DNA proves man innocent of 1982 rape and murder in famous 'bitemark' case, lawyers say
By FRANK GREEN Richmond Times-Dispatch | Posted: Saturday, March 12, 2016 10:30 pm
Recent DNA testing proves that a former sailor, convicted primarily on questionable bite mark evidence, is innocent of the savage 1982 rape of a Newport News woman and the murder of her husband, the man’s lawyers say.
The scientific basis for such comparisons has been challenged in recent years by research, and the Innocence Project says false matches have contributed to at least two dozen wrongful convictions and arrests nationwide.
The DNA testing in Harward’s case, completed in January, was ordered by Newport News Circuit Court last July and was not opposed by prosecutors, according to his lawyers.
Olga Akselrod, a lawyer with the Innocence Project, said Harward first contacted them in 2007 seeking DNA testing, but there was a long line ahead of him. She said his case was moved up in the queue because he was convicted primarily on bite mark evidence, a now controversial forensic technique of concern to the Innocence Project and others.
Harward’s attorneys said in their petition that they have consulted with the Virginia Attorney General’s Office and will be filing an unopposed motion to stay the innocence petition so the state forensic lab can complete DNA testing on other evidence. But Akselrod said Friday that the additional testing has since been completed and, like the earlier results, is exculpatory. She said she could not comment further.
The Virginia Department of Forensic Science would not comment on the Harward case. It is not known if a DNA profile developed by the recent testing has been run through a DNA databank to look for a match.
Newport News Commonwealth’s Attorney Howard E. Gwynn did not respond to requests for comment Friday. Akselrod said Gwynn’s office has been highly cooperative in the case.
A spokesman for the attorney general’s office said, “We have been in regular contact with Mr. Harward’s attorneys and are working with the local prosecutor to investigate his claims and perform all appropriate due diligence.”
Akselrod said both of Harward’s parents have died since he went to prison. “It’s a tragedy for him and his family. It’s absolutely tragic, particularly so when the evidence that was used to convict him was so problematic,” she said.
Two experts testified three decades ago that Harward’s teeth matched bite marks left on the rape victim. In 2009, a committee of the National Academy of Sciences found that bite marks on the skin will change over time and can be distorted by the elasticity of the skin, the unevenness of the surface bite, swelling and healing.
“Also, some practical difficulties, such as distortions in photographs and changes over time in the dentition of suspects, may limit the accuracy of the results,” the report said.
The study concluded that there was not enough research available yet on the accuracy of such comparisons and that, while bite marks might be useful in excluding suspects, “The Committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others.”
Dana Delger, a lawyer with the Innocence Project, said that, since that report, “a huge body of substantial research has come out that ... affirmatively disproves the basis for bite mark analysis.”
Delger said her job is to help bring about court reforms by dealing with the major causes of wrongful convictions — in other words, she said, “figuring out how we can get rid of this junk science in our courts.”
She said that last month, after a six-month investigation, the Texas Forensic Science Commission recommended that bite marks not be admissible in Texas criminal cases until there is a stronger scientific basis.
Harward’s petition points out that even the American Board of Forensic Odontology no longer supports conclusions such as those reached in Harward’s case. “Thus, even forensic odontologists themselves would not and could not offer the kind of testimony that convicted me,” his lawyers argued in his petition.
Her two-story home was located downtown near the entry gate to the Newport News Shipyard where the USS Carl Vinson, a nuclear-powered aircraft carrier, was under construction. Harward lived in Norfolk but was stationed on the Vinson.
Harward’s innocence petition says that more than 1,000 sailors on the ship underwent dental screenings to see if their tooth alignment matched the bite marks on the rape victim’s legs. A mold of Harward’s teeth was made, and he was excluded as a suspect.
But then, in March 1983, Harward was in court in Newport News over a fight with his girlfriend, Gladys Bates, that turned physical. He later admitted biting her on the hand and shoulder during the altercation.
