People v. Prante , 2021 IL App (5th) 200074 ( 2021 )

2021 IL App (5th) 200074NOTICE
Decision filed 04/12/21. The
text of this decision may be NO. 5-20-0074
changed or corrected prior to
the filing of a Peti ion for IN THE
Rehearing or the disposition of
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 82-CF-381
)
JOHN PRANTE, ) Honorable
) Neil T. Schroeder,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Moore and Wharton concurred in the judgment and opinion.
OPINION
¶1 The petitioner, John N. Prante, appeals from an order of the circuit court of Madison
County, denying him leave to file a successive petition for relief under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). The successive petition brought five
claims: (1) that new scientific evidence regarding memory science, and the invalidity and
unreliability of bite mark evidence demonstrates that he is actually innocent of the crime; (2) his
constitutional right to due process of law was violated at trial by the State’s use of faulty and since-
repudiated forensic science on bite mark comparisons; (3) ineffective assistance of counsel of trial
counsel, including for failing to challenge the admission of the State’s evidence regarding bite
marks and bite mark comparisons; (4) ineffective assistance of counsel of appellate counsel for
failing to raise trial counsel’s ineffectiveness; and (5) cumulative error. The circuit court denied
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the motion for leave to file the successive postconviction petition. For the reasons that follow, we
reverse the judgment of the circuit court.
¶2 I. BACKGROUND
¶3 Following a three-week jury trial in June and July of 1983, the petitioner was convicted of
the June 21, 1978, murder of Karla Brown. The petitioner was sentenced to the Department of
Corrections for an extended term of 75 years. The facts of this case were set forth extensively in
the petitioner’s direct appeal. The evidence, as relevant to the case currently before us, is as
follows.
¶4 On June 20, 1978, Karla Brown and her boyfriend, Mark Fair, moved into a home they
recently purchased at 979 Acton Avenue, Wood River, Illinois. That evening, Fair and Brown,
with the assistance of several friends, moved some of their belongings into the home. Paul Main,
a friend of the petitioner, lived next door at 989 Acton Avenue. The petitioner and John Scroggins
were visiting Main while Brown and Fair moved in next door. Scroggins, who knew both Brown
and the petitioner, testified that he introduced Brown to the petitioner, who expressed a sexual
interest in Brown.
¶5 At 7:45 a.m. the following morning, June 21, 1978, Fair left for work, leaving Brown alone
in her new home. Brown spoke to Helen Fair, Fair’s mother, on the phone between 10 a.m. and 11
a.m. The conversation was interrupted when Brown said she would have to call Helen back
because “someone [was] at the door.”
¶6 At approximately 10:45 a.m., Edna Moses was driving her grandson, Eric Moses, to the
dentist, when she pulled into the driveway at Brown’s home to turn her vehicle around. Edna and
Eric saw a woman, matching the description of the victim, standing in the driveway talking to a
man. Eric testified the woman “sort of got mad at [the man].” Edna testified that as she was turning
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around, the woman started to walk toward the house. At 11 a.m., a friend of Brown paid a visit to
the home. Brown’s van was at the house, but no one answered either the front or back door. Phone
calls made to Brown’s house between 11:45 a.m. and 2:30 p.m. went unanswered.
¶7 Around 4:30 p.m., Fair left work and drove to Tom Fiegenbaum’s house. The men used
Fiegenbaum’s truck to pick up additional items from Fair’s prior home to bring to the new house.
When they arrived at the Acton Avenue house, Fair used his key to enter the front door, while
Fiegenbaum backed his truck into the driveway. Fair went through the house to the back door,
which was unlocked, to help unload the truck. After the truck was unloaded, Fair invited
Fiegenbaum inside to show him the house. The men entered through the back door, and Fair led
Fiegenbaum into the basement. When Fair got to the foot of the stairs, he saw blood on the floor.
Fair then noticed that the room was in disarray and there was blood all over the couch. Fair glanced
into the laundry room and found Brown’s body. Brown was bent at the waist over the side of a
large metal lard can, with her head and shoulders submerged in water. Brown’s hands were tied
behind her back with a white extension cord from which the ends had been cut. Brown was nude
from the waist down but was wearing a winter sweater that had been buttoned at the top. Fair
pulled Brown’s stiffened body from the can and laid her on the floor while Fiegenbaum called the
police. Brown had large gashes on her forehead, chin, and nose. Two men’s socks, tied together,
were tied tightly around her neck. The area where the socks had been tied around her neck was
bruised.
¶8 Police arrived and secured the crime scene. Fair told police that the men’s socks had been
kept in a dresser drawer in the bedroom upstairs and the extension cord had been packed in a box
in the basement. The clothes that had been stored in the lard can had been dumped onto the floor
and a stand of television trays had been overturned. A couch in the basement was soaked with
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blood, and blood was splattered on the basement floor. The bloodied couch cushion was saturated
with water. On the coffee table near the couch was a bloodstained tampon. A coffee pot from the
coffee maker in the kitchen upstairs, which police believed had been handled by the perpetrator,
was found in the rafters of the laundry room. The scene was processed for fingerprints. All of the
fingerprints recovered matched the victim, except for one, which was recovered from the coffee
pot. This print did not match the petitioner and has not been matched to anyone else.
¶9 Pathologist Dr. Harry Parks conducted an autopsy on June 22, 1978, and concluded that
Brown died from strangulation and that her facial injuries were caused by a blunt object. Dr. Parks
estimated the time of death as 11:45 a.m. but believed this time could vary by as much as two to
three hours.
¶ 10 Two witnesses testified that they saw the petitioner at Main’s home on the day of the
murder. Edna Vancil, who lived across the street from the residences of the victim and Main,
testified that the petitioner arrived at Main’s home between 9:30 and 10 a.m. on the day of the
murder. Vancil testified that the petitioner and Main sat on the front porch of Main’s home until
approximately 11 a.m., when the two men “disappeared.” Vancil stated that the men reappeared at
noon and sat on the front porch until 3 p.m., when the petitioner left in his vehicle. Charles Nonn,
a police officer for the City of Wood River, responded to the scene at about 6:20 p.m. Nonn
testified he had known the petitioner for several years and that he saw the petitioner and Main
standing in Main’s front yard when he arrived.
¶ 11 Three days after the murder, on June 24, 1978, Ralph Skinner, the chief of police for the
City of Wood River, interviewed the petitioner at his home. Skinner testified that the petitioner
indicated he was at Main’s house the evening before the murder while Brown and Fair moved in.
The petitioner stated that on the day of the murder he dropped off an application at the Shell Oil
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Company in Roxana, Illinois, at approximately 8:15 a.m. The petitioner stated he arrived at Main’s
house at about 8:30 a.m. to see if Main would like to go to St. Louis to pick up employment
applications while the petitioner dropped some off. The petitioner stated that Main was busy
painting a neighbor’s house, so the petitioner dropped off the applications alone. Skinner testified
that the petitioner indicated he had “bummed around” afterward and was unsure of where he
stopped until he saw Main again at approximately 6 p.m. at Harold Pollard’s house. The petitioner
advised Skinner that he learned of the murder at that time, when Main told him that the girl next
door had been killed.
¶ 12 Two weeks after the murder, on July 5, 1978, Eldon McEuen, an officer for the Wood
River Police Department, interviewed the petitioner regarding the investigation. While reviewing
the reports, McEuen noticed a discrepancy between the information provided by Main and the
petitioner. McEuen testified that the petitioner reiterated that he had stopped at Main’s house after
dropping off his application at Shell Oil Company and then left to drop off additional applications
alone because Main was busy painting a home nearby. McEuen testified that he asked the petitioner
if he returned to Main’s house afterward, and the petitioner indicated “he wasn’t sure if he did or
didn’t.” McEuen testified that the petitioner was unable to account for some of his time and stated
the next thing he remembered was seeing Main at Harold Pollard’s home when Main advised him
about the murder.
¶ 13 In the summer of 1980, investigators sent photographs of the crime scene to Dr. Homer
Campbell of the University of New Mexico. Dr. Campbell indicated that he believed certain marks,
in the area of the victim’s right collarbone, were bite marks. Prior to this time, no one who had
examined the body or worked on the case had identified these marks as bite marks. In the spring
of 1982, the police sought the assistance of the Federal Bureau of Investigation to develop a
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psychological profile of the perpetrator. As a result of this collaboration, the police decided to
exhume Brown’s body and sought to increase the media exposure regarding the crime. Articles
appeared in regional newspapers about the impending exhumation, the existence of bite marks on
the body, and technological advances in forensic science since the time of the murder.
