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  • WisBar News
    August 27, 2015

    Detective, Dental Experts Immune from Suit, Despite Wrongful Murder Conviction

    Joe Forward

    Aug. 27, 2015 – The U.S. Court of Appeals for the Seventh Circuit recently ruled that a detective and two forensic odontologists are immune from suit, despite allegations that they conspired to pin Robert Lee Stinson with a murder he did not commit.

    Stinson served 23 years in prison for a brutal rape and murder, which occurred in Milwaukee in 1984. The best piece of evidence was bite marks on the victim. A forensic odontologist, Dr. Lowell Johnson, analyzed the bite marks and determined that the person who bit the victim, Ione Cychosz, had a twisted tooth and was missing an incisor.

    One detective on the case, James Gauger, knew Stinson. Gauger believed Stinson was responsible for another murder, but failed to prove it. The case was never solved.

    Stinson lived near the scene of the Cychosz murder and Gauger and another detective paid him a visit, after learning about Dr. Johnson’s dental conclusion.

    The plan was to make Stinson laugh, so they could see his teeth. They did so, and learned that Stinson was missing his right front tooth (right central incisor), and another was badly damaged. However, Dr. Johnson determined the suspect who left the bite mark was missing a right lateral incisor, which is next to the right central incisor.

    But the detectives proceeded on a theory that Stinson was the killer. Ultimately, Dr. Johnson testified that Stinson’s teeth were consistent with the bite marks. Johnson reached the same conclusion after the judge ordered more thorough dental exams.

    The Milwaukee assistant district attorney on the case wanted a second opinion. The detectives were sent to meet another forensic odontologist in Nevada, Dr. Raymond Rawson, who also concluded that Stinson’s teeth matched the bite marks.

    After that, Stinson was charged with the murder. The defense hired a different forensic odontologist to review the case, but the opinion was the same. Thus, the defense did not have a defense to the bite mark evidence. Stinson was sentenced to life in prison.

    Twenty-three years later, with the help of the Wisconsin Innocence Project, he was exonerated by DNA evidence collected from the victim’s body. A reexamination of the bite mark evidence that was used to convict Stinson also excluded him as the killer.

    The true killer, Moses Price, confessed. Stinson filed his civil rights lawsuit against Gauger, Johnson, and Rawson, alleging they conspired to frame him for the murder.

    He put forth an expert odontologist who said evaluations done by Drs. Johnson and Rawson fell far below the standards for forensic odontology, and their conclusions “were far afield of what a reasonable forensic odontologist would have concluded.”

    The expert’s view, along with Stinson’s allegation that Gauger had a vendetta against him, was the basis for Stinson’s civil rights claim. The U.S. District Court for the Eastern District of Wisconsin ruled that the case could proceed, denying an immunity defense.

    But in Stinson v. Gauger, Nos. 13-3343, 13-3346 & 13-3347 (Aug. 25, 2015), a three-judge panel for the Seventh Circuit Court of Appeals reversed, concluding that the detective and both forensic odontologists had qualified immunity from the lawsuit.

    “[T]he defendants remain protected by qualified immunity, which is lost only if Stinson presents evidence showing that they violated a clearly established constitutional right. He has not done so,” wrote Judge Diane Sykes for the three-judge appeals panel.

    The panel noted that police officers can be liable for fabricating evidence on due process grounds if there is no adequate state remedy. It also assumed without deciding that expert witnesses, like forensic experts, can be liable for fabrication.

    However, the panel concluded that Stinson’s claim failed, noting that prior cases do not determine that “an inference of fabrication can be drawn from an expert’s opinion that another expert behaved unreasonably under prevailing standards in the field.”

    “Arriving at an unreasonable expert opinion may suggest negligence, perhaps even gross negligence, but it does not amount to the intentional fabrication of evidence,” wrote Judge Sykes, noting that qualified immunity applies without this showing.

    “Fabricated opinion evidence, for which the expert might not have qualified immunity, must be both wrong and known to be wrong by the expert,” Sykes explained.

    The panel was not convinced that Dr. Johnson was intentionally fabricating evidence, despite Stinson’s claim that his first analysis determined the suspect had a missing tooth that was different from the one Stinson was missing but he changed his mind. 

    “We acknowledge that it’s not easy to prove that an expert knowingly falsified an opinion,” Judge Sykes wrote.

    “But to conclude that an expert fabricated his opinion solely because it was wrong – even grossly wrong – would collapse the essential distinction between mistaken opinions (for which there is immunity) and fabricated opinions (for which there is not).”

    The panel also ruled that Detective Gauger had qualified immunity since the due process claim against him hinged on a finding of fabrication by the odontologists.

    Stinson also claim that his due process rights were violated when certain evidence was not brought to light, namely, that Dr. Johnson did not disclose that he changed his mind about the missing tooth. The panel rejected the claim, noting Stinson’s trial team had the information it needed to highlight this discrepancy at trial but didn’t.

    “If the discrepancy was relevant in assessing the quality or accuracy of Dr. Johnson’s ultimate opinion, then Stinson and his expert could have seized on the point at that time,” Judge Sykes wrote.

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