RICHARDS (WILLIAM) ON H.C.

Petitioner’s Opening Brief on the Merits

Cal.May 20, 2011

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA ) In re ) No. $189275 ) WILLIAM RICHARDS, ) Court of Appeal No. E049135 ) Petitioner, ) San Bernardino Superior Court ) No. SWHSS700444 On Habeas Corpus. ) Criminal Case No. FV100826 ) PETITIONER’S OPENING BRIEF ON THE MERITS SUPREME COURT PILED MAY 20 2911 ReleaClorkRenter ae id . ‘ pw EN ING Nod be Mee JAN STIGLITZ State Bar No. 103815 225 Cedar Street San Diego, CA 92101 Tel.: (619) 525-1697 Fax.: (619) 615-1497 Attorney for Petitioner WILLIAM RICHARDS IN THE SUPREME COURTOF THE STATE OF CALIFORNIA ) In re ) No. $189275 ) WILLIAM RICHARDS, ) Court of Appeal No. E049135 ) Petitioner, ) San Bernardino Superior Court ) No. SWHSS700444 On Habeas Corpus. ) Criminal Case No. FVI00826 ) PETITIONER’S OPENING BRIEF ON THE MERITS JAN STIGLITZ State Bar No. 103815 225 Cedar Street San Diego, CA 92101 Tel.: (619) 525-1697 Fax.: (619) 615-1497 Attomey for Petitioner WILLIAM RICHARDS TOPICAL Page STATEMENT OF ISSUES ....... 00... cece ccc cece eevee teen neneeane 1 INTRODUCTION 1.0...cccee eee eee ene eee ees 1 STATEMENT OF THE CASE ....... 20.0.0 ccc cece eee tere neeeeaee 4 STATEMENT OF FACTS 2.0.0... 0c ccc cece cece eee eee nenneeany 6 A, FACTS ADDUCED AT TRIAL ...........0 00.0.0... 000s 4 B. FACTS ADDUCED AT THE HABEAS EVIDENTIARY HEARING 2...eccc eee c eee een eens 18 1. New DNA Evidence ........ 0.2... cece eee ees 19 a. Mitochondrial DNA from a Hair Found under Pamela’s Fingernail ...................000. 19 b. DNA from the Murder Weapon .......... 21 2. New Developments in Bitemark Evidence ........ 23 a. Dr. Norman Sperber’s Declaration and Testimony ......... ccc eee ec eee eee eee 23 b. Dr. Gregory Golden’s Declaration and Testimony ....... eee ee eee eee ees 26 C. Dr. Michael C. Bowers’ Report and Testimony .... 0... cece ce eee eee ee 27 d. Dr. Raymond Johansen’s Report and Testimony ..... 0... 0. cece cece eee 30 3. New Revelations about the Blue Tuft of Fibers .... 30 4. Evidence Introduced by the Prosecution ......... 32 ARGUMENT...... ccc cece eee eee eens n rere n earner snes 34 I, IL. RICHARDS CONVICTION WAS THE PRODUCT OF FALSE EVIDENCE SUGGESTING THAT A “BITEMARK” FOUND ON PAMELA’S HAND WAS CONSISTENT WITH RICH ARDS’ DENTITION AND COULD ONLY HAVE BEEN MAD E BY RICHARDS AND TWO PERCENT OF THE POPULATION. .. 34 A. DOCUMENTED PROBLEMS’ WITH BITE MARK “MATCHES” IN FORENSIC ODONTOLOGY ........ 3 5 B. RICHARDS’ CONVICTIONWAS FATALLYINFEC TEDBY FALSE BITEMARK TESTIMONY......---+0 5022255 38 1. Dr. Norman Sperber .......- see eee eee eens 3 9 2. Dr. Gregory Golden «6... 1s eee ee ee eects 40 C. WHEN AN EXPERT FUNDAMENTALLY ALTER S THE OPINION RENDERED AT TRIAL, A PETITIONER SHOULD BE ABLE TO ASSERT CLAIMS BASED ON BOTH FALSE EVIDENCE AND NEW EVIDENCE. ACCORDINGLY, RICHARDS HAS A VALID FALSE EVIDENCE CLAIM ..... 000 e cece eee eee enn 41 D. THE USE OF A DUAL STANDARD IS PARTICU LARLY APPROPRIATE IN CASES WHERE DISCREDIT ED SCIENCE HAD.LED TO A CONVICTION ........--- 45 E. CONCLUSION 1.0.0... eeetnt 47 THE FALSE EVIDENCE INTRODUCED AGAINST RICHA RDS WAS MATERIAL AND PROBATIVE. ABSENT THAT F ALSE EVIDENCE, RICHARDS WOULD NOT HAVE BEEN CONVICTED. THUS, THE SUPERIOR COURT B ELOW CORRECTLY RULED THAT IT COULD NOT HAVE CONFIDENCEIN THE VERDICT .....- 0-0. eee eee e es 48 A. THE PROSECUTION’S CASE WAS A HOUSE OF CARDS ceed nce e bees ete e eens e eee e eee n enn eee renee ness 49 ii B. THE PERNICIOUS EFFECT OF STATISTICS ........ 51 Wl. THE NEW DNA AND BITEMARK EVIDENCE PRESENTED AT THE HEARING UNDERMINES THE PROSECUTION’S CASE AND POINTS UNERRINGLY TOWARDS RICHARDS’ INNOCENCE 0.0.0...eecteee nennes 55 A. THE NEW EVIDENCE ......... 0... ccc cece eee es 56 1. Mitochondrial DNA from Hair Found under Pamela’s Fingernail Belonged to a Third Party, Thus Pointing Towards Richards’ Innocence ................- 56 2. DNABelonging to a Stranger Was Found on the Murder Weapon, Thus Pointing to Richards’ Innocence ... 57 3, New Bitemark Evidence Points Towards Innocence 58 B. THE NEW: EVIDENCE UNDERMINES THE PROSECUTION’S CASE AND POINTS UNERRINGLY TO INNOCENCE 1...cece59 C. CONCLUSION 1.2... Leeccc eens 64 CONCLUSION 2.0... cece et eee n canes 65 WORD COUNTCERTIFICATION 2.0... 0.0... cece eee ee eens 66 PROOF OF SERVICE . 20...cnce ene aes 67 lil TABLE OF AUTHORITIES CASES Page FEDERAL Ege v. Yukins (6th Cir. 2007) 485 2.0... ce eee eee eee eens 52, 5 3 CALIFORNIA Inre Bell (2007) 42 Cal.4th 630 0.0... cece eee tenes 42, 43, 4 4 Inre Hall (1981) 30 Cal.3d 408 «0.0.6... eee e eee eee eee 42, 55, 59, 6 3 In re Hardy (2007) 41 Cal.4th 977 2... 0. eee eee eee tenes 1, 55, 5 9 In re Imbler (1963) 60 Cal.2d 554 2... cece eee ee eee eter ee 41 , 43 Inre Lawley (2008) 42 Cal.4th 1231 02... ieee cece teens 55 In re Lindley (1947) 42 Cal.2d 709 2... cece eee eee tenes 4 4 In re Malone (1996) 12 Cal.4th 935 2.6... eee eee ee eee eens 42 Inre Pratt (1980) 112 Cal.App.3d 795 2.6... eee e eee eee 41, 42 , 44 In re Roberts (2003) 29 Cal.4th 726 2.6... e ect teens 4 2 In re Sodersten (2007) 147 Cal.App.4th 1163 . oc ccc cc eee eee eens 42 iv In re Weber (1974) 11 Cal.3d 703 2...cccee ees 55 In re Wright (1978) 78 Cal.App.3d 788 2.0... ceceees 44-45 People v. Collins (1968) 68 Cal.2d 319 2...cccee eens 51 OTHER STATES Ex Parte Henderson 246 S.W.3d 690 2.0cceee eee n eens 45, 46 State v. Krone (1995) 182 Ariz. 319... ccccece eens 37 State v. Sneed (1966) 76 N.M. 349 2...ceeeee ene eee 52 STATUTES PENAL CODE Section 1473 oo... ccc eee eee eet teens 41, 42 MISCELLANEOUS Garrett & Neufeld, Jnvalid Forensic Science Testimony and Wrongful Convictions (2005) 95 VirginiaL. Rev. 1 ......... 02.0000 eee 37 Giannelli & Imwinkelried, Bitemark and Dental Identification in Scientific Evidence, 4th Ed.(2007) ........ 0.0.0.0 eee 38, 61-62 Hale, The Admissibility ofBitemarkEvidence (1978) 51S. Cal. L. Rev. 153 National Research Council, Strengthening Forensic Science in the United States: A Path Forward” (2009) ............ 35-38, 50, 61 Wagneret. al, DNA Frees Arizona Inmate After 10 Years in Prison The Arizona Republic (Apr 2002) .....---. see e eee ees 37-38 Wilkinson & Gerughty, Bite Mark Evidence:Its Admissibility is Hard to Swallow (1985) 12 W. St. U. L. Rev. 519 «6... eee eee eee 35 vi IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ) In re ) No. $189275 ) WILLIAM RICHARDS, ) Court of Appeal No. E049135 ) Petitioner, ) San Bernardino Superior Court ) No. SWHSS700444 On Habeas Corpus. ) Criminal Case No. FV1I00826 ) PETITIONER’S OPENING BRIEF ON THE MERITS STATEMENT OF ISSUES (1) Whena petitioner seeks relief on habeas corpus because an expert witness whotestified at trial later fundamentally alters the opinion he or she rendered, should this be viewedas a claim that false evidence substantially material or probative onthe issue of guilt was presentedat trial or as a claim that newly discovered evidence casts “fundamental doubt on the accuracy and reliability of the proceedings” and ““undermine[s] the entire prosecution case and point[s] unerringly to innocenceorreduced culpability”? (in re Hardy (2007) 41 Cal.4th 977, 1016.) (2) Is petitioner entitled to relief on either groundin this case? (3) Is petitioner entitled to habeas corpusreliefbased on newly discovered DNA evidence? INTRODUCTION In July of 1997, Williams Richards was convicted ofkilling his wife, Pamela Richards (“Pamela”). The evidence against Richards waslimited and circumstantial. Twotrials ended in hungjuries. In each, the prosecutionrelied on blood spatter evidence, the absence of evidenceindicating the presence of a third party at the crime scene, a tuft of blue fibers found in a crack of Pamela’s fingernail which wassimilarto the fibers in a shirt that Richards had worn onthe night ofthe murder, and evidence of some marital discord. It was not until the third full trial that the prosecution, for the first time, introduced evidence suggesting Richards was responsible for a bitemark found on Pamela and that only 2% ofthe population hada dentition which could have madethat bitemark. Thattrial resulted in Richards’ conviction. In Decemberof2007, Richardsfiled a petition for writ ofhabeas corpus alleging that the bitemark evidenceusedto convict him wasfalse and that new forensic tools now excluded himasthe person responsible for the bitemark. Thepetition also alleged that new evidence, obtained through DNAtesting, showed that someone other than Richards held one of the murder weapons exactly wherethe prosecution suspectedthe murderer’s DNAwouldbe found. Thepetition also alleged that DNAtest results showedthat a hair belonging to someoneother than Richards had been found underthe victim’s fingernail. Finally, the petition alleged that the tuft of fiber similar to the material in Richards’ shirt had not become lodged ‘in the victim’s fingernail during Pamela’s struggle with herkiller. Instead, the fibers must have become lodged in the nail after the autopsy. At an evidentiary hearing, the prosecution witness who had provided false bitemarkstatistics at trial acknowledged that there was no factual basis for them. After the application of new computer-based photo analysis to correct for distortion, that same prosecution witness (and other forensic odontologists) testified that the bitemark relieduponby the prosecution did not match Richards’ dentition and excluded him as the person responsible for the bitemark. Atthe hearing, Richards also produced other new evidence,in the form of DNAtest results, which refuted the prosecution’s claim that there was no evidence that anyone other than Richards had been presenton the nightofthe murder. DNA test results showed that a two centimeter hair found under Pamela’s fingernail — likely lodged there during her struggle with her killer — came from someone other than Richards. In addition, DNA test results showed that DNA belonging to an unknown male was found on a stepping stone, which the prosecution claimed the killer used as a weapon, in the location that the prosecution suggested the killer’s DNA would be found. Finally, Richards produced pictures of Pamela’s right middle finger, both before and after the autopsy, which graphically demonstrated that fibers attributed to Richards’ shirt was not lodgedin the fingernail prior to autopsy. After hearingall ofthe evidence and argument, and after reviewing the transcripts from the underlyingtrial, the superior court concluded that the evidence presented created a “fundamental doubt . . . as to the accuracy and reliability of the evidence presented attrial.” (2 R.T. 481.') In addition, the court foundthat the evidence presented at the hearing underminedthe “entire prosecution case”andthat petitioner had met his burden of proof by showing the evidence presented “points unerringly to innocence.” (2 R.T. 481.) The Court of Appeal reversed in an opinion which did not fully consider the evidence adduced, did not give appropriate deference to the superior court’s factual determinations, and did not apply the appropriate legal standards. Accordingly, this Court should reverse and reinstate the superior court’s decision granting Richards’ petition for writ of habeas corpus. STATEMENT OF THE CASE The San Bernardino District Attorney’s Office charged Richards with one count of murder in violation of Penal Code section 187. (1 Tr. C.T. 5.) Richards’ firstjury trial commencedJuly 6, 1994. (1 Tr. C.T. 228.) On August 29, 1994, the court declared a mistrial after the jury could not reach a verdict. (2 Tr. C.T. 417-20, 3 Tr. C.T. 871.) Richards’ secondjury trial ] Referencesto the record on appeal from the grant of habeasrelief (E049135) will have the usual C.T. and R.T. references. References to the record