MELENDEZ-DIAZ; RADLEY BALKO TIES TAINTED NEW YORK CRIME LAB TO IMPORTANCE OF MELENDEZ-DIAZ CASE. CALL FOR INDEPENDENCE OF STATE FORENSIC LABS;

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"THIS EPISODE IS ALSO FURTHER EVIDENCE OF THE IMPORTANCE OF THE SUPREME COURT'S DECISION EARLIER THIS YEAR IN MELENDEZ-DIAZ V. MASSACHUSETTS, WHICH ESTABLISHED THAT THE CONSTITUTION'S CONFRONTATION CLAUSE GIVES DEFENDANTS THE RIGHT TO CROSS EXAMINE THE AUTHORS OF CRIME LAB REPORTS. THAT DECISION HAD PROSECUTORS ACROSS THE COUNTRY RAGING, COMPLAINING ABOUT THE COSTS AND BURDENS THEY NOW FACE IN MAKING FORENSIC EXPERTS AVAILABLE FOR COURT. THE RULING MAY ALREADY BE IN JEOPARDY; THE COURT WILL HEAR ARGUMENTS NEXT YEAR IN A VIRGINIA CASE THAT COULD LIMIT ITS REACH."

RADLEY BALKO: REASON;
PHOTO: JUSTICE ANTON SCALIA;

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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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PUBLISHER'S NOTE: One of the most important reasons for giving people accused of crimes the right to confront lab technicians - as required by the U.S. Supreme Court in the Melendez-Diaz decision - is the disturbing, uneven record, of all too many American crime labs. The report of New York States Inspector General, as reported by the New York Times, underlines the importance of this decision - and sheds light on the reason many state Attorney Generals are actively opposed to the decision; Radley Balko, an acute observer of America's criminal justice system underlines the connection between the Inspector Generals's report and the Melendez-diaz decision.

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"This week, New York State's inspector general issued a blistering critique of the state's crime lab," Radley Balko's December 18, 2009 post, under the heading "Report: New York State Crime Lab Tainted by Incompetence, Corruption, Indifference," begins.

"The report came after a private accrediting organization found significant problems with one particular lab worker who had so little training that he couldn't operate the microscope he was supposed to be using for hair and fiber analysis," the post continues.

"Armed with a cheat sheet from a former supervisor, Gary Veeder managed to fake lab reports in criminal cases for 15 years. He killed himself last year.

A wayward crime lab worker who fakes his way into the job is one thing. A fraud who manages to stay on the job for 15 years is a symptom of mass institutional failure. And that's the most disturbing part of the story. The institutional failure continued even after the embarrasing episode was exposed. From the New York Times:

...when the State Police became aware of the analyst’s misconduct, an internal review by superiors in the Albany lab deliberately omitted information implicating other analysts and suggesting systemic problems with the way evidence was handled, the report said. Instead, the review focused blame mostly on...Veeder...

Mr. Veeder’s allegations involving other lab workers were never part of the final report to the State Police’s internal affairs division. State Police investigators and the lab’s management “minimized and precipitously discarded the seriousness and extent of problems” at the lab, the inspector general’s report said.

It said that one State Police investigator, Keith Coonrod, mischaracterized Mr. Veeder’s responses implicating other lab scientists and skewed Mr. Veeder’s statements to give the impression that it was his incompetence — not widespread misconduct — that led to the problems.

The IG's report, on the other hand, took direct aim at Veeder's superiors, noting, "There exists no doubt that laboratory management possessed sufficient information that Veeder’s individual misconduct implicated potentially broader systemic issues, but failed to take appropriate action." The lab's director, George Zeosky, is still on the job. Assistant Director Richard Nuzzo—whom the report also accuses of intimidating another lab technician—was promoted to a position in the New York State Police Department's internal affairs office. Which means the guy in part responsible for turning a blind eye to incompetence and misconduct in the state's crime lab is now investigating other misconduct and incompetence within the department.

