Monday, March 23, 2009







Radley Balko replied to Dr. Michael West's defence to allegations that he had tampered with evidence in a note published on March 1, 2009;

"Disgraced bite mark witness Michael West angrily responded yesterday to charges first reported here at Reason that he tampered with evidence by pushing a dental mold of a suspect's teeth into the corpse of 23-month-old Haley Oliveaux," Balko's note begins;

"I'll address the rest of West's defense in a subsequent post. For now, I'd like to focus on this passage, quoting West", the note continues;

""I've exonerated three or four times as many people as I've convicted," he said. "I'm a little old dentist from Hattiesburg, and I've got the top lawyers in the country coming after me. The New York Times wrote an editorial on me. Why? They can't stand the evidence."

I'm not sure what "They can't stand the evidence" means. But there's a reason lawyers and experts across the country are coming after him. In addition to West's key role in the Oliveaux case and in the wrongful Kennedy Brewer and Levon Brooks convictions—all discussed in my article last week—here's a look at the other "evidence" of West's expertise over the years:

• In the 1995 Louisiana case State v. Van Winkle, West testified that marks on a dead boy's stomach were consistent with the soles of a pair of hiking boots owned by his mother. The mother was convicted of manslaughter, but the conviction was later overturned, in part due to West's testimony.

• In 1992, West matched a bite mark on an elderly rape victim to a Mississippi man named Johnny Bourn. Bourn was arrested and imprisoned for 18 months due to West's testimony, even though hair and fingerprint evidence pointed to someone else. Bourn was freed when DNA testing on fingernail scrapings taken from the victim conclusively excluded him as the assailant.

• In the case of Eddie Lee Howard (which I blogged about here), a dissenting opinion from the Mississippi Supreme Court noted that at the time of Howard's first trial in 1994, West had testified in "forty-one murder trials; thirty-two times as a wound pattern expert; one time as a trace metal expert; three times as an expert regarding gun shot residue; three times as an expert in gunshot reconstruction; three times as a death investigator expert; two times as a County Coroner; six times in child abuse trials; three times as a crime scene investigator; and one time as a blood splatter expert. He also asserts that he has made 600 dental I.D's and 300 bite mark I.D.'s. Of the 100 board certified forensic odontologists in the United States, about 90% of them have testified for the opposite side when Dr. West is called as an expert witness."

• In the 2000 Mississippi case of Leigh Stubbs and Tammy Vance, two women accused of various drug and assault charges, West expanded his expertise to include video enhancement, and claimed he could match the latches on a toolbox to the wounds on the alleged assault victim.

• In the 1997 case Banks v. Mississippi, West claimed to have matched the bites in a half-eaten bologna sandwich left at the crime scene to the defendant's dentition. West then destroyed the sandwich before the defense could test it. The defendant was convicted. That conviction was later overturned, and West's testimony was tossed.

• In the 1990 Mississippi case State v. Maxwell, West definitively matched the serrations on a butcher knife to stab wounds on three elderly victims, and also with a slash on a door. He also claimed he could trace slight indentations on the suspect's palm to rivets on the knife's handle. When West's lab photos of the alleged indentations came back overexposed, he merely photocopied the suspect's hand, then drew the indentations in. He was still allowed to testify. West's testimony is all that linked the defendant Larry Maxwell to the crime scene. Maxwell was convicted. Citing West's improbably testimony, a court later overturned Maxwell's conviction. The state later dropped the charges, and Maxwell was freed.

• In State v. Oppie, another Mississippi case, West claimed he could definitively match scratches on a murder victim to the suspect's fingernails. Not by DNA, but merely by the appearance of the scratches and the structure of the suspect's fingernails.

• In a 1993 Ohio case, West was able to get himself certified as an expert on liquid splash patterns. A 17-year-old was charged with manslaughter for deliberately pouring bleach onto his disabled sister. West testified that the splash and burn patterns from the bleach showed the bleach had been poured intentionally, not spilled accidentally.

• In the mid-1990s, West claimed to have found a bite mark on the shoulder of a woman whose body was exhumed after being buried for 14 months. No other doctor had seen the mark. Unfortunately, West says he put the skin sample in a "preservative" that destroyed the mark he claimed to have found. He was allowed to testify anyway. Relying on West's memory and West's word, jurors convicted a Louisiana oyster fisher named Anthony Keko of killing his wife. Keko served 2.5 years in prison before the state dropped all charges against him, and set him free.

