POST: "Expert witness goes nuts during questioning for Mississippi death penalty case, by Radley Balko, published on his Blog 'The Watch' by the Washington Post, on August 24, 2016. (Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces.")
GIST: "I’ve been reporting on the crazy death investigation system in Mississippi for about ten years now. Just when I’ve thought things couldn’t get more surreal, I’m inevitably proven wrong. The latest example comes in a deposition last April of the disgraced “bite mark expert” Michael West. To fully appreciate what happened during and after this deposition, you’d need quite a bit of background. If you have 20 minutes or so, this piece I wrote for Huffington Post a few years ago is pretty thorough. Or try this post, or this post here at The Watch. But here’s a rough summary: In the early to mid-1990s, Michael West became a rock star in the world of forensics. West claimed to have developed techniques that he and only he could perform. According to West, those techniques could both identify bite marks on human skin that no other medical specialists could see, and then match those marks to one person, to the exclusion of everyone else on the planet. West helped put lots of people in prison. He soon expanded his repertoire, and became an expert witness in a variety of forensic specialities, including a few he claimed to have invented. In addition to bite mark analysis, West also testified over the years as a a trace metals expert, wound pattern expert, gun shot residue expert, gunshot reconstruction expert, a crime scene investigator, blood spatter expert, “tool mark” expert, fingernail scratch expert, “liquid splash patterns” expert, and “video enhancement expert.” He once claimed he could match the bite marks in a half-eaten bologna sandwich found at the crime scene to the teeth of the primary suspect. Not DNA, mind you — the tooth marks in the bread. In another case, West even offered the jury his expertise about how lesbian couples resolve conflict. Though he primarily testified in Mississippi and Louisiana, prosecutors in at least eight other states retained him as an expert witness. As early as 1994, there were questions about West’s credibility. He was the subject of several skeptical media profiles, including by Newsweek, the ABA Journal and “60 Minutes.”He has been investigated by and either resigned or was expelled from three separate professional organizations. Back in the early 2000s, one attorney tricked West into matching photos of bite marks on a murder victim to the dental plate of the attorney’s own private investigator. By the late 1990s West was considered something of a quack even within the already dubious forensic speciality of bite mark analysis. Yet Mississippi (and Louisiana) prosecutors continued to use him, Mississippi and Louisiana trial courts kept allowing him to testify, and Mississippi and Louisiana appellate courts kept upholding the crazy things he’d claim on the witness stand. In 2007, Kennedy Brewer and Levon Brooks were exonerated of the rape and murder of two little girls in Noxubee County, Mississippi. The first crime occurred in 1990. Local police suspected Brooks for the sexual assault and murder of a 3-year-old girl. West’s bite mark voodoo and testimony from (also controversial) medical examiner Steven Hayne were the main evidence against Brooks, who was convicted and sentenced to life in prison. The next little girl was raped and killed less than two years later, just a few miles away. This time, police zeroed in on Brewer as the killer, and once again West’s bite mark matching was the main evidence against him. Brewer was convicted and sentenced to death. After spending a combined 30 years in prison, the two were released when DNA testing in the Brooks case pointed to a convicted sex offender named Justin Albert Johnson. He was arrested and admitted to both crimes. In fact, Johnson was briefly a suspect in the first crime, but West “excluded” him after finding that Johnson’s teeth failed to the match what West said were bite marks on the victim. (Indeed, it’s possible there were no bite marks at all — in his confession, Johnson made no mention of biting either little girl.) That still wasn’t enough to convince Mississippi officials to take another look at all the other cases in which West had testified. So let’s move on to the case at the heart last April’s crazy deposition. In 1994, Eddie Lee Howard was convicted for the rape and murder of an 84-year-old woman, mostly due to testimony from Hayne and West. Hayne didn’t initially claim to have seen any bite marks on the victim’s body. It was only several days later, when then-district attorney Forrest Allgood identified Howard as his chief suspect that Hayne recalled seeing marks that could be bites. (Allgood is also the prosecutor who convicted Brewer and Brooks.) The victim had by that time been buried. She was exhumed, and West then performed his magic, claiming to match the alleged bite marks to Howard. Howard was convicted and sentenced to death. As late as 2006, the Mississippi Supreme Court heard appeals on West’s testimony in Howard’s case. Even while acknowledging West’s severe credibility problem, his expulsion from various professional organization and his many other transgressions, the majority simply shrugged, writing, “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.” (Remarkably, West actually disclaimed bite mark analysis in 2012 — sort of — although he still defends his own work.) After years of fighting, Howard’s attorneys were finally able to have DNA testing done on the knife allegedly used to kill the woman Howard was convicted of killing. The tests showed male DNA, but excluded Howard as the source. (A rape kit taken from the woman produced no usable DNA.) Last year, a state appeals court finally granted Howard’s request to reopen several issues in the case, including a challenge to West’s credibility. That set up the surreal deposition in April. At that deposition, West was questioned by Chris Fabricant, Director of Strategic Ligation at the Innocence Project of New York. Also present was Tucker Carrington, Director of the Mississippi Innocence Project. (Disclosure: Carrington and I are currently co-writing a book about all of this.) Howard is also represented by Vanessa Potkin, Peter Neufeld, and Dana Delger, all of whom work for the Innocence Project in New York. West frequently has been brash, prickly, and prone to fits of braggadocio on the witness stand. This time, he was also belligerent, profane, and combative. He was openly contemptuous of the entire process — which again was at heart about whether or not the state of Mississippi should put a man to death. The transcript records that he belched before one answer. On two occasions, as he grew increasingly annoyed at Fabricant’s questions, West offered hypotheticals that involved him killing Fabricant. You can read the entire transcript here. But I’d like to point out some highlights. It began almost immediately, as West started the deposition with pouty, one-word answers. Here’s one such exchange:
Q. Dr. West, I see that you have no documents with you; is that right?Read on for further insights into the bizarre psyche of Dr. Michael West - and insights into the justice system that permitted hum to thrive. Bravo Radley.
Q. Did you look for any documents before you came here today?
Q. Did you do anything to prepare for this deposition at all?
[. . .]
Q. And you realize that we’re here about Eddie Lee Howard’s convictions?
Q. Well, I’m telling you that it’s about Eddie Lee Howard. Do you remember the Eddie Lee Howard case?
[. . .]
Q. Dr. West, I’m just going to ask you to flip through this or to take your time with it and just refresh your recollection about the testimony that you gave in this case.
A: I was never more familiar with the case than when I testified on it.
Q. So you feel —
A. I feel comfortable with the testimony that I gave at that point in time, I still stand.
Q. Okay. But you haven’t actually looked at that testimony, though, right?
A. I stand on my testimony.
Q. You stand on it, I understand. But I’m just asking you, did you actually look at it?
Q. No. And have you looked at it since 1992?
Q. You said earlier that you don’t remember what you testified to. But you’re saying that you stand by whatever it was?
Q. But you don’t know exactly what it is?
Harold Levy: Publisher: The Charles Smith Blog;
I am monitoring this case. Keep your eye on the Charles Smith Blog for reports on developments.
The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
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Harold Levy: Publisher; The Charles Smith Blog;