The following opinion by Julie O'Connor was published by the Star Ledger on October 13, 2013.
Gerard Richardson has spent nearly two decades telling everyone that he is innocent. Almost nobody believed him.
But that changed in July, when a DNA test found the Elizabeth man could not have left a vicious bite mark on the lower back of a 19-year-old woman who was murdered and dumped in a ditch in 1994.
Now the Innocence Project wants him freed. But the trial prosecutor still insists the bite mark is Richardson’s, he is the killer and his conviction is “good and valid.” Timothy Van Hise, a 31-year veteran with the Somerset County Prosecutor’s Office, has agreed to file his response by Oct. 23.
Which leaves the state of New Jersey with two problems. First, an innocent man may be stuck behind bars, thanks to an overzealous prosecutor clinging to faulty forensic science. And second, if Richardson is innocent, someone else is guilty.
Yet believe it or not, the strict rules for private laboratories prevent authorities from running this new bite mark profile through their DNA database to name the real culprit. A man who left his “calling card” in a dead woman’s back 19 years ago may still be roaming free.
THE BITE MARK
Richardson looked like he was playing it cool last month when he showed up to court in dark sunglasses. But those are prescription — fill-ins as he waits for his replacement glasses, because his eyesight has deteriorated over his many years in prison.
It was tough to gauge his reaction when he learned that the prosecutor had no intention of halting his 30-year sentence, despite the new DNA evidence. But his brother said the entire family felt “blindsided.” Van Hise didn’t dispute the science of the DNA test. He simply said, “The bite mark is Richardson’s, so determined the jury.”
“How ridiculous does that sound?” Kevin Richardson said last week. “This is just another example of abuse of his discretion at the expense of my brother’s liberty.”
After the hearing, Van Hise suggested an entirely new scenario: that the victim’s bite mark could have been made by Richardson, and the DNA left by a second assailant. This requires some mental gymnastics.
“So there’s a second phantom perpetrator who drooled on her in the exact same place where Gerard Richardson bit her, without leaving any of his saliva?” said his Innocence Project attorney, Vanessa Potkin. “It doesn’t hold water.”
Van Hise has said this case is more complicated than it appears, but he won’t elaborate. What’s obvious is the conflict of interest here. It’s rare for the same prosecutor who won a conviction to be handling a request to overturn it, if only because that person has usually moved on. Yet Van Hise’s boss, Somerset Prosecutor Geoffrey Soriano — a 2010 appointee — has not taken over the case and refuses to comment on it.
So Richardson remains in prison, even though a DNA test says the bite mark that was the crux of his conviction wasn’t actually his.
There was no DNA testing involved in his trial, which came down to a battle of forensic dentists. The state’s expert testified that no one but Richardson could have bitten the victim. And the expert for the defense said that Richardson was excluded as a match. They couldn’t even settle on which side of the bite mark was up or down.
But both sides did agree on one thing only: that whoever left this bite mark killed Monica Reyes.
The victim was 5 feet tall, a skeletal 83 pounds, and hooked on heroin. She sometimes posed as a prostitute to help her brother and boyfriend, also addicts, rob other men for drug money. There were plenty of men with reason to kill her.
The night she vanished, Reyes told her boyfriend she was going to meet a man with money. Five days later, on Feb. 25, 1994, her body was found in Bernards Township. She’d been beaten, stabbed, strangled and possibly sexually assaulted. She was left with a 100-pound rock on her head and a fresh bite mark on her back.
The only teeth submitted for a potential match were Richardson’s. Reyes had owed him $90 for drugs, and Van Hise argued he had killed her to send a warning to the neighborhood. If so, it was never clear why he’d chosen to dump her body more than 30 miles away.
Forensic odontology is well-established for the identification of human remains, when an actual jaw is compared with dental X-rays, said Robert Shaler, who supervised the DNA testing to identify the victims of 9/11. “It’s when it’s transferred to human skin that the problems occur,” he said.