(Note: This list of cases are summarized from this 1996 article in the ABA Journal, this 2007 paper by Paul Giannelli and Kevin McMunigal, and my own research and reporting.)

These are merely the cases where West gave testimony that was outrageous enough to have been later overturned or cited by his critics. There are countless other cases where he has given testimony that's plausible, but given his obvious credibility problems, should never have been allowed anywhere near a courtroom. Yet judges kept allowing him to take the stand. The "little old dentist from Hattiesburg" has done quite a bit of damage."

Balko gave an additional response to West's defence to the allegations in a note published on March 4, 2009 which was alse published in "Reason";

"Last Thursday, we posted my report about a video of a bite mark examination in Louisiana that showed possible criminal evidence tampering by Mississippi dentist and self-proclaimed bite mark expert Dr. Michael West," this note begins;

"The evidence was used to help convict Jimmie Duncan of raping and murdering 23-month-old Haley Oliveaux," it continues.

"West responded a few days later in the Jackson Clarion-Ledger. A few comments on his response:

"I've exonerated three or four times as many people as I've convicted," he said. "I'm a little old dentist from Hattiesburg, and I've got the top lawyers in the country coming after me. The New York Times wrote an editorial on me. Why? They can't stand the evidence."

I've already put up a post addressing West's comment about "They can't stand the evidence."

I don't know what West means by "I've exonerated three or four times as many people as I've convicted." Certainly he doesn't mean he testifies for the defense more than he testified for prosecutors. I consulted with some defense attorneys in Mississippi with knowledge of West's history, and they couldn't think of a single time he has testified for the defense. That isn't to say it's never happened. But it is to say it wasn't that often, and certainly not three or four more times than he has testified for prosecutors.

One defense attorney theorized that West is referring here to the fact that in some of these cases, police or prosecutors will bring him four or five dental molds, and from these he'll pick one that matches whatever bite mark he has allegedly found. In his mind, this may mean he has "exonerated" the others. It's too bad the reporter didn't ask him to elaborate (West won't talk to me at all). But he clearly isn't using the word "exonerate" in the way it's commonly understood.

West responded that the accusations he made up or falsified evidence "is a damn lie."

"You can't make an inflammatory response on a dead person," he said.

I asked Michael Bowers about this. Bowers is the dentist I first showed the video to, and who was so incensed by what he saw that he offered to submit an affidavit for Jimmie Duncan's defense. Bowers is a widely respected forensic odontologist. He is dismissive of bite mark analysis as a means of positively identifying someone because, he says, that sort of analysis has no basis in science science (a position emphatically hammered home by the National Academy of Sciences report a couple of weeks ago).

In any case, Bowers says West is correct on the obvious point that you can't induce an inflammation in a dead person. But Bowers says that what West is doing in the video isn't causing an inflammation, but scraping away layers of skin with the mold of Duncan's teeth. Likewise, the abrasion that appears after a break in the video that wasn't there as the video opens is an abrasion caused by some sort of trauma to the cheek. It is not an inflammation.

More from West:

He defended pressing the mold against Haley's cheek, saying he was following protocol Bowers laid out in his manual that says bite-mark comparisons can be made from "working study model to impression of wound."

I asked Bowers about this statement, too. Bowers says West is lying. Bowers says that this is the technique West is referring to:

1. Photograph the injury using a ruler or scale.2. Use dental impression material to make a mold of the skin. 3. Take this impression and pour dental plaster into it. This makes a model of the skin.4. Use the suspect's dental models to place onto the MODEL of the skin.
In the video, West does none of this. Instead, he takes a cast of the defendant's teeth, and jams it directly into Haley Oliveaux's skin more than 50 times. The technique Bowers describes and what West does in the video aren't remotely similar. This isn't a merely a case an expert using unconventional methods. West is altering evidence. Finally,...
West said he doesn't understand why he's drawing criticism when another bite-mark expert testified for the prosecution at the capital murder trial of Jimmie Duncan, now on death row.

Of course that expert, Dr. Neal Riesner, performed his analysis based on photos of the bite marks West took after he had repeatedly jammed Jimmie Duncan's dental mold into Haley Oliveaux's body. Even here, Bowers and the NAS study would say Riesner was out of bounds. There's simply no science to back up the notion that you can affirmatively match bite marks left on skin to a single individual. And to do so from photos of bite marks left on skin is even more problematic. ""