Because justice delayed is justice denied, any cognizable claim of innocence asserted by an incarcerated person inherently has a sense of urgency attached to it. However, in the case of a person condemned to die at the hands of the state, that sense of urgency takes on a grim and devastating purpose. This is certainly true of Kosoul Chanthakoummane, a man who was killed by the state of Texas on August 17th for the murder of real estate broker Sarah Walker. Kosoul’s execution, just one in a state that still leads the country in the number of people put to death, is particularly noteworthy.
The first reason for this is the witness of Joseph Walker, the father of Kosoul’s alleged victim. A devoted Catholic, Walker was a steadfast opponent of the death penalty, and Chanthakoumanne was sentenced to die over and above Walker’s direct opposition. Walker was one of the strongest advocates for saving Kosoul’s life, even corresponding with the condemned prisoner for a time. "Even though the thing he did gives us the right to do the same,” said Walker, “I am against violence.” Walker did not testify at sentencing, a decision he made in the belief that his testimony would not make a difference, but claimed that he would personally attend the execution and “make a big scene” in order to stop it. Sadly, Walker was not able to fulfill this promise — having passed away in the spring of last year — though his pugnacious attitude in defense of the inherent dignity of a man whom he had every reason to hate is a true example of a sincere commitment to an ethic of life.
However, even beyond this witness of mercy in the face of Kosoul’s putative guilt, there was his assertion of actual innocence. Kosoul maintained his innocence from the very beginning, and the manner of his conviction makes his guilt ambiguous enough that the irrevocable sentence of death cannot be countenanced. He was identified by two eyewitnesses whose testimony was elicited under hypnosis. Due to the suggestible nature of hypnotic subjects creating the propensity to alter or fabricate memories, many states have strictly limited such testimony, which has been previously responsible for erroneous convictions based on misidentification. Additionally, the state relied on the testimony of dentist Dr. Brent Hudson, who asserted that bite marks found on Sarah Walker’s body matched Kosoul’s teeth — a forensic technique known colloquially as “bite mark evidence.” The Innocence Project estimates that roughly a quarter of prisoners exonerated since 1989 were convicted via bite mark evidence, which it calls “discredited science,” relying heavily on the National Academy of Science’s 2009 report on forensic evidence:
Although the 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. In numerous instances, experts diverge widely in their evaluations of the same bite mark evidence, which has led to questioning of the value and scientific objectivity of such evidence.
Bite mark testimony has been criticized basically on the same grounds as testimony by questioned document examiners and microscopic hair examiners. The committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others. That same finding was reported in a 2001 review, which “revealed a lack of valid evidence to support many of the assumptions made by forensic dentists during bite mark comparisons.” Some research is warranted in order to identify the circumstances within which the methods of forensic odontology can provide probative value.
[...] Some of the basic problems inherent in bite mark analysis and interpretation are as follows:
(1) The uniqueness of the human dentition has not been scientifically established.
(2) The ability of the dentition, if unique, to transfer a unique pattern to human skin and the ability of the skin to maintain that uniqueness has not been scientifically established.
i. The ability to analyze and interpret the scope or extent of distortion of bite mark patterns on human skin has not been demonstrated.
ii. The effect of distortion on different comparison techniques is not fully understood and therefore has not been quantified.
(3) A standard for the type, quality, and number of individual characteristics required to indicate that a bite mark has reached a threshold of evidentiary value has not been established.
The execution of any man is a tragedy, but the execution of an innocent man is a travesty. Kosoul Chanthakoumanne, put to death by the state in the name of a man who desperately wished to spare his life and convicted by evidence not equal to the dreadful finality of the sentence, is another victim of a culture that chooses death as a crude facsimile of justice. It makes a mockery of Governor Greg Abbott’s assertion that Texas would “always foster a culture of life,” which he called “the most precious freedom of all.” If these are to be more than just words, Texas cannot afford to continue to ignore these demands for justice and pleas for mercy.