆

If you don’t like the way I do it, get up off your dead ass, go to the morgue every weekend, spend it with 15 or 20 dead babies, and try coming out of there without being a fruitcake.–Dr. Michael West, forensics dentist and bite mark expert

 

Are we really innocent until proven guilty in the US judicial system?  “The Innocence Files” shows that justice for the poor and minorities hasn’t been a guarantee. In the last few decades, the Innocence Project has helped exonerate a small percentage of people who ask for their help and “The Innocence Files” looks at three aspects that make several convictions problematic: forensic evidence, witness testimony and prosecutorial misconduct. If you’re a big crime documentary or police procedural fan, Netflix’s “The Innocence Files” is a must-see because it challenges your perceptions of what is solid evidence.

The limited series documentary also introduces us to colorful characters along the way, from a homespun forensic doctor who clings to what might have been the “truth” a few decades ago to a doctor determined to right past wrongs to men who survived their incarcerations and found a purpose in life to a rape victim who now makes presentations with the man she was sure raped her.  Some heroes rise and others fall. Beyond meeting these extraordinary characters, the content couldn’t be more important. The information here is something that every citizen should know and understand, not only because one will undoubtedly be called to serve on a jury, but also because someday, someone you know might be accused of a crime.

Having seen Jessica Blank and Erik Jensen’s 2000 play, “The Exonerated,” which told the story of six wrongfully convicted death row inmates (Delbert Tibbs, Kerry Max Cook, Gary Gauger, David Keaton, Robert Earl Hayes and Sunny Jacobs) and their journey to jail and out, “The Innocence Files” feels like a follow-up and an important one. “The Exonerated” was made into a made-for-cable film, first airing in 2005. Of the six, three were not black and one was a woman.

Likewise, “The Innocence Files” shows that while being non-white is one factor, another is income and that white people can also find themselves as victims of the system.  Both “The Innocence Files” and “The Exonerated” make a good argument against the death penalty and taking a hard look at a hierarchy of evidence.

“The Innocence Files” is a Netflix original content and begins streaming on 15 April 2020.

Episode 1: The Evidence: In Deed and Without Doubt

Directed by Roger Ross Williams

Dubious bite mark evidence–and the controversial dentist presenting it–cement convictions in the murders of two Mississippi toddlers in the 1990s. 

The Innocence Project was founded in 1992 by Peter Neufeld and Barry Scheck at the Cardozo School of Law in New York City.

“In many respects, we’re the court of last resort…and we can’t take every case. We can only take on about 1% of the cases.”  Peter Neufeld says. He later adds, “People in the crime lab say the tire prints match, the shoe prints match, the hair matches, the bite marks match.  Because of these unreliable methods, innocent people are going to prison. It’s the whole profession. It’s the whole system. It’s the whole methodology. It’s all junk.”

The Case: Rape and murder of 3-year-old Courtney Smith, the daughter of Levon Brooks’ ex-girlfriend (16 September 1990). Noxubee, Mississippi.

The case against the 32-year-old Levon Brooks was based on a witness and forensics of bite marks. The five-year-old witness was initially questioned by a well-meaning TV children’s program personality, Uncle Bunky, who had no training in questioning children.

Pathologist Dr. Steven Hayne  recruited Dr. Michael West (LSU School of Dentistry), forensic dentist (odontologist ), but both men have since come under intense scrutiny. Both were taken to court, but in 2017, the U.S. Court of Appeals for the 5th Circuit ruled these men were protected by “qualified immunity.”

Forensic odontologist West claims, “Bite marks are better than fingerprints. They show you were not only present, they show you were in a violent confrontation. with that individual.”  He attended the LSU School of Dentistry, had 29 years death investigation, spent 15 years in the coroner’s office, for five years he was the chief medical examiner. He covered over 5,200 deaths, attended over 5,800 autopsies and, most important for this documentary, he analyzed over 300 bite marks.

Dr. Adam Freeman, the current president-elect of the American Board of Forensic Odontology, and past president of the American Society of Forensic Odontology, notes, “Mike West is a pioneer in his field.”

