People v. Prante

2021 IL App (5th) 200074

Opinion

2021 IL App (5th) 200074 NOTICE Decision filed 04/12/21. The text of this decision may be NO. 5-20-0074 changed or corrected prior to the filing of a Peti ion for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 82-CF-381 ) JOHN PRANTE, ) Honorable ) Neil T. Schroeder, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court, with opinion. Justices Moore and Wharton concurred in the judgment and opinion.

OPINION

¶1 The petitioner, John N. Prante, appeals from an order of the circuit court of Madison

County, denying him leave to file a successive petition for relief under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). The successive petition brought five

claims: (1) that new scientific evidence regarding memory science, and the invalidity and

unreliability of bite mark evidence demonstrates that he is actually innocent of the crime; (2) his

constitutional right to due process of law was violated at trial by the State’s use of faulty and since-

repudiated forensic science on bite mark comparisons; (3) ineffective assistance of counsel of trial

counsel, including for failing to challenge the admission of the State’s evidence regarding bite

marks and bite mark comparisons; (4) ineffective assistance of counsel of appellate counsel for

failing to raise trial counsel’s ineffectiveness; and (5) cumulative error. The circuit court denied

1 the motion for leave to file the successive postconviction petition. For the reasons that follow, we

reverse the judgment of the circuit court.

¶2 I. BACKGROUND

¶3 Following a three-week jury trial in June and July of 1983, the petitioner was convicted of

the June 21, 1978, murder of Karla Brown. The petitioner was sentenced to the Department of

Corrections for an extended term of 75 years. The facts of this case were set forth extensively in

the petitioner’s direct appeal. The evidence, as relevant to the case currently before us, is as

follows.

¶4 On June 20, 1978, Karla Brown and her boyfriend, Mark Fair, moved into a home they

recently purchased at 979 Acton Avenue, Wood River, Illinois. That evening, Fair and Brown,

with the assistance of several friends, moved some of their belongings into the home. Paul Main,

a friend of the petitioner, lived next door at 989 Acton Avenue. The petitioner and John Scroggins

were visiting Main while Brown and Fair moved in next door. Scroggins, who knew both Brown

and the petitioner, testified that he introduced Brown to the petitioner, who expressed a sexual

interest in Brown.

¶5 At 7:45 a.m. the following morning, June 21, 1978, Fair left for work, leaving Brown alone

in her new home. Brown spoke to Helen Fair, Fair’s mother, on the phone between 10 a.m. and 11

a.m. The conversation was interrupted when Brown said she would have to call Helen back

because “someone [was] at the door.”

¶6 At approximately 10:45 a.m., Edna Moses was driving her grandson, Eric Moses, to the

dentist, when she pulled into the driveway at Brown’s home to turn her vehicle around. Edna and

Eric saw a woman, matching the description of the victim, standing in the driveway talking to a

man. Eric testified the woman “sort of got mad at [the man].” Edna testified that as she was turning

2 around, the woman started to walk toward the house. At 11 a.m., a friend of Brown paid a visit to

the home. Brown’s van was at the house, but no one answered either the front or back door. Phone

calls made to Brown’s house between 11:45 a.m. and 2:30 p.m. went unanswered.

¶7 Around 4:30 p.m., Fair left work and drove to Tom Fiegenbaum’s house. The men used

Fiegenbaum’s truck to pick up additional items from Fair’s prior home to bring to the new house.

When they arrived at the Acton Avenue house, Fair used his key to enter the front door, while

Fiegenbaum backed his truck into the driveway. Fair went through the house to the back door,

which was unlocked, to help unload the truck. After the truck was unloaded, Fair invited

Fiegenbaum inside to show him the house. The men entered through the back door, and Fair led

Fiegenbaum into the basement. When Fair got to the foot of the stairs, he saw blood on the floor.

Fair then noticed that the room was in disarray and there was blood all over the couch. Fair glanced

into the laundry room and found Brown’s body. Brown was bent at the waist over the side of a

large metal lard can, with her head and shoulders submerged in water. Brown’s hands were tied

behind her back with a white extension cord from which the ends had been cut. Brown was nude

from the waist down but was wearing a winter sweater that had been buttoned at the top. Fair

pulled Brown’s stiffened body from the can and laid her on the floor while Fiegenbaum called the

police. Brown had large gashes on her forehead, chin, and nose. Two men’s socks, tied together,

were tied tightly around her neck. The area where the socks had been tied around her neck was

bruised.

¶8 Police arrived and secured the crime scene. Fair told police that the men’s socks had been

kept in a dresser drawer in the bedroom upstairs and the extension cord had been packed in a box

in the basement. The clothes that had been stored in the lard can had been dumped onto the floor

and a stand of television trays had been overturned. A couch in the basement was soaked with

3 blood, and blood was splattered on the basement floor. The bloodied couch cushion was saturated

with water. On the coffee table near the couch was a bloodstained tampon. A coffee pot from the

coffee maker in the kitchen upstairs, which police believed had been handled by the perpetrator,

was found in the rafters of the laundry room. The scene was processed for fingerprints. All of the

fingerprints recovered matched the victim, except for one, which was recovered from the coffee

pot. This print did not match the petitioner and has not been matched to anyone else.

¶9 Pathologist Dr. Harry Parks conducted an autopsy on June 22, 1978, and concluded that

Brown died from strangulation and that her facial injuries were caused by a blunt object. Dr. Parks

estimated the time of death as 11:45 a.m. but believed this time could vary by as much as two to

three hours.

¶ 10 Two witnesses testified that they saw the petitioner at Main’s home on the day of the

murder. Edna Vancil, who lived across the street from the residences of the victim and Main,

testified that the petitioner arrived at Main’s home between 9:30 and 10 a.m. on the day of the

murder. Vancil testified that the petitioner and Main sat on the front porch of Main’s home until

approximately 11 a.m., when the two men “disappeared.” Vancil stated that the men reappeared at

noon and sat on the front porch until 3 p.m., when the petitioner left in his vehicle. Charles Nonn,

a police officer for the City of Wood River, responded to the scene at about 6:20 p.m. Nonn

testified he had known the petitioner for several years and that he saw the petitioner and Main

standing in Main’s front yard when he arrived.

¶ 11 Three days after the murder, on June 24, 1978, Ralph Skinner, the chief of police for the

City of Wood River, interviewed the petitioner at his home. Skinner testified that the petitioner

indicated he was at Main’s house the evening before the murder while Brown and Fair moved in.

The petitioner stated that on the day of the murder he dropped off an application at the Shell Oil

4 Company in Roxana, Illinois, at approximately 8:15 a.m. The petitioner stated he arrived at Main’s

house at about 8:30 a.m. to see if Main would like to go to St. Louis to pick up employment

applications while the petitioner dropped some off. The petitioner stated that Main was busy

painting a neighbor’s house, so the petitioner dropped off the applications alone. Skinner testified

that the petitioner indicated he had “bummed around” afterward and was unsure of where he

stopped until he saw Main again at approximately 6 p.m. at Harold Pollard’s house. The petitioner

advised Skinner that he learned of the murder at that time, when Main told him that the girl next

door had been killed.

¶ 12 Two weeks after the murder, on July 5, 1978, Eldon McEuen, an officer for the Wood

River Police Department, interviewed the petitioner regarding the investigation. While reviewing

the reports, McEuen noticed a discrepancy between the information provided by Main and the

petitioner. McEuen testified that the petitioner reiterated that he had stopped at Main’s house after

dropping off his application at Shell Oil Company and then left to drop off additional applications

alone because Main was busy painting a home nearby. McEuen testified that he asked the petitioner

if he returned to Main’s house afterward, and the petitioner indicated “he wasn’t sure if he did or

didn’t.” McEuen testified that the petitioner was unable to account for some of his time and stated

the next thing he remembered was seeing Main at Harold Pollard’s home when Main advised him

about the murder.

¶ 13 In the summer of 1980, investigators sent photographs of the crime scene to Dr. Homer

Campbell of the University of New Mexico. Dr. Campbell indicated that he believed certain marks,

in the area of the victim’s right collarbone, were bite marks. Prior to this time, no one who had

examined the body or worked on the case had identified these marks as bite marks. In the spring

of 1982, the police sought the assistance of the Federal Bureau of Investigation to develop a

5 psychological profile of the perpetrator. As a result of this collaboration, the police decided to

exhume Brown’s body and sought to increase the media exposure regarding the crime. Articles

appeared in regional newspapers about the impending exhumation, the existence of bite marks on

the body, and technological advances in forensic science since the time of the murder.