on appeal from the criminal conviction will be designated as “Tr. R.T”and “Tr. C.T.” commenced October 24, 1994. (2 Tr. C.T. 431-32.) On October 27, 1994,the court recused itself during juror voir dire and declared a mistrial. (2 Tr. C.T. 433, 3 Tr. C.T. 871.) Richards’ third jury trial commenced on November15, 1994. Q Tr. C.T. 438.) On January 9, 1995, the court again declared a mistrial after the jury could not reach a verdict. (2 Tr. C.T. 474, 3 Tr. C.T. 871.) On May 29, 1997, Richards’ third fulljury trial commenced. (2 Tr. C.T. 532.) At the conclusion of this trial, Richards was convicted of first degree murder and sentenced to twenty-five years to life. (3 Tr. C.T. 923.). On August 17, 2000, the Court of Appeal, Fourth Appellate District, Division Two,affirmed the judgment. (Court ofAppeal Case No. E024365.) On December 5, 2007, Richards filed a petition for writ of habeas corpus in the San Bernardino Superior Court alleging that false evidence was introduced against himat trial and new evidence showedhe wasinnocent. (1 A.C.T. 1-86.) Superior Court Judge Brian McCarville issued an order to show cause and subsequently held an evidentiary hearing. (1 C.T. 180-81.) At the conclusion ofthat hearing, Judge McCarville granted Richards’ petition and vacated the judgment of conviction. (4 C.T. 1147-48, 1185.) The People appealed, and on November19, 2010, the Court ofAppeal reversed. On December 3, 2010, the Court of Appeal denied a petition for rehearing. On February 23, 2011, this Court granted review. STATEMENT OF FACTS Because the issues in this case will require a comparison of the evidencepresentedat the trial which resulted in Richards’ conviction with the evidence presented at hearing on Richards’ petition for writ ofhabeas corpus, each set of facts will be presented separately. A, FACTS ADDUCEDAT TRIAL. On August 10, 1993, Pamela Richards was severely beaten with fist-sized rocks, manually strangled, and a cinder block and stepping stone were used to crush her skull. (3 Tr. R.T. 380; 5 Tr. R.T. 962.) Testimony | indicated that strangulation was mostlikely the cause of death. @ Tr. R.T. 365.) The beating took place on her property outside of her home. (2 Tr. R.T. 252; 5 Tr. R.T. 975.) There, the killer dropped a cinder block on her head, crushing her skull and creating bloodspatter for a radiusoffifteen feet. (3 Tr. R.T. 378; 5 Tr. R.T. 976, 1035.) The Prosecution’s Case: “It must have been Richards.” Right from the beginning,the police concludedthat Richards waslying about what happened, and the investigation and prosecution focused on Richards as the person responsible for Pamela’s death. Onthe night ofAugust 10, 1993, Richards clocked out ofwork at 11:03 p.m. and drove home. (5 Tr. R.T. 867.) San Bernardino County Sheriff Deputy Navarro recreated the drive from Richards’ work to his home and determined that if Richards left his place of employmentat 11:06 p.m. and kept up with the flow oftraffic, it would have taken forty-one minutes for Richards to drive home. (5 Tr. R.T. 867-72.) Based on this analysis, police believed Richards arrived homeat 11:47 p.m. (5 Tr. R.T. 872.) According to Richards, upon his arrival at home on the night of Pamela’s murder, he initially noted that no lights were on. (4 Tr. R.T. 645; 8 Tr. R.T. 1849.) Richards wentto the shed and hada glass of iced tea. (8 Tr. R.T. 1849.) He then left the shed, walked toward the trailer, and saw his wife laying face down bythe porch. (4 Tr. R.T. 592.) He turned her overto see what was wrong,and his fingers wentinto a hole in her head. (4 Tr. R.T. 592.) Richards cradled his wife, and then he heard the phone ring. (4 Tr. R.T. 557.) At approximately 11:55 p.m., Eugene Price (Pamela’s former lover) called Richards’ residence, and Richards answered the phone. (4 Tr. R.T. 557.) Thus, even relying on the prosecution’s timeline and theory ofthecase, Richards had only eight minutes in whichto kill his wife. (4 Tr. R.T. 557; 6 Tr. R.T. 1382.) Richardstold Price that Pamela was dead. (4 Tr. R.T. 559.) Richards asked Price what he should do, and Price told him to call 911. (4 Tr. R.T. 561.) Price characterized Richards as being stressed and in need of help and guidance during the phone conversation. (4 Tr. R.T. 561.) At 11:58 p.m., Richards called 911 and reported his wife was dead. (2 Tr. R.T. 168.) Richards placed two morecalls to 911 at 12:06 a.m. and 12:33 a.m., frantically urging officers to hurry. (2 Tr. R.T. 168-69.) The responding officer, Deputy Mark Nourse, arrived on the scene shortly after 12:30 a.m. (4 Tr. R.T. 580.) Richards flashed the headlights on his truck to guide Nourse to his property. (4 Tr. R.T. 582.) Nourse testified that it was very dark when he reached the scene and that he found Richards standing next to his truck. (4 Tr. R.T. 584, 586.) Richards directed Nourse to the victim’s body and told Nourse his wife was “stone cold dead, you don’t haveto checkher out, she has been dead fora long time. I know that becausethe battery is dead on the Toyota.” (4 Tr. R.T. 590.) Richards told Nourse he’d found the victim face down and he’d turned her over. (4 Tr. R.T. 592.) Noursetestified he put on surgical gloves and checked the body. To his gloved touch,the wrist waspliable and the body was “neither cold nor warm.” (4 Tr. R.T. 636.) Nourse did not investigate the scene at that time. (4 Tr. R.T. 683.) Homicide detectives did not arrive on the scene until 3:15 am. (2 Tr. R.T. 228.) After the first officer respondedto the scene, three or four dogs entered the crime scene. (4 Tr. R.T. 642.) Because it was dark,the detectives decided not to process the scene until first light (approximately 6:00 a.m.) more than six hoursafter the body was found. (1 Tr. R.T. 94; 2 Tr. R.T. 327.) Detective Parent and his team found the victim covered by a sleeping bag; she was naked from the waist down exceptfor a pair of socks. (2 Tr. R.T. 232.) A twelve-by-twelve-by-two-inch stepping stone was foundnorth ofthe victim. (2 Tr. R.T. 193, 230.) The stone waslabeled item 25 at the scene, later identified as A-18, and marked with evidence number 139 for identification purposesat trial. (2 Tr. R.T. 193, 246.) Criminologist David Stockwell of the San Bernardino Sheriff's Departmenttestified that he tested genetic markers from eight stains taken from this stepping stone, and all were consistent with the victim’s blood. (4 Tr. R.T. 742-43.) The prosecutor repeatedly elicited testimony and argued that no one other than Richards could have committed the murder because there was no evidence of anyone other than Richards andthe victim at the murderscene. (1 Tr. R.T. 62-65, 81; 2 Tr. R.T. 270, 274, 278; 4 Tr. R.T. 587; 7 Tr. R.T. 1669; 8 Tr. R.T. 1789, 1790, 1793, 1799, 1913-14, 1924, 1932.) According to Detective Parent, all shoe prints foundat the scene were accountedfor. (1 Tr. R.T. 273.) However, the ground wasnot goodfor finding such prints and Richards’ shoeprints were not found in the areas wherethe struggle occurred.- (Tr. R.T. 301-04, 323.) At the autopsy, before Pamela’s right index and middlefingertips were severed and delivered to criminalist Daniel Gregonis, criminalist Craig Ogino received scrapings from Pamela’s fingernails. (4 Tr. R.T. 698.) Ogino looked at the fingernails under a stereo microscope. (4 Tr. R.T. 699.) He never reported that a tuft of blue fibers was lodged in a crack in Pamela’s right middle fingernail. Ogino analyzed the evidence taken from the fingernails of the victim’s right hand. (4 Tr. R.T. 699.) He found a large amount ofsoil and blood, onetri-lobule synthetic fiber, one dark-blue woolfiber, one dark hair, and one blond hair. (4 Tr. R.T. 700.) At trial, Gregonis testified, “there is no hair that was consistent with anyone but Pamela Richards on Pamela Richards.” (6 Tr. R.T. 1155.) Blood underher fingernails was consistent with her own. (5 Tr. R.T. 731.) However, Gregonisclassified a tuft of blue cottonfibers that he later discovered as relevant to the investigation, because he foundit “jammed”in a crack in the victim’s right middle fingernail. (6 Tr. R.T. 1256.) Attrial, Gregonis testified that after microscopic testing, under a florescent microscope, and with microspectometry, this tuft of blue cotton fibers was indistinguishable from fibers in the blue cotton shirt Richards wore the night Pamela was murdered. (5 Tr. R.T. 922-25; 6 Tr. R.T. 1330.) Gregonis established that the fibers were recovered from a deep crack in Pamela’s 10 fingernail by showingto thejury a videotape oftheir removal. (4 Tr. R.T. 715, 919, 921-22; 6 Tr. R.T. 1251.) The video was recordedafter the fingertips from the victim’s right hand were severedat the autopsy. (5 Tr. R.T. 918.) Gregonistestified regarding blood spatter foundat the crime scene. He found 30 to 40 bloodstains on the victim’s pants and believed that twelve of these stains were from medium energyspatter. (5 Tr. R.T. 973-74, 977.) No spatter was found on her legs. As a result, Gregonis opined that the victim was wearing her pants whenher skull was caved in. (5 Tr. R.T. 977-78.) Gregonis alsotestified that a few spots that could be interpreted as medium energyblood spatter were also found on Richards’ pants. (5 Tr. R.T. 1010.) Gregonis testified that these stains were from different directions and consistent with two separate events. (5 Tr. R.T. 1010.) Gregonisalsotestified that there was “evidence ofmanipulationofthe crime scene.” (5 Tr. R.T. 1082-83.) When asked what evidence he hadto support that claim, Gregonis referred to somealleged diluted blood nextto the victim’s head. (5 Tr. R.T. 1083.) However, Gregonis never wrote about any alleged diluted bloodinhis crime scene notes and never mentioned anyalleged diluted blood during the three prior occasions when he wascalledto testify in Richards’ case. (5 Tr. R.T. 1083-84.) Dr. Norman Sperber, the chief forensic dentist for San Diego and 11 Imperial Counties, testified for the prosecution. (6 Tr. R.T. 1170.) He testified that he was board certified by the American Board of Forensic Odontology (“ABFO”) and wasa diplomat of the ABFO. (6 Tr. R.T. 1163.) Dr. Sperber testified that he examined a single autopsy photograph of the dorsalside ofthe victim’s right hand and identified a lesion (i.e., bruise) which he concluded was a human bitemark made by the lower teeth. (6 Tr. R.T. 1170, 1172, 1177-78.) Sperbertestified that the lesion had “a roundness only seen in bitemarks.” (6 Tr. R.T. 1177.) Dr. Sperbertestified that he examined the photograph and stated there were two problemscausingdistortion: (1) the photograph wasnot taken from an ideal position; and (2) the ruler used in the photograph wasnot in the correct position. (6 Tr. R.T. 1198-1200.) Dr. Sperbertestified the angular distortion was “definitely a factor” in the certainty of his analysis. (6 Tr. R.T. 1199.) The photoalso lacked detail; individual teeth in the injury could not be measured because the edges of the teeth were not visible in the photo. (6 Tr. R.T. 1200-01.) Dr. Sperber could only draw the conclusion that the edges of the teeth were somewherein the general area ofthe mark. (6 Tr. R.T. 1200.) Fromthat single distorted photograph, Sperber opined that whoeverleft the mark had a rather distinctive abnormality relative to their lower right canine tooth. (6 Tr. 12 R.T. 1202.) Based upon a molding Dr. Sperber made of Richards’ mouth, he determined that Richards had the samedistinctive abnormality. (6 Tr. R.T. 1203.) Dr. Sperber testified that Richards’ abnormaltooth (tooth number27) would not leave a mark on the skin because it was shorterthan his otherteeth. (6 Tr. R.T. 1207.) Dr. Sperber testified “one or two or less” out of one hundred people would have such an abnormality. (6 Tr. R.T. 1212-13.) He stated he could