One of the jurors, knew Levon Brooks; Bos Stevens , a white juror, said, “I knew his family and I did not picture him as a criminal.” The racial divide becomes clear. “Levon’s family worked for my family (on cotton fields). So, Levon and I were friends from way back.” Both the prosecuting and defending attorneys thought he’d be on their side, yet Stevens thought the forensics was damning, until he read a new article about another young girl named Christine Jackson.

Kennedy Brewer was accused of killing three-yard-old Christine Jackson on 3 May 1992. Brewer had been baby-sitting Christine and her two siblings on the night of the murder.

District Attorney Forrest Allgood, Haynes, and West were all involved in the Brewer case as well as the Smith case. Allgood said, he thought it was a copycat. Juror for the Brooks case, Bos Stevens, thought, “Same crime, second verse.” Guess who was correct?

Thomas Kessler was Brewer’s attorney and didn’t initially believe that Brew was innocent.  West’s conclusion is that Christine Kennedy had been bitten 19 times and those bite marks were “indeed and without a doubt” made by Brewer.

Dr. Richard Souviron was Kessler’s witness and he had worked on the Ted Bundy case (which “brought bite mark analysis to the public view” Kessler noted). Souviron noted West only matched the upper teeth. Think about that for a moment.

West didn’t bother to consider why there were no lower teeth marks and, instead, calls Souviron  “a witness having other reasonable explanation–WHORE.”

The Evidence: The Truth Will Defend Me 

Directed by Roger Ross Williams

Despite exonerating DNA evidence, Innocence Project lawyers face a racially charged battle in Mississippi to free two men imprisoned for decades.

The Case: Three-year-old Christine Jackson was raped and murdered on 3 May 1992. Noxubee, Mississippi.

R. H. Brown, reporter and pastor, notes that it was really the bite marks that put these men away and DNA proved that Brewer didn’t commit the rape.

Kennedy Brewer and Levon Brooks talk about being locked up based on bite mark evidence. If you’re squeamish, you’ll find this episode challenging. We get to see Dr. Richard Souviron using vice grips with plastic models of Ted Bundy’s teeth to make bite marks on a cadaver and then use it on a woman. Souviron is the expert witness for the defense and he already noted that bite marks with just the upper teeth don’t make any sense.

The documentary makes it clear there is no controversy with some forensic odontology. Forensic odontology began in the 1970s, but the majority of the work as for identifying  unknown remains. One example is the 1979 American Airlines crash that killed 273 people. Dental records were used to identify the remains.

After Souviron’s testimony in the Bundy case, bite mark forensics went from zero to 50 in the next year according to Dr. Adam Freeman ABFO (American Board of Forensic Odontology).

This episode tells us more about Brewer who always listened to his mother and never had even a traffic ticket. Brewer’s mother, Annie,  recalls how the family worked picking cotton, peas, potatoes, and corn. She had ten boys and five girls. The documentary takes us inside the Pilgrim Rest Church to hear Pastor Sammie Lyon talk about Annie’s faith.

The Innocence Project was originally started by two former public defenders, Neufeld and Scheck, who knew the breakthrough in DNA testing would challenge convictions. At the end of 2001, Brewer was excluded from the Jackson rape by DNA found on the scene. By that time, he had been incarcerated for nine years.

Allgood resists dismissing the case against Brewer despite the DNA evidence and suggests that Brewer might have sold  the child for crack rock (no evidence) or that even if he didn’t rape her doesn’t mean he didn’t kill her.

Vanessa  Potkin (attorney, Innocence Project) says, “The past is present in Mississippi.” Prisoners used to work the cotton fields. The Innocence Project lawyers research to find other similar cases and find Levon Brooks. Brooks had by that time accepted his fate. He had no other means to appeal and the DNA evidence for his case had been contaminated.  Potkin notes that the five-year-old Ashley (the witness for the case and the older sister of the murdered victim) was pliable: Uncle Bunky’s questions often influenced her responses and some of her responses were also nonsensical.

For Brewer’s retrial in 2007, references samples from other suspects along with the rape kit were sent to Dr. Blake in Northern California. Not only was Brewer excluded, a match was made to Justin Albert Johnson.

Johnson eventually confessed to the rape and murder of both girls, saying that he was under the influence of crack cocaine and alcohol. He would not admit to biting the girls. The solution to the bite marks is the stuff of black comedy.

