Tuesday, March 31, 2009
PROFESSOR LOUISE ROBBINS LEGACY? HOW THE ONTARIO COURT OF APPEAL REJECTED SERGEANT KENNEDY'S "EXPERT" BAREFOOT IMPRESSION EVIDENCE;
"THE FACT, HOW-EVER, THAT AN ACCUSED PERSON'S FOOTPRINT IS "SIMILAR TO" THE BAREFOOT IMPRESSION IN A BOOT OR SHOE OUGHT NOT TO BE ADMISSIBLE AS POSITIVE IDENTIFICATION. AS SERGEANT KENNEDY HIMSELF ACKNOWLEDGES, HIS RESEARCH HAS NOT REACHED THE STAGE WHERE HE CAN MAKE A CATEGORICAL IDENTIFICATION FROM BAREFOOT IMPRESSIONS. THE FACT, HOW-EVER, THAT AN ACCUSED PERSON'S FOOTPRINT IS "SIMILAR TO" THE BAREFOOT IMPRESSION IN A BOOT OR SHOE OUGHT NOT TO BE ADMISSIBLE AS POSITIVE IDENTIFICATION."
ONTARIO COURT OF APPEAL":
An expert's purported ability to identify who wore boots based on the wear pattern or footprint impression in the boots was successfully attacked in the Ontario Court of Appeal in the landmark Dimitrov case which came out of Ottawa;
Although the jury used this "expert"evidence to convict Mr. Dimitrov, the Ontario Court of Appeal overturned the conviction on December 24, 2003, and he was acquitted on the retrial;(Mr. Dimitrov was represented in the Ontario Court of Appeal by Toronto lawyer Frank Addario who I regard as a good friend and mentor;)
The headnote to the Court of Appeal Decision explains that in this appeal by Dimitrov from his conviction for second degree murder:
"The victim was Dimitrov's land-lord. The home was occupied by the landlord, his wife, Dimitrov, and another tenant named Tzenev. The issue was identification. The Crown relied upon certain evidence to show that the mur-derer was a person who lived in the house and that Dimitrov was the killer. Evidence was provided that neither the wife nor Tzenev had the opportunity to commit the offence and clean up immedi-ately afterward. Part of the evidence against Dimitrov was a pair of winter boots found inside the front hall closet of the house. They were spattered with the victim's blood. There was no blood on the sole of the shoes. The Crown relied on expert evidence to show that Dimitrov likely wore the boots. The evidence was from a police officer who was an expert in footwear and barefoot impres-sions in shoes. The officer admitted that his research did not reach the stage where he could make a categorical identification from barefoot impressions. Other witnesses testified that they never saw Dimitrov wear the boots. All the residents of the home used the closet. The boots fit Tzenev. The judge admitted the expert evidence. Dimitrov argued that its admission was a mistake because this area of identification was not a science. He argued that the judge gave insufficient weight to its ca-pacity to mislead the jury. Dimitrov also argued that there was opportunity and motive by the wife and Tzenev to commit the murder.
HELD: Appeal allowed. The conviction was set aside. A new trial was ordered. Apart from the offi-cer's testimony, there was no evidence that Dimitrov owned the boots. There was no evidence that the assailant wore the boots during the attack or that they were worn during the attack. The expert evidence did not exclude Tzenev as a wearer of the boots. If the killer borrowed the boots, their pat-tern would only reveal the foot impressions of the owner. The expert evidence did little to advance the case against Dimitrov. The slight probative value of the evidence was outweighed by its preju-dicial effect. There was a real risk that the jury was overawed by this testimony. The judge erred in admitting the expert evidence. However, based on the other evidence the verdict was not unreason-able, and an acquittal could not be granted."
Forthose readers who want the nitty-gritty, the portion of the appeal court decision relating to the question as to "Did the trial judge err in admitting expert evidence of the barefoot impression in the Eagle Rock boots," read as follows:
20 At trial, the Crown sought to introduce the evidence of Sergeant Robert Kennedy as an expert in footwear and barefoot impressions in shoes. Sergeant Kennedy testified that the areas of footprint and barefoot impression analysis are interconnected. Barefoot impression analysis is an extension of footprint impressions analysis; both rely on an analysis of the weight-bearing areas of a foot.
21 Sergeant Kennedy compares the weight-bearing areas in barefoot impressions to determine whether the foot impressions were made by the same person. In the case of barefoot impressions in shoes, Sergeant Kennedy compares the wear areas in shoes, as well as the outsoles and insoles of the shoes. Sergeant Kennedy achieves these comparisons though visual inspection, both with and without the use of a Luma light, UV light, or laser light. Sergeant Kennedy also photographs the shoes and uses enhanced photographs for comparison purposes; he also completes overlay drawings of the barefoot impressions he is comparing. Sometimes Sergeant Kennedy will compare an inked impression of a foot to a worn shoe; however, an inked impression is more helpful for comparison to a footprint in mud, blood or another substance. Sergeant Kennedy does not take or record meas-urements as he conducts these comparisons. However, he uses callipers in checking to see if a measurement from one footprint matches another.
22 Defence counsel acknowledged Sergeant Kennedy's expertise in the area of footwear impres-sions but opposed the admission of his testimony relating to barefoot impressions. The defence did not call any evidence to dispute footprint or barefoot impression analysis as an area of expertise nor was any evidence called to refute Sergeant Kennedy's qualifications.
23 After conducting a voir dire, the trial judge held that the evidence met the test established by the Supreme Court of Canada for the admission of expert evidence in R. v. Mohan (1994), 89 C.C.C. (3d) 402. He then exercised his discretion and admitted Sergeant Kennedy's evidence.
24 The appellant argues that the trial judge erred in admitting Sergeant Kennedy's evidence in relation to barefoot impressions because (i) it is not science; and/or (ii) the trial judge gave insuffi-cient weight to its capacity to mislead the jury.
25 After setting out a summary of Sergeant Kennedy's qualifications and testimony, we will con-sider the admissibility of his evidence.
Sergeant Kennedy's Qualifications
26 Sergeant Kennedy's experience and qualifications on the topics of footprint analysis and bare-foot impression analysis include extensive research, international lecturing and international board certification. Since 1994, he has worked full time for the R.C.M.P. Forensic Research Services de-partment in the area of barefoot impressions found at crime scenes.
27 Sergeant Kennedy is the past president of the Canadian Identification Society and is the chair of both the Footwear Certification Board and the International Association of Identifications, the latter being the body responsible for the international certification of forensic footwear examiners. He has given expert testimony on both footwear and barefoot impressions in various courts around the world. His expertise in barefoot impressions forms the basis for his certification as a footwear examiner.
28 In the area of barefoot impressions alone, Sergeant Kennedy has been qualified to testify in twenty-five to thirty cases around the world, including approximately five in Ontario. Most of the cases have involved barefoot impressions in shoes, such as the present case.
Sergeant Kennedy's Testimony
29 A pair of blood-spattered Eagle Rock boots was discovered inside the front hallway closet of the victim's house. Based on the size and nature of the stains, the bloodstain expert testified that the boots were close to the blood source at the time of the attack. DNA evidence established that the victim's blood was on the boots. There was also DNA on the boots from a second, unidentified per-son. The appellant's DNA was not found on the boots.
30 Sergeant Kennedy's role in the investigation was to compare the barefoot impressions from various shoes known to belong to the victim, Dimitre Tzenev, Faith Veltchev and the appellant, to the barefoot impressions in the Eagle Rock boots.
31 Sergeant Kennedy testified that:
* the victim did not make the impressions in the Eagle Rock boots
* Faith Veltchev did not make the impressions in the Eagle Rock boots
* Dimitre Tzenev did not make the impressions in the Eagle Rock boots
* the appellant likely made the impressions in the Eagle Rock boots.
32 Sergeant Kennedy testified that it was "likely" that the person who regularly wore the Eagle Rock boots was the same person who regularly wore the green leather shoes seized from the appel-lant at the time of his arrest. He qualified this conclusion, however, by noting that the impression was "not clear enough to do a high probability or high likelihood". Although he testified that he could exclude both Dimitre Tzenev and Faith Veltchev as likely wearers of the boots, he agreed that the boots would have fit Tzenev.
33 Sergeant Kennedy also testified that "somebody else could have worn this shoe, but it is not likely somebody else did". He stated that there was no indication in the impression in the boots that anyone other than the usual wearer of the boots had in fact worn the boots, but admitted that he could not eliminate the possibility that the boots had been worn by someone else for a period of "five or ten minutes to an hour". Sergeant Kennedy expected to be able to detect that a person other than the usual wearer of the boots had worn the boots after about one hour of wear.
34 Sergeant Kennedy testified that his research suggests that feet leave distinctive impressions inside shoes and boots. His opinions in the instant case were based upon a comparison of the weight-bearing areas from shoes known to belong to each of the victim, Faith Veltchev, Dimitre Tzenev and the appellant to the foot impression in the boots. He compared the shape and placement of each toe, the separation between the large toe and the other toes, the slope and angle of the meta-tarsal ridge between the toe ball and the ball of the foot, the ball of the foot and its weight-bearing arch, the arch length, and the width of the heel. He testified that the sureness of his opinion varies with the clarity of the foot impression. In this case, the impressions were relatively clean and clear, although not clear enough for a "high likelihood" opinion.
35 Sergeant Kennedy testified that until research is complete, barefoot impression analysis in shoes is not a positive means of identification but it is a valuable tool to establish the likelihood of someone wearing shoes and to eliminate particular individuals as wearers of shoes.
36 As noted above, the appellant challenges the admissibility of Sergeant Kennedy's evidence on two grounds. The first relates to the general field of barefoot impression analysis and requires the determination of a threshold question, namely, whether such evidence is capable of forming the subject matter of expert testimony. The second involves the application of the Mohan criteria to de-termine whether, in the circumstances of this case, the trial judge properly exercised his discretion in admitting the evidence.
37 Novel scientific theories or techniques are subject to "special scrutiny"; so, too, is the novel application of established or recognized scientific techniques. The threshold question that arises in relation to the admissibility of either is well established: the court must be satisfied that the evi-dence proffered is capable of being the subject of expert evidence. That is, the court must be satis-fied, as a threshold matter, that the proposed evidence is, indeed, "science". The burden is on the party putting forth the expert, in this case the Crown, to establish its reliability on a balance of prob-abilities. See R. v. Terceira (1998), 123 C.C.C. (3d) 1 at 21 (Ont. C.A.); aff'd (1999), 142 C.C.C. (3d) 95 (S.C.C.).
38 In R. v. J-L.J. (2000), 148 C.C.C. (3d) 487 (S.C.C.) at paras. 34 and 28, respectively, the Su-preme Court of Canada noted that the admissibility of expert evidence is highly case specific and that the trial judge is to take seriously the role of "gatekeeper". The court set out the following fac-tors that should be considered in determining threshold reliability: (1) whether the theory or tech-nique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error or the existence of standards; and (4) whether the theory or technique used has been generally accepted within the scientific community.
39 In Terceira, supra, this court also held that threshold reliability must be determined in each case and noted that whether the results presented and the methods used are reasonably reliable are factors that may be considered in determining reliability.
40 Although footprint impression evidence is routinely accepted by courts3, the same cannot be said of evidence of barefoot impressions in shoes. Barefoot impression evidence was admitted in Regina v. Légère (1994), 95 C.C.C. (3d) 139 (N.B. C.A.)4. In Légère, the appellant appealed from convictions on four counts of first-degree murder. While there was other evidence connecting the appellant to the first three murders, the only evidence connecting the appellant to the fourth murder was barefoot impression evidence. In this case, a bloody footprint was found at the crime scene and a pair of boots that had been thoroughly washed was found at the same motel where the victim's car was found. The Crown sought to introduce evidence to show that the boots belonged to the accused and thus to connect the accused to the crime scene. One of the grounds of appeal was that the trial judge erred in allowing into evidence expert opinions as to the probability that the appellant's feet impressions were in the pair of boots because the expert witnesses could not offer any scientific or mathematical calculation as to the chance the impressions in the boots could have been made by someone other than the appellant. The appellants also argued that the facts upon which the experts based their opinions could only support an opinion that the impressions in the boots were similar to impressions that would be made by the appellant's feet. One of the experts was Sergeant Kennedy. Sergeant Kennedy's evidence was confirmed by Special Agent William Bodziak of the F.B.I. and Dr. Bettles, a podiatrist.
41 In holding the evidence to be admissible, the court stated:
The evidence given by the experts was technical, and based upon the knowledge and experience that they had accumulated in their field. It was not put forward on the basis of any unproven scientific theory. It was admissible evidence, again to be weighed by the jury in their determination beyond a reasonable doubt of the guilt of the accused ... (p. 161)
42 In Légère, the court appears to have dealt with the cumulative expertise of all three experts. Further, there were two distinctive facts that connected the accused to the boots in issue: the ac-cused had a callus on his right foot, caused by a cracked sole on the right boot, and there was a small nail protruding in the left boot that caused a mark in the boot and on the appellant's left heel.
