In 2001, DNA results proved that Kennedy Brewer, a man convicted of raping and murdering a three-year-old girl, was innocent. He had been arrested in 1992, waited in jail for three years for a trial, then was convicted of capital murder and sent to death row in Mississippi.
In 2008, Brewer was the first person to be exonerated through post-conviction DNA testing in Mississippi. Finding the real perpetrator also exonerated another man, Levon Brooks, who had served 16 years for a similar rape and murder of another three-year-old girl.
Together, they had spent more than 30 years in Mississippi jails for crimes they didn’t commit, until scientific evidence came to their rescue. But “science” had also put them in jail in the first place.
In a new book, The Cadaver King and The Country Dentist: A True Story of Injustice in the American South, Radley Balko, an investigative journalist and reporter at the Washington Post and Tucker Carrington, the director of the Mississippi Innocence Project at the University of Mississippi School of Law, reveal how the questionable autopsies and forensic science methods of two men were able to put away countless people for crimes they didn’t commit.
Steven Hayne, Mississippi’s “former de facto medical examiner,” performed most of Mississippi’s autopsies, and enlisted the help of Michael West, a forensic dentist who claimed that he was an expert in bite-mark analysis. I talked to Balko and Carrington about what bite-mark analysis is, how junk science can be argued in our courts, and what we can learn from Brewer and Brook’s cases.
Who were Dr. Hayne and Dr. West?
Tucker Carrington: Dr. Hayne, as far as we know, came to Mississippi in the 1980s and ended up being employed in the medical examiner’s office, not as the medical examiner but as sort of an assistant. Mike West is from Mississippi, went to dental school at LSU, came back to the area as a clinical dentist. He says he got interested in forensic odontology and bite-mark matching when he was in the air force. They ended up becoming acquainted with one another and becoming friends. There was a lack of funding for the medical examiner’s office, a legislative disinterest in creating a robust medical examiner’s office and medical legal system in Mississippi, and it created a kind of vacuum. And it just so happened that Dr. Hayne and Dr. West filled the vacuum. They each brought their own “abilities.” Dr. Hayne was an indefatigable pathologist. He did thousands of autopsies and made a lot of money doing it. Dr. West, according to him, perfected and was on the vanguard of bite-mark identification. Hayne and West were advertising their services both in print and word of mouth, and it was a way to solve difficult crimes. These guys would come in, and Dr. Hayne would do the autopsy. He never really would say categorically that he found bite marks, but he would often say in either his report or elsewhere that he suspected that there were some "pattern injuries." He would ask that Dr. West be referred in. Then Dr. West would come in, and there were cases upon cases where Dr. West would confirm Dr. Hayne’s suspicions and find bite marks and then match the bite marks to a suspect.
Radley Balko: Hayne kind of brilliantly positioned himself in a lot of ways. He monopolized the autopsy referral system. There wasn’t even really a need for any other medical examiner to come into Mississippi. I interviewed a guy who was later hired to be the state medical examiner after Hayne was fired, and he told me that in the 90s he had come to Mississippi and was willing to do autopsies, and was told by a county coroner that he had to get permission from Hayne before he could get any referral. Which was weird because Hayne didn’t hold the ME position at the time. Hayne was the only game in town.
What is bite-mark analysis and how does it compare to other kinds of questionable forensic science that have been used in criminal cases?
RB: There have been numerous forensic fields that have been disproven and fallen out of favor. But also lots that are still really questionable that are still being used. The FBI admitted a couple of years ago that its hair-fiber analysts have been overstating their certainty and the significance of hair-fiber analysis, basically in every case they’ve testified in; it was like 90 or 95 percent of the cases. We’re talking thousands of cases, not just at the federal level. They also trained hair fiber analysts at the state and local level. I don’t think we’ll ever really get a grip on just how many cases may have been tainted there. Also, voice-print analysis is one from the 70s and 80s. They were using this idea that your voice could be identified just to you, and to the exclusion of everyone else. That one was subjected to a review panel and DOJ has found it to be scientifically lacking.