The Evidence: The Duty to Correct

In a crusade to discredit bogus forensics and raise awareness, the Innocence Project enlists allies including former convicts betrayed by the system.

The Case: Teresa Perron was raped and her husband Jesse Perron, was murdered on 14 September 1982. 

The Case: Gary Cifizzari and his brother Michael were found guilty in the murder of their great-aunt, Concetta Schiappa. 

West is driving through Hattiesburg, saying, “about every courthouse in every county in Mississippi,  you’ll find a Confederate Memorial…From an artistic standpoint it’s very beautiful, very detailed. Taking it away does not better anything. Erasing history is ignorant; it benefits no one. They want to erase me from history.”

West reminds us, “We used the state of the art, the best we had at the time.” Now two decades later, he’s not happy about seeing his work questioned. “It’s our job to be controversial.” Then he says,  “If you don’t like the way I do it, get up off your dead ass, go to the morgue every weekend, spend it with 15 or 20 dead babies, and try coming out of there without being a fruitcake.” Of course, “somewhere down the road” when a “new scientific method comes a long and says this man is innocent, we can open the door and let him out.”

Of course, that’s only if the person is still alive. Neufeld is more interested in looking at “how did they get in to prison in the first place” because they wanted to “look at systemic problems and try to change the law.”

That leads us to the NAS report in 2009 (National Academy of Sciences) and the need for strengthening the science behind forensics of not just  bite marks, but also fingerprints (including the interoperability of AFIS), firearms examination, tool marks, impressions (tires, footware), bloodstain pattern analysis, handwriting and hair.

If forensics started as creative ideas by detectives to solve crimes, then we need to find the science and reliability of those creative methods and be on guard against the “curious manifestation of the worst type of forensic sciences.”

Sailor Keith Harward, who is not black, was convicted of the murder and rape in 1982, based on bite mark forensics.   Dana Delger and Olga Akselrod worked on the case where exculpatory evidence was “rationalized away.”

Teresa Perron was attacked on 14 September 1982. Her husband was murdered with a crowbar and she was sexually assaulted for several hours. The perpetrator had bitten her legs repeatedly. There was other evidence: seminal fluid, saliva, pubic hair, a cigarette butt.

The DNA evidence later exonerated Harward after he had served 33 years. The DNA identified his shipmate, Jerry Crotty, as the culprit. While DNA was the catalyst for starting the Innocence Project, their findings on bite mark forensics made the Innocence Project fast track all the cases that hinged on such evidence.

Adam Freeman, former president of ABFO, wanted to see how reliable bite mark identification was. Taking 100 cases, he found that accredited bite mark experts, “didn’t even agree on what a bite mark is.” He didn’t find a single case where everyone agreed. Part of the problem is that people bruise differently. People like Eric Lander call bite mark forensics “just total nonsense.”

Freeman said, “I’m no longer going to do bite marks for the prosecution,” but also notes that “it is my responsibility to look backward and say, ‘If I made a mistake, let me see if I can correct it.’ It is my duty to do that, to go back and correct that.”

Gary Cifizzari, who is white, was convicted of first-degree murder of his great-aunt 75-year-old Concetta Schiappa, on bite mark forensics (Dr. Stanley Schwarz and Dr. Richard Souviron).  In 2017, Ciffizzari had his case taken up by the New England Innocence Project.” Twelve pieces of evidence were collected and base on DNA evidence, Cifizzari was excluded. Cifizzari served 35 years. His brother, Michael Cifizzari, was convicted of second-degree murder and died while incarcerated.

While these exonerations has made some forensic dentists more conservative, West seems bitter and angry, especially toward the Innocence Project.

Harward is one of the more engaging characters in this documentary. He’s humble, but determined. When he speaks about his parents and their unwavering support and how he regrets they didn’t live to see him set free, I teared up.

The Witness: The Murder of Donald Sarpy

A drive-by shooting homicide in 1991 stokes a gang war. Teen Franky Carillo is arrested. It’s the beginning of a nightmare driven by defiant officers.

The Case: Donald Sarpy is murdered outside of his house in what appears to be a gang-related shooting. 