New York criminal defense attorney Scott Greenfield predicts the report will have no effect at all on the way New York judges treat crime lab reports.

Once the prosecution gets its results from the crime lab, everything after that is all a big joke. The defense testing is viewed as a desperate grasping at straws, making life difficult for the cops and prosecution, and just another waste of time for the court. Sure, judges will acknowledge that state crime labs have their issues, but the "real" problem is always in some other case, before some other judge. Every judge believes that the lab results before him or her are routine. There's no problem here, counselor. Move along.

What makes scientific results different, however, is their conclusive affect on a judge and jury. If the lab report says so, then so it is. As much as judges and lawyers aren't scientists, neither are most jurors. We all bow to the god of science, even when we know that it's not omnipotent.

So the state, at least the Inspector General, acknowledges that the State Police Lab, sucks. Do you think there will be a single judge across the State of New York who refuses to admit a lab report into evidence as a result? I don't. Not one. Even if it was written in crayon.

The scandal in New York is yet another argument for several of the forensic reforms Roger Koppl suggested in a 2007 report for the Reason Foundation (publisher of Reason magazine and Reason.com). One is to send forensic evidence to private labs for testing and verification of the state crime lab's results. Even if it's only on every fourth or fifth or tenth case, as long as state lab technicians don't know when they're being checked, you eliminate the bias toward pleasing bosses and prosecutors. You also strengthen the incentive for accuracy.

And that's the other incentive problem, here. The state crime lab is run by the state police. That isn't a recipe for objective science. If you're going to have a state forensics laboratory, it ought to be wholly independent of police agencies and prosecutors.

This episode is also further evidence of the importance of the Supreme Court's decision earlier this year in Melendez-Diaz v. Massachusetts, which established that the Constitution's Confrontation Clause gives defendants the right to cross examine the authors of crime lab reports. That decision had prosecutors across the country raging, complaining about the costs and burdens they now face in making forensic experts available for court. The ruling may already be in jeopardy; the Court will hear arguments next year in a Virginia case that could limit its reach.

Somewhat related: The woman who took Melendez-Diaz all the way to the Supreme Court, where she unsuccessfully argued against a right to cross-examine forensic specialists, was Massachusetts Attorney General Martha Coakley. Coakley is the Democratic nominee and heavy favorite in next month's special election to replace Ted Kennedy in the U.S. Senate."

The post can be found at:

http://reason.com/blog/2009/12/18/report-new-york-state-crime-la

Harold Levy...hlevy15@gmail.com;

SHERRY SHERRET CASE: CRITICAL COMMENT: ATTENTION FROM ACROSS THE BORDER; "A TALE OF TWO FORENSIC SCANDALS: ONTARIO VS. MISSISSIPPI"; RADLEY BALKO;

"THE BIG DIFFERENCE BETWEEN THE CHARLES SMITH SCANDAL AND THE STEVEN HAYNE/MICHAEL WEST FORENSIC DISASTER I'VE BEEN REPORTING ON IN MISSISSIPPI IS THAT ONCE QUESTIONS AROSE ABOUT SMITH'S COMPETENCE, ONTARIO'S CORONER LAUNCHED AN INQUIRY INTO SMITH'S PRACTICES. THAT LED TO A WIDER INQUIRY ORDERED BY ONTARIO'S GOVERNMENT. THE RESULTS OF THAT INQUIRY ARE NOW BEING USED TO REVISIT CASES WHERE SMITH'S TESTIMONY MAY HAVE LED TO A WRONGFUL CONVICTION, LIKE ROBINSON'S."