¶ 14 On June 1, 1982, Brown’s body was exhumed. The following day, Dr. Mary Case

performed a second autopsy. Dr. Case opined that the cause of death was drowning based on crime

scene photos showing the presence of foam around the victim’s nose. Dr. Case believed the victim

had been sexually assaulted. Dr. Case testified that “bite marks” in the area of the right collarbone

had been inflicted at about the time of death because microscopic slides of that tissue showed fresh

hemorrhage in the subcutaneous tissue with no inflammation.

¶ 15 At trial, the State presented the testimony of several witnesses, suggesting the petitioner

knew certain details about the crime before they were publicized in the media. Harold Pollard

testified that the petitioner arrived at Pollard’s house around 6:30 or 7 p.m. on the day of the

murder. Pollard stated that the petitioner seemed agitated or anxious and asked Pollard for a

tranquilizer. The petitioner said that he had been at Main’s house most of the day, smoking pot

and drinking beer. The petitioner indicated that he had just left Main’s house and that the girl living

next door had been killed. Pollard testified that he asked the petitioner how he knew this, and the

petitioner stated that “he got a glimpse of the girl by looking over the policeman’s shoulder at the

crime scene.” Pollard testified the petitioner indicated “that the body was found curled up on the

floor with its hands tied behind its back.” Pollard testified that Main arrived at Pollard’s house a

short time later. Pollard stated that a day or two earlier, the petitioner had expressed sexual interest

in the “nice looking blond chick [that] had moved in next door.”

¶ 16 Vickie White testified that she had known the petitioner for about eight years. She stated

6 that not more than three days after the murder, she and her husband, Mark, were visiting the home

of Spencer and Roxanne Bond. The group was in the kitchen when the petitioner arrived and began

to discuss Brown’s murder. Mrs. White testified that the petitioner indicated he had known the

victim from college. Mrs. White also testified that the petitioner “had stated that she was murdered

and that her body was down in the basement, and she was in a curled up position, and she had teeth

marks on her body.” Mrs. White testified that when the petitioner made the comment about the

teeth marks, the petitioner “put his arm over his shoulder.” Mrs. White stated that the petitioner

indicated that he had been at Brown’s residence on the day of the murder, that he had spoken with

the victim, and that he “had to get his story straight with Paul Main.” Mrs. White testified that the

petitioner stated that Brown was “alright” when he left her house that day and that he was supposed

to go back to her house later that day. Mrs. White first reported the petitioner’s statements to the

police on June 1, 1982. Mrs. White testified that she did not appreciate the significance of this

conversation until she read the newspaper articles concerning the exhumation and the bite marks

on Brown’s body.

¶ 17 Mark White testified that within three days of the murder, the petitioner brought up the

subject of Brown’s murder while they were in the Bonds’ kitchen. Mr. White testified that the

petitioner stated he knew Brown, that he had been over to Brown’s house talking to her on the day

of the murder, and that he was supposed to return to her home that day. Mr. White testified the

petitioner stated that he was afraid that he was the last person to see Brown alive and that he

expected to be questioned by the police.

¶ 18 Roxanne Bond testified that she had known the petitioner for eight or nine years and that

the petitioner had been a good friend of the Bonds. Mrs. Bond testified that she did not hear much

of the conversation in her home on the evening in question because she was frequently outside

7 with her child. Mrs. Bond testified that she did hear the petitioner state that he “had to get his story

straight.”

¶ 19 Spencer Bond testified that he had known the petitioner for 9 or 10 years and that he usually

saw the petitioner once a day around the time of the murder. Mr. Bond testified that he first heard

about Brown’s murder from the petitioner on the Friday night following the murder. Mr. Bond

stated that he and the Whites were in the kitchen of his home when the petitioner arrived. Mr. Bond

testified that the petitioner stated he had been at Main’s house the day of the murder, and that he

had spoken to Brown at her house around 2 or 3 p.m. The petitioner indicated that he was supposed

to go back to Brown’s house that day because the petitioner might have a date with her. Mr. Bond

testified that the petitioner stated that the victim had been tied up and “was in a curled position

stuck in a pail of water down in the basement.” Mr. Bond testified that the petitioner stated that

the victim “had teeth marks on her shoulder where she had been bitten on her left shoulder,”

gesturing as he made the statement. Mr. Bond stated that the petitioner indicated that he had put in

a few work applications, and that he and Main had been getting drunk and high at Main’s house

that day. The petitioner indicated that he and Main “had to get their stories together as to what they

were doing that day” because they did not want to give conflicting statements to the police. Mr.

Bond testified that he did not realize the significance of the petitioner’s statements when they were

made and that he first told police about the statements on June 1, 1982, when the police came to

talk to him. Mr. Bond indicated he had not talked to Vickie or Mark White prior to his interview

with police.

¶ 20 On June 2, 1982, Mr. Bond participated in a wiretap of the petitioner conducted by police.

In the first taped conversation, the petitioner stated that he and Main were getting drunk and high

at Main’s home on the day of the murder and that they had seen the victim “putterin’ around

8 outside” that day. The petitioner stated that he did not even know that the murder had occurred

until he read about it in the newspaper a few days later.

¶ 21 On June 4, 1982, police officers went to the petitioner’s home to obtain his cooperation in

making dental impressions of his teeth. On the way to the dentist’s office, the petitioner initiated

a conversation with the officers. The petitioner stated that he was drinking wine on Main’s front

porch on the day of the murder and that he was there when the police arrived at Brown’s house.

The petitioner also asked the officers whether Spencer Bond was working with the police.

¶ 22 Later on June 4, 1982, Mr. Bond participated in a second wiretapped conversation with the

petitioner. During this conversation, the petitioner stated that he was at Main’s house from

approximately 10 or 11 a.m. until sometime between 4 and 7 p.m. on the day of the murder. The

petitioner stated that he was drinking wine and smoking pot on Main’s porch, and that he and Main

had left the house a few times to get more alcohol. The petitioner stated that he saw Fair arrive

home that day, as well as the police, the ambulance, and the coroner. In this conversation, the

petitioner denied ever being at the victim’s home but acknowledged that he may have spoken to

her in the driveway.

¶ 23 The State also presented the testimony of Susan Lutz, who had met the petitioner in 1980

or 1981 and had dated the petitioner for a while. Lutz testified that once, when they were in bed,

the petitioner “kind of whispered in my ear that he had killed a woman.” When Lutz questioned

the petitioner about it the next day, the petitioner stated he killed the woman because he was “mad”

but that he “can’t really talk about it because I’ll lose my freedom.” Lutz testified that the petitioner

had bitten her on the neck a couple of times.

¶ 24 On June 8, 1982, investigators took the dental impressions of the petitioner, Paul Main,

and another suspect named Joe Seitz to Dr. Lowell Levine in New York. Agent Randy Rushing

9 testified that Dr. Levine compared the dental impression with photographs of Brown’s body and

eliminated Seitz and Main as suspects. On June 8, 1982, the petitioner was arrested. The police

seized two white electrical cords with no male or female ends from the petitioner’s vehicle.

¶ 25 Dr. Campbell, an expert in forensic odontology and photographic enhancement, explained

that forensic odontology, as a science, involved the identification of deceased individuals through

dental records, injury assessments, and the analysis of bite mark injury patterns. Dr. Campbell was

a member of the American Academy of Forensic Sciences, the American Society of Forensic

Odontology, and the American Board of Forensic Odontology (the Board). The Board was created

in 1976 after the American Academy of Forensic Sciences was requested to sponsor a certification

program “to bring the standards [of forensic odontology] up to a par.” The Board was the certifying

body for forensic odontologists, which required new members to take an examination in order to

become certified. Dr. Campbell testified that a practitioner should have some knowledge about

each area of forensic odontology, but that it was not necessary for a practitioner “to be an expert

in each and every field” in order to become certified. Dr. Campbell testified that he was Board-

certified, indicating that he had been “grandfathered in.” Dr. Campbell explained that during the

Board’s first two years, all forensic odontologists that met certain threshold requirements—

including an unspecified number of years practicing, cases performed, and autopsies attended—

were automatically given Board certification in forensic dentistry.

¶ 26 Dr. Campbell testified that a bite mark examination requires the examiner to first determine

whether the injury in question was a human bite mark. Dr. Campbell testified that a human bite

mark is ovoid in shape and that frequently only the front six teeth will mark. A bite mark

comparison requires the examiner to compare the “class characteristics” and the “individual

characteristics” of the teeth to the mark. Class characteristics are “general characteristics” present

10 in everyone, such as the arch or curvature, general spacing between the teeth, and the general size

and shape of the teeth. For example, the central incisors or upper front teeth are usually wider, the

lateral incisors are narrower, and the eye teeth or canines are more pointed. The central and lateral

incisors on the lower jaw are generally the same size as each other, and there is an eye tooth or

canine on each side. Individual characteristics are fillings, breakage of teeth, the placement of the

teeth in the mouth, wear patterns, and angles.

