GIST: Regular readers of The Watch will by now be familiar with the saga of Steven Hayne and Michael West, the two men who dominated Mississippi’s death investigation system for the better part of 20 years. West testified in dozens of cases, Hayne in thousands. Both often gave testimony well outside the constraints of science. Hayne, for example, once claimed that the bullet wounds in a murder victim were “consistent with” a theory that two people were holding the murder weapon when it was fired. West has claimed to be able to trace bruises on a victim’s abdomen to the specific shoe that inflicted the injuries; claimed to match fingernail scrapes to the specific fingernails that made them; and in one particularly nutty case, claimed that the knife wounds in a murder victim could only have been caused by one specific knife, and then claimed to have found marks on the chief suspect’s hands that could only have been caused by gripping the handle of that knife — and only that knife. This week, the U.S. Court of Appeals for the 5th Circuit ruled that because Hayne and West are protected by qualified immunity for any case in which they testified, they’re only liable to a lawsuit if the plaintiff can show that they acted recklessly. Mere negligence — even gross negligence — is not enough. The lawsuit in question was brought by Levon Brooks and Kennedy Brewer, two men who were wrongly convicted in the 1990s, largely due to testimony from Hayne and West. In both cases, a little girl was abducted from her home at night, sexually assaulted and murdered, and her body was thrown into a creek. The two crimes occurred just a couple of miles apart. In both cases, the authorities suspected a boyfriend of the mother. In both cases, they took the body to Hayne for autopsy. In both cases, Hayne claimed to have found bite marks that other experts have since said were not human bites at all. In both cases, Hayne then called in West, who was making a name for himself as an expert bite-mark analyst. In both cases, West claimed that the marks were in fact human bites and that the marks “indeed, and without a doubt” were a match to the authorities’ chief suspect. In reality, the same man — Justin Albert Johnson — committed both crimes. Johnson had a history of attempted sexual assaults. On at least two other occasions he had broken into a home, at night, and attempted to attack a sleeping victim. In fact, he was initially a suspect in the first murder. Had Hayne, West and local authorities not wrongly implicated Levon Brooks in that first crime, the second little girl may never have been attacked and murdered. Instead, West actually exonerated Johnson. He compared a dental mold of Johnson’s teeth with the alleged bite marks and determined that they weren’t a match. (As it would turn out, he was right about that, but only because those marks weren’t bites at all — Johnson never bit either victim.) Brooks was sentenced to life in prison. Brewer was sentenced to death, and at one point was given a death warrant. In 2000, Brewer was excluded as the source of the sperm found in the little girl, yet local officials insisted on keeping him in prison, citing West’s testimony. Brewer may not have raped the girl, they argued, but because West said that Brewer and only Brewer bit her, he must have participated in the attack. They speculated that he must have held her down and bit her while someone else raped her. Yet for reasons that remain unclear, they refused to run the DNA profile from the sperm through the state database. Years later, Brewer’s attorneys finally got a court order for testing. When they did, it was a match to Justin Johnson. He then confessed to both crimes. After they were released from prison in 2007, Brewer and Brooks sued. Their lawsuits were later combined. A federal district court dismissed the suit, finding that Hayne and West had absolute immunity for the testimony in court and qualified immunity for the reports that they wrote for police and prosecutors. They appealed. The appeals court released its opinion this week.........Brooks and Brewer argued that Hayne and West were exceptionally reckless in their respective cases. For example, Hayne and West said that the bite marks were made only by the upper back teeth of the defendants, a bizarre claim that nearly defies the laws of physics. In the Brooks case, West oddly used Silly Putty to make a mold of Brooks’s teeth, which he said was the only material that could record the level of detail he needed to match Brooks’s teeth to the bite marks. In addition to the rather strange novelty of using Silly Putty, West’s explanation of why he did so also made little sense. Human skin is spongy, fungible and resilient. Even under ideal conditions, it’s a poor receptacle for recording bite marks with the level of detail that bite mark analysts claim. (Indeed, there’s no scientific research to support this claim.) But in this case, the little girl’s body had spent 24 hours submerged in water. It had been exposed to insects and animals. It had begun to decay. It had even been embalmed. Even if West were right about Silly Putty’s ability to record more intricate details than a conventional dental mold, for that extra detail to be relevant, the same level of detail would need to have been preserved in the bite marks themselves. And that is highly unlikely.
The 5th Circuit opinion acknowledges that bite-mark evidence has recently been “called into question,” but finds that because it was widely accepted at the time, Brewer and Brooks would have to show that West either fabricated evidence or knowingly lied in court............In the end, there will be no reckoning. The men who did Kennedy Brewer and Levon Brooks wrong will get away with it. The system that enabled these wrongful convictions will continue to shield itself from any real accountability. And despite the fact that we now know that the evidence used to convict the two men was dubious from the start — and that there was plenty of reason for the courts to have known it was dubious — there have been no measures put in place to ensure that it won’t happen again."
The entire commentary can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. 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: http://www.thestar.com/topic/c
