Whether due process prohibits a conviction based on forensic evidence later shown to be unreliable

QUESTION PRESENTED The forensic dentist who provided the only physical evidence purportedly connecting Charles McCrory to a 1985 murder fully recanted his testimony in 2019. The dentist’s testimony for the State at trial had been that a “bite mark” was inflicted on the decedent by McCrory during the murder. At the state post-conviction hearing, the dentist completely recanted his testimony—he testified that, in fact, the mark (shown below) was not even a bite mark at all, much less one that could be linked to McCrory. Two additional expert forensic dentists corroborated that testimony and further explained that modern scientific developments have debunked the sort of “bite mark identification” on which the State relied to convict McCrory. The State did not impeach any of that testimony or present any contrary evidence. Py? eee Yet the Alabama post-conviction court denied relief. The court adopted the State’s proposed order, which stated that despite expert consensus that the mark on the decedent was not a bite mark and, therefore, could not be admitted as probative identification evidence at trial, lay jurors somehow could decide for themselves that it was a bite mark and that McCrory had made it. The Court of Criminal Appeals affirmed. But one of the judges who decided the appeal had represented the State in McCrory’s direct appeal, when the judge had been an Alabama assistant attorney general. Despite this clear conflict, the judge failed to recuse from the post-conviction appeal. On rehearing, the Court of Criminal Appeals reissued exactly the same opinion, again affirming the denial of post-conviction relief, with just one change: the court added a bare notation that the conflicted judge was “recused.” The questions presented are: 1. Whether, as several circuits have found, there is a due process right not to be convicted based on forensic evidence later shown to be fundamentally unreliable, or, as the Alabama courts held, due process permits a conviction based on expert testimony that was later recanted and unanimously discredited having been debunked by intervening scientific developments. 2. Whether due process prohibits an appellate judge from participating in the appeal of a case the judge had actively litigated previously as counsel for one of the parties. i