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Barefoot-Insole-Impression Evidence: The Curious Case of Mr. Jones's Feet

By Ben Lewis


Jeffrey Louis Jones has two very peculiar feet, so said the State of South Carolina. Mr. Jones’s feet are so remarkable that they have twice caused him to be sentenced to death. On both occasions, Mr. Jones’s convictions were overturned by the South Carolina Supreme Court, due in part to concerns over the reliability of barefoot-insole-impression evidence. Proponents of barefoot-insole-impression evidence maintain that individuals can leave different impressions on the insoles of the shoes they wear and that it is possible to determine, to an acceptable degree of certainty, who has primarily worn a particular pair of shoes by comparing the insoles of the shoes with the feet of the suspected wearer.


It is important to distinguish barefoot-insole-impression evidence from shoe-print-identification evidence. The former concerns impressions left by a suspect’s feet and toes inside a shoe or boot, whereas the latter concerns marks left by the exterior sole of the shoe or boot on the ground.[1] Shoe-print-identification evidence is deemed more reliable than barefoot-insole-impression evidence and is generally admissible.[2] There are only two barefoot-insole-impression-evidence experts in North America: Robert Kennedy and Bill Bodziak. Both became involved in Mr. Jones’s case.[3]


The Crime Scene and First Trial
At around 6.30 p.m. on Friday, February 2, 1996, Ms. Susie Furman and Mr. John Pipkin were at their home in West Columbia, South Carolina.[4] Ms. Furman was on the telephone with her friend Doris Moore. Ms. Moore heard the doorbell ring, followed by a strange man’s voice and then a scream from Ms. Furman before the phone line went dead. Mr. Pipkin’s stepson later found Ms. Furman and Mr. Pipkin dead. Both had been killed by blunt trauma to the head, likely caused by a number of blows from a hammer. The attack was described by the South Carolina Supreme Court as a “horrific assault.”


Mr. Jones and an alleged accomplice, James Brown, were subsequently arrested and charged with two counts of capital murder and related charges. The evidence against Mr. Jones was entirely dependent upon the testimony of Mr. Brown, Mr. Jones’s roommate. Mr. Brown had an extensive criminal record and a history of striking favorable plea deals with the Lexington County solicitor’s office, the same office responsible for the prosecution of Mr. Jones. The South Carolina Supreme Court thought Mr. Brown’s criminal record and plea-bargain history noteworthy enough to merit inclusion in what became known as the Jones I decision. Mr. Brown testified that he and Mr. Jones had robbed and murdered the victims after Mr. Jones had become displeased with Mr. Pipkin, his boss, for withholding an excessive amount from his paycheck to cover refreshments consumed by Mr. Jones while at work. Mr. Brown testified that he had smoked crack with Mr. Jones on February 2, 1996, and that Mr. Jones had then suggested robbing Mr. Pipkin. Mr. Brown further testified that the pair entered the Furman/Pipkin residence and that Mr. Jones struck Ms. Furman repeatedly with a brick. Mr. Brown confessed to hitting Mr. Pipkin once with a hammer, but claimed that Mr. Jones then took the hammer from him and proceeded to beat the victims to death.


The only physical evidence allegedly linking Mr. Jones to the murders was a single bloody boot print left at the crime scene. The print was linked to a pair of steel-toe boots that were recovered from the Jones/Brown residence and that the prosecution alleged belonged to Mr. Jones.[5] Ownership was disputed. At Mr. Jones’s first trial, the prosecution introduced barefoot-insole-impression testimony in support of its case. The South Carolina Supreme Court described such evidence in Jones I: “[t]he central thesis of ‘barefoot insole impression’ evidence is that the primary wearer of footwear, over time, begins to leave an impression of the wearer’s foot in the footwear insole.”[6] Proponents of barefoot-insole-impression evidence engage in certain analytical steps such as “[i]nked impressions of the suspected wearer’s feet” and “photos of the suspected wearer’s known insoles.” In addition, “a standing cast of the suspected wearer’s foot are compared to the impression in the boots, both visually and by using calipers to compare distances between toes and other features among the various exhibits.” Devotees of barefoot-insole-impression evidence maintain that it is possible to tell, to a reasonable degree of certainty, who has worn a particular pair of shoes if one has access both to the shoes and to the suspect’s feet.