¶ 14 On June 1, 1982, Brown’s body was exhumed. The following day, Dr. Mary Case
performed a second autopsy. Dr. Case opined that the cause of death was drowning based on crime
scene photos showing the presence of foam around the victim’s nose. Dr. Case believed the victim
had been sexually assaulted. Dr. Case testified that “bite marks” in the area of the right collarbone
had been inflicted at about the time of death because microscopic slides of that tissue showed fresh
hemorrhage in the subcutaneous tissue with no inflammation.
¶ 15 At trial, the State presented the testimony of several witnesses, suggesting the petitioner
knew certain details about the crime before they were publicized in the media. Harold Pollard
testified that the petitioner arrived at Pollard’s house around 6:30 or 7 p.m. on the day of the
murder. Pollard stated that the petitioner seemed agitated or anxious and asked Pollard for a
tranquilizer. The petitioner said that he had been at Main’s house most of the day, smoking pot
and drinking beer. The petitioner indicated that he had just left Main’s house and that the girl living
next door had been killed. Pollard testified that he asked the petitioner how he knew this, and the
petitioner stated that “he got a glimpse of the girl by looking over the policeman’s shoulder at the
crime scene.” Pollard testified the petitioner indicated “that the body was found curled up on the
floor with its hands tied behind its back.” Pollard testified that Main arrived at Pollard’s house a
short time later. Pollard stated that a day or two earlier, the petitioner had expressed sexual interest
in the “nice looking blond chick [that] had moved in next door.”
¶ 16 Vickie White testified that she had known the petitioner for about eight years. She stated
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that not more than three days after the murder, she and her husband, Mark, were visiting the home
of Spencer and Roxanne Bond. The group was in the kitchen when the petitioner arrived and began
to discuss Brown’s murder. Mrs. White testified that the petitioner indicated he had known the
victim from college. Mrs. White also testified that the petitioner “had stated that she was murdered
and that her body was down in the basement, and she was in a curled up position, and she had teeth
marks on her body.” Mrs. White testified that when the petitioner made the comment about the
teeth marks, the petitioner “put his arm over his shoulder.” Mrs. White stated that the petitioner
indicated that he had been at Brown’s residence on the day of the murder, that he had spoken with
the victim, and that he “had to get his story straight with Paul Main.” Mrs. White testified that the
petitioner stated that Brown was “alright” when he left her house that day and that he was supposed
to go back to her house later that day. Mrs. White first reported the petitioner’s statements to the
police on June 1, 1982. Mrs. White testified that she did not appreciate the significance of this
conversation until she read the newspaper articles concerning the exhumation and the bite marks
on Brown’s body.
¶ 17 Mark White testified that within three days of the murder, the petitioner brought up the
subject of Brown’s murder while they were in the Bonds’ kitchen. Mr. White testified that the
petitioner stated he knew Brown, that he had been over to Brown’s house talking to her on the day
of the murder, and that he was supposed to return to her home that day. Mr. White testified the
petitioner stated that he was afraid that he was the last person to see Brown alive and that he
expected to be questioned by the police.
¶ 18 Roxanne Bond testified that she had known the petitioner for eight or nine years and that
the petitioner had been a good friend of the Bonds. Mrs. Bond testified that she did not hear much
of the conversation in her home on the evening in question because she was frequently outside
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with her child. Mrs. Bond testified that she did hear the petitioner state that he “had to get his story
straight.”
¶ 19 Spencer Bond testified that he had known the petitioner for 9 or 10 years and that he usually
saw the petitioner once a day around the time of the murder. Mr. Bond testified that he first heard
about Brown’s murder from the petitioner on the Friday night following the murder. Mr. Bond
stated that he and the Whites were in the kitchen of his home when the petitioner arrived. Mr. Bond
testified that the petitioner stated he had been at Main’s house the day of the murder, and that he
had spoken to Brown at her house around 2 or 3 p.m. The petitioner indicated that he was supposed
to go back to Brown’s house that day because the petitioner might have a date with her. Mr. Bond
testified that the petitioner stated that the victim had been tied up and “was in a curled position
stuck in a pail of water down in the basement.” Mr. Bond testified that the petitioner stated that
the victim “had teeth marks on her shoulder where she had been bitten on her left shoulder,”
gesturing as he made the statement. Mr. Bond stated that the petitioner indicated that he had put in
a few work applications, and that he and Main had been getting drunk and high at Main’s house
that day. The petitioner indicated that he and Main “had to get their stories together as to what they
were doing that day” because they did not want to give conflicting statements to the police. Mr.
Bond testified that he did not realize the significance of the petitioner’s statements when they were
made and that he first told police about the statements on June 1, 1982, when the police came to
talk to him. Mr. Bond indicated he had not talked to Vickie or Mark White prior to his interview
with police.
¶ 20 On June 2, 1982, Mr. Bond participated in a wiretap of the petitioner conducted by police.
In the first taped conversation, the petitioner stated that he and Main were getting drunk and high
at Main’s home on the day of the murder and that they had seen the victim “putterin’ around
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outside” that day. The petitioner stated that he did not even know that the murder had occurred
until he read about it in the newspaper a few days later.
¶ 21 On June 4, 1982, police officers went to the petitioner’s home to obtain his cooperation in
making dental impressions of his teeth. On the way to the dentist’s office, the petitioner initiated
a conversation with the officers. The petitioner stated that he was drinking wine on Main’s front
porch on the day of the murder and that he was there when the police arrived at Brown’s house.
The petitioner also asked the officers whether Spencer Bond was working with the police.
¶ 22 Later on June 4, 1982, Mr. Bond participated in a second wiretapped conversation with the
petitioner. During this conversation, the petitioner stated that he was at Main’s house from
approximately 10 or 11 a.m. until sometime between 4 and 7 p.m. on the day of the murder. The
petitioner stated that he was drinking wine and smoking pot on Main’s porch, and that he and Main
had left the house a few times to get more alcohol. The petitioner stated that he saw Fair arrive
home that day, as well as the police, the ambulance, and the coroner. In this conversation, the
petitioner denied ever being at the victim’s home but acknowledged that he may have spoken to
her in the driveway.
¶ 23 The State also presented the testimony of Susan Lutz, who had met the petitioner in 1980
or 1981 and had dated the petitioner for a while. Lutz testified that once, when they were in bed,
the petitioner “kind of whispered in my ear that he had killed a woman.” When Lutz questioned
the petitioner about it the next day, the petitioner stated he killed the woman because he was “mad”
but that he “can’t really talk about it because I’ll lose my freedom.” Lutz testified that the petitioner
had bitten her on the neck a couple of times.
¶ 24 On June 8, 1982, investigators took the dental impressions of the petitioner, Paul Main,
and another suspect named Joe Seitz to Dr. Lowell Levine in New York. Agent Randy Rushing
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testified that Dr. Levine compared the dental impression with photographs of Brown’s body and
eliminated Seitz and Main as suspects. On June 8, 1982, the petitioner was arrested. The police
seized two white electrical cords with no male or female ends from the petitioner’s vehicle.
¶ 25 Dr. Campbell, an expert in forensic odontology and photographic enhancement, explained
that forensic odontology, as a science, involved the identification of deceased individuals through
dental records, injury assessments, and the analysis of bite mark injury patterns. Dr. Campbell was
a member of the American Academy of Forensic Sciences, the American Society of Forensic
Odontology, and the American Board of Forensic Odontology (the Board). The Board was created
in 1976 after the American Academy of Forensic Sciences was requested to sponsor a certification
program “to bring the standards [of forensic odontology] up to a par.” The Board was the certifying
body for forensic odontologists, which required new members to take an examination in order to
become certified. Dr. Campbell testified that a practitioner should have some knowledge about
each area of forensic odontology, but that it was not necessary for a practitioner “to be an expert
in each and every field” in order to become certified. Dr. Campbell testified that he was Board-
certified, indicating that he had been “grandfathered in.” Dr. Campbell explained that during the
Board’s first two years, all forensic odontologists that met certain threshold requirements—
including an unspecified number of years practicing, cases performed, and autopsies attended—
were automatically given Board certification in forensic dentistry.
¶ 26 Dr. Campbell testified that a bite mark examination requires the examiner to first determine
whether the injury in question was a human bite mark. Dr. Campbell testified that a human bite
mark is ovoid in shape and that frequently only the front six teeth will mark. A bite mark
comparison requires the examiner to compare the “class characteristics” and the “individual
characteristics” of the teeth to the mark. Class characteristics are “general characteristics” present
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in everyone, such as the arch or curvature, general spacing between the teeth, and the general size
and shape of the teeth. For example, the central incisors or upper front teeth are usually wider, the
lateral incisors are narrower, and the eye teeth or canines are more pointed. The central and lateral
incisors on the lower jaw are generally the same size as each other, and there is an eye tooth or
canine on each side. Individual characteristics are fillings, breakage of teeth, the placement of the
teeth in the mouth, wear patterns, and angles.