43 Such evidence was not ultimately admitted in the recent case of State v. Jones, 541 S.E. (2d) 813 (S.C. 2001), however. The State wished to lead evidence to connect the appellant to a pair of steel-toed boots that had allegedly left a bloody footprint at the scene of two murders. To this end, the State had both Sergeant Kennedy and Agent Derrick qualified in the area of barefoot impression analysis. The trial judge admitted their evidence; the appellant was convicted. The Supreme Court of South Carolina overturned the conviction on the basis that the trial judge erred in admitting into evidence the opinions based on barefoot impression analysis. The court held that the study of bare-foot insole impressions was unreliable and that it is premature to accept that there is a science of "barefoot insole impressions".
44 In rejecting Sergeant Kennedy's evidence, the court noted at para. 5:
While Kennedy testified that he had published several peer-reviewed articles, he also testified that he was still in the process of collecting data in order to deter-mine which standards were appropriate for comparison purposes. Further, he candidly acknowledged that earlier work in this area had been discredited.
45 The court also held that there was insufficient evidence to show that: (1) the technique had been published and peer-reviewed; (2) the method propounded had been applied to this type of evi-dence in the past; and (3) the method was consistent with recognized scientific laws and proceed-ings. In short, the court concluded that "it is premature to accept that there exists a science of bare-foot insole impressions'".5
46 Barefoot impression evidence must be carefully evaluated on a case-by-case basis to deter-mine its admissibility. Based on the current state of the jurisprudence, such evidence may be admis-sible where there are distinctive features of the barefoot impression that can connect the footwear to the accused's feet, as in Légère. It may also be admissible to show that an accused person has not worn a particular pair of shoes or to eliminate persons as regular wearers of shoes. The fact, how-ever, that an accused person's footprint is "similar to" the barefoot impression in a boot or shoe ought not to be admissible as positive identification. As Sergeant Kennedy himself acknowledges, his research has not reached the stage where he can make a categorical identification from barefoot impressions.
47 The Mohan test requires that expert evidence meet four criteria in order to be admissible: rele-vance, necessity, the absence of any exclusionary rule, and a properly qualified expert. Relevance is the only criterion in issue in this appeal.6
48 Relevance is a matter to be decided by the judge as a question of law. In determining rele-vance, the first step is to determine whether the evidence is logically relevant in the sense that it is so related to a fact in issue that it tends to establish it. If so, the judge must decide, among other things, whether its probative value is overborne by its prejudicial effect, including whether it is mis-leading in the sense that its effect on the trier of fact is disproportionate to its reliability. See Mohan at p. 411.
49 When considering the probative value of Sergeant Kennedy's evidence, it is important to keep in mind that the boots themselves were admissible. Their relevance is clear - the boots were found inside the front closet of the victim's home which tends to establish the proposition that someone who lived with the victim was involved in his death or the effort to conceal the evidence of the murder in the garage or both.
50 What fact in issue tends to be established by Sergeant Kennedy's evidence that the appellant was the likely wearer of the Eagle Rock boots?
51 Apart from Sergeant Kennedy's evidence, there is no evidence that the appellant owned the boots or that they belonged to him. Those who testified on this point said that they had never seen the appellant wear the boots. All residents of the home used the front hallway closet in which the boots were found.
52 There is no evidence that the assailant wore the Eagle Rock boots during the attack, as op-posed to the boots simply being in the garage when the assault took place. The bloodstains on the upper portion of each boot are inconsistent with the boots being shielded by a pant leg. This sug-gests that the boots were not worn at the time of the attack. However, when Sergeant Brown was asked about the staining on the upper portions of the boots, he speculated that the staining could have occurred if the assailant wore pants with short legs when committing the assault. It should also be noted that this pattern of spatter staining was also found on another pair of shoes found in the garage, the "L.A. Gear" shoes.
53 Sergeant Kennedy's evidence eliminated the victim and Faith Veltchev as regular wearers of the boots. However, it did not eliminate Tzenev as a wearer of the boots - the boots fit him and, as Sergeant Kennedy himself observed, other persons could have worn the boots for a limited period of time without affecting the patterns he observed. If the killer just borrowed the Eagle Rock boots, the patterns in the boots might still only reveal the foot impressions of the owner. The boots may have been worn by someone else at the time of the murder, or the boots may have been sitting in the garage, unworn, at the time of the murder. Sergeant Kennedy's evidence cannot exclude these pos-sibilities.
54 In the absence of evidence that the footwear belonged to the appellant and was worn at the time of the offence, the evidence about the Eagle Rock boots logically could do little to advance the case against the appellant. This fact distinguishes the case at bar from Légère. In Légère, there was evidence connecting the accused to the boots in that not only had the accused's feet made a mark or impression on the boots but the boots had made marks on the feet of the accused as well. Further, the bloody footprint in Légère suggests that the boots had been used in the commission of the of-fence.
55 In any event, in our view, the slight probative value of Sergeant Kennedy's evidence was out-weighed by its prejudicial effect. The risk that the jury might be over-awed by Sergeant Kennedy's expertise was a real one in this case. The evidence occupied a day and was augmented by diagrams, a lengthy discussion of the study of barefoot analysis and technical language about anatomy and laboratory procedures.
56 In light of the significant issues as to reliability of the evidence, its lack of logical relevance and the risk of distortion in the fact-finding process, the trial judge erred in principle in admitting Sergeant Kennedy's evidence. Having regard to this conclusion we must decide whether to order a new trial or whether to give effect to the appellant's argument of unreasonable verdict and order an acquittal.
Mr. Dimitrov's lawyer is on record as saying that the best day of his legal career came Oct. 29, 2005, when his client was acquitted of the 1996 murder.
After a 1999 conviction, four-and-a-half years in prison and a successful appeal, Dimitrov was finally exonerated -- 10 years after being charged on the dubious scientific evidence which the Court of Appeal fortunately rejected;
What better example of the danger inherent in allowing jurors to be exposed to relatively unsubstantiated "expert testimony."
Monday, March 30, 2009
SIX MONTHS FOLLOWING THE ISSUING OF THE GOUDGE REPORT AND STILL NO SIGN OF ANY PERSONAL ACCOUNTABILITY FOR DR. CHARLES SMITH; HOW JUST IS THAT?
"BUT IT ALSO SEEMS UNFAIR THAT DR. SMITH WILL LIKELY SAIL INTO THE SUNSET WITHOUT ANY PERSONAL ACCOUNTABILITY WHILE THE INNOCENT CAREGIVERS, AND THE PARENTS, WHO FOUND THEMSELVES BRANDED AS MURDERERS OF THEIR OWN CHILDREN AND LOST THEIR FREEDOM AND REPUTATIONS AS A RESULT OF THE HARSH ACCOUNTABILITY HE THRUST ON THEM, ARE STILL STRUGGLING TO GET THEIR LIVES TOGETHER;"
Over the many years in which I have been reporting on the havoc caused within Ontario's criminal justice system by Dr. Charles Smith the question I have been asked most is whether he will ever be brought to account in the criminal courts;
I have been asked this question recently as we near today's anniversary of the Goudge Inquiry report which was formally dated September 30, 2008;
Here is my email response to one of my colleagues:
"I would have thought that a period of six months would have been sufficient to complete a thorough investigation - to determine if there is a reasonable possibility of a conviction. I therefore suspect there will be no criminal charges - and therefore no criminal accountability for Dr. Smith. (Although I would love to be proven wrong;)
I am sure that there have been very thorough investigations by the authorities with every "I" dotted and every "T" crossed.
I only wish that the people charged criminally - and ultimately wrongly convicted and put through hell as a result of Dr. Smith's flawed opinions - would have received the same consideration."
The police undoubtedly have reasonable explanations including the passage of time, the legal prohibition against using his evidence from the Goudge Inquiry against him in a criminal court, and rigorous proof requirements;
But it also seems unfair that Dr. Smith will likely sail into the sunset without any personal accountability while the innocent caregivers, and the parents, who found themselves branded as murderers of their own children and lost their freedom and reputations as a result of the harsh accountability he thrust on them, are still struggling to get their lives together;
Six months later, it is also worth noting that there has been dead silence from the Ontario College of Physicians and Surgeons which, following delivery of the Goudge Inquiry report, had publicly announced that it would be conducting an investigation into Dr. Smith's professional misconduct.
This must be particularly galling to Dr. Smith's victims in light of the College's apparent protection of Dr. Smith in the past - at a time when it had the opportunity to impose significant sanctions that would protect the public.
Although the numerous civil lawsuits against Dr. Smith could result in judgements, I doubt if this will be seen as personal accountability by Dr. Smith's victims, as his legal fees are presumably being paid by his medical insurers - as will be any judgments that follow;
Governments will undoubtedly boast about positive steps that are in the process of being undertaken in the aftermath of the Goudge Inquiry to prevent future such debacles in our criminal justice system;
But this should not divert our attention from the abject failure to bring Dr. Smith personally to account for his actions.
How just is that?
"BY THE TIME ROBBINS DIED IN 1987, APPEALS COURTS HAD OVERTURNED MANY OF THE CASES IN WHICH SHE HAD TESTIFIED. AND THE AMERICAN ACADEMY OF FORENSIC SCIENCES, IN A RARE REBUKE OF ONE OF ITS MEMBERS, CONCLUDED HER COURTROOM WORK WAS NOT GROUNDED IN SCIENCE.
BUT IN A LABORATORY AT THE HEADQUARTERS OF THE ROYAL CANADIAN MOUNTED POLICE IN OTTAWA, THE EFFORT TO DETERMINE IDENTITY FROM FEET AND SHOES IS GETTING NEW LIFE.
SGT. ROBERT KENNEDY, A VETERAN FINGERPRINT ANALYST, SAYS HE CAN TELL WHO WORE A SHOE BY COMPARING IMPRESSIONS LEFT ON AN INSOLE WITH A PERSON'S FOOT.
KENNEDY CALLS IT "BAREFOOT MORPHOLOGY." LIKE ROBBINS, HIS WORK HAS HELPED PROSECUTORS OBTAIN CONVICTIONS;"
STAFF REPORTERS: FLYNN REPORTERS FLYNN MCROBERTS, STEVE MILLS, AND MAURICE POSSLEY;
Chicago Tribune staff reporters Flynn McRoberts, Steve Mills and Maurice Possley reported in a section of a massive story headed "Unproven Techniques sway courts, erode justice" that RCMP Sergeant Robert Kennedy had tried to place footprint identification on a scientific basis;
"Distinguishing the forensic fringe from the cutting edge can be difficult enough; keeping a debunked science from re-entering the courts can be even tougher," the October 17. 2004, portion of the article began.
"North Carolina anthropologist Louise Robbins helped send more than a dozen defendants across the country to prison or to Death Row with her self-proclaimed power to identify criminals through shoe prints," the article continued;
"On occasion she even said she could use the method to determine a person's height, sex and race.
By the time Robbins died in 1987, appeals courts had overturned many of the cases in which she had testified. And the American Academy of Forensic Sciences, in a rare rebuke of one of its members, concluded her courtroom work was not grounded in science.
But in a laboratory at the headquarters of the Royal Canadian Mounted Police in Ottawa, the effort to determine identity from feet and shoes is getting new life.
Sgt. Robert Kennedy, a veteran fingerprint analyst, says he can tell who wore a shoe by comparing impressions left on an insole with a person's foot.
Kennedy calls it "barefoot morphology." Like Robbins, his work has helped prosecutors obtain convictions.
"I know there've been questions about this. Louise Robbins was a real problem," Kennedy said in an interview in his office. But "you don't want to just let an area of forensic science go by the wayside. It's good evidence."
Unlike Robbins, Kennedy has tried to base his work in science. Since the early 1990s, he has been visiting army bases and other sites to build a database of footprints that now exceeds 10,000 sets.
In the 1998 trial of Jeffrey Jones in South Carolina, Kennedy's work proved crucial to sending Jones to Death Row.
Police investigating a double murder believed a boot that had left a bloody impression in the victims' kitchen belonged to the killer. They matched the impression to a boot found in a house that Jones shared with another man, James Brown, who admitted his role in the killings. In exchange for a life sentence, Brown testified against Jones.
No physical evidence linked Jones to the crime, and he denied involvement. Though the boots were size 9 1/2 and Jones wore between an 11 and 11 1/2, prosecutors said he was wearing them when the murders were committed.
At the trial, South Carolina crime lab analyst Steven Derrick, who had never before testified to such a comparison, said he examined the boot insole and an impression from one of Jones' feet.
Derrick concluded that the only way someone else's foot could have made the impression on the boot insole would be if the person had precisely the same foot characteristics--such as the shape and the distance between toes.
Derrick also testified that he had not made a comparison with the feet of Brown, who claimed the size 9 1/2 boots were too big for him.