RADKEY BALKO: REASON ONLINE;

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PUBLISHER'S NOTE: Radley Balko is one of my heroes in the world of journalism. Indeed, this site has often referred to his "Reason Online" - a Blog in which he has relentlessly pursued pseudo forensic experts such as Steven Hayne and Michael West. Wikipedia tells us that Balko is senior editor at Reason magazine. Previously, he was a policy analyst for the Cato Institute, specializing in vice and civil liberties issues. He writes on drug policy, police misconduct, obesity, alcohol and tobacco, and civil liberties. He also writes on trade and globalization issues and more generally on politics and culture. He was also a biweekly columnist for Fox News from 2002 until 2009. His work has been published in the Wall Street Journal, Forbes, Playboy, TIME magazine, The Washington Post, the Los Angeles Times, Slate, Reason, Worth magazine, Canada's National Post, and the Chicago Tribune. He blogs at The Agitator, his personal weblog, and for Reason's Hit & Run blog. He has appeared on CNN, CNBC, Fox News, MSNBC, and National Public Radio. Balko's work on "no-knock" drug raids was profiled in The New York Times, and cited by U.S. Supreme Court Justice Stephen Breyer in his dissent in the case Hudson v. Michigan. He is also credited with breaking and reporting the Cory Maye case. His work on the Maye case was also cited by the Mississippi Supreme Court. He has also written extensively about the Ryan Frederick case and the raid on Cheye Calvo's home. I was fascinated by his take on "the big difference" between Ontario and Mississippi.

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"Jonathan Turley has the awful story of Sherry Sherret Robinson, a Canadian woman wrongly convicted in 1996 of killing her infant son due to the bogus testimony of a disgraced pathologist named Charles Smith," Radley Balko's December 9, 2009 column begins, under the heading "A Tale of Two Forensic Scandals: Ontario vs. Mississippi."

"Robinson served a year in prison and was forced to give up custody of her other child," the column continues.

"Smith has since been exposed as a fraud. Robinson was finally exonerated this week by a court in Ontario. Her other son was given up to a foster family after her conviction, who has raised him for the last 13 years. She won't get him back. She has asked only that he be told the truth about her.

Read Robinson's blog here. Former Toronto Star reporter Harry Levy has been covering Charles Smith scandal on a blog devoted to Smith and other forensic nightmares.

Smith was a frequent witness in Canadian courts, commonly testifying for prosecutors in child death cases, where his testimony proved crucial in making homicides of deaths that could just as easily have been accidents. A disreputable pathologist can do incredible damage in these cases, since it's usually his testimony that makes or breaks the case. Because the question isn't who killed the child but whether the child was killed at all, there will never be DNA testing or new evidence to exonerate the suspect (of, for that matter, confirm his guilt). In U.S. courts at least, it's extremely difficult to get a new trial without new evidence. Simply noting that an expert you had the opportunity to cross examine has since been shown to have given questionable testimony in other cases usually isn't enough.

The big difference between the Charles Smith scandal and the Steven Hayne/Michael West forensic disaster I've been reporting on in Mississippi is that once questions arose about Smith's competence, Ontario's coroner launched an inquiry into Smith's practices. That led to a wider inquiry ordered by Ontario's government. The results of that inquiry are now being used to revisit cases where Smith's testimony may have led to a wrongful conviction, like Robinson's.

Mississippi state officials have ordered no such investigation. On the contrary, they've repeatedly insisted that any such inquiry isn't necessary, and there's no reason to question the prior work of the two doctors, despite their role in at least two wrongful convictions and the considerable and still accumulating evidence of their incompetence. The state did buckle to public pressure and finally fire Hayne last year, but as I reported earlier this year, now faces an effort by the state's coroners, assisted by Mississippi Attorney General Jim Hood, to bring him back. There are also two men currently on death row in Mississippi for murdering children in their care where, like Smith's, Hayne's testimony was critical to securing their convictions. In both cases, Hayne's trial testimony has since been questioned by more reputable pathologists. Mississippi's courts don't seem to care. They've rejected appeals and post-conviction petitions from both men.

The integrity of the criminal justice system isn't necessarily undermined by the fact that fraudulent experts and bad testimony occasionally creep into criminal trials. That's going to happen. But when the courts and government learn of these problems and not only do nothing to address them but actively engage in trying to cover them up, it's time to start questioning the legitimacy of the entire system."