The jury at Mr. Jones’s first trial was allowed to hear barefoot-insole-impression evidence “matching” Mr. Jones to the steel-toe boots, which were in turn matched to the single bloody boot print at the crime scene. The jury thus heard “scientific” evidence putting Mr. Jones at the locus of the murders at or around the time they were committed. Mr. Jones was convicted of two counts of murder, first-degree burglary, armed robbery, and criminal conspiracy and received two death sentences and lengthy prison sentences on the related charges. Mr. Jones appealed his conviction to the South Carolina Supreme Court, questioning, inter alia, the validity of barefoot-insole-impression evidence. Mr. Jones raised issues relating not only to the latent unreliability of such evidence but also to the manner in which the evidence in his case had been analyzed—neither the agent who performed the barefoot-insole-impression analysis, nor any other agent in the South Carolina State Law Enforcement Division (SLED), had ever undertaken this type of test before. Indeed, SLED did not even have a written protocol for this type of analysis.


The Jones I Decision and Second Trial
In Jones I, the South Carolina Supreme Court considered the admissibility of barefoot-insole-impression evidence under the appropriate legal standards. The admissibility of such evidence is governed by Rule 702 of the South Carolina Rules of Evidence. The Jones I court referred to a four-pronged test: (i) The evidence must assist the trier of fact; (ii) the expert must be qualified; (iii) the underlying science must be reliable; and (iv) the probative value of the evidence must outweigh its prejudicial effect. The trial court’s decision was reviewed for abuse of discretion. The Jones I court reviewed the trial testimony of Robert Kennedy, one of the two experts in this field, including his admission that he was still in the process of collecting data to determine which standards were appropriate for comparison purposes. The court also mentioned Mr. Kennedy’s acknowledgment that previous work in this field had been discredited. The South Carolina Supreme Court in its unanimous Jones I opinion concluded:


In our opinion, it is premature to accept that there exists a science of “barefoot insole impressions” . . . the trial judge erred in permitting expert testimony purporting to demonstrate that ‘barefoot insole impression’ testing revealed appellant’s foot to be consistent with the impression made by the primary wearer of the “steel toe” boot. The admission of this evidence mandates reversal of appellant’s convictions.


This unanimous slap-down did not deter Mr. Jones’s prosecutors. Mr. Jones found himself back in the Lexington County Circuit Court, facing retrial. Once again, the state sought to use barefoot-insole-impression evidence to secure the death penalty for Mr. Jones.[7] Both sides secured the services of one of the two experts in this field, the state retaining Robert Kennedy, and defense counsel retaining Bill Bodziak. The defense did not intend to call Mr. Bodziak as a trial witness and was no doubt somewhat surprised when the state subpoenaed Mr. Bodziak to testify at trial. Defense counsel’s attempts to quash the subpoena were unsuccessful, and Mr. Bodziak testified at Mr. Jones’s retrial. The jury once again heard barefoot-insole-impression evidence, which the state argued had become scientifically reliable in the period between Jones I and the retrial. Mr. Jones may have felt a certain unpleasant déjà vu when he was convicted of two counts of murder and one count each of first-degree burglary, armed robbery, and criminal conspiracy. Mr. Jones was sentenced to death for each count of murder and was awarded lengthy prison sentences on the related charges. He appealed.


The Jones II Decision
The South Carolina Supreme Court heard Mr. Jones’s second appeal on April 7, 2009. By 2009, concerns about “junk science” and the misleading impact it may have on jurors were widespread. It has been suggested that the adversarial system has failed to unearth and discount faulty forensic science,[8] possibly due to lack of funding for defense counsel and a lack of scientific expertise at the criminal-defense bar. In addition, jurors find “scientific” evidence particularly compelling. This phenomenon is sometimes referred to as the “CSI effect” and, when coupled with unreliable forensic science and analysis, can lead to miscarriages of justice. Such concerns reached Congress (if not the Lexington County Solicitor’s Office) and the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006 became law on November 22, 2005. That statute authorized the National Academy of Sciences to conduct a study on forensic science. The resulting report, “Strengthening Forensic Science in the United States: A Path Forward” was published in 2009. The report detailed a number of concerns regarding forensic science and stated that, “[w]ith the exception of nuclear DNA analysis . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”