Kennedy vouched for Derrick's work as well as the field of barefoot morphology, testifying that he talked Derrick through the comparison process.
In 2001, the South Carolina Supreme Court reined in such evidence, ruling there was insufficient science to support it. The court ordered the state to either try Jones again or set him free.
Even with the ruling, prosecutor Dayton Riddle said he would use the insole evidence again when he takes Jones back to trial.
"That's good science, despite the fact it got reversed," Riddle said. "I think what happened there is that I was a little bit ahead of the curve.""
Sunday, March 29, 2009
"IN PEOPLE V. PALATE (CT. APP. 1981) 174 CAL. RPT. 59, A MURDER CASE, ROBBINS TESTIFIED ABOUT "CINDERELLA ANALYSIS"--MATCHING THE INSOLES OF SHOES FOUND AT A CRIME SCENE WITH THE INSOLES OF THE ACCUSED'S SHOES. SHE TESTIFIED THAT IT WAS "HIGHLY IMPROBABLE" THAT ANYONE OTHER THAN PALATE COULD HAVE WORN THE GRAVEST SHOES; THE PROBABILITY OF ANOTHER PERSON WITH THE SAME FOOT FEATURES BEING AT THAT LOCATION AT THAT TIME WOULD BE "ASTRONOMICAL." TESTIFYING FOR THE DEFENSE, A PODIATRIST STATED THAT THE DEFENDANT'S FEET PATTERNS WERE "UNIQUE TO ABOUT 60 PERCENT OF THE POPULATION" AND THAT THE WEAR PATTERNS ON THE GRAVEST SHOES "WERE 'COMPLETELY DIFFERENT' FROM [THE] DEFENDANT'S SHOES." EVEN THOUGH ROBBINS HAD NEVER BEFORE QUALIFIED AS AN EXPERT ON "CINDERELLA" ANALYSIS, NOR PUBLISHED ANY WORKS ON THE SUBJECT, HER TESTIMONY WAS ADMITTED AND THE DEFENDANT WAS CONVICTED."
MICHAEL BURT: THE "CINDERELLA EXPERT":
Lawyer Michael Burt, formerly of the San Francisco Public Defender Office, described Louise Robbins as "the Cinderella expert" in a paper called "Forensics as Mitigation" which he delivered to a death penalty conference in 2000;
Burt effectively he married the fantasy of the Cinderella legend with the fantasy of Robbin's testimony;
Here are some excerpts:
"The United States Supreme Court's latest prosecutorial immunity case, Buckley v. Fitzsimmons, (1993) 509 U.S. 259, 262 offers another illustration of the misuse of scientific evidence. In 1983, Buckley was indicted for a highly-publicized Illinois murder. The critical evidence was a bootprint left by the killer on the door of the eleven-year-old victim's home when he kicked it in. Experts from the county and state crime labs, as well as from the Kansas Bureau of Identification, were unable to identify Buckley's boot as the source of the print. Ignoring these government experts, prosecutors obtained, or shopped for, a "positive identification" from Dr. Louise Robbins.
Robbins, an anthropology professor, had developed her own method of foot comparisons, including insole comparisons ("Cinderella Evidence"). Her method differed from traditional shoeprint or footprint comparisons. No one else could do what she claimed to be able to do. Indeed, William Bodziak, the FBI's top shoeprint expert, testified against her in several trials. In one capital murder case, State v. Johnston1986 WL 8799 at *9 (Ohio App. Aug. 6, 1986) (comparison of plaster cast and accused's boot), modified in part, rev'd in part, 529 N.E.2d 898 (Ohio 1988), reh'g denied, 534 N.E.2d 850 (Ohio 1988), later proceeding, 580 N.E.2d 1162 (Ohio App. 1990), Bodziak compared a plaster cast of a purported footprint found in a muddy riverbank with three boots seized from the defendant. He was unable to determine whether the print was made by a boot or a bare foot. In contrast, Robbins testified not only that it was a bootprint, but also that it matched one of the defendant's boots in several important details. Later, Bodziak commented: "There was no evidence whatsoever of any recognizable portion of a boot. It literally looked like they had poured plaster over a bunch of rocks." Mark Hansen, Believe It or Not, A.B.A. J., June 1993, at 64, 65 Johnston was sentenced to death.
In People v. Palate (Ct. App. 1981) 174 Cal. Rpt. 59, a murder case, Robbins testified about "Cinderella Analysis"--matching the insoles of shoes found at a crime scene with the insoles of the accused's shoes. She testified that it was "highly improbable" that anyone other than Palate could have worn the gravest shoes; the probability of another person with the same foot features being at that location at that time would be "astronomical." Testifying for the defense, a podiatrist stated that the defendant's feet patterns were "unique to about 60 percent of the population" and that the wear patterns on the gravest shoes "were 'completely different' from [the] defendant's shoes." Even though Robbins had never before qualified as an expert on "Cinderella" analysis, nor published any works on the subject, her testimony was admitted and the defendant was convicted.
In State v. Maccia (N.C. 1984) 316 S.E.2d 241 Robbins matched tennis shoes found at a crime scene with the defendant's footprint exemplars, even though the crime scene shoes were a size nine and the defendant wore a ten-and-a-half or eleven.
(EXPERTISE): Other experts have argued that Robbins' method lacked a scientific foundation. Her unsupported claims that her technique was more accurate than fingerprints, her lack of empirical testing, and her failure to publish her findings did not prevent her from testifying in numerous trials, including several capital cases. See e.g., People v. Knights 212 Cal. Rpt. 307, 312 (Cal. App. 1985) (matching defendant's footprint exemplar with photographs of bloody sockprints); People v. Barker (1981) 170 Cal. Rpt. 69 (matching defendant's shoes with plaster casts and photographs of shoeprints found at scene) In only one case, People v. Ferguson(Ill. App. 1988) 526 N.E.2d 525, appeal denied, 530 N.E.2d 254 (Ill. 1988) was her testimony rejected, because there was no evidence that "any one other than Robbins employed the theory used to make the identification in this case." At the retrial, the trial court entered a directed verdict of acquittal. In 1987, a panel of anthropologists and lawyers rejected her method as unreliable.
BAD SCIENCE: Robbins' testimony, in itself, raises serious questions. Nevertheless, she easily met the qualification standards for an expert witness: university appointment, doctorate in anthropology, and board certification in forensic anthropology by the American Board of Forensic Anthropology. In addition, none of her critics challenged her sincerity, although several reports mention exorbitant fees, such as nearly $9,000 in one case. Nevertheless, such testimony should never be admitted in a capital case.
PROSECUTION BIAS:In order to rely on Robbins' testimony, the prosecutors in Buckley ignored other experts. One detective, who resigned because he believed the wrong people had been charged, explained:
The first lab guy says it's not the boot. . . . We don't like that answer, so there's no paper [report]. We go to a second guy who used to do our lab. He says yes. So we write a report on Mr. Yes. Then Louise Robbins arrives. This is the boot, she says. That'll be $10,000. So now we have evidence; See Barry Siegel, Presumed Guilty: An Illinois Murder Case Became a Test of Conscience Inside the System, L.A. Times, Nov. 1, 1992 (Magazine), at 18, 20.
Buckley's trial ended in a hung jury...his codefendants, however, were convicted. Although a convicted child-slayer, whose DNA matched that of the assailant, confessed to the crime several years ago, the codefendants have only recently been freed--again due to DNA tests--after spending a decade in prison....."
Saturday, March 28, 2009
THE DEBUNKING OF LOUISE ROBBINS; ANOTHER REVERED EXPERT (LIKE CHARLES SMITH) TOPPLED; AS TOLD BY MARK HANSEN; AMERICAN BAR ASSOCIATION JOURNAL;
"BY HER OWN ACCOUNT, ROBBINS APPEARED AS AN EXPERT, MOSTLY FOR THE PROSECUTION, IN MORE THAN 20 CRIMINAL CASES IN 11 STATES AND CANADA OVER THE NEXT 10 YEARS UNTIL A LOSING BATTLE WITH BRAIN CANCER FINALLY FORCED HER OFF THE WITNESS STAND. SHE DIED IN 1987 AT THE AGE OF 58. BY THEN, HER TESTIMONY HAD HELPED SEND AT LEAST A DOZEN PEOPLE TO PRISON. AND IT MAY HAVE PUT ONE MAN ON DEATH ROW.
THERE'S JUST ONE CATCH. ROBBINS WAS THE ONLY PERSON IN THE WORLD WHO CLAIMED TO DO WHAT SHE SAID SHE DID. AND HER CLAIMS HAVE NOW BEEN THOROUGHLY DEBUNKED BY THE REST OF THE SCIENTIFIC COMMUNITY.
REPORTER MARK HANSEN: AMERICAN BAR ASSOCIATION JOURNAL;"
Reporter Mark Hansen's classic article on Louise Robbins appeared in the American Bar Association Journal in June 1993 under the apt heading "Believe it or not."
"Louise Robbins had but one claim to fame: She could see things in a footprint that nobody else could see," the article began.
"Give her a ski boot and a sneaker, for instance, and Robbins contended that she could tell whether the two shoes had ever been worn by the same person," it continued;
"Show her even a portion of a shoeprint on any surface, Robbins maintained, and she could identify the person who made it.
It might sound amusing, coming as it did from an anthropology professor who once astounded her colleagues by describing a 3.5 million-year-old fossilized footprint in Tanzania as that of a prehistoric woman who was 5 1/2 months pregnant.
It might also be considered harmless, had it remained a subject of academic speculation at the University of North Carolina at Greensboro, where Robbins taught anthropology courses and collected footprints from her students for comparison. By 1976, however, Robbins had taken her quirky ideas out of the classroom and into the courtroom, where her amazing feet-reading abilities seemed to dazzle juries and made her something of a celebrity on the criminal trial circuit. Newspapers called her a female "Quincy." She was profiled in the ABA Journal. Her techniques were even touted in the pages of Time magazine.
By her own account, Robbins appeared as an expert, mostly for the prosecution, in more than 20 criminal cases in 11 states and Canada over the next 10 years until a losing battle with brain cancer finally forced her off the witness stand. She died in 1987 at the age of 58. By then, her testimony had helped send at least a dozen people to prison. And it may have put one man on death row.
There's just one catch. Robbins was the only person in the world who claimed to do what she said she did. And her claims have now been thoroughly debunked by the rest of the scientific community.
Melvin Lewis, a John Marshall Law School professor who keeps track of more than 5,000 expert witnesses, dismisses Robbins' work as "complete hogwash."
"It barely rises to the dignity of nonsense," he said.
And FBI agent William Bodziak, one of the world's leading authorities on footprints, said that Robbins' theories were totally unfounded.
"Nobody else has ever dreamed of saying the kinds of things she said," he explained.
Robbins' story, as reported last year by the CBS news program "48 Hours," provides a graphic illustration of how far some prosecutors and defense lawyers are willing to go to find an expert witness to bolster a case. It also shows how easily one self-proclaimed expert with little or no credence in the scientific community can make a mockery out of the criminal justice system.
"It's frightening to me that something like that could go as far as it did," said Lewis, who runs a school-sponsored referral service that puts lawyers in touch with qualified experts. "Her so-called evidence was so grotesquely ridiculous, it's necessary to say to yourself, if that can get in, what can't?"
Today, nearly six years after her death, some of the legal ramifications of Robbins' testimony are still being felt.
Stephen Buckley, who spent three years in an Illinois jail awaiting trial for the 1983 murder of a 10-year-old Chicago-area girl, is suing prosecutors for allegedly violating his civil rights.
Buckley's first trial, in 1985, ended in a hung jury, despite Robbins' testimony that a bootprint left on the victim's kicked-in front door had been made by him. He was freed in 1987, but only because Robbins was then too sick to testify at his retrial.
Dale Johnston is also suing prosecutors after spending six years on Ohio's death row, due at least in part to Robbins, for the 1982 murders of his teen-age stepdaughter and her fiance.
Robbins testified at Johnston's 1984 trial that a muddy impression in the cornfield where the victims' dismembered bodies were found came from the heel of Johnston's cowboy boot. He was released from prison in 1990 after an appeals court ruled that the boots on which Robbins based her testimony couldn't be used against him.
Yet Buckley and Johnston might consider themselves lucky, in light of what has happened to Vonnie Ray Bullard.
Bullard is still serving a life sentence in a North Carolina prison for the 1981 murder of another man after Robbins testified that a bare footprint outlined in the victim's blood was his. Having exhausted his appeals, based largely on Robbins' testimony, Bullard won't be eligible for parole until the year 2001.
Other experts can match feet with footprints or shoes with shoeprints, provided that the two samples being compared share enough of the same ridge details or random characteristics. But Robbins was alone in claiming that she could tell whether a person made a particular print by examining any other shoes belonging to that individual.