¶ 27 Bite mark injuries are usually preserved photographically. Dr. Campbell indicated that it
would be ideal for the injury identification if it was photographed at a 90-degree angle, and with a
ruler or scale, so the examiner could establish a “true life size” image to use for comparison. Dr.
Campbell testified that the Board was working on developing standards but that there were
currently no published standards as to how bite mark evidence must be preserved in order to make
a comparison. Dr. Campbell also testified there was no published standard governing when an
evaluation could be rendered by an examiner. Dr. Campbell stated that the accepted standard in
the field of forensic odontology for making an evaluation was dependent on the individual case
and the knowledge and experience of the examiner.
¶ 28 In autopsy photographs of the victim, Dr. Campbell testified he saw two or three human
bite marks overlapping each other on the right side of the victim’s neck just above the collarbone.
Dr. Campbell stated that the photos were not taken to document the “bite mark” injuries, noting
that, in one photograph, the victim’s skin was wrinkled from its positioning and that, in another,
the victim’s chin was being “lifted.” Dr. Campbell acknowledged that in one of the “cropped” or
enlarged photographs, the alleged bite mark appeared to be a straight line instead of a curve, which
he explained was a result of the camera angle and the positioning of the body, both of which can
cause distortions of the injury in photographs.
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¶ 29 Dr. Campbell compared molds of teeth from three suspects—the petitioner, Paul Main, and
Joe Seitz—to the photographs of the victim’s injuries. Dr. Campbell testified that the mold of the
petitioner’s teeth showed he had a space between each of his six upper, front teeth, which Dr.
Campbell described as an “anomaly.” Dr. Campbell indicated that the cropped and enlarged
photograph, in which the “bite mark” was seen as a straight line, showed “a wide tooth, and a wide
tooth, and a more narrow tooth and a more narrow tooth with spacing in between the teeth.” Dr.
Campbell testified that, in his opinion, the petitioner’s teeth were consistent with the victim’s
injury based on the presence of spaces between the six front teeth. Dr. Campbell explained that
“consistent” means “those teeth could have made the bite mark, period.” Dr. Campbell testified
that there was nothing about the quality of the photographs of the injury that concerned him with
regard to formulating his opinion that the petitioner’s teeth were consistent with the injury.
¶ 30 During cross-examination, Dr. Campbell testified that “the technology or the methods for
examining bite marks ha[d] changed dramatically in the last 8 years.” Dr. Campbell testified that
skin was a “very excellent” medium for recording bite marks and that any doctor “that’s had much
experience with bite mark injuries consider[s] it to be an excellent reproducer of tooth
characteristics” capable of picking up “minute details.” Dr. Campbell testified that he would
“compare” dental impressions to fingerprints. When asked whether it was possible for more than
one set of teeth to make the same mark, Campbell answered that “[e]verybody’s dentition is
individual,” and asserted that, when individual characteristics are present, an examiner can
determine whether a specific person made the mark within a “very high degree” of dental certainty.
Dr. Campbell defined a “reasonable degree of dental certainty” as meaning “a very high degree of
probability that you would ever find another set of teeth that would make the same marks. I would
say it would be virtually impossible.”
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¶ 31 Dr. Lowell Levine, who was qualified as an expert in forensic dentistry, testified that he
was certified by the Board and was a fellow of the American Academy of Forensic Sciences. Dr.
Levine testified that to identify an injury for a bite mark, the examiner would look for class
characteristics such as whether the injury is an ovoid or semi-ovoid shape, the approximate size of
the injury, and whether there is “patterning *** that could be from the shape of teeth.”
¶ 32 Dr. Levine testified that the injury is typically photographed for comparison, and while
there were no published standards for the identification of bite marks or the procedures to be
followed, there were methods that were “generally accepted in the community.” Dr. Levine stated
that, ideally, the photographs of the injury will be taken at 90 degrees, or perpendicular to the arch,
and with a rule of measure in place. Dr. Levine testified that a scale of measurement could be
important because it can inform the examiner if the injury is “within the ballpark” of a human bite
mark. Dr. Levine testified that having a life size scale of the bite was not “quite as important” as
believed 8 to 10 years ago due to increased recognition of individual characteristics of a person’s
dentition and the skin’s ability to “capture and reflect unique and individual characteristics with
very good fidelity.” Dr. Levine explained that the “technology and expertise” of bite mark analysis
had changed dramatically over the last decade. Dr. Levine also testified that there were no
published standards for analyzing bite mark evidence or for offering an opinion as to “common
origin” and that an analysis was based only upon the training and expertise of the examiner. Dr.
Levine testified that different people could not leave identical bite marks.
¶ 33 Dr. Levine opined, to a reasonable degree of medical certainty, that there were two or three
overlapping bite marks visible in the autopsy photographs of the victim’s body. Dr. Levine
explained that a “reasonable medical certainty” means “a very, very high degree of probability.”
Dr. Levine testified that, in his opinion, to a reasonable degree of dental certainty, the petitioner
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could have caused the bite mark injuries on Brown. Dr. Levine based his opinion on the spaces
between the patterns in the victim’s injury and the presence of spaces between the petitioner’s
upper front teeth. Dr. Levine testified that his ability to make a comparison was not hindered by
the fact that the photographs were not taken at a 90-degree angle.
¶ 34 The State also called Dr. Ronald Mullen, the petitioner’s dentist, to testify. Dr. Mullen had
been practicing as a dentist for 17 years and had treated approximately 6000 to 7000 patients. Dr.
Mullen testified that the petitioner’s upper teeth had spaces between them, a condition called
diastemata. Dr. Mullen testified that he has seen this particular type of spacing in less than one
percent of his patients, or less than 15 times over his career.
¶ 35 The petitioner called 17 witnesses at trial, including 3 experts to counter the State’s bite
mark experts. Dr. Donald Ore, a pediatric dentist who was qualified as an expert in photography,
testified that there was no published standard procedure for photographing injuries for the purpose
of making a bite mark comparison. Dr. Ore stated that the preferred standard among forensic
odontologists would be to photograph the injury at a right angle without stretching the skin in any
way, and with a millimeter scale present. Dr. Ore testified that two of the photographs in this case
showed “an extreme amount of enlargement,” the degree of which could not be determined due to
the absence of a scale in the photograph. Dr. Ore testified that enlarging a photograph to the point
that it “exceeds the limits of resolution of the film” can distort the image.
¶ 36 The petitioner also called Dr. Edward Pavlec, an orthodontist and Board-certified forensic
odontologist, qualified as an expert in forensic odontology. Dr. Pavlec testified that a committee
of the American Academy of Forensic Sciences has issued temporary guidelines on the standard
for processing bite mark evidence that were pending approval by the members. The American
Society of Forensic Odontologists had also not yet accepted the proposed guidelines, and Dr.
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Pavlec acknowledged that a minority of examiners did not believe any written guidelines were
necessary. Dr. Pavlec also acknowledged that the current “standard” was the “expertise” of the
examiner.
¶ 37 Dr. Pavlec testified that proper preservation of bite mark evidence for comparison requires
the photograph of the injury to include a standard form of measuring to determine the exact size
of the wound. Dr. Pavlec expressed concern that the autopsy photographs were “dirty,” meaning
that the victim’s wounds had not been cleaned and it was unclear whether some of the marks on
Brown’s body were injuries or dried blood. Dr. Pavlec was also concerned that one of the “bite
marks” appeared as a straight line, which Dr. Pavlec testified could only occur if the tissue were
stretched and distorted. Dr. Pavlec testified that stretching the skin and enlarging the photograph
will make the spaces between the teeth looker larger. Dr. Pavlec described the autopsy photographs
as being “one step above useless” for comparison purposes. Due to the lack of quality of the
photographs, Dr. Pavlec found little evidence to substantiate a finding that the injury was a human
bite mark at all.
¶ 38 Dr. Pavlec testified that the photographs of Brown’s body showed a “bruise pattern” on the
neck that “could be a bite mark” but that these marks also could have been caused by other trauma,
such as through strangulation, or could have been left by jewelry or a heel. Dr. Pavlec testified
that, assuming the injury was a bite mark, both the petitioner’s teeth and Joe Seitz’s teeth could
have left the mark on Brown’s shoulder. Dr. Pavlec estimated that up to 10% of the adult
population had spaces between their teeth. Dr. Pavlec stated that a bite mark with spaces between
the teeth could also be made by a person without spaces between their teeth due to the position,
shape, and wearing of the person’s teeth.