The column can be found at:

http://reason.com/blog/2009/12/09/a-tale-of-two-forensic-scandal

UP-DATE: PATHOLOGIST STEVEN HAYNE; ANOTHER BALKO EXPOSEE; HOW HAYNE BECAME MISSISSIPPI'S "CHIEF STATE PATHOLOGIST."

"IT’S REALLY PRETTY INCREDIBLE TO CONTINUE TO DISCOVER THE EXTRAORDINARY LENGTHS TO WHICH MISSISSIPPI OFFICIALS HAVE GONE OVER THE YEARS—AND CONTINUE TO GO—TO KEEP HAYNE ON THE WITNESS STAND."

RADLEY BALKO; REASON;

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"CARRINGTON, WHOSE GROUP DID NOT PLAY A ROLE IN DEFENDING EDMONDS, SAYS THEY ARE CONCERNED THAT DR. HAYNE’S TESTIMONY MAY HAVE HELPED TO CONVICT OTHER INNOCENT PEOPLE. THEY HAVE LAUNCHED A COMPREHENSIVE REVIEW OF DR. HAYNE’S TESTIMONY, AND WORRY THAT DR. HAYNE MAY HAVE BEEN WILLING TO TAILOR HIS TESTIMONY IN ORDER TO HELP PROSECUTORS.

“WE HAVE FOUND CASES WHERE DR. HAYNE, LIKE HE DID IN TYLER EDMONDS’ CASE, STRAYS BEYOND THE BOUNDS OF SCIENCE, BEYOND THE BOUNDS OF GOOD OBJECTIVE FORENSIC WORK, AND OFFERS TESTIMONY THAT IN MANY CASES, AMOUNTS TO NONSENSE,” EDMONDS SAID."

JONEIL ADRIANO; CNN; 360 DEGREES;

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Radley Balko has done a superb journalistic job of exposing Dr. Steven Hayne - and protecting the public from him.

One of the unanswered questions to date - at least until Balko published his latest exposee on September 1, 2009, under the heading, "Update in Mississippi: Titles Are Free!" - is how Hayne received the official designation as Mississippi's "Chief State Pathologist."

"Criminal defense attorney Matt Eichelberger has found an fascinating little document I haven’t yet seen in my reporting on Steven Hayne, Mississippi’s controversial, fallen, and possibly rising again, medical examiner," the story, published in Reason, begins,

"To set up the document, a quick recap: By law, Mississippi is required to have an official state medical examiner," the story continues.

"Hayne briefly held the position on an interim basis in the late 1980s, but was forced to step down when it was discovered that he wasn’t board certified in forensic pathology. State law requires certification in forensic pathology by the American Board of Pathology. Hayne took the certification exam in the mid-1980s, but failed it.

The state then hired a trio of reputable, qualified state examiners, all of whom eventually left the position in frustration after continually battling Hayne and his allies in the state’s coroner and DA offices. The last of the three, Emily Ward, left in 1995. The position has remained vacant since, leaving Hayne to do 80 to 90 percent of the state’s autopsies with no oversight.

Hayne is a doctor in private practice. Officially, he holds no position in Mississippi. Or at least he isn’t supposed to. Yet Hayne has testified in court a number of times that he is Mississippi’s “chief state pathologist,” a position that has no basis in state law.

The document Eichelberger explains where Hayne got that title. It’s a contract signed in 2006 between Hayne and the state’s then Commissioner of Public Safety, George Phillips. The contract essentially creates the uncompensated, non-position of “chief state pathologist,” and gives the title to Hayne. The position includes nearly all of the powers of the official state pathologist, save for the ability to make the rules other medical examiners are to follow while conducting official state autopsies. Given that Hayne was essentially the only game in town, and that he flagrantly violates the standards of his profession, Phillips probably found that portion of the law unnecessary.