Robbins built her reputation on the theory that footprints, like fingerprints, are unique. It was her contention that, because of individual variations in the way people stand and walk, everyone's foot will leave a distinct impression on any surface, including the inside sole of his or her shoe. Those impressions, she contended, show up as "wear patterns" on the bottom of every shoe.
"Footprints are better indicators for identifying people than fingerprints," Robbins told the ABA Journal in July 1985. "With a footprint, you use the entire bottom surface of the foot. With the fingerprint, you only use the tip of the finger."
Robbins' claims were hotly contested from the moment she first set foot in a courtroom. Shortly before her death, a panel of more than 100 forensic experts concluded that her footprint identification techniques didn't work. In hindsight, her theories may seem patently absurd.
In fact, many of her colleagues have been saying as much since 1978, when Robbins joined a scientific expedition at Laetoli, Tanzania, then the site of one of the most important archaeological discoveries ever made. During that expedition, according to her colleagues, Robbins misidentified one set of prehistoric human footprints as belonging to an antelope and concluded that another set of footprints had been made by the prehistoric woman who was 5 1/2 months pregnant. She also claimed to have found fossilized cobwebs that other members of the expedition said did not exist.
Tim White, an anthropology professor at the University of California at Berkeley who was also a member of the expedition, said it was hard enough to determine that the footprints they found were indeed human. But it was impossible to tell if any of the prints had been made by a woman, let alone one who was 5 1/2 months pregnant, he said.
"Her observations were unreliable, she was overly imaginative and she was incredibly suggestible regarding the interpretation of evidence," White said. "She kept saying things that could not be documented, and for very good reason. It was all in her mind."
"It truly reveals her as someone who was willing to go to any extremes to come up with an interesting story," said University of Chicago anthropology professor Russell Tuttle, who has studied Robbins' work and appeared opposite her in court. "She'd say anything anybody wanted her to say."
But that didn't keep Robbins from being qualified as an expert, with no known exceptions, from the time she first testified for the prosecution in the arson trial of a Pennsylvania man in 1976, until her last known appearance in court, once again as a prosecution witness, at the 1986 murder trial of a Chicago man.
In some cases, like Bullard's, her testimony may have been cumulative. In other cases, like Buckley's and Johnston's, it constituted the only physical evidence linking the defendant to the crime.
Prosecutors usually succeeded in getting her testimony admitted by portraying Robbins as a pioneer in a new field of science and by putting on testimonials as to her character and credentials from one or two of her peers. One prosecutor noted that it took 400 years for Galileo's theories to win acceptance. Another pointed out that fingerprint evidence also was considered a new science just 80 years ago.
Since Robbins had no competition, her testimony was difficult to refute. But defense lawyers depicted her variously as a fraud, a charlatan, an opportunist and a hired gun. And they presented other experts who testified that there was no scientific basis for any of the claims she made.
By her own admission, Robbins never took or taught a course on shoeprint identification techniques or the wear patterns of shoes. She never conducted a blind test of her abilities, published her findings in a scientific journal or submitted her work to peer review. And she never accounted for such things as manufacturing differences in shoewear construction, dynamic changes in a person's foot or the effect of various surfaces on the quality of a shoeprint.
"She may well have believed what she was saying," said C. Owen Lovejoy, an anthropology professor at Kent State University who testified on behalf of Buckley, "but the scientific basis for her conclusions was completely fraudulent."
Tuttle said he concluded after hearing her testify at a 1983 murder trial in Winnipeg that Robbins was "either a crook or a self-deluded quack."
Robbins didn't always testify for the prosecution and her testimony didn't always win the case for the side that hired her. On the other hand, she was always willing to make a positive identification that nobody else was willing or able to make, and her conclusions consistently supported the case of the side for which she was testifying.
Several lawyers cite her testimony on behalf of the defendant in a North Carolina murder trial in 1985 as one of the most telling examples of her work. Other witnesses had testified that they saw the defendant go into a dry cleaning store where a clerk was murdered and come out a few minutes later. And the state's own experts had matched two bloody shoeprints in the store with the defendant's shoes.
But Robbins testified that the shoeprints had been made by two people other than the defendant, both of whom were wearing the same size shoes as the defendant.
The defendant was subsequently convicted and sentenced to death, but was awaiting resentencing in May as a result of a 1990 ruling by the U.S. Supreme Court holding that North Carolina's capital sentencing scheme was unconstitutional. McKoy Jr. v. North Carolina, 110 S. Ct. 1227.
Bodziak never saw those prints. But he did examine the same evidence as Robbins in two cases. And both times, the FBI expert concluded that Robbins was flat out wrong.
In Johnston's case, Robbins and Bodziak both compared three plaster casts of bootprints taken at the scene of the murders with three pairs of cowboy boots belonging to the defendant. Both agreed that two of the prints could not have been made by the defendant's boots.
The third print was unidentifiable to Bodziak, who said he couldn't even determine through computer enhancement if the impression had been made by a boot or a bare foot. Yet Robbins positively identified the print as having come from the left heel of one of Johnston's boots.
"There was nothing there," Bodziak said. "There was no evidence whatsoever of any recognizable portion of a boot. It literally looked like they had poured plaster over a bunch of rocks."
In Buckley's case, Bodziak and Robbins both compared the defendant's boots with the bootprint left on the victim's front door. Robbins said the print was definitely Buckley's. Bodziak says it definitely was not.
"They're different in a lot of ways," Bodziak said of the two samples. "They don't even come close" to matching.
To this day, Robbins still has at least one supporter who backs her work unequivocally.
Thomas Knight, a former Illinois prosecutor who used Robbins as an expert in the case against Buckley, describes her as one of the least controversial experts he has ever encountered. The fact that she alone could do what she did, he says, is a testament to her ability, dedication and hard work.
"I would rank her credibility as a witness and her integrity as a scientist right at the top," he said.
Knight, who now has a private civil practice outside of Chicago, also contends that Robbins has been made a scapegoat by a collection of people with ulterior motives, primarily those who hope to discredit her testimony as a means of getting the convictions she helped secure overturned.
Bodziak has his own ax to grind, Knight suggests, because Robbins was able to identify footprints that he couldn't identify, an assertion that the FBI expert flatly denies.
"She was a terrific person who's been terribly maligned by some of the things that have been said about her," Knight said. "I think it's really sad, and I intend to do whatever I can to set the record straight."
"I don't think he has any other choice" but to defend Robbins, Bodziak responded. "Maybe he really believes her."
Even some of Robbins' once-staunchest defenders now express doubts about the validity of her work.
Ellis Kerley, a retired professor of anthropology at the University of Maryland who used to vouch for Robbins' abilities on the witness stand, today concedes that he was "a little surprised" by some of the things she said in court.
"The question you have to ask in any scientific examination is whether the interpretation has gone beyond the underlying data," he said. "It strikes me that that must be what happened in Louise's case."
Courts have different standards for the admission of scientific evidence. Many state and federal courts still follow the so-called Frye rule, named after a landmark federal appeals court decision in 1923 barring the use of results from an early form of lie detector test against a criminal defendant. Frye v. U.S., 293 F. 1013.
Under the Frye rule, expert testimony must be based on a well-recognized scientific principle or discovery that has "gained general acceptance in the particular field in which it belongs" in order to be admitted.
Since 1975, however, when Congress enacted new rules of evidence, several state and federal courts have liberalized the standards governing the use of expert witnesses. Those rules essentially permit any expert who is qualified in his or her field to testify in a case, as long as the testimony is relevant and it helps the jury understand the evidence or determine the facts.
Critics of the 1975 rules contend that what they call the "let it all in" approach to the admission of expert testimony has allowed the courts to become mired in all sorts of unsubstantiated scientific claims and dubious forms of expertise. They say that judges and juries are too easily swayed by the likes of someone like Robbins, a grandmotherly professor with the right academic credentials, a scientist's demeanor and a matter-of-fact delivery on the witness stand.
But proponents of the more flexible standard argue that much of the evidence needed to prove a scientific claim in court is generally regarded as being on the cutting edge of science. They point out that much of what is universally accepted as science today was once considered to be outside of the scientific mainstream. And they suggest that judges and juries are fully capable of making the distinction between a legitimate scientific claim and an unfounded one.
The appellate record on Robbins is mixed.
In 1980, a California appeals court upheld the conviction of a man whom she linked to the rape, robbery and assault of three elderly women through shoeprints left at the scene of the crimes, finding that Robbins was an expert in her field. People v. Barker, 113 C.A.3d 743.
Bullard's conviction also was affirmed in 1984 by the North Carolina Supreme Court. It held that new scientific methods are admissible if they are reliable, which it said was the case with respect to Robbins' techniques. Any rebuttal testimony, the court said, goes to the weight of the evidence, not to its admissibility. State v. Bullard, 312 N.C. 129.
Under that standard, which remains in effect, Robbins could still testify in North Carolina if she were alive today, according to Carl Barrington Jr., Bullard's defense lawyer.
But not in Illinois. An appeals court there threw out the conviction of a man on murder, armed robbery, sexual assault and home invasion charges in 1988 on the grounds that Robbins' techniques didn't meet the "general acceptance" test set forth in Frye. People v. Ferguson, 172 Ill. App. 3d 1.
"While there is arguably a scientific basis in Robbins' theory (i.e., measurement techniques), her theory is not only not generally accepted in her scientific community, but is also not shared with any other member of her field," the court said.
Johnston's conviction also was overturned by an Ohio appeals court in 1986, but not on the basis of Robbins' testimony. The court held that Robbins met the test of admissibility under the state's rules of evidence, which require that expert testimony be "relevant and helpful to the finders of fact." State v. Johnston, 1986 WL 8799 (Ohio App.).
The judge at Johnston's second trial suppressed the boots, along with other evidence he found had been illegally obtained, in a ruling that was affirmed by an appeals court in 1990.
Now the U.S. Supreme Court has agreed to enter the debate by taking up the case of Daubert v. Merrell Dow Pharmaceuticals, the culmination of a 10-year battle in the federal courts over the admissibility of evidence alleging to show that the anti-nausea drug Bendectin causes birth defects.
The case stems from the dismissal of two federal suits against Merrell Dow, the maker of Bendectin, brought by the parents of two San Diego boys who were born with birth defects. Those suits were dismissed after two California courts refused to allow a jury to hear evidence purportedly linking the mothers' use of the drug during pregnancy with their sons' birth defects.
The narrow issue before the Court in Daubert is whether Congress' adoption of the new evidence rules in 1975 supersedes the judicially created Frye rule of 70 years ago. But the Court is widely expected to set a definitive standard for the admission of scientific evidence or, at the very least, clear up some of the confusion and inconsistency that exist now.
Although the decision will apply only to the federal courts, most state courts look to the High Court for guidance.
The Court heard oral arguments in the case on March 30. A ruling is expected by early summer."
Friday, March 27, 2009
BACK TO THE VIDEO! LAWYER JIM CRAIG'S EARLIER COLUMN ON DR. MICHAEL WEST - AND THE PERVERSION OF JUSTICE IN MISSISSIPPI; ANOTHER POWERFUL READ;
"I USED TO THINK I WAS JADED, BUT I COULD NEVER HAVE DREAMED THAT EVEN DRS. HAYNE AND WEST WOULD SO BOLDLY MANUFACTURE FALSE EVIDENCE -- AND RECORD IT ON VIDEO."
LAWYER JIM CRAIG: "JIM CRAIG'S WORLD";
The earlier column appeared on "Jim Craig's World" on February 23, 2009, under the heading, "Quacks With Bite: Forensic Fabrications Exposed."
"While we're waiting for the verdict in United States v. Melton, please pause for a bit and consider another possible criminal violation of the civil rights of Mississippians," the column began;
"A little more than a year ago, Reason magazine's Radley Balko published his devastating expose of pathologist Stephen Hayne and forensic dentist Michael West, who practiced misanthropy as State experts in Mississippi criminal cases, (www.reason.com/hayne)," it continued;
"Then in Spring 2008, the exonerations of Kennedy Brewer and Levon Brooks demonstrated the human cost of false forensic testimony -- two men sent to Parchman's death row for over a decade (although one was resentenced to life due to mental retardation). When they were finally released, District Attorney Ben Creekmore, appointed special prosecutor in the cases, apologized for the wrongful incarceration on behalf of the State.
Now Mr. Balko has dropped another bomb. In the attached article, he posts a video tape of an autopsy at which Dr. West is seen pressing a defendant's dental mold into the face of a young girl's corpse. Dr. Hayne is present. The link is to Balko's story; the video can be found there. DO NOT WATCH THE VIDEO IF YOU ARE LIKELY TO BE UPSET. http://www.reason.com/news/show/131527.html
"Reason recently obtained shocking video from another Hayne and West collaboration that may shed light on the question. In 1993, the two conducted an examination on a 23-month-old girl named Haley Oliveaux of West Monroe, Louisiana, who had drowned in her bathtub. The video shows bite marks mysteriously appearing on the toddler's face during the time she was in the custody of Hayne and West. It then shows West repeatedly and methodically pressing and scraping a dental mold of a man's teeth on the dead girl's skin. Forensic scientists who have viewed the footage say the video reveals not only medical malpractice, but criminal evidence tampering."