¶ 27 Bite mark injuries are usually preserved photographically. Dr. Campbell indicated that it

would be ideal for the injury identification if it was photographed at a 90-degree angle, and with a

ruler or scale, so the examiner could establish a “true life size” image to use for comparison. Dr.

Campbell testified that the Board was working on developing standards but that there were

currently no published standards as to how bite mark evidence must be preserved in order to make

a comparison. Dr. Campbell also testified there was no published standard governing when an

evaluation could be rendered by an examiner. Dr. Campbell stated that the accepted standard in

the field of forensic odontology for making an evaluation was dependent on the individual case

and the knowledge and experience of the examiner.

¶ 28 In autopsy photographs of the victim, Dr. Campbell testified he saw two or three human

bite marks overlapping each other on the right side of the victim’s neck just above the collarbone.

Dr. Campbell stated that the photos were not taken to document the “bite mark” injuries, noting

that, in one photograph, the victim’s skin was wrinkled from its positioning and that, in another,

the victim’s chin was being “lifted.” Dr. Campbell acknowledged that in one of the “cropped” or

enlarged photographs, the alleged bite mark appeared to be a straight line instead of a curve, which

he explained was a result of the camera angle and the positioning of the body, both of which can

cause distortions of the injury in photographs.

11 ¶ 29 Dr. Campbell compared molds of teeth from three suspects—the petitioner, Paul Main, and

Joe Seitz—to the photographs of the victim’s injuries. Dr. Campbell testified that the mold of the

petitioner’s teeth showed he had a space between each of his six upper, front teeth, which Dr.

Campbell described as an “anomaly.” Dr. Campbell indicated that the cropped and enlarged

photograph, in which the “bite mark” was seen as a straight line, showed “a wide tooth, and a wide

tooth, and a more narrow tooth and a more narrow tooth with spacing in between the teeth.” Dr.

Campbell testified that, in his opinion, the petitioner’s teeth were consistent with the victim’s

injury based on the presence of spaces between the six front teeth. Dr. Campbell explained that

“consistent” means “those teeth could have made the bite mark, period.” Dr. Campbell testified

that there was nothing about the quality of the photographs of the injury that concerned him with

regard to formulating his opinion that the petitioner’s teeth were consistent with the injury.

¶ 30 During cross-examination, Dr. Campbell testified that “the technology or the methods for

examining bite marks ha[d] changed dramatically in the last 8 years.” Dr. Campbell testified that

skin was a “very excellent” medium for recording bite marks and that any doctor “that’s had much

experience with bite mark injuries consider[s] it to be an excellent reproducer of tooth

characteristics” capable of picking up “minute details.” Dr. Campbell testified that he would

“compare” dental impressions to fingerprints. When asked whether it was possible for more than

one set of teeth to make the same mark, Campbell answered that “[e]verybody’s dentition is

individual,” and asserted that, when individual characteristics are present, an examiner can

determine whether a specific person made the mark within a “very high degree” of dental certainty.

Dr. Campbell defined a “reasonable degree of dental certainty” as meaning “a very high degree of

probability that you would ever find another set of teeth that would make the same marks. I would

say it would be virtually impossible.”

12 ¶ 31 Dr. Lowell Levine, who was qualified as an expert in forensic dentistry, testified that he

was certified by the Board and was a fellow of the American Academy of Forensic Sciences. Dr.

Levine testified that to identify an injury for a bite mark, the examiner would look for class

characteristics such as whether the injury is an ovoid or semi-ovoid shape, the approximate size of

the injury, and whether there is “patterning *** that could be from the shape of teeth.”

¶ 32 Dr. Levine testified that the injury is typically photographed for comparison, and while

there were no published standards for the identification of bite marks or the procedures to be

followed, there were methods that were “generally accepted in the community.” Dr. Levine stated

that, ideally, the photographs of the injury will be taken at 90 degrees, or perpendicular to the arch,

and with a rule of measure in place. Dr. Levine testified that a scale of measurement could be

important because it can inform the examiner if the injury is “within the ballpark” of a human bite

mark. Dr. Levine testified that having a life size scale of the bite was not “quite as important” as

believed 8 to 10 years ago due to increased recognition of individual characteristics of a person’s

dentition and the skin’s ability to “capture and reflect unique and individual characteristics with

very good fidelity.” Dr. Levine explained that the “technology and expertise” of bite mark analysis

had changed dramatically over the last decade. Dr. Levine also testified that there were no

published standards for analyzing bite mark evidence or for offering an opinion as to “common

origin” and that an analysis was based only upon the training and expertise of the examiner. Dr.

Levine testified that different people could not leave identical bite marks.

¶ 33 Dr. Levine opined, to a reasonable degree of medical certainty, that there were two or three

overlapping bite marks visible in the autopsy photographs of the victim’s body. Dr. Levine

explained that a “reasonable medical certainty” means “a very, very high degree of probability.”

Dr. Levine testified that, in his opinion, to a reasonable degree of dental certainty, the petitioner

13 could have caused the bite mark injuries on Brown. Dr. Levine based his opinion on the spaces

between the patterns in the victim’s injury and the presence of spaces between the petitioner’s

upper front teeth. Dr. Levine testified that his ability to make a comparison was not hindered by

the fact that the photographs were not taken at a 90-degree angle.

¶ 34 The State also called Dr. Ronald Mullen, the petitioner’s dentist, to testify. Dr. Mullen had

been practicing as a dentist for 17 years and had treated approximately 6000 to 7000 patients. Dr.

Mullen testified that the petitioner’s upper teeth had spaces between them, a condition called

diastemata. Dr. Mullen testified that he has seen this particular type of spacing in less than one

percent of his patients, or less than 15 times over his career.

¶ 35 The petitioner called 17 witnesses at trial, including 3 experts to counter the State’s bite

mark experts. Dr. Donald Ore, a pediatric dentist who was qualified as an expert in photography,

testified that there was no published standard procedure for photographing injuries for the purpose

of making a bite mark comparison. Dr. Ore stated that the preferred standard among forensic

odontologists would be to photograph the injury at a right angle without stretching the skin in any

way, and with a millimeter scale present. Dr. Ore testified that two of the photographs in this case

showed “an extreme amount of enlargement,” the degree of which could not be determined due to

the absence of a scale in the photograph. Dr. Ore testified that enlarging a photograph to the point

that it “exceeds the limits of resolution of the film” can distort the image.

¶ 36 The petitioner also called Dr. Edward Pavlec, an orthodontist and Board-certified forensic

odontologist, qualified as an expert in forensic odontology. Dr. Pavlec testified that a committee

of the American Academy of Forensic Sciences has issued temporary guidelines on the standard

for processing bite mark evidence that were pending approval by the members. The American

Society of Forensic Odontologists had also not yet accepted the proposed guidelines, and Dr.

14 Pavlec acknowledged that a minority of examiners did not believe any written guidelines were

necessary. Dr. Pavlec also acknowledged that the current “standard” was the “expertise” of the

examiner.

¶ 37 Dr. Pavlec testified that proper preservation of bite mark evidence for comparison requires

the photograph of the injury to include a standard form of measuring to determine the exact size

of the wound. Dr. Pavlec expressed concern that the autopsy photographs were “dirty,” meaning

that the victim’s wounds had not been cleaned and it was unclear whether some of the marks on

Brown’s body were injuries or dried blood. Dr. Pavlec was also concerned that one of the “bite

marks” appeared as a straight line, which Dr. Pavlec testified could only occur if the tissue were

stretched and distorted. Dr. Pavlec testified that stretching the skin and enlarging the photograph

will make the spaces between the teeth looker larger. Dr. Pavlec described the autopsy photographs

as being “one step above useless” for comparison purposes. Due to the lack of quality of the

photographs, Dr. Pavlec found little evidence to substantiate a finding that the injury was a human

bite mark at all.

¶ 38 Dr. Pavlec testified that the photographs of Brown’s body showed a “bruise pattern” on the

neck that “could be a bite mark” but that these marks also could have been caused by other trauma,

such as through strangulation, or could have been left by jewelry or a heel. Dr. Pavlec testified

that, assuming the injury was a bite mark, both the petitioner’s teeth and Joe Seitz’s teeth could

have left the mark on Brown’s shoulder. Dr. Pavlec estimated that up to 10% of the adult

population had spaces between their teeth. Dr. Pavlec stated that a bite mark with spaces between

the teeth could also be made by a person without spaces between their teeth due to the position,

shape, and wearing of the person’s teeth.

