Virginia freed an ex-navy sailor 33-years after wrongfully convicting him based on bite mark evidence, when the state’s high court granted him a writ of actual innocence.
Keith Allen Harward narrowly escaped the death penalty.
This week Harward, walked out of prison a free man.
DNA evidence exonerated Harward after serving 33-years in prison for a rape and murder he did not commit.
New DNA evidence definitively proved Harward’s innocence, pointing to another man as the real assailant after the Innocence Project tested the rape kit and other pieces of crime scene evidence.
Results excluded Harward and identified his now-deceased former shipmate.
Jerry Crotty, served on the USS Carl Vinson with Keith Harward.
Crotty committed a heinous murder and rape of a married couple.
But it was bite mark evidence that wrongly convicted Harward, eventually leading the Virginia Supreme Court to grant him a writ of actual innocence.
Keith Allen Harward’s unjust conviction was based on the testimony of two forensic dentist who claimed his teeth matched the bite mark on the victim.
“There is not a shred of scientific evidence supporting this erroneous forensic practice, yet it is still permissible in courtrooms across the nation,” said Dana Delger, an attorney with the Innocence Project, “Hopefully Mr. Harward’s case will once and for all persuade judges and law enforcement that this unreliable evidence has no use in criminal prosecutions.”
Harward was convicted of a rape and murder that occurred in 1982 in Newport News, Virginia.
The Innocence Project also said Mr. Harward is at least the 25th person to have been wrongfully convicted based on discredited bite mark evidence.
The Washington Post’s Radley Balko wrote a four part series in 2015 on flawed ‘forensic science’ which uses bite evidence to manufacture convictions without any real basis in actual science. (Part 2, Part 3, Part 4)
Attorneys for the Innocence Project suggested the practice of identifying a perpetrator based on bite marks left on the skin is bad science, and they say that all states should look at cases like Harward’s.
The Innocence Project later discovered that the security guard’s identification of Harward occurred only after he was placed under hypnosis–a practice that is now known to be highly unreliable too.
And these writs of innocence are being issued more frequently as science advances and bad decisions are reversed.
In fact actual innocence isn’t necessarily always grounds for release, and as the famous Supreme Court case Herrera vs. Collins showed in 1993, even the probably innocent can be executed, for lacking a legal foothold to appeal their trial court’s decision if they lack constitutional grounds for appeal.
Herrera’s haunting last words were: “I am innocent, innocent, innocent. . . . I am an innocent man, and something very wrong is taking place tonight.”
But more recently, the Supreme Court ruled in McQuiggin vs. Perkins that actual innocence is as SCOTUSblog writes, “a gateway through which a petitioner may pass whether the impediment to consideration of the merits of a constitutional claim is a procedural bar, as it was in Schlup v. Delo and House v. Bell, or expiration of the Antiterrorism and Effective Death Penalty Act statute of limitations, as in this case.”
In other words, facially valid actual innocence claims give the imprisoned a right to be heard even many years after the fact, if they dilligently pursue their claims as information is discovered.
The Terrible Crime Keith Allen Harward Did Not Commit
The real perpetrator who raped and killed broke into a couple’s home, killed Jesse Perron and raped his wife as he lay dying and watching.
During the attack, the assailant repeatedly bit the wife’s leg.
The wife could never identify the attacker, but told police he was wearing a sailor’s uniform.
A dentist reviewed the dental records of Marines stationed to the USS Carl Vinson at the time of the murder and initially excluded Harward, according to the Innocence Project.
He became a suspect six months later, after his then-girlfriend reported to police that he’d bitten her in a dispute.
At his trial, the prosecution relied mostly on the testimony of two forensic dentists, Alvin Kagey and Lowell Levine.
The pair of dental professionals claimed that Harward’s teeth matched bite mark’s on the female victim.
The only other evidence against Harward at trial was the testimony of a security guard who claimed he’d seen Harward enter the shipyard wearing a bloody uniform the morning after the attack.
“Moreover, that this technique [bite mark evidence] is still used in our justice system, including current capital prosecutions, presents a public safety threat,” said Chris Fabricant, Director of Strategic Litigation for the Innocence Project, continuing:
“We have no idea how many other people may have been wrongly convicted based on this evidence, but any conviction resting on this grossly unreliable technique is inherently flawed. Every state in the nation should be conducting reviews to see if there are others like Mr. Harward sitting in prison for crimes they didn’t commit.”
Throughout his trials, six bite mark analysts all agreed that bite marks on the victim matched Harward.
Harward’s defense lawyers even hired two forensic dentists; they both said the bite marks match Harward.
In another case in 2008, Kennedy Brewer and Levon Brooks were convicted on rape charges, but later exonerated after forensic experts examined their cases.
It turned out, the bite marks on the victims were not human bite marks at all, and instead caused by crawfish, insects and decomposition.
In other another case, Steven Mark Chaney was set free last year after spending 25 years behind bars for murder after faulty bite mark science sent him to prison.
Dentist Jim Hales told a Dallas jury there was a “one in a million” chance that someone other than Chaney made the bite marks on the murder victim’s body.
Then this February, the Texas Forensic Science Commission recommended that the state issue a state-wide moratorium on the use of bite mark evidence analysis in prosecutions, after hearing expert testimony on the reliability of bite mark evidence.
“Unless and until our leaders in Washington take action to discourage the use of unreliable and unvalidated techniques such as bite marks,” said the Co-Director of the Innocence Project, Peter Neufeld, “and instead create rigorous science-based standards for all forensics, we are doomed as a nation to endure hundreds more Harwards.”
— Innocence Project (@innocence) April 8, 2016
Grant Stern contributed to this report.