Police had the 1982 rape victim attend court when Harward was there for the unrelated case involving Bates to see if she could identify him, but she could not identify Harward as her attacker then or later during his trial.
However, a security guard at the shipyard, after he was hypnotized by police, later identified Harward from a spread of mug shots as a sailor with blood spatters on his uniform and wearing a USS Carl Vinson badge who entered the shipyard early on the morning of the rape and murder.
News accounts said Harward was discharged from the Navy in March 1983 and was arrested at his parents’ home in Floyd County in connection with the rape and murder. The innocence petition said Harward cooperated with investigators and allowed a second mold to be made of his teeth.
Two forensic odontologists testified his teeth matched those of the bites on the rape victim. One expert testified, “with reasonable scientific certainty,” that Harward’s teeth caused the bite marks, while the other testified it was a practical “impossibility” that someone other than Harward could have bitten the woman.
The evidence apparently was persuasive. In dismissing Harward’s appeal in 1988, the Virginia Court of Appeals noted: “both forensic dentists testified that all gross characteristics of spacing, width, and alignment of Harward’s teeth ‘fit on the money’ the photographs of bite marks.”
“If believed, that evidence proves that Harward murdered Jesse Perron. There exists no evidence in the record tending to prove that someone other than Harward murdered Jesse Perron. Finding the circumstantial evidence sufficient, we affirm the conviction,” the appeals court ruled.
Subsequent studies and research, however, show the experts’ conclusions are nonsense, Harward’s petition contends.
“These forensic dentists thus presented to the jury what appeared at the time to be conclusive evidence of my guilt, but modern objective scientific scrutiny has more recently shown that this evidence entirely lacks reliability. Specifically, since my trial, bite mark analysis has been exposed as unvalidated and unreliable,” Harward argues in his petition.
The petition says that one of the dental experts who testified against Harward also testified in another Virginia murder case that he was certain to “a reasonable degree of scientific certainty” about a dental match in a 1998 slaying. As in Harward’s case, that expert’s testimony was buttressed by another odontologist only to have DNA later clear the man.
Soon after the 1982 rape and murder, blood typing was done on biological evidence recovered from the scene and the rape victim. During Harward’s 1986 trial, the prosecutor argued that, while the less sophisticated testing did not include Harward as the source of biological evidence left at the scene, it did not exclude him, either.
Harward’s petition, however, alleges that recently discovered state lab documents show that even the earlier blood testing excluded Harward as the person who left sperm at the scene and that evidence never was disclosed to the defense, as required.
Akselrod also said authorities never disclosed that both the rape victim and the security guard had been hypnotized.
Post-hypnotic testimony was allowed at the time of Harward’s trials, but his lawyer should have been told so the court could assess the circumstances of the hypnosis sessions and any changes in the witnesses’ memories prior to determining whether the post-hypnotic testimony — which was known to be unreliable — could be admitted at trial.
Harward’s lawyers noted in the innocence petition they are also preparing an appeal alleging the failure to disclose the blood-typing evidence and hypnosis violated his constitutional rights.
At the time of the crime, Harward was 26 years old. According to the trial transcript, he testified that he had worn a mustache since the age of 18 or 19 except for while he was in Navy boot camp in 1980. His testimony was supported by photos taken in 1981 and 1982 and the photo on his Navy pass used to gain access to the USS Carl Vinson.
He denied committing the rape and murder from the stand and explained that his uniform had three slashes on it, not three inverted Vs of a different rank seen by the rape victim.
The petition contends that Harward’s identification by the shipyard security officer also was flawed because he also identified a clean-shaven man.
The security officer saw him for just seconds and made his identification from mug shots after he was hypnotized. The Innocence Project says 72 percent of the 337 DNA exonerations in the U.S. — and 14 of the 15 Virginia cases — involved eyewitness misidentifications.
“Even without the new DNA evidence, both of these pieces of evidence (the bite marks and identification) have been seriously undermined, or, in the case of the bite mark, utterly eviscerated,” the petition contends.