15 ¶ 39 Dr. Norman Sperber, a dentist and Board-certified forensic odontologist, testified that he

was a member of the American Academy of Forensic Scientists, the American Society of Forensic

Odontology, and the Board. Dr. Sperber testified that forensic odontology was a forensic science,

defined as “the types of sciences that use measurements [and] either chemical or physical

constants,” and which included ballistics, fingerprints, handwriting, forensic psychiatry, and

forensic pathology.

¶ 40 Dr. Sperber was the chairman of the Board’s Bite Marks Standard Committee, which was

formed to determine the standards and guidelines to be applied in “proper[,] accurate scientific

bite mark analysis and comparison.” Dr. Sperber testified that the proposed guidelines have not

yet been accepted by the members but that they have been “accepted as working rules for years.”

Dr. Sperber stated that the proposed guidelines direct that “standard” and “scientific” procedures

be utilized in making comparisons. Dr. Sperber stated that the photograph of the bite mark should

be taken at a right angle to prevent distortion and should include rulers or scales to ensure the

photograph is in the same scale as the model of the suspect’s teeth.

¶ 41 Dr. Sperber testified that the autopsy photographs in this case were “dirty,” so it was

difficult to differentiate between bloodstains and injuries. Dr. Sperber testified that he was not sure

that any of the victim’s injuries were human bite marks and, if they were, the photographs were

not suitable to make a bite mark comparison. Dr. Sperber testified that the photographs of Brown’s

body provided no “usable information” for bite mark identification because the body is

bloodstained, the injuries are distorted by the camera angle, and they lack a rule of measurement.

¶ 42 Dr. Sperber rejected the proposition that the enlarged photograph showing a straight line

of marks was a bite mark, since “it’s just impossible because bite marks don’t come out square

and straight like that.” Dr. Sperber testified that a person could say some of the marks “resemble

16 bite marks” but that these marks could “resemble other things as well.” Dr. Sperber stated that he

would not make a determination that the marks on the victim’s body were human bite marks based

on the photographs.

¶ 43 The petitioner testified on his own behalf that he had “virtually no memory” of the day of

the murder “but things have come together in this last year.” The petitioner testified that on the

day of the murder, to the best of his knowledge, he went to Main’s home in the morning and then

left to drop off job applications at several companies. The petitioner testified that he returned to

Main’s house at “about ten to twelve or one” and that he “sat around” with Main on Main’s front

porch. The petitioner testified that he has “this feeling” that he was there all day. The petitioner

did not remember leaving the house but acknowledged that he or Main might have gone to the

store during the day. The petitioner testified that he and Main saw the victim in her yard, but he

denied speaking to her.

¶ 44 The petitioner stated that when the police arrived at Brown’s house, he went inside Main’s

house before leaving shortly thereafter. The petitioner testified that it “keeps feeling right to say”

he then went to Harold Pollard’s home. The petitioner stated that it “stuck” in his mind that Main

showed up at Pollard’s home and explained what was happening at Brown’s home. The petitioner

testified the next time he heard about Brown’s death was at Spencer Bond’s house a few days or a

week later.

¶ 45 The petitioner remembered talking to the police but said he had difficultly remembering

what occurred on the day of the murder because he was confused and had memory problems. The

petitioner denied biting Lutz or telling her that he ever killed anyone. The petitioner also denied

making the statements to Pollard on the day of the murder and the statements attributed to him at

17 the Bonds’ home several days after the murder. The petitioner testified that Scroggins lied about

introducing the petitioner to the victim the day before the murder.

¶ 46 After deliberation, the jury found the petitioner guilty of murder. The court sentenced the

petitioner to an extended term of 75 years.

¶ 47 The petitioner appealed, arguing, among other things, that the State’s expert testimony

concerning bite marks should not have been admitted because of “its exclusionary nature and its

improper conclusiveness of the guilt of the [petitioner].” This court affirmed, finding the issue was

waived. People v. Prante, 147 Ill. App. 3d 1039, 1062 (1986). Alternatively, citing People v.

Milone, 43 Ill. App. 3d 385 (1976), this court found that the record did not indicate that the trial

court abused its discretion “in allowing expert testimony concerning bite marks to aid comparison

between the wounds on the victim’s right shoulder and the dentition of the [petitioner], the weight

of such testimony being determined by the jury as trier of fact.” Prante, 147 Ill. App. 3d at 1062.

¶ 48 On May 14, 1993, the petitioner filed a motion seeking DNA analysis on blood evidence

from a couch cushion seized from the victim’s home. On May 18, 1993, the petitioner filed a

postconviction petition alleging substantial denials of his constitutional rights, including the right

to effective assistance of counsel. On July 15, 1993, the petitioner filed an amended postconviction

petition. The State filed a motion to dismiss, which the circuit court granted. This court affirmed

the circuit court’s dismissal of the petitioner. People v. Prante, 275 Ill. App. 3d 1153 (1995) (table)

(unpublished order under Illinois Supreme Court Rule 23). On January 30, 2002, the petitioner

filed a petition for relief from judgment pursuant to section 2-1401(f) of the Code of Civil

Procedure (735 ILCS 5/2-1401(f) (West 2002)), asserting that his sentence violated Apprendi v.

New Jersey, 530 U.S. 466 (2000). The State filed a motion to dismiss, which the circuit court

granted.

18 ¶ 49 On January 3, 2017, the petitioner filed a motion for postconviction DNA and fingerprint

testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3

(West 2016)), requesting DNA testing on several pieces of physical evidence from the victim’s

home and latent print testing to try to identify the unidentified fingerprint on the coffee pot. The

State did not oppose the motion, and the circuit court entered agreed orders for the testing. The

State was unable to locate Brown’s rape kit, so this evidence was not tested. No interpretable DNA

profiles were obtained from the testing on the remaining evidence. Fingerprint testing revealed

usable prints from the coffee pot, but no new matches were made.

¶ 50 On October 15, 2018, the petitioner filed his motion for leave to file a successive

postconviction petition, which is the subject of the current appeal before this court. The petitioner

has raised five claims in his successive petition. The petitioner’s primary contentions are that new

scientific evidence regarding memory science and the invalidity and unreliability of bite mark

evidence support his claims that he is actually innocent of the crime. Alternatively, the petitioner

contends that his constitutional right to due process of law was violated at trial by the State’s use

of faulty and since-repudiated forensic science on bite mark comparisons. The petitioner also

argues ineffective assistance of counsel for failing to raise or preserve issues related to the bite

mark evidence, and cumulative error.

¶ 51 In support, the petitioner attached affidavits and other documents suggesting that the

current scientific community recognizes a lack of consensus on whether forensic dentists have the

ability to reliably identify injuries as human bite marks or to associate those bite marks with an

individual. The petitioner attached two affidavits of Dr. Iain Pretty, a dental surgeon and forensic

dentist. Dr. Pretty stated that recent research has shown that there is no scientific basis for stating

that a particular injury can be associated with an individual’s dentition, or for assigning a

19 probability or statistical weight to an association. Dr. Pretty detailed a study, which demonstrated

that Board-certified forensic dentists did not consistently agree on whether an injury was a human

bite mark. Dr. Pretty averred that there were no studies, empirical experiments, or systematic

reviews providing any objective metrics or assurances that the process of comparing injuries

caused by teeth on human skin to molds of a suspect’s dentition was reliable. Dr. Pretty stated that

“bitemark analysis of any kind” was inherently unreliable and that poor quality evidence, like that

presented in this case, “further undermine[d] what is a fundamentally unreliable and unsafe

forensic technique.”

¶ 52 The petitioner’s documentation also included reports from the National Academy of

Sciences, the Texas Forensic Science Commission, and the President’s Council of Advisors on

Science and Technology, indicating each of these organizations has examined bite mark evidence

and found the evidence lacked a scientific basis. The National Academy of Science’s 2009 report,

Strengthening Forensic Science in the United States: A Path Forward (NAS report), concluded

that there was no scientific basis to support the proposition that a forensic odontologist, looking at

a bite mark in human skin, could associate that mark to a potential biter. The NAS noted that the

Board had approved guidelines for bite mark analysis but found that the guidelines did not indicate

the criteria necessary for using each method to determine whether the bite mark could be related

to an individual’s dentition and with what degree of probability. The report concluded “[t]here is

no science on the reproducibility of the different methods of analysis that lead to conclusions about

the probability of a match.” The NAS reported that even when the Board’s guidelines were

followed, different experts provided widely differing findings and resulted in “a high percentage

of false positive matches of bite marks using controlled comparison studies.” The NAS found that

no thorough study had been conducted to establish the uniqueness of bite marks and there was no

20 established science indicating what percentage of the population could have produced the bite. The

NAS report found there were disputes about (1) the accuracy of human skin as a reliable

registration material for bite marks, (2) the uniqueness of the human dentition, (3) the techniques

used for analysis, and (4) the role of examiner bias. Despite the Board’s development of guidelines,

the NAS found “there is still no general agreement among practicing forensic odontologists about

national or international standards for comparison.” The report found that “[a]lthough a majority

of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive

identification, no scientific studies support this assessment, and no large population studies have

been conducted.”