Francisco Carillo Jr. had been jumped and stabbed before he was 18. His brothers-in-law were members of the Young Crowd Gang in Lynwood. One of his brothers-in-law was the leader, Big Spider. He became Little Spider. The African-American gang called Neighborhood Crips were fighting the Latino gang, Young Crowd, for territory.

Carillo was charged with the shooting death of 41-year-old Donald Sarpy on January 1991 in Lynwood, California.

Scott Turner, a former member of the Neighborhood Crips, talks about the shooting that he witnessed. Dameon Sarpy, Turner’s childhood friend, was also there. His father was the victim, dying on the sidewalk on the evening of 18 January 1991.

Carillo was facing two life sentences, even though the shooting happened when he was having dinner with his father and siblings. He was naive, expecting the “adults in the room” to be working for the truth and justice. The documentary suggests that there were white supremacists in the LA Sheriffs Office, the Vikings, and their tactics were oppressive.

The Witness: The Trials of Franky Carillo

Stunning twists revive Franky’s hopes for exoneration when his new legal team untangles the flawed eyewitness testimonies that sealed his fate. 

You might be wondering why this documentary suddenly takes us to pig farms and sausage factories. That’s because a  witness is something like sausage. If you knew the process that went into making sausage, you might not want to buy it.

The same holds for testimony. Jurors (Corey Holst, Andrea Bunting, David Yates and Michelle Hayden) from Carillo’s first trial recount their impressions. That jury ended in a mistrial.  The different testimonies of the six were wildly inconsistent, making it hard to say what they were making up and what they really saw.

The Deputy DA Mary Ann Escalante seems to have worked with the witnesses for the second trial. She was also approached with the suggestion that the real culprit was at Carillo’s sentencing. David Lynn (private investigator with Carillo’s defense attorney) had handwritten notes from Oscar Rodriguez who confessed to the shooting. Rodriguez appeared outside the courtroom at Carillo’s sentencing, but Escalante asked and had the “ridiculous motion” denied.

Carillo might have continued to languish in prison, but Ellen Eggers met a woman at a party in 2006. The woman, a retired GED teacher at Folsom Prison, begged Eggers, who was with the Innocence Project, to meet Carillo.

Turner was, like Carillo, just 16 years old and identified Carillo and influenced the other witnesses when they were shown the same photos months later (the position of Carillo’s photo was the same for all the witnesses).

The Witness: Making Memory

In 1984, a teen is convicted when multiple rape victims identify him with “100% certainty.” Decades into his imprisonment a harrowing truth surfaces. 

The Case: White women are being sexually assaulted in the East End of Richmond by a tall black male who wears a ski mask.

You’ve probably heard about the difficulty of identifying people across racial divides. This is possibly what happened in the case of Thomas Haynesworth. When he was 18, Haynesworth was arrested and convicted for violent rapes in the East End of Richmond. A victim of the 27 January 1984 attack identified him from a line-up.

At the trial, Reporter Frank Green recalled that “he looked like a deer in headlights, just completely lost.” Haynesworth was sentenced to a total of 84 years in prison. Yet even after his arrest, the rapes did not stop. Now the perpetrator called himself the “Black Ninja.”

Nine months later, (19 December 1984) Leon Davis was arrested. The rapes stopped.

When Ramon “Trip” Chalkley got the case, he “knew nothing about his case except what the warrants said.” Haynesworth was insistent that he wasn’t going to confess to something he didn’t do and continued to declare his innocence even when he faced the parole board.

In 2005,  then Virginia governor Mark Warner ordered an audit of 150 cases.  Senator Patrick Leahy (D-VT) was one of the authors of the Innocence Protection Act which was part of the Justice for All Act.  All of this helped Haynesworth.

Shawn Armbrust of the Mid-Atlantic Innocence Project was critical of the way witness procedures were conducted. Armbrust was surprised to find an ally in Virginia Attorney Ken Cuccinelli (the most conservative attorney general in the US).

Haynesworth was freed on 21 Mars 2011, 27 years after his arrest on his 46th birthday.