I used to think I was jaded, but I could never have dreamed that even Drs. Hayne and West would so boldly manufacture false evidence -- and record it on video.
For those of you who may think Mayor Melton should be acquitted because he is fighting the drug trade and "the end justifies the means," this video shows why we have to hold Government accountable to follow the law.
For those of you who think that prisoners who claim to be "framed" are delusional or mendacious, this video will make you re-think that attitude.
And for those of you who are still for the death penalty, remember this: false expert testimony could have sent two innocent men to their death. In our name.
It's time to get damn furious about those who misuse the public trust, and to change the criminal justice system to ensure that the all-too-human tendency to cut corners, assume guilt, and rush to judgment is curtailed and controlled by the rule of law.
Memo to our next United States Attorney: In Illinois, they indicted detectives who manufactured evidence in homicide cases.
Sounds like a good idea for Mississippi."
Thursday, March 26, 2009
MORE ON DR. MICHAEL WEST'S SHINY BLUE LIGHT - AND COMPARISON AS DENTAL EQUIVALENT OF DISCREDITED FOOTPRINT "EXPERT" LOUISE ROBBINS;
"THE PROBLEM WITH THE BLUE LIGHT, ACCORDING TO HIS SCIENTIFIC COUNTERPARTS, IS THAT WEST SEES THINGS UNDER IT THAT HE CANNOT DOCUMENT AND THAT NOBODY ELSE CAN SEE. WHILE THEY SAY THERE IS LEGITIMATE SCIENTIFIC BASIS FOR SUGGESTING THAT SUCH A LIGHT CAN ENHANCE FEATURES ON THE SURFACE OF SKIN THAT OTHERWISE WOULD BE DIFFICULT TO SEE, THERE IS NO EVIDENCE THAT SUCH A LIGHT CAN MAKE A MARK THAT IS INVISIBLE UNDER NATURAL LIGHT SUDDENLY APPEAR. NORMAL SKIN FLUORESCES UNDER A BLUE LIGHT; DAMAGED SKIN DOES NOT, THEY POINT OUT.
BUT THE BLUE LIGHT IS JUST PART OF THE PROBLEM HIS PEERS HAVE WITH WEST. EVEN WHEN HE WAS NOT USING SUCH A LIGHT, THEY SAY, WEST HAS CLAIMED TO SEE THINGS THAT HE HAS NOT BEEN ABLE TO DOCUMENT, FAILED TO FOLLOW GENERALLY ACCEPTED SCIENTIFIC TECHNIQUES, AND TESTIFIED ABOUT HIS FINDINGS WITH AN UNHEARD OF DEGREE OF SCIENTIFIC CERTAINTY —“INDEED AND WITHOUT A DOUBT” IS HIS STANDARD OPERATING OPINION."
MARK HENSON: AMERICAN BAR ASSOCIATION JOURNAL;
The Amercian Bar Association Journal's notes in an article entitled "Out of the Blue" published in February, 1996, that: "Even after the Supreme Court tried to rein in expert witnesses willing to testify at the drop of a theory, embattled dentist Michael West and his shininng light prove that 'science' can be stranger than fiction."
"If Michael H. West had stuck to what he presumably does best, he might not today be regarded by much of the scientific community as the dental equivalent of now discredited footprint expert Louise Robbins," the article by Mark Hansen begins;
"Robbins, who died in 1987, was a college anthropology professor whose chief claim to fame was her apparent ability to match a footprint on any surface to the person who made it," it continues.
"The trouble with Robbins, who appeared as an expert witness in more than 20 criminal cases in 11 states and Canada during a 10-year period, is that her claims have since been thoroughly debunked.
And the trouble with West, a 43-year-old forensic dentist from Hattiesburg, Miss., who has made a name for himself in legal circles since the mid-1980s for his seeming ability to match bite marks with the teeth that made them, is that he reminds so many people of Robbins.
Robbins’ claims were hotly contested from the moment she first stepped foot in a courtroom. Yet she continued to testify with virtual impunity until failing health forced her off the witness stand.
West’s self-proclaimed forensic abilities also have long been questioned by many of his peers. Indeed, he resigned from one professional association in 1994 after it had taken steps to have him expelled. He was suspended for a year from another professional association, to which he was automatically reinstated this past May.
Like Robbins, though, such criticism appears to have had little or no effect on West’s legal career, which he says is going strong.
“I’m as active now as I’ve ever been,” he says.
It took years to undo the damage done by Robbins, whose testimony helped put more than a dozen people behind bars, including an Ohio man who spent six years on death row before his conviction was overturned on appeal in 1990.
The consequences of West’s testimony are just now starting to be sorted out. And compared to his track record, Robbins was small potatoes.
By his own estimate, West has appeared as an expert about 55 times in nine states over the past dozen or so years, at least a third to a half of which were capital murder cases. He says he lost his first bite mark case, in 1983, but that he has not lost one at trial since (excluding any convictions reversed on appeal).
But West’s proclaimed expertise is not limited to bite marks. In fact, he has created a comfy niche, mostly as a prosecution expert, matching not only bite marks with teeth, but also wounds with weap-ons, shoes with footprints and fingernails with scratches, even spills with stains.
West’s testimony has helped put doz-ens of defendants in prison, some for life, and at least two on death row, where they remain today.
West is perhaps best known for his controversial use of a special blue light to study wound patterns on a body. With a pair of yellow-lensed goggles and a long-wave ultraviolet light, West claims he can see things that are otherwise invisible to the unaided eye.
Criminologists have long used such a blue light to look for trace evidence at the scene of a crime. A few other forensic dentists have experimented with the use of such a light for research purposes. But West is the only one presenting himself as an expert on the subject in court.
The problem with the blue light, according to his scientific counterparts, is that West sees things under it that he cannot document and that nobody else can see. While they say there is legitimate scientific basis for suggesting that such a light can enhance features on the surface of skin that otherwise would be difficult to see, there is no evidence that such a light can make a mark that is invisible under natural light suddenly appear. Normal skin fluoresces under a blue light; damaged skin does not, they point out.
But the blue light is just part of the problem his peers have with West. Even when he was not using such a light, they say, West has claimed to see things that he has not been able to document, failed to follow generally accepted scientific techniques, and testified about his findings with an unheard of degree of scientific certainty —“indeed and without a doubt” is his standard operating opinion.
The controversy over West’s self-proclaimed expertise illustrates, at a state level, the types of issues that courts confront in deciding who qualifies as an expert witness and what constitutes scientific evidence.
The U.S. Supreme Court set the standard in 1993 for federal trials when it held that such evidence must be validated scientifically. Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786. It was no longer sufficient for evidence to be based merely on generally accepted scientific principles, which had been the federal standard for 70 years and is still the rule in some states. Daubert was supposed to help keep unproven science out of the courtroom.
Despite all the questions that have been raised about his work, though, West remains in demand as an expert. This past March he testified in separate cases against two Mississippi capital murder defendants who subsequently were convicted and sentenced to death: one for the murder of a 3-year-old girl; the other for the murder of three people. West currently has other cases pending.
West is not alone either, according to his peers, who say there are more than a few others out there like him: self-proclaimed experts whose so-called expertise is dubious at best, but who regard themselves as being equal to any task.
“He is clearly a sore on the body of forensic science,” says James Starrs, a professor of law and forensic science at George Washington University and publisher of Scientific Sleuthing Review, an industry newsletter. “He is forever going beyond what other scientists are willing or able to say.”
Robert Kirschner, former deputy chief medical examiner for Cook County, Ill., which includes Chicago, says what West purports to do is closer to voodoo or alchemy than science.
“History is full of people who claimed they could see things, from ghosts to UFOs,” Kirschner says. “But claiming it and proving it are two different things.” Kirschner, who has squared off against West in court on two occasions, says the forensic dentist’s work violates every known rule of scientific inquiry and investigation. Nor has West ever been able to document anything he claims to have done, Kirschner adds.
“The results shouldn’t be admitted in any court,” he says.
But they have been, with troubling regularity, according to Kirsch-ner and other experts, who say some prosecutors are too willing to turn to somebody like West when they lack the evidence they believe they need to tie a suspect to a crime.
Armstrong Walters, a Columbus, Miss., lawyer who has twice crossed paths with West in court, says no district attorney in the Deep South stands a chance of re-election if a murder occurs in his or her jurisdiction and somebody does not wind up in prison for it. “West confirms whatever suspicions the police have,” he adds.
West, however, remains defiant, saying he is not doing anything that is not being done by his peers—who, he notes, just happen to be his competitors.
“These personal attacks on me are motivat- ed by professional jealousy.”
In defending his own objectivity, West says he does not see himself as either a prosecution or a defense expert, but as an “expert for the truth.” All told, he says, he has eliminated many more people as suspects than he has implicated.
West is dedicated, if nothing else. He once had himself bitten on the arm, had the bite mark biopsied and then photographed the wound under different lights over a period of several months, all in the name of science.
He also justifies his choice of terminology, describing the “indeed and without a doubt” opinions he favors as being synonymous with the dictionary definition of certainty and less confusing to a jury than the “reasonable degree of medical/dental certainty” language preferred by his peers.
And West, who still enjoys the support of some prosecutors, shows no signs of backing down. In a rambling, three-hour telephone interview, he at times sounded bowed, but unbroken. Time and science, he insists, will someday prove him right. “I keep losing in committee and in the media,” he says. “But I keep winning in court, where it counts.”
Asked about the consequences of constantly having to defend himself, he says it has left him “em- barrassed, ashamed, financially strapped, humiliated, paranoid and extremely anxious,” but otherwise has had “no effect whatsoever.”
But he is not taking it lying down. West is suing the American Academy of Forensic Sciences, from which he resigned in 1994, after its ethics committee recommended that he be expelled for allegedly failing to meet professional standards of research, misrepresenting data to support a general acceptance of his techniques, and offering opinions that exceed a reasonable degree of scientific certainty.
His suit, filed last year in U.S. District Court at Hattiesburg, Miss., contends, among other things, that the academy’s attempt to expel him violated his due process rights and caused him emotional distress. (As of mid-December, a motion by the academy for summary judgment was pending.)
West also was suspended two years ago from the American Board of Forensic Odontology. The board found that West had misrepresent-ed evidence and testified outside his field of ex- pertise. But he has not sued that organization, of which he is once again a member in good standing.
For a dentist, though, West seems to know a lot about feet. In 1990, for instance, he identified a footprint on a murdered girl’s face in Jefferson Parish, La., outside of New Orleans, as having been made by an athletic shoe found in the apartment of a neighbor.
That neighbor, Thomas Abadie, facing a possible death sentence, eventually entered a plea to man-slaughter and was sentenced to 31 years in prison.
A year later, in the same parish, West matched a bruise on a murdered boy’s stomach to a hiking boot belonging to the boy’s mother, Patricia Van Winkle.
Although Van Winkle was convicted of manslaughter and received a 21-year sentence, her conviction was overturned on other grounds this past June by the Louisiana Supreme Court. State v. Van Winkle, 658 So.2d 198.
Robert Toale, the lawyer who represented both Abadie and Van Winkle, says there is no end to West’s arrogance. Toale says he once asked West on cross-examination about his margin of error. He says he will never forget the response.
“Something less than my savior, Jesus Christ,” he quoted West as saying.
But West’s apparent expertise goes beyond teeth or feet. In 1990, in the Gulf Coast city of Pasca-goula, Miss., he matched the fingernails of a murder victim, which he had removed and mounted on sticks, to scratches on the forearms of the defendant, Mark Oppie. Op-pie, who also was looking at a possible death sentence, agreed to a manslaughter plea that left him eligible for parole in about six years.
And, in what still may be the most unusual manifestation of his supposed forensic abilities, West showed up in Xenia, Ohio, near Dayton, in 1993, where, presented as a burn pattern specialist by prosecutors, he testified at the trial of a 17-year-old youth charged with involuntary manslaughter in the death of his disabled 6-year-old sister, who had been chemically burned by bleach.
The defendant, who maintained that his sister had spilled bleach on herself, was acquitted, despite testimony by West that the bleach had been poured deliberately on the girl.
“How he got qualified as an expert on bleach spills is between him and the judge,” says defense lawyer, John Rion, who sarcastically calls West “the world’s expert on everything. I thought [his testimony] was preposterous.”
But West says none of it is as preposterous as it may seem.
Teeth and feet are no different from fingernails, pliers, tire irons, bleach or, for that matter, anything else that can be used as a weapon, he says. And just like guns and knives, each has certain class and individual characteristics that can be identified and compared to the wound pattern it is believed to have made to determine whether they match, he adds.
Questions about West’s forensic abilities first were raised in connection with an investigation into the 1990 stabbing deaths of three elderly people near Meridian, Miss., in the central part of the state. Nearly two weeks after the killings, West was called in to examine a butcher knife believed to have been used in the crime, as well as the hands of the chief suspect, Larry Maxwell.