¶ 53 The petitioner included the April 2016 report issued by the Texas Forensic Science

Commission (TFSC) on forensic bite mark comparisons. The TFSC found that there was no

scientific basis for stating that a particular patterned injury could be associated to an individual’s

dentition and that any testimony describing human dentition “like a fingerprint” lacked scientific

support. The TFSC stated there was no scientific basis for assigning a probability or statistical

weight to an association. The TFSC concluded that the “overwhelming majority of existing

research does not support the contention that bitemark comparison can be performed reliably or

accurately from examiner to examiner due to the subjective nature of the analysis.” This conclusion

was based, in part, upon the inability of Board-certified forensic odontologists to agree on the

threshold question of whether a patterned injury constituted a human bite mark. Some of the

deficiencies found by the TFSC included that (1) there was significant disagreement among Board

members about how to establish criteria for the identification of bite marks and how to test that

criteria through research studies, (2) there was no system for outside auditing, (3) there was no

21 systemic requirement for peer review or technical review, (4) there was no consistency in the way

analytical results were reported, and (5) there was no meaningful proficiency testing system.

¶ 54 The petitioner also included the 2016 report issued by the President’s Council of Advisors

on Science and Technology (PCAST), titled Forensic Science in Criminal Courts: Ensuring

Scientific Validity of Feature-Comparison Methods. The PCAST report concluded

“that bitemark analysis does not meet the scientific standards for foundational validity, and

is far from meeting such standards. To the contrary, available scientific evidence strongly

suggest that examiners cannot consistently agree on whether an injury is a human bitemark

and cannot identify the source of bitemark with reasonable accuracy.”

The report found that few empirical studies had been undertaken to determine the ability of

examiners to accurately identify the source of a bite mark and that, in those studies which have

been undertaken, “the observed false positive rates were so high that the method is clearly

scientifically unreliable at present.”

¶ 55 The circuit court denied the petitioner’s motion for leave to file the successive

postconviction petition on all grounds. With regard to the petitioner’s actual innocence claims, the

court found the new evidence regarding bite mark analysis was not of such a conclusive nature

that it would probably change the result on retrial. The court also concluded that the petitioner’s

alleged “new evidence” regarding advances in memory science was not new and was cumulative

of evidence and arguments already presented at trial. The court rejected the petitioner’s due process

claim, finding that recent developments in the field of bite mark analysis may constitute cause but

that the petitioner was not prejudiced. The court found no prejudice because there was “a great

deal of circumstantial evidence” other than the bite mark evidence that placed the petitioner at or

near the crime scene, including the petitioner’s own incriminating statements, and the jury may

22 have disregarded the bite mark comparisons in light of the competing expert bite mark testimony.

This appeal follows.

¶ 56 II. ANALYSIS

¶ 57 The Act provides a statutory remedy to criminal defendants who claim a substantial

violation of their constitutional rights occurred at trial. People v. Edwards, 2012 IL 111711, ¶ 21.

The Act is not a substitute for an appeal, but instead offers a mechanism to assert a collateral attack

on a final judgment. People v. Robinson, 2020 IL 123849, ¶ 42. Where a petitioner has previously

taken an appeal from a judgment of conviction, the doctrine of res judicata bars the postconviction

review of all issues decided by the reviewing court and any other claims that could have been

presented to the reviewing court are deemed waived. Edwards, 2012 IL 111711, ¶ 21.

¶ 58 The Act only contemplates one postconviction proceeding. Robinson, 2020 IL 123849,

¶ 42. The bar against successive postconviction proceedings will be relaxed on two bases.

Robinson, 2020 IL 123849, ¶ 42. The first is where the petitioner can establish cause and prejudice

for the failure to assert a claim in an earlier proceeding. 725 ILCS 5/122-1(f) (West 2016);

Robinson, 2020 IL 123849, ¶ 42. The second basis is when the petitioner can establish a

fundamental miscarriage of justice based on actual innocence. Robinson, 2020 IL 123849, ¶ 42. A

petitioner must obtain leave of court before instituting a successive postconviction proceeding.

Robinson, 2020 IL 123849, ¶ 43.

¶ 59 A request for leave to file a successive postconviction petition should be denied only where

it is clear from a review of the petition and supporting documentation that the claims fail as a

matter of law or where the petition and supporting documentation are insufficient to justify further

proceedings. People v. Smith, 2014 IL 115946, ¶ 35. At the pleading stage, all well-pled allegations

in the petition and supporting affidavits that are not positively refuted by the record must be taken

23 as true. Robinson, 2020 IL 123849, ¶ 45. On appeal, this court reviews the sufficiency of the

allegations in the postconviction petition, which is purely a legal question. Robinson, 2020 IL

123849, ¶ 39. Therefore, the circuit court’s denial of a motion for leave to file a successive

postconviction petition is subject to de novo review. Robinson, 2020 IL 123849, ¶ 39.

¶ 60 A. Cause and Prejudice

¶ 61 On appeal, the petitioner argues that the circuit court erred in denying him leave to file his

successive postconviction petition because he established a prima facie claim of cause and

prejudice based on new scientific evidence demonstrating the invalidity and unreliability of the

bite mark evidence used by the State to obtain his conviction. Under the cause and prejudice

prongs, the petitioner must establish “cause” by demonstrating that some objective factor external

to his defense impeded his ability to raise the claim in an earlier proceeding. People v.

Pitsonbarger, 205 Ill. 2d 444, 460 (2002). To establish “prejudice,” the petitioner must

demonstrate that the claimed constitutional error so infected his trial that the resulting conviction

violated due process. Pitsonbarger, 205 Ill. 2d at 464. The petitioner must make a prima facie

showing of both cause and prejudice as to the asserted claim or claims. People v. Bailey, 2017 IL

121450, ¶ 24.

¶ 62 The petitioner contends that his constitutional right to due process of law was violated by

the State’s use of faulty and unreliable bite mark evidence to obtain his conviction. At trial, the

jury heard extensive competing expert testimony regarding the nature of the marks on the victim’s

right shoulder. The State’s experts testified that these injuries were human bite marks and that they

were consistent with the petitioner’s dentition. The State’s experts testified that every person’s

dentition is unique enough that it is possible, assuming a clear enough mark, to positively identify

a specific individual as the “biter.” The State also presented evidence that the spacing of the

24 petitioner’s teeth, the individual characteristic used by the experts to conclude that the petitioner’s

teeth were consistent with the marks on the victim’s body, was found in as little as one percent of

the population. At trial, the petitioner presented expert testimony that the quality of the

photographs of the victim’s injuries was too poor to make a determination whether the injuries

were human bite marks.

¶ 63 On appeal, the petitioner argues that there has been a significant change within the

scientific community with regard to bite mark evidence since his trial in 1983. The petitioner

argues that while he was able to present some criticisms of the State’s bite mark evidence through

his own experts’ testimony at trial, new evidence demonstrates that the scientific bases of bite

mark analysis has been repudiated, such that the identification of injuries as bite marks and the

identification of a perpetrator of a bite mark has been rejected by the scientific community. The

petitioner asserts that bite mark analysis is no longer generally accepted in the scientific

community and the evidence could not meet the Frye v. United States, 293 F. 1013 (D.C. Cir.

1923), standard for admissibility. In response, the State asserts that bite mark evidence is still

admissible in Illinois, citing Milone, 43 Ill. App. 3d at 398, and People v. Shaw, 278 Ill. App. 3d

939, 948 (1996).

¶ 64 While the parties spar on the question of the admissibility of bite mark evidence in Illinois,

they do so in very general terms. Neither party presents any substantive analysis on the current

state of the law in Illinois regarding the admissibility of bite mark evidence, specifically, whether

bite mark evidence is “scientific evidence” that is subject to the dictates of Frye.

¶ 65 “Illinois law is unequivocal: the exclusive test for the admission of expert testimony is

governed by the standard first expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).”

Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002), overruled on other

25 grounds by In re Commitment of Simons, 213 Ill. 2d 523, 530-32 (2004) (adopting a dual standard

of review for Frye rulings). The Frye standard, also known as the “general acceptance” test,

“dictates that scientific evidence is only admissible at trial if the methodology or scientific

principle upon which the opinion is based is ‘sufficiently established to have gained general

acceptance in the particular field in which it belongs.’ ” Donaldson, 199 Ill. 2d at 77 (quoting Frye,

293 F. at 1014).

¶ 66 “General acceptance” does not apply to the expert’s ultimate conclusion, but upon the

underlying methodology used to generate the conclusion. Donaldson, 199 Ill. 2d at 77. “If the

underlying method used to generate an expert’s opinion [is] reasonably relied upon by the experts

in the field, the fact finder may consider the opinion—despite the novelty of the conclusion

rendered by the expert.” Donaldson, 199 Ill. 2d at 77. “General acceptance” does not require

universal acceptance of the methodology. In re Commitment of Simons, 213 Ill. 2d at 530. While

general acceptance does not require that the methodology be accepted by unanimity, consensus,

or even a majority of the experts, a technique cannot be “experimental or of dubious validity.”

Donaldson, 199 Ill. 2d at 78.

¶ 67 Under Frye, the trial court need not make a separate inquiry into the reliability of the

methodology. Donaldson, 199 Ill. 2d at 81. The reliability of a methodology is naturally subsumed

by the inquiry into whether the methodology is generally accepted in the scientific community

because “a principle or technique is not generally accepted in the scientific community if it is by

nature unreliable.” Donaldson, 199 Ill. 2d at 81. “Questions concerning underlying data, and an

expert’s application of generally accepted techniques, go to the weight of the evidence, rather than

its admissibility.” (Emphasis in original.) Donaldson, 199 Ill. 2d at 81. “Trial judges decide the

26 general acceptance of the technique; a jury decides whether it will accept the expert’s conclusion

which is based on the technique.” Donaldson, 199 Ill. 2d at 82.

¶ 68 The Frye test applies only to a new or novel scientific methodology, which is described as

one that is “ ‘original or striking’ ” or “does ‘not resembl[e] something formerly known or used.’ ”

Donaldson, 199 Ill. 2d at 78-79 (quoting Webster’s Third New International Dictionary 1546

(1993)). “Once a principle, technique, or test has gained general acceptance in the particular

scientific community, its general acceptance is presumed in subsequent litigation; the principle,

technique, or test is established as a matter of law.” Donaldson, 199 Ill. 2d at 79. The presumption

of general acceptance in subsequent litigation, however, can be problematic. The courts have

cautioned that “relying exclusively upon prior judicial decisions to establish general scientific

acceptance can be a ‘hollow ritual’ if the underlying issue of scientific acceptance has not been

adequately litigated.” (Internal quotation marks omitted.) Donaldson, 199 Ill. 2d at 84 (quoting

People v. Basler, 193 Ill. 2d 545, 554 (2000)). In determining whether a Frye hearing is required

and whether a scientific technique is generally accepted in the relevant scientific community, a

reviewing court may rely upon appropriate sources outside of the record, including legal and

scientific articles and opinions from other jurisdictions. In re Commitment of Simons, 213 Ill. 2d

at 530-31.

¶ 69 Not all expert testimony, however, is subject to a Frye analysis. The dictates of Frye only

apply to scientific evidence. People v. McKown, 226 Ill. 2d 245, 254 (2007). The line separating

scientific and nonscientific evidence is not always clear. People v. Coleman, 2014 IL App (5th)

110274, ¶ 114. Whether a particular piece of evidence falls within the classification of “scientific”

is an issue frequently litigated. See McKown, 226 Ill. 2d at 255 (discussing the split among

jurisdictions on the question of whether horizontal gaze nystagmus testing is scientific); In re

27 Commitment of Simons, 213 Ill. 2d at 533-35 (discussing the split among the jurisdictions on

whether Frye is applicable to actuarial risk assessments); In re Detention of New, 2013 IL App

(1st) 111556, ¶¶ 47-59 (analyzing whether the diagnosis of a novel mental disorder is subject to

the general acceptance test under Frye); Coleman, 2014 IL App (5th) 110274, ¶¶ 111, 114 (finding

testimony from an “expert linguist” on the issue of authorship attribution was not scientific

evidence subject to Frye because the opinion was derived solely from the expert’s observations

and experiences). Scientific evidence “is the product of scientific tests or studies.” McKown, 226

Ill. 2d at 254. Illinois courts require scientific evidence to meet the Frye standard because evidence

labeled as “scientific” “carries a greater weight in the eyes of the jury, which may accord it undue

significance because ‘science’ is equated with truth.” McKown, 226 Ill. 2d at 254.

¶ 70 In support of its assertion that bite mark evidence is admissible in Illinois, the State cites

Milone, 43 Ill. App. 3d at 398, and Shaw, 278 Ill. App. 3d at 948. Milone, 43 Ill. App. 3d 385, is

the seminal case on the admission of bite mark evidence in Illinois. It is also the first reported case

in Illinois to discuss the issues raised in Frye, 293 F. 1013. Milone involved a murder in which the

victim was found with bite marks on her thigh. The trial court admitted the bite mark evidence

offered by the State, which included three expert witnesses who asserted that the defendant was

“without a doubt the perpetrator of the bite on the victim’s thigh.” Milone, 43 Ill. App. 3d at 392.

The defendant presented four competing expert witnesses who concluded that there was no

positive correlation between the defendant’s dentition and the bite mark on the victim. 1 Milone,

43 Ill. App. 3d at 392. On appeal, the defendant contended that the State should have been

1 Milone maintained his innocence even after his release from prison. See Milone v. Camp, 22 F.3d 693, 700 (7th Cir. 1994). In support of his federal habeas petition, Milone alleged that the mark on the victim’s thigh was shown to match the dentition of a known serial killer, Richard Macek. Milone, 22 F.3d at 700-01. Milone also alleged that Macek confessed to the murder before committing suicide in 1987, although the parties disputed on whether Macek later recanted his confession. Milone, 22 F.3d at 701. 28 precluded from introducing evidence identifying him as the perpetrator of the bite mark. Milone,

43 Ill. App. 3d at 394. The defendant argued that bite mark identification should not be admissible

because, as a science, it had not gained general acceptance in the particular field in which it

belonged, as required by Frye. Milone, 43 Ill. App. 3d at 394. The defendant also argued that the

bite mark identification evidence failed to meet the “prior reliability” test utilized by the Illinois

Supreme Court 65 years earlier in People v. Jennings, 252 Ill. 534 (1911), in holding that

fingerprint identification testimony was admissible. Milone, 43 Ill. App. 3d at 394. In affirming

the trial court’s admission of the evidence, the court discussed several decisions from other

jurisdictions and ultimately rejected Frye’s application to bite mark evidence because it required

only the direct observation of physical characteristics, as opposed to the “interpretation of

mechanical measurements.” Milone, 43 Ill. App. 3d at 396-98. The court found that:

“[b]ite-mark comparison *** involves only a visual comparison between the wound and

the dentition of the defendant. *** For this reason, the testimony of the experts serves only

to lend assistance to the trial court in interpreting physical evidence not within the ken of

the average trial judge’s knowledge. There is no intermediate mechanical stage in which

reliability may be questioned. Such evidence is more analogous to footprint, fingerprint,

and hair, comparisons which are made for purposes of identification.” Milone, 43 Ill. App.

3d at 396.

¶ 71 The court also noted that evidence regarding the identification of a deceased person from

dental records was admissible in Illinois. Milone, 43 Ill. App. 3d at 396-97. The court found that

the “concept of identifying a suspect by matching his dentition to a bite mark found at the scene

of a crime is a logical extension of the accepted principle that each person’s dentition is unique.”

Milone, 43 Ill. App. 3d at 397.

29 ¶ 72 In the years following Milone, 43 Ill. App. 3d 385, the decision was cited as support for

the admissibility of bite mark evidence, as well as other scientific evidence deemed only to involve

a “visual comparison.” As already noted, in the petitioner’s direct appeal, this court cited Milone,

43 Ill. App. 3d 385, to summarily dispose of the petitioner’s contention that the State’s bite mark

evidence should not have been admitted at trial. Prante, 147 Ill. App. 3d at 1062. Ten years later,

in Shaw, 278 Ill. App. 3d at 948, Milone was cited for the proposition that expert testimony

concerning bite mark identification was admissible in Illinois based on the “unique quality of an

individual’s dentition.”

