PUBLISHER'S NOTE: "I have been following this case for years. Jeffrey Havard. On death row in Mississippi for the past 15 years. At the heart of the case, according to Circuit Court Judge Forrest "Al" Johnson, is the now widely discredited so-called shaken-baby syndrome. (Note the presence in the case of controversial former medical examiner Steven Hayne who has repudiated his initial opinion); Think of it, a man's life may be taken by the state of Mississippi because of a highly disputed theory on which experts are widely divided, which has been repudiated by the late British Dr. Norman Guthkelch, the pediatric neurosurgeon, who propagated it in the first place. The good news is that Judge Johnson clearly recognizes the importance of this decision - not just to Jeffrey Havard, whose life is in the balance. As Johnson is quoted: ""I don't anticipate sitting in this too long before I render a decision," Johnson said. "It's a pretty important case. It's a pretty big deal." I will continue to monitor developments in this case closely."
Harold Levy: Publisher; The Charles Smith Blog.
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PASSAGE OF THE DAY: (1) "The authors conducted more than 200 interviews and reviewed thousands of pages of court documents, letters, memos, case reports, and media accounts to trace the contours of a corrupted system. Hayne, they note, performed 80 percent of Mississippi’s state-ordered autopsies, or about 1,700 annually. This stands in contrast to guidelines from the National Association of Medical Examiners, which states that performing more than 325 annually is tantamount to malpractice. Hayne’s pace was likely a problem. In one autopsy report, Hayne described removing the uterus and ovaries—from a man. But quality, perhaps, wasn’t the point. With West as a sidekick, the duo could be counted on to deliver the “evidence” prosecutors needed for convictions."
PASSAGE OF THE DAY (2): "The primary antagonists in this story are Steven Hayne, the state’s former de facto medical examiner, and Michael West, a prolific forensic dentist. A third is the state of Mississippi itself—not its people, but its institutions. In a larger sense, blame rests on courts—both state and federal—media, and professional organizations that not only failed to prevent this catastrophe but did little to nothing even after it was clear that something was terribly wrong."
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REVIEW/COMMENTARY: Forensic Science May Be Evolving, but the System Is Broken," by Tim Requarth, published by Slate on February 28, 2018. (Tim Requarth is a freelance science journalist and director of NeuWrite. He has a Ph.D. in neuroscience from Columbia University, where he also teaches science writing.)
SUB-HEADING: "The Cadaver King and the Country Dentist offers an outrageous tale of scientific fraud. Its commentary on the court system is even more chilling."
GIST: "In 2008, Kennedy Brewer was ushered into the same Mississippi
courthouse where, 13 years earlier, he had been sentenced to death for
the brutal rape and murder of a 3-year-old girl. This time, Brewer was
there to be exonerated. DNA evidence had cleared him of the crime. The
original jury’s verdict had been substantially swayed by the testimony
of Steven Hayne and Michael West. Hayne, a pathologist, had found wounds
on the child’s arms resembling human bite marks. West, a forensic
jack-of-all-trades, testified that the bite marks “were indeed and
without doubt inflicted by Kennedy Brewer.” Hayne and West had also used
bite marks to help convict Levon Brooks of the rape and murder of a
different 3-year-old girl in the same rural Mississippi county. Brooks
was also exonerated after the real perpetrator—who committed both
crimes—was identified. Forensic crime-solving techniques such as bite-mark analysis
have come under fire in recent years for not being science at all, a
problem I unpacked extensively in a recent investigation into forensics for the Nation with Meehan Crist. Our work led me to Radley Balko,
a libertarian-leaning opinion journalist at The Washington Post
(previous stints include policy analyst at the Cato Institute, senior
editor at Reason, and FoxNews.com columnist), who has been on the bad
forensics beat for over a decade. Now, in a new book, he’s teamed up
with Tucker Carrington, director of the Mississippi Innocence Project, to paint a horrifying portrait of the problems plaguing forensics. The Cadaver King and the Country Dentist: A True Story of Injustice in the American South
chronicles the sagas of Brewer and Brooks to illustrate how the state
of Mississippi allowed two men (Hayne and West) to amass power and
prestige by peddling quackery. As Balko and Carrington put it: "The primary antagonists in this story are Steven Hayne, the state’s
former de facto medical examiner, and Michael West, a prolific forensic
dentist. A third is the state of Mississippi itself—not its people, but
its institutions. In a larger sense, blame rests on courts—both state
and federal—media, and professional organizations that not only failed
to prevent this catastrophe but did little to nothing even after it was
clear that something was terribly wrong." What you’re
about to read didn’t happen by accident. The Cadaver King and the Country Dentist is a densely