notrule out Richards as the person wholeft the bitemark. (6 Tr. R.T. 1214.) Dr. Sperber opined that the bitemark was consistent with Richards’ teeth. (6 Tr. R.T. 1214.) Sergeant Bradford testified that the day after the murder, investigators took pictures ofRichards and collectedall the clothes he was wearingthe night his wife was killed. (4 Tr. R.T. 793-94, 796.) They also took pictures of Richards’ hands. (4 Tr. R.T. 798-801.) No indications of cuts, abrasions, or woundswere found on Richards. (4 Tr. R.T. 813-15.) Criminologist Gregonis opined that the perpetrator used his hands, the stepping stone, and the cinder block to batter the victim. (5 Tr. R.T. 1010-11, 1102.) Dr. Frank Sheridan, Chief Medical Examiner for the Coroner’s Office of San Bernardino County, testified that he performed an autopsy on the victim’s body on August 13, 1993. (3 Tr. R.T. 346, 359.) Sheridan testified 13 that Pamela had suffered extensive blunt force traumato the face and several defensive wounds. (3 Tr. R.T. 356, 360.) Dr. Sheridan opinedthat the victim had been manually strangled and suffered blunt force trauma to her skull, either of which could have been fatal on its own. (3 Tr. R.T. 362, 365, 373, 375, 377.) Dr. Sheridan gaveno opinionasto time of death. (3 Tr. R.T. 431.) Dr. Sheridan testified he found pronouncedmarks on Pamela’s buttocks area from pebbles, indicating she had been lying on her back for some time after she had died. (3 Tr. R.T. 409-10.) Dr. Sheridan could not say she had died in that position. (3 Tr. R.T. 410.) He did not find similar marks on her breasts. (3 Tr. R.T. 412.) However, as indicated, when the body was discovered, Pamela hada shirt on, but was naked from the waist down. (2 Tr. R.T. 232.) Dr. Sheridan found evidenceoflividity on Pamela’s back. (3 Tr. R.T. 393.) According to Dr. Sheridan,it usually takes at least two hoursforlividity to becomeobvious, and it becomesfixed at six to ten hours. (3 Tr. R.T. 394, 397.) These findings were consistent with Richards’ claim that he found Pamela on her stomach andthen rolled her over. (4 Tr. R.T. 592.) Crime scene photos show Pamela on her back. Her body had beenin thatposition from at least midnight to six a.m. (2 Tr. R.T. 179.) Dr. Sheridan alsotestified that rigor mortis becomes noticeable about 14 two hours after death. (3 Tr. R.T. 426.) Thus, even if one accepts Nourse’s lay testimony that Pamela’s bodywas pliable, it does not mean that the murder happenedjust minutes before hearrived. It could have happened hours before Richardsarrived home. Defense Case: Shoddy Police Work and Inconsistent Evidence Dr. David Thomastestified that it was difficult to estimate a precise time of death, because tests routinely conductedto aid in that determination were not conducted by the coroneror the coroner’s investigator. (7 Tr. R.T. 1408-11, 1467.) Dr. Thomastestified that the determination wasdifficult, becauseneitherthe liver temperature nor the core temperature were measured at the scene, rigor mortis was not assessed uponthe discovery ofthe body, and an inadequate number of microscopic sections of the victim’s injuries were collected and preserved at the autopsy. (7 Tr. R.T. 1408-11, 1415, 1417, 1426.) According to Dr. Thomas, several tests which the coroner’s office neglected to conduct are standard practices for determining time of death. (7 Tr. R.T. 1474.) Perhaps because the focus was on Richards, officers failed to investigate severalclues that could have established a clearer time line. They did not feel the hood ofthe victim’s car, although the driver’s door was ajar (2 Tr. R.T. 318, 521), and Richardstold the police the car’s battery was dead 15 (4 Tr. R.T. 590). They did not feel the generator to determineifit had been in use, although the generator wasthe only source ofelectricity on the property, and the victim would havestarted the generator had she beenalive after dark. (2 Tr. R.T. 295; 4 Tr. R.T. 521, 530.) Officers also failed to investigate for other clues that may have led to another suspect. They did not fingerprint the cars, the inside of the home (where blood had been found), or the shed. (2 Tr. R.T. 318, 338.) They did not swab the crescent-shaped mark found on Pamela’s hand, which is routinely done with bitemarks in orderto test for DNAfrom thebiter’s saliva. (6 Tr. R.T. 1151.) Richards hired a private investigator, who madethreetrips recreating the route Richards would have used when returning home from work. According to the investigator’s test runs, if Richards had driven homeat 65 mph,he would have arrived homeat 11:54 p.m., just before Price’s call. (6 Tr. R.T. 1382.) Dr. Golden, who served as the chief odontologist for San Bernardino County, testified for the defense that he received a single photograph ofthe injury onthe victim’s right hand. (7 Tr. R.T. 1514, 1520.) He assumedit was a bitemark. (7 Tr. R.T. 1521.) Hetestified that the injury was typical arch shape, and although he could notrule out Richards asthe biter, he also could not rule out several exemplars taken at random from his office collection. (7 16 Tr. R.T. 1528-29.) He also testified he was a colleague of Dr. Sperber, they often worked together on cases, that he had great respect for Dr. Sperber, and that Dr. Sperber was prominentin the field of forensic odontology. (7 Tr. R.T. 1533.) He testified Dr. Sperber was internationally known as the founding father of forensic odontology. (7 Tr. R.T. 1533.) Hetestified that he and Dr. Sperber came to the exact same conclusions about the interpretation of the bitemark evidence. (7 Tr. R.T. 1534.) Golden also agreed that Richards’ under-erupted canine would be found only in “maybe two percent of the population.” (7 Tr. R.T. 1537.) Dean Gialamas, Senior Criminalist with the Los Angeles County Sheriff's Department, testified regarding the blood spatter evidence and disagreed with the conclusions reached by Gregonis.* Looking just at the blood stains on Richards’ shoelaces, Gialamas could not saywhether theywere the result of transfer or spatter; the stains were consistent with either possibility. (7 Tr. R.T. 1598-1600.) However, he foundthe presence ofonly four spots,all lined up, to be “curious”: “Typically, from beating events, very severe beating events,there typically is a lot ofexchange ofblood spatter from 2 The Court of Appeal’s opinion devotes two pagesto the prosecution’s blood spatter evidence, yet the court’s recitation of the evidence presented at trial by the defensefails to contain any reference to Gialamas’ testimony. (Opinion, pp. 9-11, 16-18.) 17 a bleeding source to a perpetrator. (7 Tr. R.T. 1600.) In addition, there was no blood spatter on the shoeitself. (7 Tr. R.T. 1598-99, 1602.) Gialamasalso concludedthat the stains on Richards’ pants were more like transfer stains. (7 Tr. R.T. 1641.) Gialamas alsotestified that he found no blood spatter stains on Richards’ shirt. All ofthe stains appearedto be transfer stains. (7 Tr. R.T. 1654, 1657.) Gialamas concludedthat the stains on Richards’ clothing were not consistent with his being the perpetrator of the violent attack perpetrated by Pamela’s killer. (7 Tr. R.T. 1659.) Investigator Tom Bradford took Richards’ clothing and photographed him that morning. There werenocutsor scratches on his hands and only one small mark on his elbow. (4 Tr. R.T. 813, 821-22.) B. FACTS ADDUCEDATTHE HABEASEVIDENTIARY HEARING. Petitioner presented evidencepresented at the hearing relating to three issues. First, petitioner presented DNA evidence pointing to a person other than Richards as having murdered Pamela. Second,petitioner presented expert testimony indicating that Richards could not have been responsible for bitemark attributed to the killer. That testimony included a recant by the prosecution’s dental expert. Finally, Richards presented photographic evidence indicating that the fibers in the victim’s fingernail, allegedly lodged during the victim’s struggle, were not present until after autopsy. 18 1. New DNAEvidence. a. Mitochondrial DNA from a Hair Found under Pamela’s Fingernail. ~ A single hair, measuring two centimeters (equal to .787 inches’), from an unknownperson, was recovered from amongst blood and debris under one ofthe fingernails ofPamela’s right hand. In 2006, mitochondrial DNAtesting revealed this hair did not match the DNA of either Pamela or Richards. Instead, the hair belonged to an unknownthird party. (Petition Exh. W [2 A.C.T. 255-60] and Exh. X [2 A.C.T. 262-67], admitted bystipulation [2 R.T. 248; 4 C.T. 991].) Dr. Patricia Zajac, a consulting criminalist, who has qualified as an expert in approximately 500 cases, testified she disagreed with the prosecution’s beliefthat the hair was likely historical(i.e., present prior to the murder). (2 R.T.305, 310.) Instead, it was more likely the lodged hair was the productof the attack. (2 R.T. 316.) Dr. Zajac provided four reasons for her conclusion. First, the length of the hair was such that a person like Pamela, who was a waitress, would normally have noticed and removedit. (2 R.T. 310.) (In fact, the managerat the Olive Garden, where Pamela worked,testified that Pamela wanted to be on * Two centimeters is approximately this long: 19 call for work the night she was murdered andthat on eachshift, the employees were checked to make sure their appearance (including fingernails) were up to standards. [6 Tr. R.T. 1358-59].) Second, the crime scene was nota place where one would normally find lots ofhairs. (2 R.T. 311-12.) Third, the hair was found under, and notjust on the nail, so it would take some kind ofaction to get the hair in the place it was found. (2 R.T. 312.) Fourth,the nature ofthe crime, and the fact there had been a violent struggle wherethe victim sustained defensive wounds, madeitmore likely the hair was lodged duringthe struggle. (2 R.T. 312-13.) Dr. Zajac also testified the fact that the hair had a telogen root was not significant. (2 R.T. 314.) Dr. Zajac stated that mosthair collected as evidence has a telogen, not an anogen, root. (2 R.T. 314.) (An anogenrootis living. A telogen rootreflects a mature hair that is ready to or hasalready fallen out. [2 R.T. 313-14].) Based onall of these factors, Dr. Zajac opined that the hair was not historical but, instead, was related to Pamela’s murder. (2 R.T. 313.) At the evidentiary hearing, Gregonis testified that he could not say whetherthe hair washistorical or not. (2 R.T. 409.) In fact, he admitted that the hair’s location underthe nail was relevant and that it was morelikely that a woman workingas a waitress would bemorefastidious in her grooming and 20 cleanliness. (2 R.T. 428-29.) b. DNA from the Murder Weapon. At trial, the prosecution, through the testimony of Gregonis and in argument, repeatedly took the position that a twelve-by-twelve-by-two-inch stepping stone found north of Pamela was oneofthe weapons used to murder her. The stone was labeled item 25 at the scene, later identified as A-18, and marked as Exhibit Number 139 for identification purposesattrial. (2 Tr. R.T. 193, 246.) It was the prosecution’s theory of the case that both the cinder block and this stepping stone were murder weapons. In his opening statement, the District Attorney said, “this attacker picked up a concrete stepping stone andthrewit at her face. The attacker then picked up a second concrete stepping stone and threw onat her face.” (1 Tr. R.T. 54.) Gregonis repeatedly referred to the stone as a weapon. (5 Tr. R.T. 975, 999, 1000, 1079.) Similarly, the District Attorney referred to the two bludgeoning instruments as “heavy objects coming into contact with her skull.” (5 Tr. R.T. 1004.) Gregonis agreed there were two separate events with two heavy objects used as weapons. (5 Tr. R.T. 1010-11.) Gregonis also concurred that the cinder block and stepping stone shielded the murderer from blood spatter when used to murder Pamela. (5 Tr. R.T. 1015.) This was critical point since the 21 prosecution hadto explain why Richards’ shirt did not have any blood spatter on it. Finally, in closing, the District Attorney referred to “cinder blocks to the head” (8 Tr. R.T. 1792); “bashing her head in with bricks” (8 Tr. R.T. 1798); “the cinder block, stepping stone” (8 Tr. R.T. 1799); and he argued, “you have got two blocks in evidence with blood, her blood andtissue on them. Whoeverthrew those blocks did it more than once.” (8 Tr. R.T. 1807.) In 1994, Gregonis identified three areas on the stepping stone, which he noted were the “most likely candidates for [the] suspect’s blood.” (2 R.T. 437-38; see Petition Exh. Z [2 A.C.T. 276] and Exh. AA [2 A.C.T. 279].) At trial, the prosecutionelicited testimonythat blood onthis item was consistent with Pamela’s. (4 Tr. R.T. 742-43.) In 2006, Item A-18 wastested by the DepartmentofJustice. STRDNA testing conclusively established that two of these three areas (areas “f’ and “c”) contained a mixtureofthe victim’s DNA and male DNA.