15
¶ 39 Dr. Norman Sperber, a dentist and Board-certified forensic odontologist, testified that he
was a member of the American Academy of Forensic Scientists, the American Society of Forensic
Odontology, and the Board. Dr. Sperber testified that forensic odontology was a forensic science,
defined as “the types of sciences that use measurements [and] either chemical or physical
constants,” and which included ballistics, fingerprints, handwriting, forensic psychiatry, and
forensic pathology.
¶ 40 Dr. Sperber was the chairman of the Board’s Bite Marks Standard Committee, which was
formed to determine the standards and guidelines to be applied in “proper[,] accurate scientific
bite mark analysis and comparison.” Dr. Sperber testified that the proposed guidelines have not
yet been accepted by the members but that they have been “accepted as working rules for years.”
Dr. Sperber stated that the proposed guidelines direct that “standard” and “scientific” procedures
be utilized in making comparisons. Dr. Sperber stated that the photograph of the bite mark should
be taken at a right angle to prevent distortion and should include rulers or scales to ensure the
photograph is in the same scale as the model of the suspect’s teeth.
¶ 41 Dr. Sperber testified that the autopsy photographs in this case were “dirty,” so it was
difficult to differentiate between bloodstains and injuries. Dr. Sperber testified that he was not sure
that any of the victim’s injuries were human bite marks and, if they were, the photographs were
not suitable to make a bite mark comparison. Dr. Sperber testified that the photographs of Brown’s
body provided no “usable information” for bite mark identification because the body is
bloodstained, the injuries are distorted by the camera angle, and they lack a rule of measurement.
¶ 42 Dr. Sperber rejected the proposition that the enlarged photograph showing a straight line
of marks was a bite mark, since “it’s just impossible because bite marks don’t come out square
and straight like that.” Dr. Sperber testified that a person could say some of the marks “resemble
16
bite marks” but that these marks could “resemble other things as well.” Dr. Sperber stated that he
would not make a determination that the marks on the victim’s body were human bite marks based
on the photographs.
¶ 43 The petitioner testified on his own behalf that he had “virtually no memory” of the day of
the murder “but things have come together in this last year.” The petitioner testified that on the
day of the murder, to the best of his knowledge, he went to Main’s home in the morning and then
left to drop off job applications at several companies. The petitioner testified that he returned to
Main’s house at “about ten to twelve or one” and that he “sat around” with Main on Main’s front
porch. The petitioner testified that he has “this feeling” that he was there all day. The petitioner
did not remember leaving the house but acknowledged that he or Main might have gone to the
store during the day. The petitioner testified that he and Main saw the victim in her yard, but he
denied speaking to her.
¶ 44 The petitioner stated that when the police arrived at Brown’s house, he went inside Main’s
house before leaving shortly thereafter. The petitioner testified that it “keeps feeling right to say”
he then went to Harold Pollard’s home. The petitioner stated that it “stuck” in his mind that Main
showed up at Pollard’s home and explained what was happening at Brown’s home. The petitioner
testified the next time he heard about Brown’s death was at Spencer Bond’s house a few days or a
week later.
¶ 45 The petitioner remembered talking to the police but said he had difficultly remembering
what occurred on the day of the murder because he was confused and had memory problems. The
petitioner denied biting Lutz or telling her that he ever killed anyone. The petitioner also denied
making the statements to Pollard on the day of the murder and the statements attributed to him at
17
the Bonds’ home several days after the murder. The petitioner testified that Scroggins lied about
introducing the petitioner to the victim the day before the murder.
¶ 46 After deliberation, the jury found the petitioner guilty of murder. The court sentenced the
petitioner to an extended term of 75 years.
¶ 47 The petitioner appealed, arguing, among other things, that the State’s expert testimony
concerning bite marks should not have been admitted because of “its exclusionary nature and its
improper conclusiveness of the guilt of the [petitioner].” This court affirmed, finding the issue was
waived. People v. Prante, 147 Ill. App. 3d 1039, 1062 (1986). Alternatively, citing People v.
Milone, 43 Ill. App. 3d 385 (1976), this court found that the record did not indicate that the trial
court abused its discretion “in allowing expert testimony concerning bite marks to aid comparison
between the wounds on the victim’s right shoulder and the dentition of the [petitioner], the weight
of such testimony being determined by the jury as trier of fact.” Prante, 147 Ill. App. 3d at 1062.
¶ 48 On May 14, 1993, the petitioner filed a motion seeking DNA analysis on blood evidence
from a couch cushion seized from the victim’s home. On May 18, 1993, the petitioner filed a
postconviction petition alleging substantial denials of his constitutional rights, including the right
to effective assistance of counsel. On July 15, 1993, the petitioner filed an amended postconviction
petition. The State filed a motion to dismiss, which the circuit court granted. This court affirmed
the circuit court’s dismissal of the petitioner. People v. Prante, 275 Ill. App. 3d 1153 (1995) (table)
(unpublished order under Illinois Supreme Court Rule 23). On January 30, 2002, the petitioner
filed a petition for relief from judgment pursuant to section 2-1401(f) of the Code of Civil
Procedure (735 ILCS 5/2-1401(f) (West 2002)), asserting that his sentence violated Apprendi v.
New Jersey, 530 U.S. 466 (2000). The State filed a motion to dismiss, which the circuit court
granted.
18
¶ 49 On January 3, 2017, the petitioner filed a motion for postconviction DNA and fingerprint
testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3
(West 2016)), requesting DNA testing on several pieces of physical evidence from the victim’s
home and latent print testing to try to identify the unidentified fingerprint on the coffee pot. The
State did not oppose the motion, and the circuit court entered agreed orders for the testing. The
State was unable to locate Brown’s rape kit, so this evidence was not tested. No interpretable DNA
profiles were obtained from the testing on the remaining evidence. Fingerprint testing revealed
usable prints from the coffee pot, but no new matches were made.
¶ 50 On October 15, 2018, the petitioner filed his motion for leave to file a successive
postconviction petition, which is the subject of the current appeal before this court. The petitioner
has raised five claims in his successive petition. The petitioner’s primary contentions are that new
scientific evidence regarding memory science and the invalidity and unreliability of bite mark
evidence support his claims that he is actually innocent of the crime. Alternatively, the petitioner
contends that his constitutional right to due process of law was violated at trial by the State’s use
of faulty and since-repudiated forensic science on bite mark comparisons. The petitioner also
argues ineffective assistance of counsel for failing to raise or preserve issues related to the bite
mark evidence, and cumulative error.
¶ 51 In support, the petitioner attached affidavits and other documents suggesting that the
current scientific community recognizes a lack of consensus on whether forensic dentists have the
ability to reliably identify injuries as human bite marks or to associate those bite marks with an
individual. The petitioner attached two affidavits of Dr. Iain Pretty, a dental surgeon and forensic
dentist. Dr. Pretty stated that recent research has shown that there is no scientific basis for stating
that a particular injury can be associated with an individual’s dentition, or for assigning a
19
probability or statistical weight to an association. Dr. Pretty detailed a study, which demonstrated
that Board-certified forensic dentists did not consistently agree on whether an injury was a human
bite mark. Dr. Pretty averred that there were no studies, empirical experiments, or systematic
reviews providing any objective metrics or assurances that the process of comparing injuries
caused by teeth on human skin to molds of a suspect’s dentition was reliable. Dr. Pretty stated that
“bitemark analysis of any kind” was inherently unreliable and that poor quality evidence, like that
presented in this case, “further undermine[d] what is a fundamentally unreliable and unsafe
forensic technique.”
¶ 52 The petitioner’s documentation also included reports from the National Academy of
Sciences, the Texas Forensic Science Commission, and the President’s Council of Advisors on
Science and Technology, indicating each of these organizations has examined bite mark evidence
and found the evidence lacked a scientific basis. The National Academy of Science’s 2009 report,
Strengthening Forensic Science in the United States: A Path Forward (NAS report), concluded
that there was no scientific basis to support the proposition that a forensic odontologist, looking at
a bite mark in human skin, could associate that mark to a potential biter. The NAS noted that the
Board had approved guidelines for bite mark analysis but found that the guidelines did not indicate
the criteria necessary for using each method to determine whether the bite mark could be related
to an individual’s dentition and with what degree of probability. The report concluded “[t]here is
no science on the reproducibility of the different methods of analysis that lead to conclusions about
the probability of a match.” The NAS reported that even when the Board’s guidelines were
followed, different experts provided widely differing findings and resulted in “a high percentage
of false positive matches of bite marks using controlled comparison studies.” The NAS found that
no thorough study had been conducted to establish the uniqueness of bite marks and there was no
20
established science indicating what percentage of the population could have produced the bite. The
NAS report found there were disputes about (1) the accuracy of human skin as a reliable
registration material for bite marks, (2) the uniqueness of the human dentition, (3) the techniques
used for analysis, and (4) the role of examiner bias. Despite the Board’s development of guidelines,
the NAS found “there is still no general agreement among practicing forensic odontologists about
national or international standards for comparison.” The report found that “[a]lthough a majority
of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive
identification, no scientific studies support this assessment, and no large population studies have
been conducted.”