reported book that highlights not only the cases of Brewer and Brooks
but also a dizzying array of other wrongful convictions. The authors
conducted more than 200 interviews and reviewed thousands of pages of
court documents, letters, memos, case reports, and media accounts to
trace the contours of a corrupted system. Hayne, they note, performed 80
percent of Mississippi’s state-ordered autopsies, or about 1,700
annually. This stands in contrast to guidelines from the National
Association of Medical Examiners, which states that performing more than
325 annually is tantamount to malpractice. Hayne’s pace was likely a
problem. In one autopsy report, Hayne described removing the uterus and
ovaries—from a man. But quality, perhaps, wasn’t the point. With West as
a sidekick, the duo could be counted on to deliver the “evidence”
prosecutors needed for convictions. Hayne would discover “bite marks” on
a victim’s body, and West would be called in to match them to the
suspect’s teeth. In a story full of antagonists, the authors single out West, a
charlatan of the first order. West got into forensic dentistry in 1982
after attending a conference presentation about identifying bite marks
using ultraviolet photography. When he returned home to Hattiesburg,
Mississippi, he recruited a colleague to sedate him and bite him in the
thigh to test out the technique. He then enlisted assistants and local
students to bite one another. From these “experiments,” West concluded
he could identify marks left on skin from bites months earlier. The
local paper wrote a flattering profile, calling Hattiesburg a “hotbed of
scientific research.” At some point, West started a company
called Dental Disaster Squad, and by 2006, he claimed to have
investigated 5,800 deaths in and around Mississippi. Over the years, his “expertise” metastasized, and he proffered
opinions not only on bite marks, but also on gunshot reconstruction,
wound pattern analysis, fingernail scratch reconstruction, trace metal
analysis, video enhancement, pour pattern analysis, tool-mark analysis,
cigarette burns, arson investigations, and shaken baby syndrome. West
called his ultraviolet method the “West Phenomenon” because he could see
what no one else could. He matched an abrasion on a murder victim’s
body to a suspect’s shoelaces. He matched a bruise on the victim’s
abdomen to a specific pair of hiking boots. He declared that simply by
looking at a suspect’s palm, he could tell that the individual had been
holding a particular screwdriver several days earlier. West likened his
virtuosic talents to those of violinist Itzhak Perlman and once
described his error rate as “something less than my savior, Jesus
Christ.” As Balko and Carrington write, “West is either a master
bullshit artist or an autodidact for the ages.” The authors are being generous. West peddled unconscionable
pseudoscience in court. Typically, a bite-mark examiner would take a
plaster mold of the suspect’s teeth and then compare the mold to
photographs of the victim’s skin. If the pattern sufficiently matches
up, the examiner could exclude everyone in the world except the suspect.
Or at least that’s how the theory goes: Bite-mark matching has never
been scientifically proven. West’s practices in this
already-scientifically-shaky field were even more dubious. In Brewer’s
and Brooks’ cases, as in many others, West pressed a plaster mold of the
suspect’s teeth directly against the victim’s skin. With this method,
West could have been creating the bite mark he was then claiming to have
matched. In one case, West even pressed a dental mold into the hip of a
comatose woman. A forensic dentist and longtime West critic posted a video of the examination
on his blog. “Tampering with the evidence on the skin is likely a
crime,” the dentist later said. “But to create those marks on a woman
who was comatose, and who hadn’t given consent, is also an assault.” The authors are being generous. West peddled unconscionable pseudoscience in court. The Cadaver King and the Country Dentist is a welcome wake-up call, and will likely challenge many people’s CSI-fueled
perception of forensic analysts as near-infallible seers of truth. It’s
also possible that by choosing Hayne and West as the antagonists—a
particularly egregious pair practicing what can fairly be called junk
science—readers could walk away thinking all forensic examiners are
quacks and all forensic science is bunk. In reality, it’s more
complicated. Fingerprint analysts aren’t astrologers, and most of them
act in good faith using what they believe to be reliable expertise. In
2009, legal scholar Michael Risinger wrote, “These disciplines are
probably best understood as being like folk medicine—they may be
efficacious sometimes, maybe even most times, but we don’t really know
for sure.” In other words, much of forensic science isn’t so much unscientific as it is prescientific. However you classify it, judges are supposed to keep unproven
techniques out of court. Yet they’ve failed repeatedly. In Mississippi,
judges fell hard for West’s hucksterism. Balko and Carrington
interviewed Edwin Pittman, former chief justice of the Mississippi
Supreme Court, who upheld West’s testimony and Brooks’ conviction.
Despite hearing eight cases in which West was challenged, Pittman never
questioned West’s expertise or the scientific basis of his methods.