Janet Burke, the rape survivor, tells how she attempted to forget much of 1984, but when Haynesworth was exonerated, she had emotional problems because “I was the victim; now I’ve become the person who caused harm on someone else.” Dealing with “the guilt and shame consumed my soul.” Yet Burke feels compelled to join Haynesworth at presentations and talk about what they learned from each other. That kind of forgiveness and openness is touching.

At the end of the episode, the subtitle informs us that 700 people were exonerated based on mistaken identity.

The Prosecution: Wrong Place, Wrong Time

Shortly after a Philadelphia murder, early Chester Hollman is arrested. To guarantee a conviction, police and the prosecution cross indefensible lines. 

The Case: South Korean student Tae Jung Ho is killed during a mugging. He escapes by jumping into a white Chevy Blazer with three other people in the car. 

Chester Hollman was celebrating his vacation, driving a white Chevy Blazer rental. He picks up a friend, Deidre Jones, and a short time later, on 20 August 1991, he was arrested for the murder of Tae Jung Ho, an international South Korean graduate student at the University of Pennsylvania.

Initially, the closest witness, Junko Nihei, could not identify him but she had described the suspect as wearing red shorts. Hollman was wearing green shorts. Andre Dawkins became one of the principal witnesses, but he was on probation and had substance abuse issues.

Surprisingly, Jones’ testimony in court is also damning, making Hollman angry, but Jones later asserts the detectives on the case bullied and threatened her.

Attorney Alan Tauber says that after reading about the case,  “I decided I would do this for free.” Patricia Cummings of the Pennsylvania Innocence Project and Celeste Trusty, a volunteer case expert who became a.private investigator together with Tauber looked into the case. What they uncovered was police corruption and brutality.

Trusty tracked down Jones who said that Hollman “was like a brother; he was a gentleman, but the detective threatened her, an accusation that Detectives Witcher and David Baker denied. Moreover, even though the police had received an anonymous tip that led to Denise Combs who had also rented a white Chevy Blazer at the same place and had a record of renting cars that came back damaged, the detective focused on Hollman. 

The prosecutor, Roger King, was black and is characterized as a “win-at-all-costs” attorney. Hollman wasn’t the only questionable case King prosecuted.   Just last year, a murder conviction was vacated, partially based on prosecutorial misconduct.

Philadelphia Inquirer writers,  Michaelle Bond and Emilie Lounsberry, covered the Hollman case and the problem they called testilying. That’s a disturbing trend for witness testimony that we all should know about.

The Prosecution: Hidden Alibi

A suspect in a Houston Cop’s murder has a solid alibi–until his girlfriend suddenly changes her story. Years later, she reveals an explosive secret.

The Case: Police office Charles Clark was killed while responding to a robbery that resulted in the death of a cashier, Alfred Jones on 3 April 2003. 

Alfred Dewayne Brown was convicted of capital murder of 45-year-old police officer Charles Clark and 27-year-old ACE check cashing clerk Alfredia Jones on 3 April 2003. He was on the fast track to death.

Brian Stolarz represented him pro bono, filing a writ of habeas corpus. Stolarz wrote a book about this case, “Grace and Justice on Death Row: The Race Against Time and Texas to Free an Innocent Man.”  The book isn’t detailed in this documentary. What is, is the extent of misconduct by Houston police officers.

Brown’s exoneration gained momentum following the discovery of exculpatory phone records in the garage of a Houston police officer in 2013 that corroborated Brown’s claim that he was at his girlfriend’s apartment just minutes before the killings took place and could not possibly have been at murder scene at the time of the killings. Prosecutor Daniel Rizzo claimed that the records had been accidentally misplaced, rather than intentionally withheld. But in 2018, Ogg’s office discovered an email showing that Rizzo knew about the records well before Brown’s trial. A timeline of the case showed that Rizzo’s investigator had sought out the records in an attempt to rebut grand jury testimony by Brown’s girlfriend that he spoke to her by phone from her apartment shortly before the murders. Rizzo then threatened her with prosecution and jailed her until she changed her testimony. “It is impossible to examine the conviction of Alfred Dewayne Brown without confronting prosecutorial misconduct,” wrote special prosecutor John Raley, who conducted more than 1,000 hours of investigation into Brown’s case and produced the report that led to Ogg’s actual innocence declaration.