To give Hayne the position outlined by state law would have required the legislature to eliminate the certification requirement, which probably would have attracted some negative attention. So Phillips just created a new position with most of the same powers and a similar title, and quietly bestowed it upon Hayne.

As Eichelberger points out, another interesting portion of the contract allows Hayne to conduct private autopsies at the modern, state-funded lab in Jackson at just $100 a pop. That worked out well for Hayne. For most of his career, he had been performing his all-night, marathon autopsy sessions in the basement of a funeral home owned by Rankin County Coroner Jimmie Roberts. Roberts and Hayne had a falling out in 2006. Some of my sources in Mississippi have wondered, and never been able to explain, how Hayne was able to move into the state facility despite not holding any official state position. Now we know.

It’s really pretty incredible to continue to discover the extraordinary lengths to which Mississippi officials have gone over the years—and continue to go—to keep Hayne on the witness stand."

The story can be found at:

Ahttp://www.theagitator.com/2009/09/01/update-in-mississippi-titles-are-free/

Publisher's note: Some of Radley Balko's fans get riled when the mainstream media pick up the shocking Steven Hayne story which Balko has doggedly exposed. Although Balko is one of my heroes - he is a courageous journalist - I think the fact that some mainstream media organizations have picked up the story is a great tribute to his skill and persistence. CNN AC360 Degree producer Joneil Adriano's post entitled "Pathologist’s work raises questions," which was published on August 21, 2009, is a case in point.

Harold Levy; Publisher; The Charles Smith Blog;

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"When other boys were playing football, learning to drive and chasing girls, Tyler Edmonds was a child locked up with adults, serving a life sentence in a Mississippi prison for a crime he didn’t commit," the post begins.

"Today, Edmonds is a free man. But he still holds a lot of resentment toward the state expert who helped to convict him of murder," it continues.

"“I think that he’s the dirt of the Earth, the scum of the Earth,” Edmonds, 20, told CNN. “If anybody deserves to be in jail, it’s him.”

The target of Edmond’s scorn is Dr. Steven Hayne, a Mississippi forensic pathologist who testified at Edmonds’ 2004 trial. Edmonds, then only 14, was accused of murdering his brother-in-law, Joey Fulgham, who had been shot in the head with a single bullet.

Dr. Hayne performed the autopsy on Fulgham and concluded that “within reasonable medical certainty,” two people had likely fired the murder weapon. Dr. Hayne based his findings on his examination of the gunshot wound.

“Since it would be past the center line of the decedent’s head when fired, 20 degrees past the center line of the head, so therefore, it would be consistent with two people involved,” Dr. Hayne said on the witness stand.

Critical Testimony

Dr. Hayne’s testimony seemed to give credibility to the prosecution’s theory that Edmonds and his older sister acted together to murder her husband.

Edmonds’ attorneys appealed his conviction all the way to Mississippi Supreme Court, which overturned his conviction and ordered a new trial. The court seemed troubled by Dr. Hayne’s “speculative” and “scientifically unfounded” testimony.

“You cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously,” the court said.

In 2007, four years after he was arrested, Edmonds was released on bond. In 2008, he was retried and acquitted.

“They went to a second trial,” said Tucker Carrington, Director of the Mississippi Innocence Project, “and the one thing essentially that was missing was Dr. Hayne’s opinion.”

Carrington, whose group did not play a role in defending Edmonds, says they are concerned that Dr. Hayne’s testimony may have helped to convict other innocent people. They have launched a comprehensive review of Dr. Hayne’s testimony, and worry that Dr. Hayne may have been willing to tailor his testimony in order to help prosecutors.

“We have found cases where Dr. Hayne, like he did in Tyler Edmonds’ case, strays beyond the bounds of science, beyond the bounds of good objective forensic work, and offers testimony that in many cases, amounts to nonsense,” Edmonds said.