¶ 73 In People v. Columbo, 118 Ill. App. 3d 882, 956 (1983), the defendant appealed the trial

court’s admission of testimony from a forensic anthropologist regarding handprint measurements

as a means of identification. The appellate court affirmed the trial court’s determination, finding

the examination and comparison of the handprints was beyond the realm of common experience

and was a proper subject for expert testimony. Columbo, 118 Ill. App. 3d at 956-57. The appellate

court rejected the argument that Frye applied to “all scientific evidence,” finding that Jennings,

252 Ill. 534, suggested that Illinois courts “adhered to [a] more liberal ‘reliability test’ ” regarding

the admission of scientific evidence. Columbo, 118 Ill. App. 3d at 957-60. Citing Milone, 43 Ill.

App. 3d 385, the court held that the handprint comparison evidence was admissible because it

involved only a “visual comparison” and “expert testimony regarding the results of a scientific

process in which there are no intermediate mechanical stages is admissible once a competent expert

testifies that the scientific process in question is reliable.” Columbo, 118 Ill. App. 3d at 960.

¶ 74 Further developments in the law, however, have eroded Milone’s holding that Frye is only

applicable when the scientific evidence in question involves an “intermediate mechanical stage.”

See Milone, 43 Ill. App. 3d at 396. Although Milone has not been explicitly abrogated, at least one

30 other court has recognized the fallacy of its holding. In People v. Ferguson, 172 Ill. App. 3d 1, 8-

10 (1988), the trial court allowed the State to admit expert testimony on the identification of the

suspect based on comparing “shoe wear patterns” on the theory that “wear patterns” are unique

and can be used to identify the person who wore a shoe. The Ferguson court observed that some

Illinois cases, including Milone, did not apply the Frye test to determine the admissibility of

scientific opinions because the courts “distinguished between scientific processes using an

intermediate mechanical stage in which reliability may be questioned from those using only visual

analysis such as footprint, fingerprint, and hair comparisons.” Ferguson, 172 Ill. App. 3d at 10

(citing Milone, 43 Ill. App. 3d at 396, and Columbo, 118 Ill. App. 3d at 960). The Ferguson court

rejected the lower standard applied in those cases, even though the instant case was also a visual

analysis, and found that the expert’s “theory” that shoe wear patterns were unique was inadmissible

under Frye because it was not generally accepted in the scientific community. Ferguson, 172 Ill.

App. 3d at 10-12.

¶ 75 Some jurisdictions have held that bite mark analysis is not scientific evidence that must

meet the Frye requirements for admission. See Handley v. State, 515 So. 2d 121, 129-32 (Ala.

Crim. App. 1987) (finding Frye inapplicable when the expert evidence is in the nature of physical

comparisons as opposed to scientific tests or experiments); Commonwealth v. Cifizzari, 492

N.E.2d 357, 362-64 (Mass. 1986) (finding Frye did not apply to bite mark evidence because the

testimony merely aided the jury in making a visual comparison). Other jurisdictions have

concluded that bite mark evidence is subject to Frye. See People v. Marsh, 441 N.W.2d 33, 35-36

(Mich. Ct. App. 1989) (bite mark evidence was admissible without conducting a Frye hearing

because the scientific procedures used—such as X-rays, impressions, and photographs—were not

novel); State v. Hodgson, 512 N.W.2d 95, 98 (Minn. 1994) (scientific bite mark analysis by a

31 recognized expert is not novel under Frye); State v. Sager, 600 S.W.2d 541, 560-73 (Mo. Ct. App.

1980) (bite mark evidence was admissible under Frye); see also People v. Middleton, 429 N.E.2d

100, 103-04 (N.Y. 1981) (bite mark evidence is generally accepted as reliable because the

techniques employed in rendering the opinion—such as photography, making dental molds, and

visual observation—are accepted by majority of experts in the field).

¶ 76 We agree with the court’s holding in Ferguson and reject Milone’s limited application of

Frye. Today, in determining whether Frye applies, courts examine whether the expert’s testimony

is the “product of scientific tests or studies.” See McKown, 226 Ill. 2d at 254. There is no

requirement that the scientific methodology employed by the expert involve an “intermediate

mechanical stage” for Frye to apply. We find that bite mark evidence is “scientific evidence”

within the meaning of Frye because it purports to employ a scientific process requiring

examination and analysis by an expert trained in interpreting the evidence.

¶ 77 Although bite mark evidence has been admitted into evidence in Illinois for more than 50

years, our survey of the law indicates that Illinois courts have never subjected bite mark evidence

to the rigors of Frye. Instead, Milone, the first published opinion in Illinois to even discuss Frye,

erroneously dismissed its application, which succeeding courts then relied upon when addressing

the issue.

¶ 78 As already noted, under the cause and prejudice prongs, the petitioner must establish

“cause” by demonstrating that some objective factor external to his defense impeded his ability to

raise the claim in an earlier proceeding. Pitsonbarger, 205 Ill. 2d at 460. In this case, the defense

did not challenge the admissibility of the State’s expert testimony on bite marks at trial. The

petitioner raised the issue on direct appeal, which this court found was waived and, alternatively,

not error. Prante, 147 Ill. App. 3d at 1062. Thus, the petitioner’s claim is barred by res judicata.

32 People v. Patterson, 192 Ill. 2d 93, 139 (2000). In the interests of fundamental fairness, however,

the doctrine of res judicata can be relaxed if the petitioner presents substantial new evidence.

Patterson, 192 Ill. 2d at 139.

¶ 79 Relying on Milone, this court summarily dismissed the petitioner’s argument that the

State’s bite mark evidence should not have been admitted. Prante, 147 Ill. App. 3d at 1062. As

evidenced by Shaw, 278 Ill. App. 3d at 948, issued in 1996, the courts were still relying on Milone

in holding that bite mark evidence was admissible years after the petitioner filed his direct appeal

and his initial postconviction petition. Furthermore, the successive postconviction petition and

supporting affidavits and documents demonstrate that the examination as to the validity of bite

mark evidence has occurred only in the past decade or so. Thus, even if the petitioner had

previously successfully convinced a court to abrogate Milone and hold that Frye was applicable to

bite mark evidence, the scientific community has only recently come to question the scientific

foundation of this evidence. Based on the foregoing, we find that the petitioner has established

cause for failing to raise his claim in an earlier proceeding.

¶ 80 We also find that the petitioner has made a prima facie showing of prejudice. Again, to

establish “prejudice,” the petitioner must demonstrate that the claimed constitutional error so

infected his trial that the resulting conviction violated due process. Pitsonbarger, 205 Ill. 2d at

464.

¶ 81 As the factual background indicates, the State’s case against the petitioner was largely

circumstantial. The evidence indicated that the petitioner was near the scene of the crime and

therefore had the opportunity to commit the crime. The petitioner also repeatedly changed his story

and did not provide a reliable account of his whereabouts on the day of the murder. These facts

alone, however, are far from sufficient proof of guilt. Instead, the only clear link between the

33 petitioner and the crime was the testimony of the petitioner’s friends that the petitioner disclosed

certain details regarding the condition of the victim’s body and the crime scene shortly after the

murder, which only could have been known by the perpetrator.

¶ 82 Harold Pollard testified that the petitioner indicated, on the evening of the murder, that

Brown was found with her hands tied behind her back. 2 The petitioner stated he obtained this

information when “he got a glimpse of the girl by looking over the policeman’s shoulder at the

crime scene.” The most incriminating statements, though, were those introduced through the

testimony of Vickie White and Spencer Bond. White and Bond testified that several days after the

murder, the petitioner told them that Brown had “teeth marks” on her body, specifically indicating

the left shoulder area. Although the injuries in this case were located on Brown’s right shoulder,

the fact that no one identified these injuries as potential bite marks until years later was damning

circumstantial evidence against the petitioner. During trial, the defense challenged the witnesses’

memories, probing the possibility that the witnesses’ memories were flawed or contaminated.

¶ 83 The petitioner’s statements that the victim was bitten is why the State’s bite mark evidence

was material to the petitioner’s conviction, even though the State’s experts did not provide a

positive identification of the petitioner as the “biter.” In this case, the fact that the injury was

definitively identified as a human bite mark by the State’s expert witnesses was likely enough to

seal the petitioner’s fate. The testimony of the State’s expert witnesses that the petitioner’s teeth

were “consistent” with the mark further supported a finding that the petitioner was, in fact, the

“biter” and that the petitioner did not learn about this injury on Brown’s shoulder in some other

way.