West not only identified the knife as the murder weapon, but in his first application of the blue light claimed he could see an impression made by the exposed rivets in the handle of the knife on Maxwell’s palm. West says he took photos of this phenomenon, which he then took the liberty of naming after himself, but accidentally overexposed the film, which reduced him to drawing on photocopies of the defendant’s palm what he says he saw.
Maxwell, who spent more than two years in jail awaiting trial, was freed in 1992 after a judge ruled that West’s blue light testimony was inadmissible.
“It may well be that Dr. West is a pioneer in the field of alternative light imaging for the purpose of detecting trace wound patterns on the human skin, and it may well be that the future will prove that his techniques are sound evidentiary tools that result in the presentation of inherently reliable expert opinions. But at this time I am not so convinced,” Kemper County, Miss., Circuit Judge Larry Roberts wrote.
Maxwell, who also alleges he was beaten by police, is suing West, along with several local law enforcement officials, in U.S. District Court at Jackson, Miss., on charges of false arrest and use of unreasonable force. Maxwell, whose suit is set for trial in April, is seeking dam-ages of $10 million.
“Essentially, [West’s testimony] was the only evidence they had,” says Jackson lawyer Karla Pierce, who represents Max-well in the civil suit. West, for his part, stands by his testimony. “It was a perfect match,” he says of the knife and the pattern he says he observed on Max-well’s hand.
If the Maxwell case didn’t damage West’s credibility, word of what happened to Johnny Bourn might have destroyed it for good. In 1992, West positively identified a bite mark on an elderly rape and robbery victim in Jackson County, Miss., which includes Pascagoula, as having been made by Bourn.
Unfortunately for West, hair and fingerprint evidence from the crime scene did not match the defendant’s. And a DNA analysis of the assailant’s skin, obtained from fingernail scrapings of the victim, positively excluded Bourn.
The charges were dropped, but by then Bourn had spent about 11⁄2 years in jail awaiting trial.
“I know [Bourn] bit that woman,” West says today, first suggesting that the DNA results were faulty and then spec-ulating on the possibility of multiple assailants. “The question [presented by the DNA] is whether he raped her. He may have had an accomplice.”
That kind of controversy has dogged West throughout his career. In 1990, for example, his testimony helped seal the fate of Henry Lee Harrison, a Jackson County man convicted and sentenced to death for the 1989 rape and murder of a 7-year-old girl.
West testified that he had identified more than 41 bite marks covering the victim’s body, all of which he said had been inflicted by Harrison, some while the girl was alive, some after she was dead.
“He had very unique teeth,” West says of the defendant. “And they all showed up in the wound pattern on the victim’s body.”
However, two other experts who since have examined the evidence scoff at West’s findings. One says the marks on the girl’s body cannot be identified. The other says they probably were ant bites.
“To say these are human bite marks is ludicrous,” says Richard Souviron, a forensic dentist from Miami who is widely regarded as one of the nation’s foremost bite mark experts. Souviron is perhaps best known as the expert who matched serial killer Ted Bundy’s teeth to bite marks on one of his victims. He also was chair of the ethics committee of the forensic dentists board, which recommended that West be suspended.
“Anytime you take a body and dump it in a swamp, you’re going to have insect activity. Anybody could you tell you that,” he says.
West replies that “I’m not saying there weren’t ants on the girl. But they’re not going to bite a pattern into the victim’s body that exactly matches the defendant’s teeth.”
Harrison’s conviction and sentence were overturned in 1994 by the Mississippi Supreme Court, but not because of West. The court ordered Harrison retried because it found that the state failed to disclose evidence supporting the rape charge and the judge refused to authorize funds to allow the defense to hire an expert to rebut it. Harrison v. State, 635 So.2d 894.
Two years ago, West’s testimony also was instrumental in helping convict Anthony Keko for the 1991 murder of his estranged wife, Louise, in Plaquemines Parish, La., near New Orleans.
West, who had Louise Keko’s body exhumed more than a year after her death, identified what he said was a bite mark on her shoulder as having been made by her estranged husband. West had the bite mark removed for safekeeping, but later said it had been erased after it was accidentally placed in embalming fluid.
Defense experts, on the other hand, said they could not be sure the mark was even a bite, let alone identify the person who might have made it.
Souviron, one of the defense’s experts, says the mark appears to be a post-mortem artifact, or an unexplained injury that occurred at some point after the victim’s death. “It could have been anything, really.”
Yet the jury chose to believe West, whose testimony provided the only direct evidence linking Keko to the crime, according to his lawyer, Eddie Castaing. After four hours of deliberation, Keko was found guilty and sentenced to life in prison.
In December 1994, however, the trial judge, voicing doubts about West’s forensic abilities in light of the previously undisclosed disciplinary proceedings against him, reversed Keko’s conviction and ordered a new trial.
Keko is free on bond while he awaits a new trial, which was tentatively set to begin early this year. But his lawyer is trying to prevent West from testifying again, because without him prosecutors concede they do not have much of a case.
“It’s either him or nothing,” says Plaquemines Parish assistant district attorney Charles Ballay, the prosecutor.
Ballay says he thinks too much importance has been placed on West’s role in the case. West only spent about a day on the witness stand in a trial that lasted 23 days, he says. And the circumstantial evidence against Keko, in and of itself, was very persuasive, he adds.
“It wasn’t like the jury was being asked to believe West and only West,” he says. “There was a lot of other evidence that pointed to Keko being the murderer.”
That evidence alone, though, probably is not strong enough to convict, Ballay concedes. West’s tes-timony is the only evidence, he says, placing Keko at the crime scene, which may explain why he and other prosecutors still vouch for West.
Ballay says there is nothing new or mysterious about West’s techniques. The only thing that is new, he says, is that these techniques are now being applied to the field of forensic science for the first time.
James Maxwell, the Jefferson Parish, La., assistant district attorney who prosecuted Abadie and Van Winkle, says flat-ly that he thinks West is ahead of his time.
“I’m quite confident in the guy,” he says. “I have a lot of faith in him. And I think he makes one heck of a witness.”
Maxwell says he could not say whether he would use West again, only that he has not had another opportunity to do so.
West, though, is still at it. This past March, while he remained under suspension from the board of forensic dentists, in separate trials only days apart, West helped Mississippi pros-ecutors obtain first-degree murder convictions against two men who are now on death row.
One of them is Kennedy Brewer of Brooksville, Miss., who was sentenced to die for the 1992 rape and murder of his girlfriend’s 3-year-old daughter.
West identified 19 bite marks on the girl’s body that he said had been made by Brewer, all of which he claimed to have matched to Brew-er’s upper teeth. The defense, once again, called on Souviron, who said the marks appeared to have been made by insects.
But even if they were not insect bites, Souviron says, the marks could not have been made the way West had claimed. It would be impossible, Souviron says, to bite someone that many times without leaving a single bite mark from the lower teeth.
“You could not make bites the way [West] says these bites were made,” Souviron notes. “It’s crazy.”
Crazy or not, the jury believed it, a result which troubles Brewer’s defense lawyer, Thomas Kesler, more than any other case he has tried in 16 years of practice.
Kesler, of Columbus, Miss., is no bleeding heart: He has represented two other defendants in capital murder cases; as a prosecutor, he once tried a murder case in which the defendant received the death penalty. And he concedes that a reasonable person might look at the evidence against Brewer and conclude that he was guilty.
But Kesler still has his doubts. Without West’s testimony, he says, the case against Brewer was not only circumstantial but paper-thin. And the defendant, who had refused to even consider a plea bargain, has always maintained his innocence, Kesler adds. “It’s the kind of case that gives a lawyer heartburn.”
John Kenney, chief forensic odontologist for the Cook County, Ill., medical examiner’s office, and the current president of the board of forensic odontology, says that even though West is back in the good graces of the organization, he is not home-free. From now on, every time West goes into court, Kenney says, he will have to acknowledge having once been suspended by his peers.
“As forensic scientists, the only thing we have is our reputation,” he says. “This blemish on his record is something he’ll have to contend with for the rest of his professional life.”
But John Holdridge, a New Orleans lawyer whose complaints about West prompted the two professional groups to take disciplinary action against him, says the fact that West is still testifying at all shows that some courts, nearly three years after Daubert, remain unwilling or unable to distinguish science from science fiction.
“I think it shows that judges aren’t willing to exercise the discretion that’s been given them in any meaningful way,” Holdridge says. “They just leave it up to the jury, which is obviously in no position to make these kinds of decisions.”
The forensic science community has done its job with respect to West, he says. Now it is up to the courts to do theirs."
Wednesday, March 25, 2009
"TEN DAYS AFTER THREE ELDERLY WOMEN WERE STABBED TO DEATH NEAR MERIDIAN, MISSISSIPPI, THE POLICE ARRESTED A SUSPECT NAMED LARRY MAXWELL. WITH NO PHYSICAL EVIDENCE LINKING MAXWELL TO THE KILLINGS, THE POLICE CALLED ON DR. WEST TO DETERMINE, THROUGH HIS BLUE LIGHT TECHNIQUE, IF MAXWELL HELD THE MURDER WEAPON. ACCORDING TO THE DENTIST, HIS ULTRAVIOLET EXAMINATION OF MAXWELL'S RIGHT HAND REVEALED PRESSURE POINT IMPRESSIONS LEFT BY THE RIVETS IN THE HANDLE OF THE BUTCHER KNIFE. MAXWELL SAT IN JAIL TWO YEARS AWAITING TRIAL BEFORE A JUDGE ENDED HIS NIGHTMARE BY DECLARING THE KNIFE-HANDLE IMPRESSION IDENTIFICATION UNSCIENTIFIC AND INADMISSIBLE;"
JIM FISHER: FORENSICS UNDER FIRE;
A previous post set out Mississippi lawyer Jim Craig's perceptive analysis of Dr. Michael West's defence against allegations that he tampered with evidence.
I was particularly intrigued by Mr. Craig's comment that, "In the world where Michael West's blue light shines, anything is possible."
Michael West's blue light?
Needing to know more, I dispatched my 1001 highly trained researchers to the books and they came up with a reference to Michael West's blue light, in a work called "Forensics under fire" by Jim Fisher, which is published by Rutgers University Press and bears the subtitle: Are Bad Science and Dueling Experts Corrupting Criminal Justice?
About the Author:
Jim Fisher is described as having worked as a special agent, conducting criminal investigations for the FBI from 1966 to 1972. He later taught criminal investigation, criminal law, and forensic science at Edinboro University of Pennsylvania.
Fisher describes West's hocus-pocus techniques in a section of his book called, " Larry Maxwell and the Incriminating Blue Light."
"Dr. West's testimony in a 1990 triple murder case that had nothing to do with forensic ontology marked the beginning of the slow unravelling of his credibility as an expert witness," the section begins;
"Ten days after three elderly women were stabbed to death near Meridian, Mississippi, the police arrested a suspect named Larry Maxwell," the section continues;
"With no physical evidence linking Maxwell to the killings, the police called on Dr. West to determine, through his blue light technique, if Maxwell held the murder weapon. According to the dentist, his ultraviolet examination of Maxwell's right hand revealed pressure point impressions left by the rivets in the handle of the butcher knife. Maxwell sat in jail two years awaiting trial before a judge ended his nightmare by declaring the knife-handle impression identification unscientific and inadmissible;
Outraged by what he considered pure courtroom hokum, Maxwell's attorney filed a complaint against Dr. West with the International Association of Identification, the American Academy of Forensic Sciences, and the American Board of Forensic Odontology. In 1993, facing an ethics investigation, Dr. West resigned from the International Association of Identification. A year later heleft the American Academy of Forensic Sciences. Suspended for a year by the American Board of Forensic Odontology, Dr. West accused his colleaugues of professional jealousy. According to Michael West, the other forensicodontologists resented him for hogging all the glory;"
Tuesday, March 24, 2009
LATEST RADLEY BALKO SALVO: EXPERTS SAY THE VIDEO SHOWS DR. MICHAEL WEST MANUFACTURING EVIDENCE; "SO WHY IS A MAN STILL ON DEATH ROW?"