The one that we feature in the book is bite-mark analysis. This is one that was popularized, pushed into the mainstream, and was widely accepted in the courts despite the fact that until about 10 to15 years ago, there was no scientific research at all done on the two main claims of bite-mark analysis. Which is that human dentition is unique, and that human skin is capable of recording and preserving that uniqueness in a way that could be used to identify people. There’s no science to back up these two underlying assumptions behind this entire discipline.
When people started doing scientific research to test this, they found there’s no evidence for it at all. Because we don’t know if human dentition is unique, and we do know that human skin can’t really preserve bite marks in that way. And yet, today, as of today, no court in America has upheld a challenge to bite-mark evidence. Every time it’s been challenged, the defendant challenging it has lost.
This gets back to the fundamental problem, which is that there are always going to be charlatans and people trying to push bad forensics and make themselves out to be experts when they’re not. The real problem is that we don’t have a way of dealing with that. We don’t have a way of distinguishing good science from bad. This gets to the tension between law and science. Law is about statutes of limitations and deadlines and consistency and sticking to precedent, where science is evolving, always changing. There’s no accommodation in the legal system for the fact that even real science is going to change over the course of 10 to 40 years, theories are going to change somewhat. This is worse than that. This is non-science that was let into courts when it shouldn’t have been and then when science showed that it’s bullshit, there was really no avenue for the courts to deal with that and to retroactively clean up their mess.
I was really struck by how confident West was when he took the stand as an expert. How did he present bite-mark evidence when he was testifying, specifically in the Levon Brooks case?
RB: The amazing thing he does with Levon Brooks, and this is actually this a pattern for West, is that he would often find bite marks that he would say were only administered with the upper teeth. And sometimes the upper back teeth. If you think about how people bite, the idea that you could just bite somebody with your upper teeth is already pretty weird, and your upper back teeth is even more bizarre. Although in Levon’s case, it was the front teeth.
What West would claim was that over the course of your life your teeth get common wear and tear, and there are ridges on the back of your teeth, your incisors for example, and they’re all kind of different. And you bite into human skin, the tooth sinks into the skin, and those ridges cause the skin to bunch up in different ways. He would claim that he could look at a bite mark and the way the skin had bunched up, and he could match the bunching in the skin to the grooves on the back of your teeth. It’s absolutely preposterous.
He would take dental mold-which if you’ve ever had braces, you know what those are-
and fill it with this kind of wet clay like substance and then push it into the teeth. These trays are fine for things like orthodontia or cosmetic dental work. But it’s a sludgey kind of substance and the idea that it could preserve that kind of minute detailing in the teeth is already kind of absurd. But then, in Levon’s case, West told prosecutors that he couldn’t say definitely that it was him. So West went back and he used silly putty on Levon’s teeth and he claimed the silly putty could preserve that detail on a much more fine level. In his testimony he says he could tell down to so many microns, which is fractions of a human hair. On some level, it doesn’t even matter how much detail West said he could copy and preserve from a suspect’s teeth because we already know that skin can’t preserve that kind of detail.
Even assuming it can, in this case, the girl had been submerged in water. She had been bitten by insects. In Levon’s cases she had been embalmed. She had actually been embalmed. On top of that, when you preserve skin that has a mark on it for analysis later, you’re supposed to apply what is called a retainer, which keeps the skin intact. When you cut off human skin it immediately starts to hydrate and shrinks and kind of shrivels. Well, West didn’t do that either.
It’s absurd on so many levels. There’s so many variables. Whether the victim was pulling away when she was bitten, which way she was pulling, whether the assailant bit straight down. Even if you said there’s some sort of mathematical formula that could account for all of that, it would be implausible, but West would say he could just tell. He could do it in his head, he could figure it out. That should have been an early red flag that this guy was a fraud.