(Prosecution’s Second Amended Return [3 C.T. 698-99, 733-35].) Male DNA contributed as muchas one-tenth of the DNAin the area near “f’ and one-sixth of the DNA in area “c.” (Petition Exh. CC [2 A.C.T. 290-91, 302], admitted bystipulation [2 R.T. 248; 4 C.T. 991].) Significantly, the male DNA did not belong to Richards. (Prosecution’s SecondAmendedReturn [3 C.T. 698, 699, 733-35].) 22 At the hearing, Gregonis agreed that the ratios of Pamela’s DNA and the unknown DNA wasconsistent with the theory that the unknown male DNA was deposited by the perpetrator. (2 R.T. 439-40.) Mostsignificantly, at the hearing, Gregonis acknowledged that DNA testing on the stepping stone revealed that DNA not belonging to Richards was found exactly where Gregonis predicted the killer’s DNA would be found. (2 R.T. 438.) 2. New Developments in Bitemark Evidence. Attrial in 1997, Dr. Sperber and Dr. Goldentestified they had formed their opinions about the crescent shaped injury on Pamela’s right hand using asingle, low resolution photographofthe injury. Post conviction, at Richards’ request, Dr. Sperber and Dr. Golden reexamined the photo of the crescent shaped injury on Pamela’s hand. This photo was also examined by experts Dr. Raymond Johansen and Dr. C. Michael Bowers. In 2006 and 2007,all of the experts were also provided with additional photographsofthe crime scene and other crescent shaped injuries on Pamela’s body. All four experts provided declarations in support ofthe petition andtestified at the evidentiary hearing. a. Dr. Norman Sperber’s Declaration and Testimony. Attrial in 1997, at the insistence of the District Attorney, Dr. Sperber testified as to the uniqueness of Richards’ dentition. (Exh. 12, 9 16, 5 C.T. 23 1207; 1 R.T. 73.) Before a break, Dr. Sperber began to explain that he had no scientific evidence ofthe uniqueness ofRichards’ dentition. (6 Tr. R.T. 1204.) After the court recessed for lunch, Dr. Sperbertestified, “[s]o if it was a hundred people that we took in here, I doubt that we would see in a hundred people one tooth lower, submergedlike this. It might be one or two,orless.” (6 Tr. R.T. 1213.) At the request of Richards, Dr. Sperber reviewedall evidencerelevant to the bitemark analysis and provided a declaration stating that he would not testify now as he did in 1997. (Exh. 12, J 27 and 30, 5 C.T. 1208.) At the evidentiary hearing, Dr. Sperbertestified that he never should have provided an estimate regarding the percentage ofthe population that had the dentition abnormality he had identified in Richards, and he stated the statistic he provided wasscientifically inaccurate. (1 R.T. 74; Exh. 12,4119, 5 C.T. 1207.) At the time oftrial, he was not aware of any studies which would have providedstatistical support for his testimony. (1 R.T. 74.) Healso testified that the American Board ofForensic Odontology now finds such testimonyto be inappropriate in the absenceof any scientific studies. (1 R.T. 74.) Additionally, Dr. Sperber admitted he made his determinations about the “bitemark” and formedhis opinionsandtestified at the 1997 trial based on a single distorted picture. (Exh. 12, ¥ 20, 5 C.T. 1208.) At the hearing, Dr. 24 Sperber testified that the picture of the bitemark was “unreliable and inaccurate” becauseofthe relationship between the camera andtheruler that was nextto the lesion. (1 R.T. 67.) Specifically, he testified that because the right side of the ruler was closer to the lesion, there was distortion in the picture of the lesion. (1 R.T. 70.) At the time of Richards’trial, no onein the field was using computersto correct angular distortion in photographs. (1 R.T. 84.) Dr. Sperberalsotestified that the lesion could have been produced by someone without Richards’ dentition abnormality. (1 R.T. 72.) Although Richards’ number 27 tooth was abnormal, the injury on Pamela’s hand could have been created by someone withoutthis abnormaldentition. A barrier, like clothing, could have been overpart of the area of the lesion and nullified the ability to see a mark from the lowerright canine. (1 R.T. 72; Exh. 12, 9 20, 5 C.T. 1207.) Dr. Sperber also acknowledgedthat he never attempted to use the mold ofRichards’teeth to determineifit would makea “bite registration”or “dental impression.” (1 R.T. 90. See also, 1 R.T. 80.) Instead,his trial testimony was based solely on his visual observation: “Because I had basically eyeballed this case and I saw onetooth that was shorter than the others. I saw a space in that collection of red lesion... .” (1 R.T. 90; emphasis added. Seealso, 1 25 R.T. 80.) After review ofall relevant evidence and with the benefit of added experience, contrary to histrial testimony that the lesion was consistent with Richards’ dentition, Dr. Sperber now has “no degree of certainty” that Richards’ teeth could have caused the lesion. (1 R.T. 81; Exh. 12,20, 5 C.T. 1208.) In fact, Dr. Sperbertestified to a conclusion that is the polar opposite of the conclusion he gaveat trial. At trial, Dr. Sperber found Richard’s dentition to be both rare and consistent with the bitemark. Dr. Sperber has now “ruled out” Richards as the person who caused the lesion on Pamela’s hand: “My opinion today is that [Richards’] teeth, as we have seen, are not consistent with the lesion on the hand.” (1 R.T. 91.) “Nonconsistent means you don’t see similar patterns. I have essentially ruled [Richards] out.” (1 R.T. 91.) b. Dr. Gregory Golden’s Declaration and Testimony. At the time of Richards’ trial, Dr. Golden was provided a single photographofthe injury on Pamela’s right hand. (Exh. 14, 6, 5 C.T. 1217. 1 R.T. 99.) In 2007, Dr. Golden digitally scanned a 35-mm slide to generate a high resolution photo. (Exh. 14,97, 5 C.T. 1217.) He then re-analyzedthe injury. Dr. Goldentestified that since Richards’ trial, he and other forensic odontologists have used Adobe Photoshopto correct the angulardistortion that 26 is visible in photographs. (1 R.T. 97-98.) Dr. Golden testified that with advances in technology he has been able to do a more accurate analysis and, based on that analysis, Richards’ “dental signature does not line up as well with the injury asit did in the distortion [sic] injury.” Therefore, he excludes Richards as the suspected biter. (1 R.T. 100; Exh. 14, 4 10, 5 C.T. 1218.) Unlike at trial, where he testified that he could not rule out Richards as the source of the lesion, at the hearing, based on the digital analysis, Dr. Golden has now ruled Richardsout. (1 R.T. 110; Exh. 14, ff 1 and 12,5 (C.T. 1218.) In fact, Dr. Goldenalso testified that the lesion might well have been caused by a dogbite asit fits “the classic characteristics” he has seen in dog bites. (1 R.T. 100; Exh. 14, {ff 11 and 12,5 C.T. 1218.) c. Dr. C. Michael Bowers’ Report and Testimony. Corrected Photo. Dr. Bowers,like the other experts, testified that the photograph ofPamela’s hand,which wasusedatRichards’ trial, was distorted. (2 R.T. 212.) Dr. Bowers testified he created a corrected version of the photograph using Adobe Photoshop. (2 R.T. 216; Exh. 22.) The new methods used by Dr. Bowers are considerably more precise than the visual methods available in 1997 and demonstrated numerous areas of discrepancy between Richards’ lowerarch teeth and the bitemark. (2 R.T. 218, 232, 234, 246.) The digital analysis Dr. Bowers used captured the 27 outlines of the indentations (from the mold of Richards’ lower arch that was originally created by Dr. Sperber) to create a digital exemplar to be superimposedonto the corrected bitemark image. (2 R.T. 228-31.) A copy of the digital exemplar created by Dr. Bowers wasintroducedat the hearing as Exhibit 32 and is reproduced below: Exhibit 32 Dr. Bowers testified he took measurements of the bruise and of Richards’ dentition. (2 R.T. 218.) For example, he measured the bruise as 24 millimeters, yet Richards’ lower teeth were 33 millimeters. Thus, the bruise was too small to have been made by Richards. (2 R.T. 218.) Additionally,as shown by Habeas Exhibit 36, when superimposing the digital exemplar of Richards’ bottom teeth onto the digitally enhanced photograph ofthe bitemark, 28 three of Richards’ teeth matched andthree did not. (2 R.T. 232, 234.) Exhibit 36 The red arrowsindicate three "mismatches" between Mr. Richards and the skin injury. Thethree teeth that did not match were in fact complete mismatches, and thus Dr. Bowerseliminated Richards as the possible biter. (2 R.T. 235-37.) Tooth 27. Dr. Bowers also testified to making two Styrofoam impressions from the plaster mold of Richards’ teeth. (2 R.T. 224; Exh. 27.) Attrial, Dr. Sperberhadtestified that tooth 27 would not have comein contact with the skin because the higher teeth would have acted as “barriers.” (6 Tr. R.T. 1207, 1209.) However, when Dr. Bowers used the mold of Richards’ teeth to make impressions in Styrofoam, tooth 27 did leave marks. (2 R.T. 29 225-26, 238; Exh’s. 29 and 39.) d. Dr. Raymond Johansen’s Report and Testimony. Dr. Johansen testified at Richards’ evidentiary hearing that he is the author of a book on the use of digital analysis of bitemark evidence using Adobe Photoshop,published in 2000. (1 R.T. 117.) Dr. Johansentestified that there was somedistortion in the photograph of Pamela’s hand. (1 R.T. 130; 5 C.T. 1225-32; Exh. 16-A-D.) Using Adobe Photoshop, Dr. Johansen created a version of the photograph which corrected the distortion contained in the original photograph. (1 R.T. 139; 5 C.T. 1237; Exh. 16-g.) He also created a corrected photo with an outline of Richards’ upper teeth. (1 R.T. 140-42; 5 C.T. 1239; Exh. 16-H.) Dr. Johansen used the upper arch because it was “more consistent with the size and shapeofthe injury pattern.” (1 R.T. 178.) According to Dr. Johansen, there were marks on Pamela’s hand which were outside the semi-circular dentition area ofRichards’ teeth. (1 R.T. 143.) 