Carrington’s group is also alarmed by the number of autopsies Dr. Hayne had been performing every year – more than 1500. The National Association of Medical Examiners recommends that pathologists perform no more than 325 autopsies annually.

Accusations Refuted

Dr. Hayne’s lawyer, Dale Danks, maintains that his client has never sent an innocent man to jail and that he has never done anything improper to aid any side in a trial.

“The role of Dr. Hayne and any other pathologist is to state in his opinion, the cause of death and the manner of the cause of that death. And that’s all he testifies to,” said Danks. “His job has always been and should be and will be if I know him as well as I know him, to be impartial and fair and not take sides in either issue.”

If there was a mistake made in Edmonds’ first trial, according to Danks, it was made by the trial judge, who should not have allowed Dr. Hayne to testify about the two-shooter theory.

“It’s up to the judge as to whether or not that’s admissible or not. Not Dr. Hayne, not the prosecution, not the defense attorney.”

Danks also says it was Edmonds himself – in a false confession that was almost immediately recanted – who said he and his half-sister were both responsible for shooting Fulgham.

“That confession was part of the facts that were presented to Dr. Hayne. And based on Dr. Hayne’s findings of his autopsy report, he said it was more in tune with what the defendant had already confessed to,” said Danks.

High Number of Autopsies

As for the criticism that Dr. Hayne is performing autopsies at a rate far higher than nationally recommended, Danks says his client’s numbers are in line with other noted pathologists.

Still, the College of American Pathologists sent Dr. Hayne a letter last year to express “concern relating to the volume of autopsies you claim to perform on an annual basis.”

And last year, the Mississippi Department of Public Safety abruptly terminated its contract with Dr. Hayne to perform autopsies, citing a backlog of nearly 500 hundred reports. Forensic Medical, Inc., in Nashville, Tennessee, now conducts autopsies for the state. But several county coroners, citing the inconvenience of using an out of state company, want Hayne to be allowed to perform autopsies again.

Hayne is also suing the Innocence Project, claiming the group’s criticism of him is defamatory. Meanwhile, two wrongfully convicted men have filed federal civil rights lawsuits against Hayne over testimony he provided at their trials.

Picking Up The Pieces

Edmond’s half-sister, Kristi Fulgham, is now on Mississippi’s death row for the murder of Joey Fulgham.

Since being acquitted last November, Tyler Edmonds has been slowly putting the pieces of his life back together again. He has his high school diploma and plans to take classes to become an EMT.

But the transition back to freedom was difficult for him and his family, and he says he now has an appreciation for the simple things in life.

“The things that most people take for granted, or don’t even think about,” Edmonds said. “Like fixing your own plate when dinner’s ready. Being able to fix your own plate and not having it fixed for you and brought to you.”

Although Dr. Hayne insists he did nothing wrong, Edmonds thinks he played a major role in his wrongful conviction, and hopes someday he will hear an apology.

“I guess for me, the biggest thing it would show is that he’s taken some kind of accountability,” Edmonds said. “I’ve already had six years of my life stolen away because of it, and you’re not even man enough to stand up and say, It was unprofessional, I was wrong.”"

The post can be found at:

http://ac360.blogs.cnn.com/2009/08/21/pathologists-work-raises-questions/

Harold Levy...hlevy15@gmail.com;

RADLEY BALKO REVISITS MELENDEZ-DIAZ; WEIGHING EFFICIENCY AGAINST THE CONSTITUTION AND ENSURING FAIR TRIALS;