TC: What’s fascinating about this is that it does make some intuitive sense to people. Yeah, people do have different-shaped mouths and teeth. My own teeth have this and that. Radley says it’s absurd and he’s right about that, but I think there’s another point to be made: There’s absolutely, not now and not then, any basis, any scientific evidence, which supported what Dr. West was testifying about. Zero. It’s amazing when you read these transcripts, like from Levon’s case, and it’s page after page of Dr. West going on about all this stuff. And with no objection.
West always sounded so sure when he was giving his testimony. Was he aware that what he was doing was illegitimate? Or had he and Hayne deluded themselves into a place where they felt like they knew the answers?
TC: As a general question, I can’t say. You’d have to ask them. Maybe the more germane point is as a legal matter, at the very least, I think that it should have been abundantly clear early on from lack of empirical evidence, and should have become increasingly clear moving forward, that what was going on was not objectively true. Because people were being excluded as suspects. There began to be series of cases even pre-DNA where it was apparent that this could not be what it was cracked up to be. That raises a different question: At what point can one plausibly believe something when the evidence seems to contrary to what people claim?
RB: On one level it shouldn’t matter if the non-scientific evidence they’re giving was intended or not. But it does matter in civil liabilities like when Brooks and Brewer sued West and Haynes for wrongly putting them in prison and nearly getting one of them executed. They lost. The federal appeals court basically ruled that for them to win, Brooks and Brewer had to show that there was malicious intent here. That they intended to give false testimony, they knew they were giving false testimony. The court conceded that what West and Hayne did was arguably gross negligence but that wasn’t enough. Short of getting West and Hayne saying in a recording, "Let’s frame this guy," it’s an almost impossible hurdle to get over.
How many people were potentially falsely imprisoned? Will we ever know? How do we deal with that?
RB: We know of three people who are on death row because of Hayne and/or West. Still today they’re on death row. It’s going to be impossible to know how many in total unless there is a systematic review. We’re talking about thousands of cases that Hayne testified in. The state's official approach, particularly from Mississippi Attorney general James Hood, has been: We’ll let people like Tucker sort through these cases and find the ones that are worth appealing. That’s a really scandalous response to this.
But there are some that we’ll never know. Hayne not only did the autopsies in cases where the person was tried for murder, he also did the autopsies in cases like one where a woman was found, clearly beaten to death. There was blood all over the house, blood on the wall, neighbors saw somebody run out of the house with a bloody t-shirt, and Hayne determined she had died from a stroke. We don’t get into this in the book, but there’s a whole other side where a crime was committed but for whatever reason the local prosecutors just didn’t want to deal with it–because it was a poor black person who didn’t matter to them, or they didn’t want to have another unsolved homicide on their hands.
What can we learn from these cases about how we use scientific evidence in our courtrooms?
TC: This book wasn’t a pleasant book to write. There’s not a lot of things to be happy about in it. But one of our main motivations for writing it was to have a complete record of what happened. With the hopes that people will pay attention and say that this is just unacceptable and we need to do something. We need to really re-evaluate the intersection of law and science, and in particular forensic science. Not only the sort of odd disciplines like bite-mark matching, but even fingerprints. If you go back to the Madrid bombing case, they arrested a guy because three prominent fingerprint experts said his fingerprints were on some of the bombing material. And it wasn’t him. There has to be this sea change in the way we think about and deal with forensic disciplines. There needs to be very rigorous vetting and then I think we need to be honest about what has happened retrospectively. That’s a very hard thing to do both because of precedent but also, if we were to admit that fingerprint evidence is not what it was cracked up to be, what does that say? About the fundamental structure of an individual case? The value of precedent? But unless you’re willing to grapple with that, then we stand to repeat, in some other iteration, what happened in the book.
RB: In three states, including Mississippi, the controlling case law on bite-mark evidence and whether or not it’s scientific is one where the person was later found innocent and exonerated. In all of those case opinions they talk about how scientifically sound and fool proof bite-mark analysis is. And this is for cases where a person was actually innocent! If you look those cases up in legal databases, there’s no notation on the opinion that that person was actually found innocent. Which I think speaks volumes about how ill-equipped our court system at handling and analyzing and considering scientific evidence.
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