3. New Revelations about the Blue Tuft of Fibers. At the autopsy, investigators took several photos of Pamela’s right hand. (See, e.g., Exh’s. 19, 45, 46, 50 and 54.) After the autopsy,thetips of Pamela’s index and middle fingers were severed and deliveredto the Sheriff's Departmentfor a forensic examination. (2 R.T. 253, 256, 259.) At Richards’ request, Dr. Bowers made high resolution scans of the 30 original photos. (2 R.T. 249.) Exhibit 45 is a photograph of Pamela’s right hand— prior to the fingers being severed butafter the fingers had been cleaned. (2 R.T. 251.) No blue fibers appearin that photo. Using Adobe Photoshop, Dr. Bowers conducted a saturation test to determine whether there was any indication of the color blue in a close up photograph of finger R-3. (2 R.T. 255; Exh. 50.) Adobe Photoshop has an adjustment which allows one to increase the “saturation” or “purity of the color” ina photograph to 100%. (2 R.T. 255.) No blueis visible in the color saturation photo. (2 R.T. 255; Exh. 49.) Dr. Bowers also produced still photograph from a video which Gregonis had madeafter he allegedly found a blue fiber inPamela’s fingernail (after the fingertip had been severed). (2 R.T. 256; Exh. 47.) A blue, z-shaped line is clearly visible in that photo. (2 R.T. 256; Exh. 47.) Dr. Bowers testified that the z-shapedlineis the blue fiber that Gregonis allegedly found. (2 R.T. 257.) Dr. Bowerstestified that considering the size and amount ofblue material that Gregonis removed,if those fibers had been present at the time that the autopsyphotographshad beentaken, the blue fibers would have shown up in the autopsy photographs. (2 R.T. 257-58.) Dr. Bowers also used Adobe Photoshop to adjust the saturation of the blue in the photo taken from the videotape Gregonis made. (2 R.T. 258; 3] Exh’s. 49 and 55.) Although the saturation adjustments were the same for Exhibits 49 and 55 (2 R.T. 288) there wasnobluevisible on the “saturated” autopsy photo (Exh. 49), yet the blue zig-zag was clearly visible on the “saturated” photo from the Gregonis tape (Exh. 55). 4. Evidence Introduced by the Prosecution Gregonis testified that hair found under Pamela’s fingernail did not match either Richards or Pamela. (2 R. T. 409.) Gregonistestified that he was aware that criminalist Ogino had opinedthat this hair was historical, but that he (Gregonis) could not “say either way.” According to Gregonis, the hair “could be historical or could be something to do with the incident.” (2 R.T. 409.) With regard to the stepping stone, Gregonis testified that the DNA found could have been on the stone and then covered with Pamela’s blood or that the DNA could have been deposited at a later point in time. (2 R.T. 415- 16.) However, the DNA was found in areas where Gregonis would have expected the murderer’s DNAto be located. (2 R.T. 435.) Gregonis also acknowledgedthathis testimony regarding the stepping stone being a weapon was “more definite” at trial and has changedsince that time. (2 R.T. 436.) Gregonis also acknowledged that the manner in which an object was handled might have an impact on the presence ofDNA. Rougherhandling would more 32 likely result in the presence of DNA. (2 R.T. 439-40.) The ratio of male DNAto the victim’s, for the DNA found at area A- 18-15, the ratio was approximately 1:6. (Petition Exh. CC [2 A.C.T. 289] admitted by stipulation [2 R.T. 248; 4 C.T. 991].) In addition, Gregonis testified that he would “certainly . . . expect” that there would be a greater | quantity ofDNA from Pamela’s blood than from the perpetrator’s handling of the stepping stone. (2 R.T. 438-39.) And,as indicated, Gregonis agreed that the ratios of Pamela’s DNA and the unknown DNAwasconsistent with the theory that the unknown male DNA was deposited by the perpetrator. (2 R.T. 439-40.) With regard to the tuft of fibers, Gregonis testified that he recalled having discoveredit only after looking at the nail through a microscope. (2 R.T. 420.) The District Attorney did notcall any witnessto testify in regard to the bitemark evidence that Richards introduced. Mil 33 ARGUMENT I. RICHARDS’ CONVICTION WAS THE PRODUCT OF FALSE EVIDENCE SUGGESTING THAT A “BITEMARK” FOUND ON PAMELA’S HAND WAS CONSISTENT WITH RICHARDS’ DENTITION AND COULDONLYHAVEBEENMADEBYRICHARDSAND TWO PERCENT OF THE POPULATION. At Richards’thirdtrial — the only one whichresultedin a conviction — the prosecution linked Richardsto the alleged bitemark using one distorted photograph and bolsteredthat linkage with a powerful but unfoundedstatistic. The two experts whoprovided that testimony — Dr. Sperber and Dr. Golden — have nowtestified their trial testimony was not correct. At the evidentiary hearing, Dr. Sperber testified he had no basis for his statistics. At the evidentiary hearing, both Dr. Sperber and Dr. Goldentestified that Richards could not have been responsible for the bitemark. Based on a review ofthe trial transcripts and based on an assessment of the testimony provided at the hearing, the superior court concluded the bitemark evidence “excluded” Richards. (2 R.T. 481.) Thus, the prior contrary testimony provided at Richards’ trial was false. As will be discussed in PointII, this false testimony was material andthe superior court wascorrect in granting Richards’ petition for writ of habeas corpus. 34 A. DOCUMENTED PROBLEMS WITH BITEMARK “MATCHES” IN FORENSIC ODONTOLOGY. Before reviewing the specific bitemark evidence introduced at the hearing and how itrelates to the bitemark testimony used to convict Richards, it is important to understand that the scientific validity of bitemark comparisons has been challenged for many years. For example, in 1985, two researchers wrote: There is effectively no valid documented scientific data to support the hypothesis that bitemarks aredemonstrably unique. Additionally, there is no documented scientific data to support the hypothesis that a latent bitemark,like a latent fingerprint, is a true and accurate reflection of this uniqueness. To the contrary, what little scientific evidence that does exist clearly supports the conclusion that crime-related bitemarksare grossly distorted, inaccurate, and therefore unreliable as a method of identification. (Wilkinson & Gerughty, Bite Mark Evidence: Its Admissibility is Hard to Swallow (1985) 12 W. St. U. L. Rev. 519, 560.) Thosecriticisms have not dissipated in the ensuing 26 years. Instead, they were echoed in a recently published study of the National Research Councilentitled “Strengthening Forensic Science in the United States: A Path Forward.” (The National Academies Press, 2009, hereafter “NRC Study.”) The NRC Study was the product of a congressional request that the National Academyof Sciences review issues related to the use of non-DNA forensic evidence in our judicial system. (NRC Study at p. S-1.) In its 35 introduction, the NRC Study states: For decades, the forensic science disciplines have produced valuable evidence that has contributed to the successful prosecution and convictionofcriminals as well as the exoneration of innocent people... . Those advances, however, also have revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence. (NRCStudy at p. S-3.) In its discussion of the admissibility of forensic evidence, the NRC Study foundthat “[m]Juchforensic evidence including for example,bitemarks and firearm and toolmark identifications — is introduced in criminaltrials without any meaningfulscientific validation, determination of errorrates, or reliability testing to explain the limits of the discipline.” (/d. at p. 3-18. Footnote omitted.) In the specific section on forensic odontology, the NRC Study found that bitemark comparison was the most controversial area of forensic odontology andthat there “is continuing dispute over the value andscientific validity of comparing and identifying bitemarks.” (Jd. at p. 5-35.) In its criticism of bitemark comparisons, the NRC Study stated: 36 There is no science on the reproducibility of the different methods of analysis that lead to conclusions about the probability of a match .... Even when using the [American Board of Forensic Odontology] guidelines, different experts provide widely differing results and a high percentage of false positive matches of bitemarks using controlled comparison studies. No thorough study has been conducted of large populations to establish the uniquenessofbitemarks.... Ifa bitemark is compared to a dental cast ... there is no established science indicating whatpercentage ofthe population or subgroup ofthe population could also have producedthebite (dd. at p. 5-36.) Similar conclusions were reached in a recent study of wrongful convictions. (Garrett & Neufeld (2005) Invalid Forensic Science Testimony and Wrongful Convictions, 95 Virginia L. Rev. 1.) The authors of the wrongful convictions study documented four cases in which odontologists provided false testimony which led to convictions. (/d. at p. 69.) Onecase, involving Ray Krone, was similar to Richards’. The case was mostly circumstantial and the bitemark evidence was described as “critical” to the state’s case. (State v. Krone (1995) 182 Ariz. 319, 322.) As here, the forensic odontologist found a match and advancedstatistics (one in 1200) to suggest the significance of the match. (Garrett & Neufeld, supra, 95 Virginia L. Rev. at pp. 69-70.) Krone was ultimately exonerated when DNAevidence found on the victim excluded him. (Wagner,et. al, DNA Frees Arizona Inmate After 37 10 Years in Prison, The Arizona Republic (Apr. 9, 2002) p. 1A .) Although there are documented problems with bitemark “matches,” bitemark exclusions are reliable. For example, the Summary Assessment of bitemark analysis in the NRC Study states: “Despite the inherent weaknesses involved in bitemark comparison,it is reasonable to assumethat the process can sometimesreliably exclude suspects.” (NRC Study, supra, at p. 5-37.) Similarly, in the chapter on Bitemark and Dental Identification in Scientific Evidence, Giannelli & Imwinkelried (4" Ed 2007), the authors write: “It is easier to conclude that a person’s dentition and a bitemark do not match than itis to find a match. This is due to the fact that any unexplained inconsistency between the bitemark and the dentition means that the suspect could not have made the bitemark.” (/d. at p. 677, emphasisin original.) B. RICHARDS’ CONVICTION WAS FATALLY INFECTED BY FALSE BITEMARK TESTIMONY. Asindicated, bitemark evidence wasprovidedat Richards’ trial by Dr. NormanSperber, the chief forensic odontologist for San Diego and Imperial Counties. Relying on only a single, distorted photograph, Dr. Sperber identified a lesion that he said was consistent with a human bitemark and came from the lowerteeth. From that photograph, Dr. Sperber opined that whoever left the lesion had a rather distinctive abnormality relative to his or her lower right canine tooth (number 27). That tooth was outside the other teeth and 38 “somewhatshorter.” (6 Tr. R.T. 1184.) Based upon a molding Dr. Sperber made of Richards’ mouth, he determined that Richards had the same distinctive abnormality. 6 Tr. R.T. 1188-90.) Finally, Dr. Sperbertestified “one or two or less” out of one hundred people would have such an abnormality. (6 Tr. R.T. 1213.) He stated he could not rule out Richards as the person wholeft the bitemark and that the bitemark was consistent with Richards’ teeth. Dr. Goldentestified for the defense that he received a single photograph of the injury on Pamela’s right hand and assumedit was a bitemark. He testified that the injury wasa typical arch shape,and although he could not rule out Richardsas the biter, he also could not rule out several exemplars taken at random from his office collection. Like Sperber, Golden testified that Richards’ under-erupted canine wouldlikely be found in only two percent of the population. (7 Tr. R.T. 1537.) Atthe hearing,all of that testimony was recanted and shown to have been false. 