2 While much has been made of the petitioner’s comment that the body was found “curled up” on the floor, the incriminating nature of this comment is questionable. The evidence was that Brown’s murderer left her bent over the side of the lard can, which is not the same as being “curled up” on the floor. 34 ¶ 84 Above all, the State’s expert testimony gave the impression that the testimony from the

Whites and Bonds regarding the petitioner’s statements was corroborated by scientific evidence.

The persuasiveness of seemingly objective, truthful scientific evidence cannot be ignored or

understated. The recognition that “scientific” evidence “carries a greater weight in the eyes of the

jury” because it is “equated with truth” is precisely why Illinois courts require scientific evidence

to meet the Frye standard. McKown, 226 Ill. 2d at 254.

¶ 85 During the petitioner’s trial, the experts’ bite mark testimony was frequently described as

“scientific,” with the experts touting recent advancements in bite mark “technology.” While the

experts acknowledged the absence of any published standards in collecting or evaluating the

evidence, the necessity of such was dismissed. To the extent that the experts could be said to agree

on standard processes, such as photographs being taken perpendicular to the injury with a scale

present and no manipulation of the victim’s skin, the State’s experts asserted that adherence to the

standards was not vital to rendering an opinion so long as the examiner was sufficiently

experienced. Thus, the State’s qualified experts concluded that the marks on the victim’s body

were, to a reasonable degree of dental certainty, human bite marks and that they were “consistent”

with the petitioner’s dentition, despite relying on admittedly visually distorted photographs of a

poorly positioned body that had no scale, and which had been enlarged to unknown degree.

¶ 86 This court cannot say whether bite mark evidence would have passed a Frye examination

in 1983; nor does this opinion purport to state whether it can today. That is not the question being

asked of this court. Instead, the question is whether the petitioner’s successive postconviction

petition and supporting documentation, alleging cause and prejudice, fails as a matter of law.

¶ 87 Since the petitioner’s trial, the law regarding the admissibility of scientific evidence has

developed, to the extent that bite mark evidence would now be considered “scientific” evidence

35 that must withstand a Frye analysis. Furthermore, the petition effectively alleges, and supports

with documentation, a recent change within the scientific community regarding the validity and

reliability of bite mark evidence, suggesting that the evidence presented by the State at the

petitioner’s trial is no longer generally accepted within the scientific community. We find that the

petition made a prima facie showing of cause and prejudice and that the circuit court erred in

denying the petitioner leave to file his successive postconviction petition on this basis.

¶ 88 B. Actual Innocence

¶ 89 In his motion for leave to file his successive postconviction petition, the petitioner alleged

the petition and exhibits present new, material, noncumulative, and conclusive evidence of the

petitioner’s innocence. Specifically, he argued that the petition and its exhibits present new

evidence that the bite mark comparison evidence used against him at his 1983 trial was completely

without scientific basis and unreliable and that new evidence on memory science casts doubt on

the witness testimony against him.

¶ 90 In a successive postconviction petition, a petitioner’s failure to raise a claim in an earlier

petition will be excused to prevent a fundamental miscarriage of justice. Pitsonbarger, 205 Ill. 2d

at 459. To demonstrate a fundamental miscarriage of justice, the petitioner “must show actual

innocence.” Edwards, 2012 IL 111711, ¶ 23. “To establish a claim of actual innocence, the

supporting evidence must be (1) newly discovered, (2) material and not cumulative, and (3) of

such conclusive character that it would probably change the result on retrial.” Robinson, 2020 IL

123849, ¶ 47.

¶ 91 Evidence is newly discovered if it is discovered after trial and the petitioner could not have

discovered the evidence earlier through the exercise of due diligence. Robinson, 2020 IL 123849,

¶ 47. Evidence is material if it is relevant and probative of the petitioner’s innocence. Robinson,

36 2020 IL 123849, ¶ 47. Noncumulative evidence is that which adds to the information that the fact

finder heard at trial. Robinson, 2020 IL 123849, ¶ 47. Evidence is conclusive when the evidence,

when considered along with the trial evidence, would probably lead to a different result. Robinson,

2020 IL 123849, ¶ 47. “The conclusive character of the new evidence is the most important

element of an actual innocence claim.” Robinson, 2020 IL 123849, ¶ 47.

¶ 92 “Ultimately, the question is whether the evidence supporting the postconviction petition

places the trial evidence in a different light and undermines the court’s confidence in the judgment

of guilt.” Robinson, 2020 IL 123849, ¶ 48. The new evidence does not need to be entirely

dispositive to find that it is likely to alter the result on retrial. Robinson, 2020 IL 123849, ¶ 48. The

circuit court should only deny the petitioner’s request for leave to file the successive

postconviction petition when it is clear from a review of the successive petition and supporting

documentation that, as a matter of law, the petitioner cannot set forth a colorable claim of actual

innocence. Edwards, 2012 IL 111711, ¶ 24. Leave of court should be granted when the petition

“raises the probability that it is more likely than not that no reasonable juror would have convicted

the petitioner in light of the new evidence.” Robinson, 2020 IL 123849, ¶ 44.

¶ 93 While we agree with the petitioner that the new evidence about the validity and reliability

of bite mark evidence would constitute new, material, and noncumulative evidence, we do not

believe the petitioner has demonstrated that the evidence is conclusive of his innocence.

¶ 94 On appeal, the petitioner has asserted that the State would be barred from presenting any

evidence regarding bite marks on retrial. The petitioner suggests that even evidence akin to that

presented by his trial experts, specifically that the injuries to the victim could have been caused by

human teeth, would be inadmissible. The petitioner posits that if the State cannot present any

37 evidence that the injuries could be bite marks, then any testimony that the petitioner claimed the

victim’s body had teeth marks on it was irrelevant and without value. We disagree.

¶ 95 The petitioner has presented compelling documentation undermining the scientific

foundation of bite mark comparison evidence, including whether Board-certified forensic

odontologists can reliably identify an injury as a human bite mark. The State, however, would still

be entitled to present evidence as to the condition of the victim’s body. It is possible that this could

include evidence that there were marks on the victim’s right shoulder that could conceivably have

been made by human teeth. 3 There is a material distinction between the State’s expert testimony

that the injury on the victim’s right shoulder was positively a human bite mark and that this mark

was consistent with the petitioner’s dentition, versus the testimony of the petitioner’s experts that

the mark on the victim’s body could have been caused by any number of conditions or objects,

including human teeth. But as previously noted, we make no decision on the admissibility of this

evidence, as it remains to be determined how the Frye analysis will determine the scope, if at all,

of the admission of comparison testimony.

¶ 96 Nevertheless, while the petitioner has made a prima facie showing that the conclusive

nature of the State’s expert witnesses’ testimony deprived him of his constitutional right to due

process, he has not demonstrated that a lack of certainty as to the origin of the victim’s injury

“raises the probability that it is more likely than not that no reasonable juror would have convicted

the petitioner in light of the new evidence.” Robinson, 2020 IL 123849, ¶ 44. This is especially

true in light of Harold Pollard’s testimony that the petitioner told Pollard on the evening of the

3 Notably, the NAS report acknowledged that “forensic odontologists understand the anatomy of teeth and the mechanics of biting and can retrieve sufficient information from bite marks on skin to assist in criminal investigations and provide testimony at criminal trials,” even though there was no scientific basis for the conclusion that bite mark comparisons can result in a conclusive match. 38 murder that the petitioner knew the victim was found tied up in the basement. The State presented

circumstantial evidence of the petitioner’s guilt, even absent the State’s expert testimony on bite

mark analysis.

¶ 97 For these reasons, we find the petitioner has not presented a colorable claim of actual

innocence, and the circuit court properly denied him leave to file a successive postconviction on

this basis. In light of this court’s finding as to the petitioner’s cause and prejudice claim, we need

not address the petitioner’s alternative claims for relief.

¶ 98 III. CONCLUSION

¶ 99 For the foregoing reasons, the judgment of the circuit court of Madison County denying

the petitioner’s motion for leave to file a successive postconviction petition is reversed, and the

cause is remanded for further proceedings.

¶ 100 Reversed and remanded.

39 No. 5-20-0074

Decision Under Review: Appeal from the Circuit Court of Madison County, No. 82-CF- 381; the Hon. Neil T. Schroeder, Judge, presiding.

Attorneys Joshua Tepfer and Lindsay Hagy, of the Exoneration Project at the for University of Chicago Law School, of Chicago, and Dana Appellant: M. Delger (pro hac vice), of Innocence Project, Inc., of New York, New York, for appellant.

Attorneys Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick for Delfino, Patrick D. Daly, and Julia Kaye Wykoff, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.