Court: Hearing on bite mark needed
Evidence in question for upcoming retrial of Paul Aaron Ross in 2004 homicide
The Pennsylvania Superior Court on Thursday vacated an order by a Blair County judge permitting the use of bite mark evidence in an upcoming homicide trial and ordered that a hearing be conducted on the scientific reliability of such evidence.
In an opinion written by Judge Mary P. Murray, the court ordered that the judge presiding over the Paul Aaron Ross murder case conduct what is known as a Frye hearing to review the acceptance among experts in multiple scientific fields whether bite mark analysis is acceptable.
The Superior Court opinion, joined in by Judge Maria McLaughlin and James G. Colins, stated, “We make no judgment as to the admissibility of the bite mark identification evidence at issue.”
But the opinion clarified the defense, which opposes bite mark evidence in the Ross case, presented arguments that the expert witnesses to be called by the prosecution “may not have applied generally accepted scientific methodology in reaching their conclusions, and consequently, the trial court erred in concluding that a Frye hearing was not necessary.”
The opinion continued, “Therefore, we vacate the order denying (Ross’s) request for a Frye hearing and remand the matter to the trial court for a hearing in accordance with Frye.”
The Superior Court decision further delays a retrial for Ross, 47, an inmate at the State Correctional Institution at Mahanoy.
The appeals court seven years ago ordered Ross be retried for the June 27, 2004, murder of 26-year-old Tina Miller of Hollidaysburg.
Her body was found partially submerged in the lake at Canoe Creek State Park.
Testimony showed she had been at a late-night party and that she and Ross had been dropped off at the park by friends. The park was located near Ross’ home at the time.
The prosecution argued Ross was the last person with Miller.
He has maintained his innocence throughout the years.
Ross was convicted of first-degree murder, aggravated assault, involuntary deviate sexual intercourse, unlawful restraint, simple assault, false imprisonment and indecent assault.
The jury rejected the death penalty after testimony concerning Ross’ turbulent childhood, and he was sentenced to life plus 48 years behind bars.
The Superior Court in ordering a retrial concluded Ross’ Altoona attorney Thomas M. Dickey did not have time to prepare his defense and improper testimony from former Ross girlfriends (prior bad acts) was used to portray him as a violent individual.
Since the order for a retrial, a variety of issues have arisen, including whether the death penalty can once again be pursued. The courts have ruled the prosecution can seek the death penalty.
Recently, the issue of whether the prosecution can present bite mark evidence in the second trial has arisen.
The prosecution has two dentists who practice in the field of forensic odontology who are expected to testify that a mark on the victim’s left breast was caused by a human bite, and in comparing molds from five sets of teeth, four of the molds can be excluded as the cause of the mark.
The only one that can’t be excluded is a mold from Ross’ teeth.
Senior Judge Jolene G. Kopriva from Blair County rejected a defense request, led by Ross’ attorneys, Dickey and Thomas Hooper, for a Frye hearing to test the scientific viability of bite mark evidence.
Kopriva ruled a Frye hearing was not necessary because bite mark evidence “is not novel,” according to the Superior Court opinion.
She ruled that in testifying as to their opinions concerning the mark on Miller, the prosecution experts must adhere to guidelines of the American Board of Forensic Odontologists.
The defense attorneys, joined by Dana Delger and Chris Fabricant from Innocent Project of New York, contend the prosecution experts did not apply scientific methodology in reaching their conclusions.
The defense presented a report by the President’s Council of Advisors on Science and Technology pointing out forensic odontologists often can’t agree whether an injury is even a bite mark, whether it is a human bite mark or whether the mark can be identified as coming from a particular individual.
The Superior Court found there may be grounds to find that the prosecution’s expert witnesses have not applied accepted scientific methodology in reaching their conclusions.
“Accordingly, we conclude that the trial court abused its discretion in denying (Ross’) request for a Frye hearing,” the opinion stated.
The appeals court judges also concluded the trial judge in the Ross case should not limit opinions on bite mark evidence to just the field of forensic odontology, noting the issue affects many other areas of expertise, such as pathology, biology, statistics and metrology (the study of measurement).
“Because the act of biting a human involves not only the biter’s teeth, but also the skin, muscle, tissue and blood with which the teeth make contact, the notion that bite mark identification analysis involves scientific discipline beyond forensic odontology is reasonable,” the appeals court judges stated.
Kopriva last year issued a gag order on attorneys involved in the Ross case.
Dickey on Thursday said he couldn’t comment concerning the appeals court decision but noted he “looks forward to presenting testimony and evidence at the upcoming Frye hearing.”
Blair County District Attorney Richard A. Consiglio also mentioned the gag order in refusing to comment on the opinion.