1. Dr. Norman Sperber. As documented fully in the Statement of Facts, at the evidentiary hearing, Dr. Sperbertestified to four key points: First, contrary to his trial testimony that the lesion was consistent with 39 Richards’ dentition, today Dr. Sperber has “no degree of certainty” that Richards’ teeth could have causedthe lesion. (1 R.T. 81.) In fact, Dr. Sperber has now “ruled out” Richards as the person who caused the lesion: “My opinion todayis that [Richards’] teeth, as we haveseen,are not consistent with the lesion on the hand.” (1 R.T. 91.) “Nonconsistent means you don’t see similar patterns. I haveessentially ruled [Richards] out.” (Jbid.) | Second, Dr. Sperber testified that he never should have provided an estimate regarding the percentage of the population that had the dentition abnormality he hadidentified in Richards. (1 R.T. 74.) He had nostatistical support for his testimony and the American Board of Forensic Odontology now finds such testimony to be inappropriate in the absence of any scientific studies. (1 R.T. 74.) Third, Dr. Sperber also testified that the lesion could have been produced by someone without Richards’ dentition abnormality. Finally, Dr. Sperber testified that the picture of the “bitemark” was “unreliable and inaccurate” because of the relationship between the camera and the ruler next to the lesion. (1 R.T. 67.) 2. Dr. Gregory Golden. Dr. Goldentestified that since Richards’ trial, he and other forensic odontologists have used Adobe Photoshopto correct the distortion visible in 40 photographs. (1 R.T. 97-98.) Dr. Golden testified that with advances in technologyhe has been able to do a moreaccurate analysis and, based on that analysis, Richards’ “dental signature does not line up as well with the injury as it did in the distortion [sic] image.” (1 R.T. 100.) Unlikeat trial, where he testified he could not rule out Richards as the source ofthe lesion, at the hearing, basedon the digital analysis, Richards was ruled out. (1 R.T. 110.) C. WHEN AN EXPERT FUNDAMENTALLY ALTERS THE OPINION RENDEREDATTRIAL, APETITIONER SHOULD BE ABLE TO ASSERT CLAIMS BASED ON BOTH FALSE EVIDENCE AND NEW EVIDENCE. ACCORDINGLY, RICHARDS HAS A VALID FALSE EVIDENCE CLAIM. Prior to 1975, habeasrelief was not available simply by showingthat “false” testimony was usedat trial. The rule was clear that to obtain habeas corpusrelief, a petitioner had to establish by a preponderanceofthe evidence: (1) that “perjured” testimony was adducedathistrial, (2) that this was known to a representative of the state, and (3) that the perjured testimony may have affected the outcomeofthetrial. (In re Imbler (1963) 60 Cal.2d 554, 560; In re Pratt (1980) 112 Cal.App.3d 795, 865.) In 1975, Penal Codesection 1473, whichset out the standard for habeas corpus relief, was amended. Since 1975, a writ may be granted if “False evidence,that is substantially material or probative on the issue ofguilt . . . was introduced against a person at any hearing ortrial relating to his 41 incarceration.” (Penal Code § 1473, subd.(b)(1).) There is no longer any obligation to show the testimony was perjured or that the prosecutororhis agents were awareofthe impropriety. (Jn re Hall (1981) 30 Cal.3d 408, 425.) Since 1975, when analyzing a habeas petitioner’s claim of false evidence, the only standardusedis the standard set forth in Penal Code section 1473 and defined by cases such as, Jn re Hall, supra, 30 Cal.3d 408, In re Malone (1996) 12 Cal.4th 935, In re Roberts (2003) 29 Cal.4th 726, 741-742, In re Bell (2007) 42 Cal.4th 630, In re Pratt, supra, 112 Cal.App.3d 795, and In re Sodersten (2007) 146 Cal.App.4th 1163, 1232. Hall, supra, 30 Cal.3d 408,is significant because this Court foundthat the same evidence could support relief on both new evidence and false evidence grounds. Hall’s conviction wasbased,primarily, on the testimony of two brothers: Victor and Daniel Lara. As stated by this Court: “The Lara brothers were the only eyewitnesses to the crime whoeither placed [Hall] at the scene or implicated him as the gunman.” (/d. at p. 417.) Based on a referee’s finding,this Court concludedthat Hall had met his burden ofproving that there was new evidence which undermined the prosecution’s case and pointed unerringly towards innocence. In addition, this Court also concluded that the trial testimony given by the Lara brothers was false evidence which provided a separate basis for granting of the writ. (/d. at p. 424.) A similar 42 approach wastaken in Jn re Bell, supra, 42 Cal.4th at 637, where this Court expressly restated the separate standards for false evidence and actual innocence and considered the evidence presented by petitioner under both standards. (/d. at p. 642.) This Court has also analyzed changed expert testimony undera false . evidence standard. (Un re Imbler, supra, 60 Cal.2d 554.) In Imbler, a fingerprint expert hadtestified that there were only two prints on plastic razor case andthat neither wassufficiently clearto attribute to anyone. At a habeas hearing, the expert admitted that there were three prints and that Imbler could be excluded as the person wholeft one of the prints. (/d. at p. 566.) Thus, as _ in Richards’ case,petitioner presented a false evidence claim based,in part, on testimony provided by an expert which contradicted the testimony that expert had givenat trial. Imbler was not successful in pursuing this false evidence claim becauseit preceded the 1975 changein Penal Codesection 1473. This Court concludedthat the expert did not “intentionally give false testimony” and stated, “An honest error in expert opinion is not perjury even though further diligence and study might have revealed the error.” (Jn re Imbler, supra, 60 Cal.2d at p. 567.) While recognizing that negligence by an expert might, in some cases, deprive a petitioner ofa fair trial, that was not true in Imbler’s situation. 43 With regard to the new evidenceclaim, this Court cited the standard set out in In re Lindley (1947) 29 Cal.2d 709, 723, and found that the new evidence merely conflicted with the trial evidence and did not pointunerringly towards Imbler’s innocence. The new evidence consisted of a recant by the sole identifying eye witness andthe absence ofImbler’s fingerprints found on a razor in a coat that the perpetrator left at the scene. This court rejected the significanceofthe recanting witness because the referee who had conducted a hearing on the claims found the witnesses recant to be “impeached in so many ways asto defy lucid presentation.” (/d. at p. 569.) In Jn re Bell, supra, 42 Cal.4th at p. 637, this Court again expressly restated the separate standardsfor false evidence and actual innocence. The standard for false evidence requires proof that false evidence wasintroduced | against the petitioner at his trial and that such evidence was material and probative on the issue of his guilt. (/bid.) Quite differently, the standard for actual innocence or new evidence depends on an evidentiary showing that would underminethe entire prosecution case andpoint unerringly to innocence or reduced culpability. (/bid.) While the discovery of false testimony will almost always necessarily involve’ the discovery of new evidence, these constitute distinct grounds for habeas corpusrelief, and are subjectto different legal standards. (In re Pratt, supra, 112 Cal.App.3d 795, 866; In re Wright 44 (1978) 78 Cal.App.3d 788,802.) D. THE USE OF A DUAL STANDARD IS PARTICULARLY APPROPRIATE IN CASES WHERE DISCREDITED SCIENCE HAD LED TO A CONVICTION. Use of a dual standard is particularly appropriate in cases involving discredited science. As documented by the National Research Council study and research on the causes of wrongful convictions, we now knowthat “junk science” has played a role in the incarceration of innocent people. If these convictions could only be overturned under the new evidence standard, many innocentpeople would remain incarcerated because the new evidence standard places the burdenofproving innocenceonthe person whohad beenthe victim of the unfounded “scientific” evidence. This is a burden many victims of wrongful convictions simply cannot meet. A recent Texascase illustrates the problem. In Ex Parte Henderson (2007) 246 S.W.3d 690, a person was convicted of killing a child. The conviction was based on expert testimony indicating that the child’s injuries could not have been caused by a short fall, as described by the defendant. Specifically, the medical examiner “testified that it was ‘impossible’ for Brandon’s extensive brain injuries to have occurred in the way that [Henderson] stated.” (d. at p. 760.) The medical examinertestified that Henderson’s story was “false and ‘incredible’” and that the infant’s “injuries 45 had to have resulted from a blow intentionally struck by [Henderson].” (/bid.) That expert has now recanted his opinion. He now believesthat“afall ofa relatively short distance onto a hard surface can cause the degree of injury that [the victim] experienced.” (/d. at p. 692.) As a result the Texas court has issued a stay of execution and remandedthe casefor further proceedings. (/d. at p. 691.) IfHenderson had been convicted in California and was required to meet the new evidence standard, he would still be facing death. While the expert’s recanted testimony would undermine the basis of Henderson’s conviction, Henderson would lack affirmative evidence pointing unerringly towardshis innocence. However, under a false evidence test, Henderson would be entitled to habeasrelief. The difference between the tworesults is created by the fact that the new evidencetest does not restore the presumption of innocence. Instead it places the burden of proving innocence on the inmate challenging the conviction. A petitioner should not have that burden whenthe conviction was obtained by expert testimony that we now knowtobe false. If we take away the evidence which was used to convict, a petitioner should again have the benefit of the presumption of innocence. 46 E. CONCLUSION Richardsis not asking this Court to change existing precedent. Instead, he merely asks this Court to reaffirm that there are two distinct grounds for obtaining habeas relief: new evidence and false evidence. In addition, Richardsasksthis Court to declare that expert testimony, based on whatis later determined to be bad or invalid science, can be the basis for habeas relief underthe false evidence standard. If fairness dictates that a person in Henderson’s situation have the opportunity to undo his conviction whenthebasis ofthat conviction turns out to be junk science, Richards should be given the same opportunity. Mil 47 Il. THE FALSE EVIDENCE INTRODUCED AGAINST RICHARDS WAS MATERIAL AND PROBATIVE. ABSENT THAT FALSE EVIDENCE, RICHARDS WOULD NOT HAVE BEEN CONVICTED. THUS, THE SUPERIOR COURT BELOW CORRECTLY RULED THAT IT COULD NOT HAVE CONFIDENCE IN THE VERDICT. There can be little doubt that the false bitemark evidence — that Richards’ dentition was a match andthat his tooth abnormality was shared by only 2% of the population — was material and probative. Based onthe results ofthe first twotrials, we know that the bitemark evidence wascritical to the prosecution’s ability to convict Richards. Twojuries hearing the case without bitemark evidence were unable to convict Richards. The jury that convicted Richards heard both Dr. Sperber and Dr. Goldentestify that the injury on Pamela’s hand was a bitemark. In addition, the jury had been told by one of the country’s leading experts on bitemark evidence and by Richards’ own expert that the injury on Pamela’s hand could only have been inflicted by Richards and 2% of the population. During closing argument, the District Attorney madeit clear that the biter had an abnormaldentition and Richards had that exact abriormality. (8 Tr. R.T. 1809.) The District Attorney argued that it was unreasonable for the jury to believe that the killer “just happened to share the same dental 48 abnormality as William Richards, who[sic] is only shared by two percent of the population.” (8 Tr. R.T. 1932.) Thus,the effect of this false expert testimony was that Richards could notbe ruled out as the biter. This false expert testimony effectively rebutted the defense argumentthat Pamela waskilled