¶ 53 The petitioner included the April 2016 report issued by the Texas Forensic Science
Commission (TFSC) on forensic bite mark comparisons. The TFSC found that there was no
scientific basis for stating that a particular patterned injury could be associated to an individual’s
dentition and that any testimony describing human dentition “like a fingerprint” lacked scientific
support. The TFSC stated there was no scientific basis for assigning a probability or statistical
weight to an association. The TFSC concluded that the “overwhelming majority of existing
research does not support the contention that bitemark comparison can be performed reliably or
accurately from examiner to examiner due to the subjective nature of the analysis.” This conclusion
was based, in part, upon the inability of Board-certified forensic odontologists to agree on the
threshold question of whether a patterned injury constituted a human bite mark. Some of the
deficiencies found by the TFSC included that (1) there was significant disagreement among Board
members about how to establish criteria for the identification of bite marks and how to test that
criteria through research studies, (2) there was no system for outside auditing, (3) there was no
21
systemic requirement for peer review or technical review, (4) there was no consistency in the way
analytical results were reported, and (5) there was no meaningful proficiency testing system.
¶ 54 The petitioner also included the 2016 report issued by the President’s Council of Advisors
on Science and Technology (PCAST), titled Forensic Science in Criminal Courts: Ensuring
Scientific Validity of Feature-Comparison Methods. The PCAST report concluded
“that bitemark analysis does not meet the scientific standards for foundational validity, and
is far from meeting such standards. To the contrary, available scientific evidence strongly
suggest that examiners cannot consistently agree on whether an injury is a human bitemark
and cannot identify the source of bitemark with reasonable accuracy.”
The report found that few empirical studies had been undertaken to determine the ability of
examiners to accurately identify the source of a bite mark and that, in those studies which have
been undertaken, “the observed false positive rates were so high that the method is clearly
scientifically unreliable at present.”
¶ 55 The circuit court denied the petitioner’s motion for leave to file the successive
postconviction petition on all grounds. With regard to the petitioner’s actual innocence claims, the
court found the new evidence regarding bite mark analysis was not of such a conclusive nature
that it would probably change the result on retrial. The court also concluded that the petitioner’s
alleged “new evidence” regarding advances in memory science was not new and was cumulative
of evidence and arguments already presented at trial. The court rejected the petitioner’s due process
claim, finding that recent developments in the field of bite mark analysis may constitute cause but
that the petitioner was not prejudiced. The court found no prejudice because there was “a great
deal of circumstantial evidence” other than the bite mark evidence that placed the petitioner at or
near the crime scene, including the petitioner’s own incriminating statements, and the jury may
22
have disregarded the bite mark comparisons in light of the competing expert bite mark testimony.
This appeal follows.
¶ 56 II. ANALYSIS
¶ 57 The Act provides a statutory remedy to criminal defendants who claim a substantial
violation of their constitutional rights occurred at trial. People v. Edwards, 2012 IL 111711, ¶ 21.
The Act is not a substitute for an appeal, but instead offers a mechanism to assert a collateral attack
on a final judgment. People v. Robinson, 2020 IL 123849, ¶ 42. Where a petitioner has previously
taken an appeal from a judgment of conviction, the doctrine of res judicata bars the postconviction
review of all issues decided by the reviewing court and any other claims that could have been
presented to the reviewing court are deemed waived. Edwards, 2012 IL 111711, ¶ 21.
¶ 58 The Act only contemplates one postconviction proceeding. Robinson, 2020 IL 123849,
¶ 42. The bar against successive postconviction proceedings will be relaxed on two bases.
Robinson, 2020 IL 123849, ¶ 42. The first is where the petitioner can establish cause and prejudice
for the failure to assert a claim in an earlier proceeding. 725 ILCS 5/122-1(f) (West 2016);
Robinson, 2020 IL 123849, ¶ 42. The second basis is when the petitioner can establish a
fundamental miscarriage of justice based on actual innocence. Robinson, 2020 IL 123849, ¶ 42. A
petitioner must obtain leave of court before instituting a successive postconviction proceeding.
Robinson, 2020 IL 123849, ¶ 43.
¶ 59 A request for leave to file a successive postconviction petition should be denied only where
it is clear from a review of the petition and supporting documentation that the claims fail as a
matter of law or where the petition and supporting documentation are insufficient to justify further
proceedings. People v. Smith, 2014 IL 115946, ¶ 35. At the pleading stage, all well-pled allegations
in the petition and supporting affidavits that are not positively refuted by the record must be taken
23
as true. Robinson, 2020 IL 123849, ¶ 45. On appeal, this court reviews the sufficiency of the
allegations in the postconviction petition, which is purely a legal question. Robinson, 2020 IL
123849, ¶ 39. Therefore, the circuit court’s denial of a motion for leave to file a successive
postconviction petition is subject to de novo review. Robinson, 2020 IL 123849, ¶ 39.
¶ 60 A. Cause and Prejudice
¶ 61 On appeal, the petitioner argues that the circuit court erred in denying him leave to file his
successive postconviction petition because he established a prima facie claim of cause and
prejudice based on new scientific evidence demonstrating the invalidity and unreliability of the
bite mark evidence used by the State to obtain his conviction. Under the cause and prejudice
prongs, the petitioner must establish “cause” by demonstrating that some objective factor external
to his defense impeded his ability to raise the claim in an earlier proceeding. People v.
Pitsonbarger, 205 Ill. 2d 444, 460 (2002). To establish “prejudice,” the petitioner must
demonstrate that the claimed constitutional error so infected his trial that the resulting conviction
violated due process. Pitsonbarger, 205 Ill. 2d at 464. The petitioner must make a prima facie
showing of both cause and prejudice as to the asserted claim or claims. People v. Bailey, 2017 IL
121450, ¶ 24.
¶ 62 The petitioner contends that his constitutional right to due process of law was violated by
the State’s use of faulty and unreliable bite mark evidence to obtain his conviction. At trial, the
jury heard extensive competing expert testimony regarding the nature of the marks on the victim’s
right shoulder. The State’s experts testified that these injuries were human bite marks and that they
were consistent with the petitioner’s dentition. The State’s experts testified that every person’s
dentition is unique enough that it is possible, assuming a clear enough mark, to positively identify
a specific individual as the “biter.” The State also presented evidence that the spacing of the
24
petitioner’s teeth, the individual characteristic used by the experts to conclude that the petitioner’s
teeth were consistent with the marks on the victim’s body, was found in as little as one percent of
the population. At trial, the petitioner presented expert testimony that the quality of the
photographs of the victim’s injuries was too poor to make a determination whether the injuries
were human bite marks.
¶ 63 On appeal, the petitioner argues that there has been a significant change within the
scientific community with regard to bite mark evidence since his trial in 1983. The petitioner
argues that while he was able to present some criticisms of the State’s bite mark evidence through
his own experts’ testimony at trial, new evidence demonstrates that the scientific bases of bite
mark analysis has been repudiated, such that the identification of injuries as bite marks and the
identification of a perpetrator of a bite mark has been rejected by the scientific community. The
petitioner asserts that bite mark analysis is no longer generally accepted in the scientific
community and the evidence could not meet the Frye v. United States, 293 F. 1013 (D.C. Cir.
1923), standard for admissibility. In response, the State asserts that bite mark evidence is still
admissible in Illinois, citing Milone, 43 Ill. App. 3d at 398, and People v. Shaw, 278 Ill. App. 3d
939, 948 (1996).
¶ 64 While the parties spar on the question of the admissibility of bite mark evidence in Illinois,
they do so in very general terms. Neither party presents any substantive analysis on the current
state of the law in Illinois regarding the admissibility of bite mark evidence, specifically, whether
bite mark evidence is “scientific evidence” that is subject to the dictates of Frye.
¶ 65 “Illinois law is unequivocal: the exclusive test for the admission of expert testimony is
governed by the standard first expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).”
Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002), overruled on other
25
grounds by In re Commitment of Simons, 213 Ill. 2d 523, 530-32 (2004) (adopting a dual standard
of review for Frye rulings). The Frye standard, also known as the “general acceptance” test,
“dictates that scientific evidence is only admissible at trial if the methodology or scientific
principle upon which the opinion is based is ‘sufficiently established to have gained general
acceptance in the particular field in which it belongs.’ ” Donaldson, 199 Ill. 2d at 77 (quoting Frye,
293 F. at 1014).
¶ 66 “General acceptance” does not apply to the expert’s ultimate conclusion, but upon the
underlying methodology used to generate the conclusion. Donaldson, 199 Ill. 2d at 77. “If the
underlying method used to generate an expert’s opinion [is] reasonably relied upon by the experts
in the field, the fact finder may consider the opinion—despite the novelty of the conclusion
rendered by the expert.” Donaldson, 199 Ill. 2d at 77. “General acceptance” does not require
universal acceptance of the methodology. In re Commitment of Simons, 213 Ill. 2d at 530. While
general acceptance does not require that the methodology be accepted by unanimity, consensus,
or even a majority of the experts, a technique cannot be “experimental or of dubious validity.”
Donaldson, 199 Ill. 2d at 78.
¶ 67 Under Frye, the trial court need not make a separate inquiry into the reliability of the
methodology. Donaldson, 199 Ill. 2d at 81. The reliability of a methodology is naturally subsumed
by the inquiry into whether the methodology is generally accepted in the scientific community
because “a principle or technique is not generally accepted in the scientific community if it is by
nature unreliable.” Donaldson, 199 Ill. 2d at 81. “Questions concerning underlying data, and an
expert’s application of generally accepted techniques, go to the weight of the evidence, rather than
its admissibility.” (Emphasis in original.) Donaldson, 199 Ill. 2d at 81. “Trial judges decide the
26
general acceptance of the technique; a jury decides whether it will accept the expert’s conclusion
which is based on the technique.” Donaldson, 199 Ill. 2d at 82.
¶ 68 The Frye test applies only to a new or novel scientific methodology, which is described as
one that is “ ‘original or striking’ ” or “does ‘not resembl[e] something formerly known or used.’ ”
Donaldson, 199 Ill. 2d at 78-79 (quoting Webster’s Third New International Dictionary 1546
(1993)). “Once a principle, technique, or test has gained general acceptance in the particular
scientific community, its general acceptance is presumed in subsequent litigation; the principle,
technique, or test is established as a matter of law.” Donaldson, 199 Ill. 2d at 79. The presumption
of general acceptance in subsequent litigation, however, can be problematic. The courts have
cautioned that “relying exclusively upon prior judicial decisions to establish general scientific
acceptance can be a ‘hollow ritual’ if the underlying issue of scientific acceptance has not been
adequately litigated.” (Internal quotation marks omitted.) Donaldson, 199 Ill. 2d at 84 (quoting
People v. Basler, 193 Ill. 2d 545, 554 (2000)). In determining whether a Frye hearing is required
and whether a scientific technique is generally accepted in the relevant scientific community, a
reviewing court may rely upon appropriate sources outside of the record, including legal and
scientific articles and opinions from other jurisdictions. In re Commitment of Simons, 213 Ill. 2d
at 530-31.
¶ 69 Not all expert testimony, however, is subject to a Frye analysis. The dictates of Frye only
apply to scientific evidence. People v. McKown, 226 Ill. 2d 245, 254 (2007). The line separating
scientific and nonscientific evidence is not always clear. People v. Coleman, 2014 IL App (5th)
110274, ¶ 114. Whether a particular piece of evidence falls within the classification of “scientific”
is an issue frequently litigated. See McKown, 226 Ill. 2d at 255 (discussing the split among
jurisdictions on the question of whether horizontal gaze nystagmus testing is scientific); In re
27
Commitment of Simons, 213 Ill. 2d at 533-35 (discussing the split among the jurisdictions on
whether Frye is applicable to actuarial risk assessments); In re Detention of New, 2013 IL App
(1st) 111556, ¶¶ 47-59 (analyzing whether the diagnosis of a novel mental disorder is subject to
the general acceptance test under Frye); Coleman, 2014 IL App (5th) 110274, ¶¶ 111, 114 (finding
testimony from an “expert linguist” on the issue of authorship attribution was not scientific
evidence subject to Frye because the opinion was derived solely from the expert’s observations
and experiences). Scientific evidence “is the product of scientific tests or studies.” McKown, 226
Ill. 2d at 254. Illinois courts require scientific evidence to meet the Frye standard because evidence
labeled as “scientific” “carries a greater weight in the eyes of the jury, which may accord it undue
significance because ‘science’ is equated with truth.” McKown, 226 Ill. 2d at 254.
¶ 70 In support of its assertion that bite mark evidence is admissible in Illinois, the State cites
Milone, 43 Ill. App. 3d at 398, and Shaw, 278 Ill. App. 3d at 948. Milone, 43 Ill. App. 3d 385, is
the seminal case on the admission of bite mark evidence in Illinois. It is also the first reported case
in Illinois to discuss the issues raised in Frye, 293 F. 1013. Milone involved a murder in which the
victim was found with bite marks on her thigh. The trial court admitted the bite mark evidence
offered by the State, which included three expert witnesses who asserted that the defendant was
“without a doubt the perpetrator of the bite on the victim’s thigh.” Milone, 43 Ill. App. 3d at 392.
The defendant presented four competing expert witnesses who concluded that there was no
positive correlation between the defendant’s dentition and the bite mark on the victim. 1 Milone,
43 Ill. App. 3d at 392. On appeal, the defendant contended that the State should have been
1
Milone maintained his innocence even after his release from prison. See Milone v. Camp, 22 F.3d
693, 700 (7th Cir. 1994). In support of his federal habeas petition, Milone alleged that the mark on the
victim’s thigh was shown to match the dentition of a known serial killer, Richard Macek. Milone, 22 F.3d
at 700-01. Milone also alleged that Macek confessed to the murder before committing suicide in 1987,
although the parties disputed on whether Macek later recanted his confession. Milone, 22 F.3d at 701.
28
precluded from introducing evidence identifying him as the perpetrator of the bite mark. Milone,
43 Ill. App. 3d at 394. The defendant argued that bite mark identification should not be admissible
because, as a science, it had not gained general acceptance in the particular field in which it
belonged, as required by Frye. Milone, 43 Ill. App. 3d at 394. The defendant also argued that the
bite mark identification evidence failed to meet the “prior reliability” test utilized by the Illinois
Supreme Court 65 years earlier in People v. Jennings, 252 Ill. 534 (1911), in holding that
fingerprint identification testimony was admissible. Milone, 43 Ill. App. 3d at 394. In affirming
the trial court’s admission of the evidence, the court discussed several decisions from other
jurisdictions and ultimately rejected Frye’s application to bite mark evidence because it required
only the direct observation of physical characteristics, as opposed to the “interpretation of
mechanical measurements.” Milone, 43 Ill. App. 3d at 396-98. The court found that:
“[b]ite-mark comparison *** involves only a visual comparison between the wound and
the dentition of the defendant. *** For this reason, the testimony of the experts serves only
to lend assistance to the trial court in interpreting physical evidence not within the ken of
the average trial judge’s knowledge. There is no intermediate mechanical stage in which
reliability may be questioned. Such evidence is more analogous to footprint, fingerprint,
and hair, comparisons which are made for purposes of identification.” Milone, 43 Ill. App.
3d at 396.
¶ 71 The court also noted that evidence regarding the identification of a deceased person from
dental records was admissible in Illinois. Milone, 43 Ill. App. 3d at 396-97. The court found that
the “concept of identifying a suspect by matching his dentition to a bite mark found at the scene
of a crime is a logical extension of the accepted principle that each person’s dentition is unique.”
Milone, 43 Ill. App. 3d at 397.
29
¶ 72 In the years following Milone, 43 Ill. App. 3d 385, the decision was cited as support for
the admissibility of bite mark evidence, as well as other scientific evidence deemed only to involve
a “visual comparison.” As already noted, in the petitioner’s direct appeal, this court cited Milone,
43 Ill. App. 3d 385, to summarily dispose of the petitioner’s contention that the State’s bite mark
evidence should not have been admitted at trial. Prante, 147 Ill. App. 3d at 1062. Ten years later,
in Shaw, 278 Ill. App. 3d at 948, Milone was cited for the proposition that expert testimony
concerning bite mark identification was admissible in Illinois based on the “unique quality of an
individual’s dentition.”