There were, amazingly, other problems. Witness Ericka Jean Dockery recounted how the  grand jury seemed to be hellbent on changing her testimony

There was no state compensation. Brown was in jail for 10 years.

The Prosecution: The Million Dollar Man

A problematic police sketch incriminates a rape suspect in 1994, while a trove of DNA evidence goes untested. Then a determined new lawyer steps in.

The Case: Woman was raped for several hours on 30 March 1994. 

Kenneth Wyniemko, 43, was a guy who partied hard. He had history in his hometown in Malcomb County, Michigan. Four of his grandparents moved from Poland to the US. Two helped build a cathedral. He was also white.

That didn’t help when he was charged with sexual assault and jailed. “I was pissed. I was scared.” Yet he says of his ordeal, it “actually strengthened my faith in God.” The title comes from something a cop told him at the time.

Wyniemko was picked because he looked like the composite which, when you see it, also looks a lot like Phil Collins. During the 30 March 1994 attack she was blindfolded and the rapist had a nylon stocking over his face. The rape victim got only a few glimpses of her attacker who was six foot or a little over and about 25 years old.

Kenneth Wyniemko was older, shorter and lighter. The DNA evidence was never analyzed. His cellmate, Glen McCormick,  testified that Wyniemko had confessed. Kenneth Wyniemko was sentenced to 40 to 60 years in prison.

Attorney Gail Pamukov and the Cooley Innocence Project at the Thomas M. Cooley School of Law took on Wyniemko case and were able to get the Michigan State police Forensic Science  Division to test the DNA evidence. While the victim’s husband was included, Wyniemko was excluded as well.

Innocence Project co-founder Schreck regrets that they didn’t act more quickly. Wyniemko had reached out to Phil Donahue, Dateline, 20/20, and sent letters to newspapers like the Detroit Free Press. Reporter Kim North Shine remembers the detective Tom Ostin characterizing Wyniemko as a loser and telling her not to waste her time. That made her more determined to investigate.

The hardest part for Shine was she wasn’t able to tell the story until Innocence Project and Pamukov could get those legal filings and public information.

In June 2003, the State Police Forensic Science Division tested numerous items collected from the victim and the scene of the crime. Using STR DNA testing, the laboratory found that the semen on the bedding did, indeed, come from the victim’s husband. The spermatozoa found on the victim’s underwear, however, proved to be a mixed sample that included the victim’s husband and an unknown male profile. Wyniemko was excluded as a potential contributor of the spermatozoa. Based on these results, Wyniemko’s conviction was overturned on June 17, 2003.

Wyniemko was the first person in Michigan to be exonerated. There was no safety net in place. He left prison with no clothes, no money , no home, no car, no health insurance.

The Innocence Files makes it clear that race might be one aspect, but the poverty is a determining factor. The jury did not know there was DNA that could have been tested. In the end, there was a match, Craig Gosner., but the statute of limitations had already passed.

Wyniemko’s father served during World War II, but died 24 May 2000, before Wyniemko was exonerated on 17 June 2003. Wyniemko says his father couldn’t understand how that was allowed to happen, but Wyniemko says his experience strengthened his resolved to fight for criminal justice reform.

Racism does exist, but that’s no the only problem with the judicial system. Wyniemko is white. His accusers were white. The prosecutor was white. Chester Hollman is black. The prosecutor was black. Camarillo is Latino. The prosecuting attorney was also Latina. Diversity should matter, but it doesn’t always help.

What “The Innocence Files” exposes is that the problems in the justice system are widespread. You can find it in big cities like Los Angeles and in small-town Mississippi. Making the system adversarial is shown to be problematic when the judicial system should be about finding truth and justice. You should feel outraged. Yet this isn’t just a screed to fire you up with anger. There are also emotionally satisfying moments. Even on the second viewing, I felt tears to my eyes. “The Innocence Files” also teaches us the importance of perseverance, making connections and having faith in family and friends.

In a time where social distancing, there are lessons in “The Innocence Files” about self-reflection and improvement and how to keep hope alive. If these men can do keep sane and hopeful in a small prison room with a bed, a toilet and a TV inside the the constant threat of  violence on the outside, and, for some, the lingering shadow of a death sentence, people living during the fearful COVID-19 rest-in-place can too.

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