bya third party. A. THE PROSECUTION’S CASE WAS A “HOUSE OF CARDS.” In orderto fully appreciate the importanceofthe bitemark evidence and understand why the court below concludedthat it could no longer have confidencein the verdict, this Court should recognize the nature ofthe proof against Richards. This was not a multiple eyewitness case where Richards merely underminedthe testimony of one eyewitness. Instead, the case was purely circumstantial and muchof the circumstantial evidence provided was not based on objectively verifiable facts. Instead, much ofthe circumstantial evidence presented consisted of the subjective feelings and beliefs of the prosecution witnesses. For example, at trial, the prosecution relied on Deputy Nourse’s “impression” that Richards’ recitation of events sounded “rehearsed.” (4 Tr. R.T. 627.) Yet Nourse had no training with regard to how a person would normally act or sound shortly after finding his wife brutally murdered. Nourse also concluded that Richards was lying when Richards stated that he found 49 Pamela “stone cold.” “Stone cold” is as mucha figure of speech asit is a description of temperature. Moreover, Nourse’s own determination that Pamela’s body was neither warm nor cold was made while he was wearing gloves. (4 Tr. R.T. 634.) At trial, the prosecution relied on testimony regarding lividity to conclude that Richards lied about the position of Pamela’s dead body. Yet lividity takes two hours to becomeobvious and ten hours to becomefixed. If Pamela had been killed less than two hours prior to Richards’ arrival and he movedher from face down to face up, the evidenceoflividity found by the coroner would have beentheresult ofRichards’ actions and not evidencethat he lied. Attrial, the prosecution relied on the blood spatter testimony of Gregonis. Yet, as noted earlier, that testimony was contradicted by Los Angeles County Criminalist Dean Gialamas. Moreover, blood spatter evidence is not a question of fact but one of subjective opinion: In general, the opinions of bloodstain pattern analysis are more subjective than scientific. In addition, many bloodstain pattern analysis cases are prosecution driven or defense driven, with targeted requests that lead to contextbias. The uncertainties associated with bloodstain pattern analysis are enormous. (NRC Study, supra, at p. 5-39.) 50 Similarly,at trial, the prosecutionrelied on alleged significant evidence of crime scene manipulation. However, the only “evidence” was the opinion of Gregonis, which itself was based on an undocumentedassertion regarding allegedly diluted blood that Gregonis did not bother to mention at any time priorto the thirdtrial. B. THE PERNICIOUS EFFECT OF STATISTICS. Courts have long recognized the perniciouseffect of falsestatistics on the fact finding process. In People v. Collins (1968) 68 Cal.2d 319, this Court reversed a conviction which had been based, in large part, on statistical evidence which hadnoscientific basis. In Collins, the prosecution attempted to bolster eyewitness identifications with statistical testimony about the likelihood of anotherpair of individuals with physical characteristics similar to the defendant’s being found at the scene. This Court reversed the conviction,in part, because there wasan inadequate evidentiary foundation for the probabilities used in the calculations: “First, as to the foundational requirement, we find the record devoid of any evidencerelating to any ofthe six individual probability factors used by the prosecutor .... The bare, inescapable fact is that the prosecution made no attempt to offer any such evidence.” (/d. at pp. 327-328.) In reaching this conclusion,this Court quoted from a New Mexicocase forthe proposition that “{m]athematical odds are not 51 admissible as evidenceto identify a defendant in a criminal proceeding so long as the odds are based on estimates, the validity of which have not been demonstrated.” (/d. at p. 328, quoting State v. Sneed (1966) 76 N.M.349.) This Court ultimately ruled that this “‘trial by mathematics’ so distorted the role of the jury and so disadvantaged counsel for the defense, as to constitute in itself a miscarriage ofjustice.” (d.at p. 332.) The prejudicialeffect of unfoundedstatistics was also recognized in Ege v. Yukins (6" Cir. 2007) 485 F.3d 364. In Ege, a forensic expert testified that the defendant’s dentition matched a bitemark found onthe victim and that there was a 3.5 million to one chance that someoneother than the defendant had made the mark. The district court ultimately concluded that the expert’s testimony was “unreliable and grossly misleading” and that the evidence was “so unfair that its admission violate[d] fundamental concepts ofjustice” and the Court of Appeals agreed. (/d. at p. 370.) Obviously, the statistics criticized in Collins and Ege were far more dramatic than the evidence introduced against Richards. However, because Richards was only convicted aftera third trial, which included Dr. Sperber’s unfounded scientific/mathematical evidence, the most reasonable inferenceis that this evidence had the sameeffect that it was found to have had in Collins and Ege. 52 In Ege, the Court ofAppeals also foundthat“[b]itemark evidence may by its very nature be overly prejudicial and unreliable.” (Ege, supra, 485 F.3d at p. 376.): Bitemark evidence is more persuasive on the ultimate issue of guilt than other analogous forms of evidence. For example, fingerprints tend to be circumstantial or associative;thatis, they rarely decide a case alone, but tend to link a defendant to the scene of the crime or an object involved in the crime. By contrast, bitemarks, in the ususal case, will be conclusive of the guilt issue: the logical distance between the fact of biting and the ultimate issue ofguilt is short. Thus, admissionofirrelevant bitemark evidence may be particularly prejudicial to the defendant. (Ud. at p. 377, fn.6, citing Hale, TheAdmissibility ofBitemarkEvidence (1978) 51S. Cal. L. Rev. 309, 326.) There can be no doubtthat false evidence (which here one might fairly categorize as junk science) was introducedat trial against Richards. The prosecution’s own witness has acknowledged he was wrongincitingstatistics and wrongin concluding that Richards was responsiblefor the bitemark found on Pamela’s hand. Significantly, at the habeas hearing, the People offered no contrary testimony. There can be no doubtthat the evidence was material. The unfoundedstatistical evidence provided by Dr. Sperber and Dr. Golden wasspecifically cited by the Court of Appealin its original opinion affirming Richards’ conviction and quoted in the Court ofAppeal opinion underreview. (See Court of Appeal opinion at pp. 13, 17.) 53 Given that the prosecution’s case against Richards was both circumstantial and subjective, and that the bitemark pillar has now been destroyed by Dr. Sperber’s recantation, by Dr. Bowers’ exclusion, and bythe NRCStudy which has debunkedall bitemark matching testimony as lacking scientific rigor, Richards has metthe standardset forth in Penal Code section 1473 and this Court should sustain the decision of the superior court below to grant the netition for writ ofhabeas corpus and overturn Richards’ conviction. Hil 54 It. THE NEW DNA AND BITEMARK EVIDENCE PRESENTED AT THE HEARING UNDERMINES THE PROSECUTION’S CASE AND POINTS UNERRINGLY TOWARDS RICHARDS’ INNOCENCE. A criminaljudgment maybecollaterally attacked on the basis ofnewly discovered evidence if such evidence casts a “fundamental doubt on the accuracy andreliability of the proceedings” and “undermine[s] the entire prosecution case and point[s] unerringly to innocenceor reduced culpability.” (In re Hardy, supra, 41 Cal.4th 977, 1016; In re Lawley (2008) 42 Cal.4th 1231; Inre Hall, supra, 30 Cal.3d 408, 417; Inre Weber (1974) 11 Cal.3d 703, 724.) However, it is not necessary that a petitioner refute every piece of evidence or every possible scenario in order to conclusively establish his innocence. (dn re Hall, supra, 30 Cal.3d at p. 423.) At the hearing, Richards presented new bitemark evidence and new DNAtest results. The new bitemark evidence excluded Richardsas the person responsible for the bitemark the prosecution used to convict Richards. The new DNAevidenceboth contradicted the prosecution’s claim that no oneelse was at the scene and demonstrated that Richards was not the person who wielded the murder weaponor struggled with the victim. The superior court below foundthatthis evidence underminedthe prosecution’s case and pointed unerringly toward innocence. That determination is supported by the record 55 and should bereinstated. A. THE NEW EVIDENCE A complete statement of the new evidence presented at the habeas hearing has been presented in the StatementofFacts and will not be repeated here. For this Court’s convenience, the following is a summary of that evidence. 1. Mitochondrial DNA from Hair Found under Pamela’s Fingernail Belonged to a Third Party, Thus Pointing Towards Richards’ Innocence. Mitochondrial DNA testing revealed that a hair, measuring two centimeters, from an unknownperson, was recovered from amongst blood and debris under one of the fingernails of Pamela’s right hand. In 2006, this hair did not match the DNAofeither Pamela or Richards. Dr.Patricia Zajac, a consulting criminalist, testified that in her expert opinion,the hair was likely lodged underthe nail during the crime. (2 R.T. 310.) Dr. Zajac provided four reasons for her conclusion:(1) the length of the hair was such that a person like Pamela would normally have noticed and removedit. (2 R.T. 310); (2) the crime scene was not a place where one would normally find lots of hairs (2 R.T. 311-12); (3) the hair was found under, and not just on the nail, so it would take some kind of action to lodge the hair in the place where it was found (2 R.T. 312); and (4) the nature of the crime, 56 coupled with the fact there had beena violent struggle, where the victim would have defendedherself, made it more likely the hair was deposited during the struggle. (2 R.T. 312-13.) At the evidentiary hearing, Gregonis himselfstated that he could not say whetherthe hair washistorical or not. (2 R.T. 409.) In fact, he admitted the hair’s location under the nail was relevant andthat it was morelikely that a woman working as a waitress would be more fastidious in her grooming and cleanliness. (2 R.T. 428-29.) 2. DNA Belonging to a Stranger Was Found on the Murder Weapon, ThusPointing to Richards’ Innocence. At trial, the prosecution, through the testimony of Gregonis and in argument, repeatedly took the position that a twelve-by-twelve-by-two-inch stepping stone found near Pamela was one of the weapons used to murder Pamela. Gregonis repeatedly referred to the stone as a weapon. (5 Tr. R.T. 975, 999, 1000, 1079.) Gregonis also concurred that the cinder block and stepping stone acted to shield from blood spatter when it was used to murder Pamela. (5 Tr. R.T. 1015.) In 1994, Gregonis identified three areas on the stepping stone, which he noted were the “most likely candidates for [the] suspect’s blood.” (2 R.T. 437-38; Exh. 56, p. 306.) As documentedin the StatementofFacts, in 2006, STR DNAtesting conclusively established that two of these three areas 57 contained a mixture of the victim’s DNA and male DNA.Significantly, the male DNA did not belong to Richards. Gregonis agreed that the ratios of Pamela’s DNA andthe unknown DNAwasconsistent with the theory that the unknown male DNA wasdeposited by the perpetrator. (2 R.T. 439.) Mostsignificantly, at the hearing, Gregonis acknowledged that DNA testing on the stepping stone revealed that DNA not belonging to Richards was found exactly where he predicted the killer’s DNA would be found. (2 R.T. 438.) 