"THE CRIMINAL JUSTICE SYSTEM IS NOT AND CANNOT BE PERFECT. THE FACT THAT BAD EVIDENCE OR FRAUDULENT EXPERTS SOMETIMES SLIP THROUGH THE CRACKS ISN’T AN INDICATION THAT OUR COURTS ARE BROKEN. BUT WHEN PUBLIC OFFICIALS ARE MADE AWARE OF SUCH PROBLEMS AND DO NOTHING ABOUT THEM, IT RAISES MORE PROFOUND QUESTIONS ABOUT JUSTICE AND INTEGRITY. IN STEVEN HAYNE AND MICHAEL WEST, THE LEGAL SYSTEM HAS TWO PROLIFIC “EXPERT” WITNESSES WHO HAVE TESTIFIED IN THOUSANDS OF CASES, DESPITE TROUBLING AND PERSISTENT QUESTIONS ABOUT THEIR CREDIBILITY. THE TWO ARE NOW IMPLICATED IN CREATING AND ENDORSING MANUFACTURED EVIDENCE IN A CAPITAL MURDER CASE. HOW SERIOUSLY OFFICIALS IN LOUISIANA AND MISSISSIPPI TAKE THESE ALLEGATIONS WILL GO A LONG WAY TOWARD SHOWING WHETHER THERE ARE MORE FUNDAMENTAL FLAWS IN EITHER OR BOTH STATES’ COMMITMENT TO JUSTICE AND FAIRNESS."
RADLEY BALKO; REASON;
Radley Balko's latest salvo was published on "Reason" today - March 24, 2009 - under the heading. "Radley Balko on Forensics Fraud in a Murder Case."
"Reason" tells us that: "Jimmie Duncan has spent the last decade on death row in Louisiana for the murder of a 23-month-old girl. He ended up there partly as a result of an autopsy that experts have raised serious questions about. In the cover story from our April issue, Senior Editor Radley Balko tells the full story, the latest chapter in his investigation into Mississippi-based medical examiner Steven Hayne and his colleague Michael West."
The article is preceeded by the following highly relevant question: Forensics Fraud? Experts say this video shows a doctor manufacturing evidence. So why is a man still on death row?
An editor's note tells us that: "Reason is making several source documents from this story available for download, including trial testimony, an autopsy report, and expert affidavits. Download a PDF of the packet here...http://www.reason.com/news/show/131972.html...Packet is 230 pages, 21.6mb."
"The nude, lifeless body of 23-month-old Haley Oliveaux lies awkwardly across a metal autopsy table in a Mississippi morgue," the article begins;
"A red block propped under the little girl’s shoulders elevates her chest, causing her head to tilt backward and her arms to spill off to the side," it continues;
"The toddler’s head hangs at an angle that causes her fine blonde hair to fall away from her face, exposing her right cheek, the right side of her forehead, and her hairline. There is light bruising around her ear and right eye, but there are no visible scrapes, cuts, or abrasions on the right side of her face. Most notably, the skin of her right cheek is smooth and unblemished. In a heavy drawl, Michael West, a dentist employed by prosecutors and coroners to conduct post-mortem examinations, announces the date and time: December 18, 1993, 9:35 p.m.
Oliveaux drowned in a bathtub that morning in West Monroe, Louisiana, while in the care of her mother’s boyfriend, Jimmie Duncan. Duncan said he was washing dishes at the time. In an unusual decision, her body was transported 120 miles east to Rankin County, Mississippi, for examination. Although the state of Louisiana had its own medical examiners, the district attorney and police chief of West Monroe wanted the autopsy to be performed by Steven Hayne, a controversial physician who was able to dominate Mississippi’s autopsy referrals, critics say, by drawing conclusions prosecutors wanted to hear. Duncan already faced charges of negligent homicide for leaving the girl alone in the tub. In Hayne’s initial examination he claimed to find bite marks that hospital doctors failed to notice. He then called for further analysis from West, his frequent collaborator.
West, a dentist from Hattiesburg, Mississippi, is a specialist in bite mark evidence. During the previous three years, he and Hayne had helped produce murder convictions in two strikingly similar cases, finding previously undetected bite marks on dead little girls and linking them back to the boyfriends of the girls’ mothers. No one knew at the time that the convicted killers—one of whom, Kennedy Brewer, lived on death row for 14 years—would be exonerated and freed in 2008 when DNA tests showed a third man was responsible for both deaths. Nor could many have known at the time that West and Hayne eventually would be discredited by their own professions, and barred from conducting new examinations in their home state.
But the Oliveaux case continues to have repercussions today because the research and testimony West and Hayne produced helped put yet another man on death row, where he remains to this day. West and Hayne would go on to testify in thousands more cases. The states where they testified most often—Louisiana, and particularly Mississippi—still haven’t fully acknowledged the extent of the damage the two men have done to their respective criminal justice systems. The decades-long legislative tilt in favor of prosecutors has made it all too easy for bad actors to do great harm.
West examined Oliveaux twice, on December 18 and 19, 1993. As was routine with Hayne and West, they shot video of the procedure. What’s not routine is that the video is seeing the light of day, after being obtained by reason. (You can view a portion of the video at reason.com/westvideo.)
For the first five minutes, West examines Oliveaux’s body, noting bruises, signs of livor mortis (the pooling of blood after death), abrasions, and contusions. During this time, West makes no mention of any scrapes or abrasions on Oliveaux’s cheek, nor are any apparent on the tape.
At 4:57, there’s a break in the video, marking the lapse between the two exams. At that point the camera returns to Oliveaux’s face. Strikingly, where just moments before the video showed no blemishes at all, there’s now a conspicuous bright red abrasion to the right of Oliveaux’s mouth.
West’s hand then enters the frame, holding a plaster dental mold taken earlier that day from Jimmie Duncan. Using the replica of Duncan’s teeth as a weapon, West repeatedly presses and jams the front bite plate directly into Oliveaux’s cheek. Over two minutes, he does this 17 times. At 6:57, he starts dragging Duncan’s mold across Oliveaux’s face, beginning near her lips, then scraping the plaster teeth down her face to her jaw. He does this for another minute. West next moves to Oliveaux’s elbow and uses the cast to impress Duncan’s dentition onto an old bruise hospital records show she suffered weeks before her death.
At the 9:32 mark, West asks someone in the room to turn out the lights. A fluorescent black light flicks on. West is now employing a much-ridiculed technique he invented for identifying bite marks, which he modestly calls the “West Phenomenon.” He claims that by using a black light and yellow goggles, he can find bite marks, knife serrations, and other tears and abrasions to the skin that no other expert can see. With the lights out, West continues to jam the plaster cast into the girl’s cheek, elbow, and arm. Over the course of the 24-minute video, West pushes the cast of Duncan’s teeth into the girl’s body at least 50 times.
‘He’s Tampering With the Evidence. It’s Criminal.’ “This is the best documentation I’ve ever seen of Dr. West’s junk bite-mark comparisons,” says Michael Bowers, a deputy medical examiner for Ventura County, California, after viewing the video. A past chairman of the American Board of Forensic Odontology’s Exam and Credentialing Committee, Bowers also worked with the Innocence Project to help free Kennedy Brewer.
How did abrasions that were not apparent on December 18 suddenly appear bright red the following day? “Dr. West created them,” Bowers says. “It was intentional. He’s creating artificial abrasions in that video, and he’s tampering with the evidence. It’s criminal, regardless of what excuse he may come up with about his methods.…You never jam a plaster cast into a possible bite mark like that. It distorts the evidence. You take a photograph, or if there are indentations, you take an impression. But you don’t jam plaster teeth into them.” After watching the video, Bowers offered to submit an affidavit for Jimmie Duncan’s defense.
David Averill, a former president of the American Board of Forensic Odontology, concurred. “The video is troubling,” Averill says. “I don’t know how you can explain where those marks come from. And there’s just no justification for him to push the cast into the skin like that. That isn’t an acceptable way to perform a bite mark analysis.”
San Diego forensic pathologist Harry Bonnell, who was hired by Duncan’s post-conviction attorneys last summer, also concludes that West broke the law. Bonnell formerly served on the ethics committee of the National Association of Medical Examiners; he has worked for the Armed Forces Institute of Pathology, and he now sits on the board of trustees for the advocacy group Parents of Murdered Children. He has previously described Hayne’s work on homicide cases as “pathetic,” “near-total speculation,” and “border[ing]…on criminal negligence.”
By email, Bonnell says: “If what I am seeing on the video is accurate, someone is using the mold of Duncan’s teeth to create an apparent bite mark; this, in my mind, is criminal tampering with evidence.” In his affidavit for Duncan’s defense, Bonnell writes, “The injury to the cheek of Haley Oliveaux is not seen in hospital photos…and was generated by using a mold of Duncan’s teeth to create a bite mark.” Of the alleged mark on Oliveaux’s elbow, Bonnell writes that it “does not appear to be acute or occurring at the time of death; it appears older…and is certainly not a bite mark.”
Richard Souviron, a bite mark examiner in Miami and a founding member of the American Board of Forensic Odontology, testified for Duncan’s defense at trial. Inexplicably, Duncan’s trial attorneys, who had access to the video, never showed it to him. After viewing the video last year, Souviron filed a new affidavit that describes “Dr. West, violently and repeatedly, forcing a mold of Jimmie Duncan’s teeth into Ms. Oliveaux’s right cheek.” In doing so, Souviron continues, “Dr. West creates a mark that was not previously present. Dr. West’s behavior and methods are absolutely not supported by any scientific standards or protocol.” Souviron adds that the abrasions could not have been created by Jimmie Duncan but rather “were created by the flagrant misconduct of Dr. Michael West.”
Yet the video was never shown at trial. And the allegedly manufactured bite marks proved to be a critical piece of evidence in Duncan’s 1998 conviction on charges of rape and murder. He has been on death row for 10 years, awaiting lethal injection, in part because of evidence that several prominent forensic specialists say was fabricated.
‘The Manifestations of a Bite Mark’
Haley Oliveaux did not have a happy young life. Her mother was divorced. Her father was in prison. In November 1993, she was twice taken to the hospital after suffering seizures. On November 29, she was again admitted to the hospital, this time after allegedly pulling a chest of drawers down on top of herself while climbing to reach for a piggy bank. She suffered multiple skull fractures in the incident and, notably, some bruising on her left elbow. An investigation by the West Monroe Police Department and Ouachita Parish Child Protective Services found no evidence of abuse and no reason to doubt the piggy bank story.
Three weeks later, on December 18, Allison Oliveaux, Haley’s mother, went to work at 8:45 a.m., leaving her daughter in Duncan’s care. According to Duncan, he gave Haley a bath later that morning and left her in the bathtub while he washed some dishes. Around 10:30 a.m., Duncan said, he returned to the bathroom to find her motionless in the tub. Duncan said he rushed Haley to the house next door. Neighbor Floyd Bennett tried to administer CPR while his son called 911. The ambulance crew described Duncan as hysterical and weeping. Haley was taken to the hospital and pronounced dead shortly thereafter. After admitting to the police that he’d left Haley alone in the tub, Duncan was arrested and charged with negligent homicide. Ouachita Parish law enforcement officials then contracted the autopsy to Hayne.
For the better part of two decades, Steven Hayne and Michael West have served as expert forensic witnesses for the state of Mississippi and occasionally in Louisiana. Both have come under intense scrutiny for questionable professional practices and dubious testimony—West off and on for 15 years, Hayne mostly in the last two. reason published an investigative article about Hayne in November 2007, describing his impossible workload (by his own account, he conducts 1,200 to 1,800 autopsies per year), his relationship with West, and his reputation as a rubber stamp for prosecutors and plaintiffs’ attorneys.
Hayne isn’t even board certified in forensic pathology. He took the American Board of Pathology’s certification exam in the 1980s, failed it, and never attempted to take it again. In August 2008, after two convicts who had been rung up based on Hayne’s testimony were exonerated and new questions about his testimony in other cases began to surface, Mississippi officials finally removed Hayne from the state’s list of medical examiners approved to perform criminal autopsies, mostly (though, as we’ll see, not totally) ending his career. (For a complete list of reason’s Hayne-related articles, go to reason.com/hayne.)
By 2008 West, too, had been largely discredited. His colleagues ridiculed the “West Phenomenon” and his bizarre claims defending the method. West once bragged he could positively trace a half-eaten bologna sandwich found at a crime scene back to the defendant. He compared his proficiency with Itzhak Perlman’s, his error rate with Jesus Christ’s. As early as 1994, an ethics committee of the American Academy of Forensic Sciences unanimously recommended that West be expelled from the organization. West resigned instead. His work was later criticized in national publications such as Newsweek, the ABA Journal, and National Law Journal.
According to trial testimony, Haley Oliveaux was one of Hayne’s first autopsies for Ouachita Parish. Among those who traveled the 120 miles to observe his work were the West Monroe police chief, a police detective and captain, and two assistant district attorneys. Although it isn’t particularly uncommon for prosecutors or police to witness an autopsy, it is unusual for them to travel two hours and cross state lines to do so. The practice of a forensics expert speaking with police and prosecutors before conducting an autopsy is strongly discouraged by professional organizations such as the National Association of Medical Examiners, because it can bias the examiner’s conclusions. At Duncan’s trial five years later, one of his attorneys likened the Oliveaux autopsy to a job tryout. If that was the case, Hayne apparently passed. By 1998 the bulk of Ouachita Parish’s criminal autopsies, 30 to 40 a year, were outsourced to Hayne.