¶ 73 In People v. Columbo, 118 Ill. App. 3d 882, 956 (1983), the defendant appealed the trial
court’s admission of testimony from a forensic anthropologist regarding handprint measurements
as a means of identification. The appellate court affirmed the trial court’s determination, finding
the examination and comparison of the handprints was beyond the realm of common experience
and was a proper subject for expert testimony. Columbo, 118 Ill. App. 3d at 956-57. The appellate
court rejected the argument that Frye applied to “all scientific evidence,” finding that Jennings,
252 Ill. 534, suggested that Illinois courts “adhered to [a] more liberal ‘reliability test’ ” regarding
the admission of scientific evidence. Columbo, 118 Ill. App. 3d at 957-60. Citing Milone, 43 Ill.
App. 3d 385, the court held that the handprint comparison evidence was admissible because it
involved only a “visual comparison” and “expert testimony regarding the results of a scientific
process in which there are no intermediate mechanical stages is admissible once a competent expert
testifies that the scientific process in question is reliable.” Columbo, 118 Ill. App. 3d at 960.
¶ 74 Further developments in the law, however, have eroded Milone’s holding that Frye is only
applicable when the scientific evidence in question involves an “intermediate mechanical stage.”
See Milone, 43 Ill. App. 3d at 396. Although Milone has not been explicitly abrogated, at least one
30
other court has recognized the fallacy of its holding. In People v. Ferguson, 172 Ill. App. 3d 1, 8-
10 (1988), the trial court allowed the State to admit expert testimony on the identification of the
suspect based on comparing “shoe wear patterns” on the theory that “wear patterns” are unique
and can be used to identify the person who wore a shoe. The Ferguson court observed that some
Illinois cases, including Milone, did not apply the Frye test to determine the admissibility of
scientific opinions because the courts “distinguished between scientific processes using an
intermediate mechanical stage in which reliability may be questioned from those using only visual
analysis such as footprint, fingerprint, and hair comparisons.” Ferguson, 172 Ill. App. 3d at 10
(citing Milone, 43 Ill. App. 3d at 396, and Columbo, 118 Ill. App. 3d at 960). The Ferguson court
rejected the lower standard applied in those cases, even though the instant case was also a visual
analysis, and found that the expert’s “theory” that shoe wear patterns were unique was inadmissible
under Frye because it was not generally accepted in the scientific community. Ferguson, 172 Ill.
App. 3d at 10-12.
¶ 75 Some jurisdictions have held that bite mark analysis is not scientific evidence that must
meet the Frye requirements for admission. See Handley v. State, 515 So. 2d 121, 129-32 (Ala.
Crim. App. 1987) (finding Frye inapplicable when the expert evidence is in the nature of physical
comparisons as opposed to scientific tests or experiments); Commonwealth v. Cifizzari, 492
N.E.2d 357, 362-64 (Mass. 1986) (finding Frye did not apply to bite mark evidence because the
testimony merely aided the jury in making a visual comparison). Other jurisdictions have
concluded that bite mark evidence is subject to Frye. See People v. Marsh, 441 N.W.2d 33, 35-36
(Mich. Ct. App. 1989) (bite mark evidence was admissible without conducting a Frye hearing
because the scientific procedures used—such as X-rays, impressions, and photographs—were not
novel); State v. Hodgson, 512 N.W.2d 95, 98 (Minn. 1994) (scientific bite mark analysis by a
31
recognized expert is not novel under Frye); State v. Sager, 600 S.W.2d 541, 560-73 (Mo. Ct. App.
1980) (bite mark evidence was admissible under Frye); see also People v. Middleton, 429 N.E.2d
100, 103-04 (N.Y. 1981) (bite mark evidence is generally accepted as reliable because the
techniques employed in rendering the opinion—such as photography, making dental molds, and
visual observation—are accepted by majority of experts in the field).
¶ 76 We agree with the court’s holding in Ferguson and reject Milone’s limited application of
Frye. Today, in determining whether Frye applies, courts examine whether the expert’s testimony
is the “product of scientific tests or studies.” See McKown, 226 Ill. 2d at 254. There is no
requirement that the scientific methodology employed by the expert involve an “intermediate
mechanical stage” for Frye to apply. We find that bite mark evidence is “scientific evidence”
within the meaning of Frye because it purports to employ a scientific process requiring
examination and analysis by an expert trained in interpreting the evidence.
¶ 77 Although bite mark evidence has been admitted into evidence in Illinois for more than 50
years, our survey of the law indicates that Illinois courts have never subjected bite mark evidence
to the rigors of Frye. Instead, Milone, the first published opinion in Illinois to even discuss Frye,
erroneously dismissed its application, which succeeding courts then relied upon when addressing
the issue.
¶ 78 As already noted, under the cause and prejudice prongs, the petitioner must establish
“cause” by demonstrating that some objective factor external to his defense impeded his ability to
raise the claim in an earlier proceeding. Pitsonbarger, 205 Ill. 2d at 460. In this case, the defense
did not challenge the admissibility of the State’s expert testimony on bite marks at trial. The
petitioner raised the issue on direct appeal, which this court found was waived and, alternatively,
not error. Prante, 147 Ill. App. 3d at 1062. Thus, the petitioner’s claim is barred by res judicata.
32
People v. Patterson, 192 Ill. 2d 93, 139 (2000). In the interests of fundamental fairness, however,
the doctrine of res judicata can be relaxed if the petitioner presents substantial new evidence.
Patterson, 192 Ill. 2d at 139.
¶ 79 Relying on Milone, this court summarily dismissed the petitioner’s argument that the
State’s bite mark evidence should not have been admitted. Prante, 147 Ill. App. 3d at 1062. As
evidenced by Shaw, 278 Ill. App. 3d at 948, issued in 1996, the courts were still relying on Milone
in holding that bite mark evidence was admissible years after the petitioner filed his direct appeal
and his initial postconviction petition. Furthermore, the successive postconviction petition and
supporting affidavits and documents demonstrate that the examination as to the validity of bite
mark evidence has occurred only in the past decade or so. Thus, even if the petitioner had
previously successfully convinced a court to abrogate Milone and hold that Frye was applicable to
bite mark evidence, the scientific community has only recently come to question the scientific
foundation of this evidence. Based on the foregoing, we find that the petitioner has established
cause for failing to raise his claim in an earlier proceeding.
¶ 80 We also find that the petitioner has made a prima facie showing of prejudice. Again, to
establish “prejudice,” the petitioner must demonstrate that the claimed constitutional error so
infected his trial that the resulting conviction violated due process. Pitsonbarger, 205 Ill. 2d at
464.
¶ 81 As the factual background indicates, the State’s case against the petitioner was largely
circumstantial. The evidence indicated that the petitioner was near the scene of the crime and
therefore had the opportunity to commit the crime. The petitioner also repeatedly changed his story
and did not provide a reliable account of his whereabouts on the day of the murder. These facts
alone, however, are far from sufficient proof of guilt. Instead, the only clear link between the
33
petitioner and the crime was the testimony of the petitioner’s friends that the petitioner disclosed
certain details regarding the condition of the victim’s body and the crime scene shortly after the
murder, which only could have been known by the perpetrator.
¶ 82 Harold Pollard testified that the petitioner indicated, on the evening of the murder, that
Brown was found with her hands tied behind her back. 2 The petitioner stated he obtained this
information when “he got a glimpse of the girl by looking over the policeman’s shoulder at the
crime scene.” The most incriminating statements, though, were those introduced through the
testimony of Vickie White and Spencer Bond. White and Bond testified that several days after the
murder, the petitioner told them that Brown had “teeth marks” on her body, specifically indicating
the left shoulder area. Although the injuries in this case were located on Brown’s right shoulder,
the fact that no one identified these injuries as potential bite marks until years later was damning
circumstantial evidence against the petitioner. During trial, the defense challenged the witnesses’
memories, probing the possibility that the witnesses’ memories were flawed or contaminated.
¶ 83 The petitioner’s statements that the victim was bitten is why the State’s bite mark evidence
was material to the petitioner’s conviction, even though the State’s experts did not provide a
positive identification of the petitioner as the “biter.” In this case, the fact that the injury was
definitively identified as a human bite mark by the State’s expert witnesses was likely enough to
seal the petitioner’s fate. The testimony of the State’s expert witnesses that the petitioner’s teeth
were “consistent” with the mark further supported a finding that the petitioner was, in fact, the
“biter” and that the petitioner did not learn about this injury on Brown’s shoulder in some other
way.
2
While much has been made of the petitioner’s comment that the body was found “curled up” on
the floor, the incriminating nature of this comment is questionable. The evidence was that Brown’s
murderer left her bent over the side of the lard can, which is not the same as being “curled up” on the floor.