3. New Bitemark Evidence Points Towards Innocence. Dr. Michael Bowerscreated a corrected version ofthe photographthat had been usedat trial to secure Richard’s conviction. (2 R.T. 216, Exh. 22.) Dr. Bowerstestified that he performed various measurementsofthe bruise and of Richards’ dentition. From those measurements Bowers concluded the bruise was too small to have been made by Richards. (2 R.T. 218.) Dr. Bowers also testified to making Styrofoam impressions from the plaster mold of Richards’ teeth. (2 R.T. 224; Exh. 27.) Attrial, Dr. Sperber had testified that tooth 27 would not have made an impression. However, when Dr. Bowers usedthat the mold of Richards’ teeth to make impressions in the Styrofoam,tooth 27 left marks. (2 R.T. 225-26, 238; Exh’s. 29 and 39.) Dr. Bowerscreated pictures ofthe bruise with an overlay ofRichards’ 58 teeth. (2 R.T. 226-30.) Although there were some areas where there was a positive correlation between Richards’ teeth and the bruise, there were areas where there was a mismatch. (See, e.g., Exh. 36.) The mismatches indicate that Richards’ teeth were not responsible for the bruise. (2 R.T. 235.) Dr. Johansentestified that there were marks on Pamela’s hand which were outside the semi-circular dentition area ofRichards’teeth. (1 R.T. 143.) Thus, neither Richards’ upper or lower teeth could have caused the lesion relied upon bythe prosecution. B. THE NEW EVIDENCE UNDERMINES THE PROSECUTION’S CASE AND POINTS UNERRINGLY TO INNOCENCE. Asindicated, a criminal judgment maybecollaterally attacked on the basis of newly discovered evidence if such evidence casts a “fundamental doubt on the accuracy andreliability of the proceedings” and “undermine[s] the entire prosecution case and point[s] unerringly to innocence or reduced culpability.” (n re Hardy, supra, 41 Cal.4th at p. 1016.) Moreover, Richards need not refute every piece of evidence or every possible scenario in orderto conclusively establish his innocence. (Jn re Hall, supra, 30 Cal.3d at p. 423.) There can belittle doubt that Richards has metthefirst prong of the standard. This was not an eyewitness identification case in which the testimony of any one eyewitness could, independently, support a conviction. 59 Instead, the case against Richards depended on the combination of four circumstantial foundationalpillars: the bitemark, the claim that there was no evidence of another person present, the blue fiber, and the contested blood spatter evidence. Given how close this case was(i.e., that the twotrials withoutbitemark evidence endedwith hungjuries), new evidence undermining any one of these evidentiary pillars would result in the prosecution’s case collapsing like a house of cards. The new bitemark evidence excluding Richards undermined onepillar. The new DNAevidenceindicating another person wasat the scene undermined another pillar. Althoughnot technically part ofthe “new evidence,”the superior court below properly considered the photographic evidence whichsuggestedthatthe tuft of fibers were not lodged in Pamela’s finger nail prior to autopsy. Attrial, the prosecution relied on the fact that the fibers lodged in Pamela’s fingernail came fromthestruggle and that the fibers were similar to those in the shirt Richards was wearing. Although the court below foundthat Richards had failed to prove that Gregonis “presented perjured testimony or planted evidence,”it also stated that the evidence presented by Richards on that issue“raise[d] factual concerns” regarding those fibers. (2 R.T. 480.) As a result, another pillar from the prosecution’s case was undermined by the evidence presented at the hearing. 60 It is equally clear that the new evidence meets the second prongin that it “points” unerringly towards innocence. Logically, it is difficult, if not impossible, to prove a negative." Thusthe question is one of inferences rather than concrete proof. And, in considering whether Richards has met his burden, this Court, like the superior court below, should look at the combination ofthe new evidence as opposed to looking at any one piece by itself. In securing this conviction, the prosecutionsold thejury on thefact that the killer left a bitemark on Pamela, that Richards’ dentition matched that bitemark, and that Richards’ dentition wasstatistically rare. New evidence showsthat Richards was not responsible for the bitemark. Factually, the difference in probative value cannot be overstated. To quote Dr. Golden: “In one situation you’re saying Richards could have doneit. In anothersituation you’re saying Richards couldn’t have doneit.” (1 R.T. 110.) Moreover,as indicated, the scientific significance and probative powerof exclusions (as opposed to matches) has been supported by the same academicliterature that hascriticized the use ofstatistics in alleged matches. (See, e.g., NRC Study, supra, at p. 5-37 and Giannelli & Imwinkelried, Scientific Evidence, 4 Evenin the classic DNA exoneration in a rape case, the DNA evidence does not “prove” innocence. It merely underminesthe evidenceofguilt and thus “points” towards innocence. 61 “Bitemark and Dental Identification,” supra, p. 677.) In securing Richards’ conviction, the prosecution also arguedthat there was no evidence that anyoneelse was present at the scene. (1 Tr. R.T. 62-65, 81:2 Tr. R.T. 270, 274, 278; 4 Tr. R.T. 587; 7 Tr. R.T. 1669; 8 Tr. R.T. 1789, 1790, 1793, 1799, 1913-14, 1924, 1932.) The hair found under Pamela’s fingernail and the DNA on the murder weaponnotonly destroysthatpillar,it unerringly points to someoneelse as the murderer. With regardto the hair,its size,its location,the fact that Pamela worked as a waitress, and the fact that it was found after a violent struggle makesit extremely unlikely that this hair was historical. As Dr. Zajac testified, a hair this long would have been noticed by Pamela. She was a woman who obviously paid attention to her nails — they were painted. In addition, she was a waitress and waslikely notin the habit of serving food with dirty fingernails and whose hands weresubject to inspection. If so, the hair was present as a result of the struggle. The Court of Appeal never considered the combined effect of the evidence presented. Instead, it lookedat each piece of evidence,by itself, and concludedthat each wasinsufficient to support the petition. The Court ofAppeal dismissed the DNAhair evidence and Dr. Zajac’s testimony as merely “creat[ing] a conflict with the trial record.” (Opinion,p. 62 29.) But as noted, in Hall, this Court held new evidence may be supplemented by other evidence not presented at trial which assists in establishing innocence.” (In re Hall, supra, 30 Cal.3d at p. 420.) The superior courtjudge who heard Dr. Zajac’s testimony, obviously found her testimony to be both credible and probativesince it used the “hair analysis” as a basis for granting the writ. (2 R.T. 481.) With regard to the DNA on the stepping stone, the Court of Appeal noted the absenceof a chain of custody and suggested the possibility that the DNA evidence might have been the result of contamination from later handling. (Opinion, p. 30.) However, the prosecution’s expert (Gregonis) confirmedthat it would be more likely that any DNA found on the weapon would be the product of someoneholdingit firmly, during a violent struggle. The DNA wasalso found on the murder weapon in the location where the prosecution’s expert suggested it would be found. Significantly, Richards DNAwasnot found on the murder weapon. Most importantly, whatpetitioner argued, and whatwasrelied upon by the Superior Court, wasthe totality of the evidence: The Court has considered the evidence with respectto the bite mark and the DNA aswell as the hair evidence and the allegations with respect to Mr. Gregonis .. . I have not taken those portions of evidence individually, but J have taken them collectively in light of each of the witnessesthattestified. 63 The Court finds that the evidence with respect to the bite mark analysis and the DNA analysis and hair analysis has established, taken together, that there was a— that there did exist and does exist a fundamental doubt in my mind as to the accuracy and reliability of the evidence presentedat thetrial proceeding. Taking the evidenceasto the tuft fiber — and whenI say tuft, I’m talking aboutthe blue fiber underthe finger, — and the DNAandthe bite mark evidence, the Court finds that the entire prosecution case had been undermined, and that petitioner has established his burden ofproofto showthat the evidence before mepresents or points unerringly to innocence. Not only does the bite mark evidence appear to be questionable, it puts the petitioner as being excluded. And... theDNA evidenceestablishes that someoneotherthanpetitioner and the victim wasat the crimescene. (2 R.T. 480-81, emphasis added.) C. CONCLUSION Here, the prosecution’s case rested on circumstantial evidence including the absence of evidence of anyoneelse at the scene, coupled with a bitemark that matched Richards’ rare dentition. Richards presented evidence that he wasnot responsible for the bitemark attributed by the prosecution to Pamela’s killer. Richards also presented evidence of another person’s DNA onthe murder weapon and a hair from another person lodged under the victim’s fingernail, likely at the time of her death. The combination undermines the prosecution’s case and points unerringly towards innocence. Accordingly, Richardsis entitled to habeasrelief. 64 CONCLUSION Ashas been demonstrated, the court below recognized that Richards’ trial was fatally tainted by false evidence and that the new evidence he presented underminedthe basis of his conviction and pointed unerringly to someoneelse having brutally murdered Pamela Richards. It is time to end Richards’ nightmare and free him from this wrongful conviction. Weare confidentthat this Court will see that the facts, the law, andjustice require that the decision of the Superior Court below, which granted the petition for writ of habeas corpus,be reinstated. Respectfully sy6mitted, JAN STIGLITZ Attorney for Petitioner WILLIAM RICHARDS 65 WORD COUNTCERTIFICATION I hereby certify that the foregoing Petitioner’s Opening s Brief on the Merits contains 14,307 words, including footnotes, not including the coveror tables, as ascertained by the word count function of the computer program (WordPerfect) used to prepare the memorandum. I understand California Rules of Court rules 8.520(c)(1) limits an OpeningBriefon the Merits to 14,000 words,therefore I have simultaneously filed a request for permission to file a non-conforming brief, whichis to be consideredpriorto the filing ofthis brief. Dated: May 13, 2011 JAN stedrtz 66 PROOF OF SERVICE I declare as follows: Iamoverthe age of eighteen years, not a party to this action, my business address is 225 Cedar Street, San Diego, CA 92101. On the date shown below,I served Petitioner’s Opening Brief on the Merits in case No. $189275 to the following parties by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail as San Diego, California, addressed as follows: Court of Appeal Fourth Appellate District, Div. 2 3389 Twelfth Street Riverside, CA 92501 William Richards Booking No. 1003342912 West Valley Detention Center 9500 Etiwanda Avenue Rancho Cucamonga,California 91739 San Bernardino District Attorney’s Office 412 W.Hospitality Lane, ist Floor San Bernardino, CA 92415-0042 Gary W. Schons Senior Assistant Attorney General P.O. Box 85266 San Diego, CA 92186-85266 Howard C. Cohen Appellate Defenders, Inc. 555 West Beech Street, Ste. 3000 San Diego, CA 92101-2396 I declare underpenalty ofperjury the foregoing is true and correct. Executed this 13th day o May, 2011, at San Diego, California. J Jan Stigfitz : 67