When the skin is bitten, it contracts and then expands, according to Shaler. Matching those stretched tooth marks to a particular set of human jaws is prone to error, and is no longer considered a science. In 2009, the National Academy of Sciences found that bite-mark evidence has never been scientifically validated or demonstrated to be reliable.
Experts routinely come to opposite conclusions, as happened in Richardson’s case. Since 2000, at least 24 people have been found innocent who were wrongly matched to bite marks, including a Massachusetts man implicated by the same forensic dentist who testified against Richardson, his lawyer said.
That man was exonerated after DNA testing found he couldn’t have made the bite mark in question. Yet in Richardson’s case, the prosecutor called the idea that bite-mark evidence is unreliable “nonsense.”
BURIED IN BUREAUCRACY
All that’s left of the bite mark now is the DNA profile of a mystery assailant — whom authorities couldn’t identify if they wanted to. Even though it might take little more than a 10-minute computer search.
This is because the FBI has enacted burdensome rules that make it hard for even reliable test results from private labs to be run through its DNA databank. And New Jersey still hasn’t developed a good workaround.
Richardson’s lawyer chose a private lab in California with a strong record of getting results from old, degraded evidence. To get the best profile, its experts used up what was left of the bite mark swab, so it can’t be retested.
That shouldn’t matter, because New Jersey’s forensic experts have verified the testing as accurate. Yet they still can’t search this genetic footprint through the FBI’s vast DNA clearinghouse, which contains more than 10 million profiles, because of state and federal bureaucracy.
FBI rules require state experts to preapprove any private lab used by a defense attorney, which often means flying across the country to inspect it. As a matter of policy, New Jersey’s forensics lab, run by State Police, won’t do that — not even if a defendant foots the bill. If the lab agreed to do it for one person, it might have to do it for everybody. “We don’t have the personnel to commit to that,” said Joseph Petersack, its chief forensic scientist.
New Jersey can sometimes rely on another state’s data about a private lab without doing its own site visit. But in Richardson’s case, his evidence arrived at the California lab right after its latest site visit had expired. So New Jersey’s lab couldn’t adopt the data from someone else’s site visit, and won’t send an employee.
The end result is that we now have the profile of a violent murderer who, given high recidivism rates in the United States, has a good chance of being in this DNA bank. But authorities can’t legally search it — even though the whole purpose of the database, which cost taxpayers hundreds of millions of dollars, is for moments exactly like this.
OBSTRUCTION OF JUSTICE
Will the FBI make an exception in Richardson’s case, in the interest of finding the true killer? Don’t count on it.
When DNA testing exonerated a man convicted in the 1992 murder and rape of an 11-year-old girl, the FBI went to court to defend its refusal to run the new profile through its forensic library, even though it did not dispute the scientific findings. A federal judge eventually ordered the agency to search the DNA databank.
Such lawsuits are rare. The bureaucratic rules generally allow prosecutors to drag their feet on exonerations, and force some inmates to undergo costly retrials.
The FBI argues its regulations are designed to assure the highest quality standards. But forensic experts such as Edward Blake, whose private lab did the DNA testing in that 1992 case and in Richardson’s, say those regulations are irrational and amount to an obstruction of justice.
You don’t have to look at a lab to evaluate its science, he points out. A peer reviewer just examines the underlying data used to prepare the report. And the quality of his work isn’t in question.
New Jersey’s Legislature has proposed a sensible law to circumvent this problem, though it comes too late for Richardson. The statute would empower judges to order state forensic experts to go through the preapproval process for a private lab, if a defendant requests it and a judge finds it appropriate. The court could compel either the defendant or the state to incur the expenses.
After all, the public’s safety is at stake here. And while Richardson’s lawyer says she has no doubt he’ll be exonerated, even without identifying the true perpetrator, it would save them legal hurdles.
“We would have much less of a fight from the Prosecutor’s Office if we could identify who that person is,” Potkin said, “and bring justice for a victim who was brutally murdered.”
Julie O’Connor is a member of The Star-Ledger editorial board: (973) 392-5839 or firstname.lastname@example.org.