34
¶ 84 Above all, the State’s expert testimony gave the impression that the testimony from the
Whites and Bonds regarding the petitioner’s statements was corroborated by scientific evidence.
The persuasiveness of seemingly objective, truthful scientific evidence cannot be ignored or
understated. The recognition that “scientific” evidence “carries a greater weight in the eyes of the
jury” because it is “equated with truth” is precisely why Illinois courts require scientific evidence
to meet the Frye standard. McKown, 226 Ill. 2d at 254.
¶ 85 During the petitioner’s trial, the experts’ bite mark testimony was frequently described as
“scientific,” with the experts touting recent advancements in bite mark “technology.” While the
experts acknowledged the absence of any published standards in collecting or evaluating the
evidence, the necessity of such was dismissed. To the extent that the experts could be said to agree
on standard processes, such as photographs being taken perpendicular to the injury with a scale
present and no manipulation of the victim’s skin, the State’s experts asserted that adherence to the
standards was not vital to rendering an opinion so long as the examiner was sufficiently
experienced. Thus, the State’s qualified experts concluded that the marks on the victim’s body
were, to a reasonable degree of dental certainty, human bite marks and that they were “consistent”
with the petitioner’s dentition, despite relying on admittedly visually distorted photographs of a
poorly positioned body that had no scale, and which had been enlarged to unknown degree.
¶ 86 This court cannot say whether bite mark evidence would have passed a Frye examination
in 1983; nor does this opinion purport to state whether it can today. That is not the question being
asked of this court. Instead, the question is whether the petitioner’s successive postconviction
petition and supporting documentation, alleging cause and prejudice, fails as a matter of law.
¶ 87 Since the petitioner’s trial, the law regarding the admissibility of scientific evidence has
developed, to the extent that bite mark evidence would now be considered “scientific” evidence
35
that must withstand a Frye analysis. Furthermore, the petition effectively alleges, and supports
with documentation, a recent change within the scientific community regarding the validity and
reliability of bite mark evidence, suggesting that the evidence presented by the State at the
petitioner’s trial is no longer generally accepted within the scientific community. We find that the
petition made a prima facie showing of cause and prejudice and that the circuit court erred in
denying the petitioner leave to file his successive postconviction petition on this basis.
¶ 88 B. Actual Innocence
¶ 89 In his motion for leave to file his successive postconviction petition, the petitioner alleged
the petition and exhibits present new, material, noncumulative, and conclusive evidence of the
petitioner’s innocence. Specifically, he argued that the petition and its exhibits present new
evidence that the bite mark comparison evidence used against him at his 1983 trial was completely
without scientific basis and unreliable and that new evidence on memory science casts doubt on
the witness testimony against him.
¶ 90 In a successive postconviction petition, a petitioner’s failure to raise a claim in an earlier
petition will be excused to prevent a fundamental miscarriage of justice. Pitsonbarger, 205 Ill. 2d
at 459. To demonstrate a fundamental miscarriage of justice, the petitioner “must show actual
innocence.” Edwards, 2012 IL 111711, ¶ 23. “To establish a claim of actual innocence, the
supporting evidence must be (1) newly discovered, (2) material and not cumulative, and (3) of
such conclusive character that it would probably change the result on retrial.” Robinson, 2020 IL
123849, ¶ 47.
¶ 91 Evidence is newly discovered if it is discovered after trial and the petitioner could not have
discovered the evidence earlier through the exercise of due diligence. Robinson, 2020 IL 123849,
¶ 47. Evidence is material if it is relevant and probative of the petitioner’s innocence. Robinson,
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2020 IL 123849, ¶ 47. Noncumulative evidence is that which adds to the information that the fact
finder heard at trial. Robinson, 2020 IL 123849, ¶ 47. Evidence is conclusive when the evidence,
when considered along with the trial evidence, would probably lead to a different result. Robinson,
2020 IL 123849, ¶ 47. “The conclusive character of the new evidence is the most important
element of an actual innocence claim.” Robinson, 2020 IL 123849, ¶ 47.
¶ 92 “Ultimately, the question is whether the evidence supporting the postconviction petition
places the trial evidence in a different light and undermines the court’s confidence in the judgment
of guilt.” Robinson, 2020 IL 123849, ¶ 48. The new evidence does not need to be entirely
dispositive to find that it is likely to alter the result on retrial. Robinson, 2020 IL 123849, ¶ 48. The
circuit court should only deny the petitioner’s request for leave to file the successive
postconviction petition when it is clear from a review of the successive petition and supporting
documentation that, as a matter of law, the petitioner cannot set forth a colorable claim of actual
innocence. Edwards, 2012 IL 111711, ¶ 24. Leave of court should be granted when the petition
“raises the probability that it is more likely than not that no reasonable juror would have convicted
the petitioner in light of the new evidence.” Robinson, 2020 IL 123849, ¶ 44.
¶ 93 While we agree with the petitioner that the new evidence about the validity and reliability
of bite mark evidence would constitute new, material, and noncumulative evidence, we do not
believe the petitioner has demonstrated that the evidence is conclusive of his innocence.
¶ 94 On appeal, the petitioner has asserted that the State would be barred from presenting any
evidence regarding bite marks on retrial. The petitioner suggests that even evidence akin to that
presented by his trial experts, specifically that the injuries to the victim could have been caused by
human teeth, would be inadmissible. The petitioner posits that if the State cannot present any
37
evidence that the injuries could be bite marks, then any testimony that the petitioner claimed the
victim’s body had teeth marks on it was irrelevant and without value. We disagree.
¶ 95 The petitioner has presented compelling documentation undermining the scientific
foundation of bite mark comparison evidence, including whether Board-certified forensic
odontologists can reliably identify an injury as a human bite mark. The State, however, would still
be entitled to present evidence as to the condition of the victim’s body. It is possible that this could
include evidence that there were marks on the victim’s right shoulder that could conceivably have
been made by human teeth. 3 There is a material distinction between the State’s expert testimony
that the injury on the victim’s right shoulder was positively a human bite mark and that this mark
was consistent with the petitioner’s dentition, versus the testimony of the petitioner’s experts that
the mark on the victim’s body could have been caused by any number of conditions or objects,
including human teeth. But as previously noted, we make no decision on the admissibility of this
evidence, as it remains to be determined how the Frye analysis will determine the scope, if at all,
of the admission of comparison testimony.
¶ 96 Nevertheless, while the petitioner has made a prima facie showing that the conclusive
nature of the State’s expert witnesses’ testimony deprived him of his constitutional right to due
process, he has not demonstrated that a lack of certainty as to the origin of the victim’s injury
“raises the probability that it is more likely than not that no reasonable juror would have convicted
the petitioner in light of the new evidence.” Robinson, 2020 IL 123849, ¶ 44. This is especially
true in light of Harold Pollard’s testimony that the petitioner told Pollard on the evening of the
3
Notably, the NAS report acknowledged that “forensic odontologists understand the anatomy of
teeth and the mechanics of biting and can retrieve sufficient information from bite marks on skin to assist
in criminal investigations and provide testimony at criminal trials,” even though there was no scientific
basis for the conclusion that bite mark comparisons can result in a conclusive match.
38
murder that the petitioner knew the victim was found tied up in the basement. The State presented
circumstantial evidence of the petitioner’s guilt, even absent the State’s expert testimony on bite
mark analysis.
¶ 97 For these reasons, we find the petitioner has not presented a colorable claim of actual
innocence, and the circuit court properly denied him leave to file a successive postconviction on
this basis. In light of this court’s finding as to the petitioner’s cause and prejudice claim, we need
not address the petitioner’s alternative claims for relief.
¶ 98 III. CONCLUSION
¶ 99 For the foregoing reasons, the judgment of the circuit court of Madison County denying
the petitioner’s motion for leave to file a successive postconviction petition is reversed, and the
cause is remanded for further proceedings.
¶ 100 Reversed and remanded.
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No. 5-20-0074
Cite as: People v. Prante, 2021 IL App (5th) 200074Decision Under Review: Appeal from the Circuit Court of Madison County, No. 82-CF-
381; the Hon. Neil T. Schroeder, Judge, presiding.
Attorneys Joshua Tepfer and Lindsay Hagy, of the Exoneration Project at the
for University of Chicago Law School, of Chicago, and Dana
Appellant: M. Delger (pro hac vice), of Innocence Project, Inc., of New York,
New York, for appellant.
Attorneys Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick
for Delfino, Patrick D. Daly, and Julia Kaye Wykoff, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
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