The South Carolina Supreme Court reversed Mr. Jones’s convictions and sentences for a second time in Jones II.[9] Interestingly, the Jones II court did not find fault with the state’s subpoena of Mr. Bodziak or the trial judge’s decision to deny Mr. Jones’s motion to quash the subpoena. The court explained that barefoot-insole-impression evidence and the existence of only two experts in the field created an extremely rare factual situation in which the state could compel testimony from a non-testifying expert witness retained by the defense.[10] However, the court did not agree with the state’s argument that barefoot-insole-impression evidence had become scientifically reliable in the period between Jones I and the retrial.[11] The court noted that there had not been any subsequent research developments validating barefoot-insole-impression evidence. The court also pointed to other failures of the SLED agent who performed the barefoot-insole-impression analysis, namely that the known shoes of Mr. Jones were size 10.5, yet the steel-toe boots were size 9.5. The agent also failed to obtain exemplars from other residents of the house where the steel-toe boots were found, despite the fact that Mr. Brown lived in the same property and had admitted leaving another pair of boots in the same room on the day of the murder. The Jones II court held that barefoot-insole-impression evidence was not admissible, as the state did not present any evidence to indicate that the evidence had become scientifically reliable. The court held that a harmless-error analysis could not be employed, as there was no other physical evidence linking the defendant to the crime scene. A concurring opinion by Justice Pleicones, the author of Jones I, sought to foreclose the possibility of barefoot-insole impression being used against Mr. Jones in the future. So ends, one hopes, our latter-day Sisyphus’ s barefoot journeys between Lexington County Circuit Court and the Supreme Court of South Carolina.


Keywords: barefoot insole impression evidence, Jones I, Jones II


Ben Lewis is an associate in the New York, New York, office of Hogan Lovells US LLP.


 

  1. In Hurrelbrink v. State, 46 S.W.3d 350 (Tex. App. 2001), a rare third class of imprint evidence was considered-a bloody sock print was found at the crime scene, which the state sought to link to the defendant through expert testimony.
  2. See, e.g., United States v. Ford, 481 F.3d 215, 218 (3d Cir. 2007) ("The Court found that there was general acceptance of shoeprint analysis in both the federal courts and the forensic community, the theory has been subject to peer review and publication, the potential error rate is known, and there are standards and techniques commonly employed in the analysis.") (reviewing the trial court's admission of shoeprint analysis).
  3. See State v. Jones, 383 S.C. 535, 541-542, 681 S.E.2d 580, 583 (S.C. 2009) (Jones II). The Jones II court referred to an extract from Mr. Bodziak's book "Footwear Impression Evidence" concerning barefoot-insole-impression evidence: "There have been many previously reported 'identifications' of a suspect as the wearer of a shoe. The consensus among experienced examiners is that identifications are rare because the random individual characteristics necessary for an identification are rarely encountered. Although, in theory, random individual characteristics could exist in a foot and be transferred to a shoe or foot impression, those characteristics are normally not present nor are they retained with the detail necessary to achieve an identification."
  4. State v. Jones, 343 S.C. 562, 566, 541 S.E.2d 813, 814 (S.C. 2001) (Jones I).
  5. Jones II, 383 S.C. at 539.
  6. Jones I, 343 S.C. at 572.
  7. Jones II, 383 S.C. at 581.
  8. See, e.g., Brandon Garrett & Peter Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, by, 95 VA. L. REV. 1 (2009). The authors-the latter of whom is the co-founder and co-director of the Innocence Project-reviewed the forensic-science testimony by prosecution experts in the trials of defendants who were later exonerated by post-conviction DNA testing. According to Garrett and Neufeld, in 60 percent of the cases reviewed, forensic experts called by the prosecution provided invalid testimony at trial.
  9. The Court of Appeals of North Carolina considered barefoot-impression evidence in State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145 (2001), concluding that barefoot-insole-impression testimony of Robert Kennedy was improperly admitted but that its admission constituted harmless error. The Jones II court cited an additional decision in which barefoot-insole-impression evidence was rejected. R. v. Dimitrov, 68 O.R.3d 641 (Ontario Ct. App. 2003).
  10. Jones II, 383 S.C. at 586.
  11. The Jones II opinion mentions three jurisdictions that have admitted barefoot-insole-impression evidence. See Thiel v. State, 762 P.2d 478, 485 (Alaska App. 1988); United States v. Ferri, 778 F.2d 985 (3rd Cir. 1985); Hurrelbrink v. State, 46 S.W.3d 350 (Tex. App. 2001) (dealing with a slightly different issue as this case concerned a bloody sock print left at the scene rather than barefoot-insole-impression evidence. Mr. Kennedy testified for the defendant and stated that a socked foot on a cement floor does not provide the clarity where it can be said that the impression only belongs to one person). In addition, barefoot-insole-impression evidence was admitted in State v. Hasan, 205 Conn. 485, 534 A.2d 877 (Conn. 1987).

 
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