After his preliminary autopsy the evening of December 18, 1993, Hayne claimed to have found “the manifestations of a bite mark.” He notified Ouachita Parish authorities, who then obtained a warrant to make a mold of Duncan’s teeth. Later that night, West conducted the preliminary examination seen in the first five minutes of the video. The next day, armed with the cast of Duncan’s teeth, West worked over the dead girl’s corpse.
Because the videotape was never admitted into evidence, it isn’t clear who besides West was in the room when it was made. Hayne testified that he helped West take photographs of the bite marks, which suggests he might have been present, but there’s no way of knowing which if any of the two days’ of footage was observed by the busy medical examiner. What is clear, is that Hayne testified under oath to finding bite marks.
After the autopsy and examination by Hayne and West, the Ouachita Parish District Attorney’s Office raised Duncan’s charge to capital murder. Citing the alleged bite marks, among other evidence, prosecutors accused Duncan of raping Haley in the bathtub, forcing her head underwater, biting her, and drowning her.
‘Abrasions Cannot Appear, Then Disappear, and Then Reappear’
West himself never testified at Duncan’s trial. It was during the years between his examination of Oliveaux in 1993 and Duncan’s trial in 1998 that the dentist’s methods started coming under fire. By 1998 Duncan’s prosecutors recognized the baggage West carried and dropped him from the case. Instead, the prosecution turned to another forensic odontologist, Lowell Levine, who turned them down. Later, Levine explained in a deposition that he refused the job because he had been involved in a prior “problem case” with West (one that led to another conviction followed by an exoneration) and he didn’t “really need to get involved in this again.”
The prosecution then turned to Neal Riesner, a dental examiner from Scarsdale, New York. Relying on the photographs West took after the examination recorded in the video, Riesner testified that the marks on Oliveaux’s cheek were indeed bite marks, and that “to a reasonable degree of medical certainty,” he could determine that they were Duncan’s. He also testified that the marks on the ear and elbow were “consistent” with Duncan’s dentition.
Despite West’s disintegrating reputation and the fact that the bite mark evidence was derived from his work, Louisiana Fourth Judicial District Judge Charles Joiner ruled in 1995 that the video contained “no exculpatory evidence favorable to the defendant”—a finding hotly disputed by all the forensic specialists consulted for this article—and that therefore prosecutors didn’t need to hand it over. The state maintained at first that “the defense is somehow hoping to drag Dr. West into this case in order to create ancillary issues for the jury,” but by 1996 prosecutors relented and gave defense attorneys the video. But Duncan’s attorneys never showed the video to their own dental examiner. This point would become crucial, since the bite marks were the only physical evidence used to elevate Duncan from a negligent guardian to a lethal child rapist.
According to Duncan’s post-conviction attorneys, no witness accounts taken before West’s examination of Oliveaux mention any sort of marks on her cheek. Hospital photos taken shortly after her death also show no marks. (They do, somewhat confusingly, show her intubation tube held in place by a piece of red tape attached to her cheek—but no abrasions.) Statements from hospital doctors, social workers, police officers, and Duncan’s next-door neighbors taken before December 19—i.e., before Hayne and West declared that they had found bite marks—also make no mention of any cheek wounds. According to Duncan’s current attorneys, many of these early statements were never turned over to his trial attorneys.
It is only in interviews and police statements taken after West’s examination of Haley Oliveaux that witnesses began to remember seeing “red marks” on her cheek, raising the possibility that these memories were suggested, intentionally or otherwise, by prosecutors or police investigators.
In early interviews with police and social workers, for example, neighbor Floyd Bennett made no mention of any marks or abrasions on Oliveaux’s face, despite performing CPR on the child. At Duncan’s trial five years later, however, Bennett recalled seeing red marks on the girl’s cheek. Initial statements taken from an investigator with the Ouachita Parish Coroner’s Office, a state social worker, and hospital doctors document several of Haley Oliveaux’s injuries, but none mentions the marks West claims to have found on her cheek. According to a brief prepared by Duncan’s current attorneys, one police officer specifically testified at a preliminary hearing that he saw no marks on Oliveaux’s face, then changed his testimony five years later at Duncan’s trial.
Perhaps more damning, in a December 18 letter to the Ouachita Parish Coroner’s Office recording his initial observations, West himself made no mention of the cheek abrasions. It wasn’t until the entry stamped the next day that he brought them up. Bonnell elaborated on this discrepancy in his affidavit for Duncan’s defense. “The injuries on the child’s face are abrasions, which form almost immediately,” he wrote. “Therefore the fact that the marks are not present in the hospital photographs and in the beginning of the West Video makes it medically impossible that Jimmie Duncan could have inflicted [them].…Abrasions cannot appear, then disappear, and then reappear at the morgue.”
The bite marks were the only physical evidence directly suggesting that Duncan abused Oliveaux. Duncan agreed to provide urine and blood samples for a rape kit, but doctors found no biological evidence from Duncan inside the girl. Searches of Duncan’s clothes also turned up no evidence of physical or sexual abuse. No blood, no hair, no tissue.
The most disturbing of the injuries found on Haley Oliveaux the night she died were some lacerations to the outside of her rectum. Those, together with the bite marks, undoubtedly weighed heavily on the jury. As the prosecution showed blown-up photos of Oliveaux’s lacerated rectum, Hayne testified that the injuries were “consistent with” penetration by a penis, though he couldn’t rule out penetration by another object. Another state witness, Edward Gustavson, a pediatrician with no forensic pathology certification, stated more definitively that the lacerations could only have been caused by a penis, along with the trauma from an assailant’s pelvis grinding against Oliveaux.
Bonnell says both are wrong. “Dr. Gustavson’s explanation…is ludicrous, and probably based on fantasy, definitely not scientific or medical fact,” he writes. Bonnell adds that penetration from a penis or similar-sized object would have resulted in significant anal tearing and perforation, neither of which were found. Duncan’s attorneys speculate that the injuries were caused by a hard stool, an explanation Bonnell finds plausible.
Bonnell says he can’t conclusively rule out that the injuries were caused by sexual abuse. The problem, he says, is that it would be impossible for him to reach a definitive conclusion about what caused the rectal injuries without examining the microscopic slides of the anal tissue. Those slides, made by Hayne, are now nowhere to be found.
In response to a 2008 court order to produce the slides, Hayne first said he didn’t have them, because he had sent them to the Mississippi State Crime Lab in Jackson. But the crime lab told Duncan’s lawyers it has never possessed the evidence. Even if Hayne somehow managed to lose the slides (an egregious mistake, given their importance), he should have a written record of what they showed. According to Duncan’s post-conviction attorneys, Hayne hasn’t produced any of that documentation either.
Duncan had no prior allegations or charges of sexual abuse. On the first day of the trial in 1998, Duncan’s attorneys learned through outside sources that a convicted sex offender lived in Duncan’s neighborhood and was suspected of molesting a child who lived next door. So even if Oliveaux’s anal injuries were caused by sexual abuse, the only piece of physical evidence linking Duncan specifically to an assault on the girl is the bite marks. Which, according to every outside forensic expert who has viewed the video, were created by Michael West.
‘I Was to Say That Jimmie Had Confessed to Biting the Child’
The other major piece of evidence against Duncan was testimony from a jailhouse informant who claimed that Duncan confessed to his crime while behind bars. Michael Cruse testified that he shared a jail cell with Duncan for one day in late December 1993. (Cruse also claimed another inmate in the same cell confessed a felony to him, according to the letter he wrote to prosecutors.) Duncan’s current attorneys have since obtained an affidavit from Michael Lucas, another inmate in the cell that day, who says that not only did Duncan not confess, he repeatedly asserted his innocence, despite Cruse’s constant attempts to elicit a confession.
Since then, two other inmates have reported being asked by Ouachita Parish law enforcement officials to lie about hearing Duncan confess. One of them, Charles Parker, who had worked as an informant for the FBI, wrote a letter of complaint to the district attorney’s office about the incident. In a later interview with Duncan’s post-conviction attorneys, he described how an investigator named Jay Via approached him and fed him information about Duncan’s case. “He gave me details of the crime, saying that the child was less than two years [old] and that she had been anally raped,” Parker said “He told me that when I came forward I was to say that Jimmie had confessed to biting the child while he was raping her.”
Parker said that in exchange for his testimony, Via promised “he would talk to the DA and would get my sentence reduced.” Parker said he refused, because he thought Duncan was being railroaded. Via then allegedly threatened him with repercussions.
The prosecution not only never followed up on Parker’s initial letter, they never turned it over to Duncan’s trial attorneys—yet another violation of their legal requirement to share exculpatory evidence. The letter wasn’t discovered until last year, when Duncan’s post-conviction attorneys found it in the district attorney’s case file.
Police notes taken during an interview with the informant Cruse say that he asked for “ammunity [sic] from pros.” Cruse’s own letter offering to testify also mentioned his desire for leniency with respect to a burglary charge he was facing. Neither of those documents were turned over to Duncan’s trial attorneys either. By the time of Duncan’s trial, Cruse was facing a new charge of theft. That charge was dropped a month after he testified.
Inspector Via has a history of eliciting false confessions. In 1983 a man named Barry Beach was arrested in Ouachita Parish for contributing to the delinquency of a minor. After three days of intense questioning, he confessed to Via that he had killed three women in Louisiana and one in Montana. Beach’s lawyers were later able to prove Beach couldn’t have committed the three murders in Louisiana, because wasn’t even in the state at the time. Beach still stands convicted of the fourth murder, which took place in Montana, though there are mounting questions about that one too.
Incredibly, Via then managed to elicit two more false confessions to one of those same murders.
Months after the Beach confession, Via got convicted felons Henry Lee Lucas and Ottis Toole to confess to one of the murders Beach didn’t commit. Just last year, a fourth man named Anthony Wilson was arrested for that murder after DNA tests linked him to the crime scene.
‘Just Because Dr. West Has Been Wrong a Lot…’
It is impossible to say with certainty whether or not Jimmie Duncan murdered Haley Oliveaux. He was alone with the girl when she died, and at a minimum he behaved negligently, even recklessly. There were no witnesses. It isn’t a matter of who killed Oliveaux; it’s a matter of whether she was killed at all, or if her death was an accident. There will never be a DNA test either to confirm Duncan’s conviction or clear his name, because there simply isn’t any DNA evidence to test.
What is clear is that Duncan didn’t get anything approaching a fair trial. He was convicted based on physical evidence tampered with and allegedly manufactured by Michael West plus hearsay evidence possibly fabricated by a motivated jailhouse informant. Exculpatory evidence was withheld from or bungled by the defense. Duncan’s case is teeming with egregious prosecutorial and police abuses and bad science. At the very least, he deserves a new trial and a cell far away from death row.
As for West and Hayne: Their caseloads may have been cut, but their damage is ongoing. West continued to testify in Mississippi courtrooms until at least 2000. In 2001 a defense lawyer decided to test West by sending him a cast of an accomplice’s teeth along with photographs of alleged bite marks from a homicide case that had already been solved. Sure enough, West sent back a videotaped report confidently claiming the completely unrelated dental mold and bite mark photos were a match. Even after all of this, the Mississippi Supreme Court continued to uphold West’s testimony in murder cases. In a 2003 opinion the court said, “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.” As late as 2007, prosecutors were still relying primarily on West’s testimony to keep Kennedy Brewer in prison, even though by that point DNA evidence had excluded Brewer as the rapist. (West and the prosecutor insisted Brewer must have bitten the victim while someone else raped her.) Despite the exonerations of Brewer and fellow falsely convicted Hayne/ West case Levon Brooks, Mississippi officials still refuse to conduct a thorough review of all the trials at which West has testified. The New York chapter of the Innocence Project is reviewing hundreds of such cases.
Despite years of complaints from authorities including the Mississippi state medical examiner, Hayne managed to fly mostly under the radar until the 2007 reason article and the 2008 DNA-based exonerations. After those cases, the Innocence Project mounted an aggressive public campaign against Hayne, culminating with a complaint to the Mississippi State Board of Medical Licensure seeking to revoke Hayne’s medical license. Although that complaint was rejected, Mississippi finally stopped using Hayne to perform criminal autopsies in August 2008. Still, the state agreed to allow the disgraced examiner to complete a backlog of some 600 open cases and to continue testifying in Mississippi courts if required. As with West, state officials said they had no plans to reopen or investigate any of the thousands of cases in which Hayne has testified.
The criminal justice system is not and cannot be perfect. The fact that bad evidence or fraudulent experts sometimes slip through the cracks isn’t an indication that our courts are broken. But when public officials are made aware of such problems and do nothing about them, it raises more profound questions about justice and integrity. In Steven Hayne and Michael West, the legal system has two prolific “expert” witnesses who have testified in thousands of cases, despite troubling and persistent questions about their credibility. The two are now implicated in creating and endorsing manufactured evidence in a capital murder case. How seriously officials in Louisiana and Mississippi take these allegations will go a long way toward showing whether there are more fundamental flaws in either or both states’ commitment to justice and fairness."