“Looking back,” Pittman said, “I can’t believe that I bought into to all
of that—that I believed West’s ‘science’ was really science. I wish I
had voted differently.” One justice did vote differently, and when he
was up for re-election, an opposition group ran attack ads accusing the
justice of supporting murderers, citing the justice’s dissent in Brooks’
case. Given the political climate, judges had a strong incentive not to
question past convictions or the inappropriate practices used to secure
them. According to Balko and Carrington, not a single Mississippi judge
in 20 years even held a hearing to evaluate the scientific legitimacy
of the “West Phenomenon.” No trial judge ever refused to let Hayne
testify. The intertwined stories of Brooks, Brewer, Hayne, and West are
easily whipped up into a clear and devastating narrative. But The Cadaver King and the Country Dentist
really shines when it reveals exactly how the system contorts itself to
protect convictions made possible by pseudoscience. “It’s often said
that the wheels of justice grind slowly,” Balko and Carrington write,
“That isn’t always true. When it comes to convicting people, they can
move pretty swiftly. It’s when the system needs to correct an
injustice—admit its mistakes—that the gears tend to sputter to a halt.”
This, the authors argue, is by design. In one particularly maddening
example, a defendant filed a petition in federal court for
post-conviction relief after Steven Hayne had been discredited, which
can be considered grounds for a new trial. According to federal law, a
defendant must file within one year of the discrediting. The federal
court agreed Hayne had been discredited but disagreed on the timing. It
ruled against the defendant because the media had been criticizing Hayne
for five years and the Innocence Project had previously filed a
complaint. The imprisoned defendant “should have discovered this
information,” the justices wrote. In one fell swoop, the federal court
acknowledged that the medical examiner performing 80 percent of
Mississippi’s autopsies for years was a fraud, yet it also affirmed that
it was now too late to revisit any of those cases. Judges are supposed to keep unproven techniques out of court. Yet they’ve failed repeatedly. Balko and Carrington’s book arrives at a critical moment for
forensic reform. In 2009 and 2016, major reports from the National Academy of Sciences and the President’s Council of Advisors on Science and Technology (PCAST)
raised serious concerns that many of the “pattern-matching”
disciplines—bite marks, footprints, firearms, even fingerprints—had
little, if any, empirical support. But the momentum for reform is
slowing now that Jeff Sessions, a former prosecutor, is at the helm of
the DOJ and the country is governed by the most anti-science
administration in recent memory. One of Sessions’ first moves was to let the charter expire on the National Commission on Forensic Science,
an interdisciplinary oversight body created partly in response to the
scathing 2009 report. Sessions instead moved oversight in-house, which
is troubling because the DOJ failed to police some of its own examiners for years, even though the agency later admitted
analysts gave flawed testimony in almost every case. The DOJ doesn’t
have direct control over the states’ criminal justice systems, but,
troublingly, many prosecutors take their cue from national leaders. Last week, Deputy Attorney General Rod Rosenstein offered a taste of what in-house “reform” might look like. He announced
that the DOJ would prohibit its fingerprint examiners from using the
misleading and meaningless phrase “reasonable degree of scientific
certainty,” or testifying to zero error rates. These restrictions are an
improvement. But a closer look at the guidelines
shows the changes are likely to have little practical effect. The DOJ
will still allow “a statement of an examiner’s belief” that the
“probability” of a mismatch “is so small that it is negligible.” The
subtle distinction is likely to be lost on a jury. This kind of “reform”
is dangerous: It has the veneer of progress, yet utterly fails to
address the core problem. While it’s tempting to pin this on Sessions, it’s really a
prosecutor problem. After PCAST released its critical 2016 report,
then–Attorney General Loretta Lynch retorted,
“While we appreciate their contribution to the field of scientific
inquiry, the department will not be adopting the recommendations related
to the admissibility of forensic science evidence.” It’s not surprising
that a prosecutorial agency such as the DOJ resists meaningful forensic
reforms. “Many of these forensics fields have largely avoided
subjecting themselves to scientific scrutiny,” Balko and Carrington
write. “It’s easy to see why. There’s no incentive for them to do so.
The purpose of forensics is to solve crimes. The end game is to testify
in court and persuade a judge or jury. Once the courts begin accepting
analysts from a new area of forensics as experts, there’s no upside to
those analysts then subjecting their methods and analysis to scientific
scrutiny. They already have everything they need: the approval of the
courts.” Owning up to the flaws in forensics could also call into
question thousands of past convictions. Conspicuously absent in the DOJ’s new testimony reform
was any mention of reviewing past cases that had used the same
testimony that is now outlawed. This tension between science’s
ever-evolving consensus and the law’s stubborn insistence on finality is
a central theme in The Cadaver King and the Country Dentist.
Hayne and West might not be representative of the broader forensic
community, but the justice system that allowed them to flourish is all
too familiar."
https://slate.com/culture/2018/02/the-cadaver-king-and-the-country-dentist-reviewed.html
The entire review can be found at:
https://slate.com/culture/2018/02/the-cadaver-king-and-the-country-dentist-reviewed.html
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