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"THE BASIC PROBLEM WITH COURTROOM FORENSICS IS THAT THERE'S TOO MUCH BIAS AND PREJUDICE IN THE ANALYSIS FOR IT TO BE CLASSIFIED AS SCIENCE. PEER REVIEW, FOR EXAMPLE, FORMS THE VERY FOUNDATION OF SCIENTIFIC INQUIRY, BUT IT'S MOSTLY ABSENT FROM FORENSIC ANALYSIS. SCIENTISTS GO TO GREAT LENGTHS TO INSULATE THEMSELVES FROM BIAS, SUCH AS CONDUCTING DOUBLE-BLIND STUDIES. FORENSIC ANALYSTS, ON THE OTHER HAND, ROUTINELY MEET WITH THE ATTORNEYS FOR WHOM THEY'LL BE TESTIFYING BEFORE CONDUCTING THEIR EXAMINATION. ONE 2006 STUDY BY RESEARCHERS AT BRITAIN'S UNIVERSITY OF SOUTHAMPTON FOUND THAT FINGERPRINT ANALYSTS WERE TWICE AS LIKELY TO FIND FALSE MATCHES WHEN THEY WERE GIVEN EXTRANEOUS INFORMATION ABOUT THE CASE."

RADLEY BALKO; REASON;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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The Melendez-Diaz case has prompted yet another column by Radley Balko, a senior editor at Reason Magazine - in this Bloggist's view one of the most perceptive commentators on the U.S. criminal justice system.

The earlier column ran under the heading, "Criminal Justice Missing From Sotomayor Hearings" and the sub-heading, "No one cares to discuss the Supreme Court's most important function: protecting the rights of the accused."

Balko's latest column on the Melendez-Diaz case ran on August 10, 2009, under the heading: "Cross-Examining Forensics; The Supreme Court says that forensics analysts can be cross-examined...for now."

"On June 25, in a late-term, 5-4 ruling marked by unconventional alliances and sharp disagreement between the justices, the U.S. Supreme Court decided in Melendez-Diaz v. Massachusetts that the Sixth Amendment's Confrontation Clause requires forensic experts whose reports are admitted into evidence to be made available for cross-examination," the column began.

"You might have already thought that you had the right to challenge a witness who offers powerful evidence of your guilt. But until six weeks ago, that wasn't the case in many states," it continued;

"Defense attorneys and critics of the forensics system were celebratory, but they might want to check next term's docket. Just before it recessed, the Court agreed to hear a case from Virginia with very similar issues at stake. The unusual move has some Court watchers speculating that the minority in Melendez-Diaz may see former prosecutor and new Associate Justice Sonia Sotomayor as an ally. Her vote could give them a majority for a reversal or a significant limitation of last term's ruling.

Melendez-Diaz v. Massachusetts allows defense attorneys to question the authors of forensics reports about their methodology and to probe those authors' testimony for possible errors. A faceless analysis that cites a 99 percent or higher probability of a forensics match can lose some of its punch if the author can be questioned in front of a jury about the possibility of bias or human error.

The basic problem with courtroom forensics is that there's too much bias and prejudice in the analysis for it to be classified as science. Peer review, for example, forms the very foundation of scientific inquiry, but it's mostly absent from forensic analysis. Scientists go to great lengths to insulate themselves from bias, such as conducting double-blind studies. Forensic analysts, on the other hand, routinely meet with the attorneys for whom they'll be testifying before conducting their examination. One 2006 study by researchers at Britain's University of Southampton found that fingerprint analysts were twice as likely to find false matches when they were given extraneous information about the case.

In a recent cover story on forensics, Popular Mechanics summed up the problem: "Forensic science...was not developed by scientists. It was created by cops—often guided by little more than common sense—looking for reliable ways to match patterns from clues with evidence tied to suspects. What research has been done understandably focuses on finding new techniques for putting criminals in jail." In other words, where science is about process, forensics tends to be more concerned with outcomes.

Yet in courtrooms forensic evidence is usually presented as hard science, giving it a false authority that can have a powerful influence on jurors (particularly those who watch the various CSI series on television, where the well-funded, high-tech labs always identify the killer by the end of the hour). A congressionally commissioned report published earlier this year by the National Academy of Sciences found that across all forensic specialities, from medical examination to fingerprinting to hair and fiber analysis, not only does the methodology often lack scientific rigor, examiners commonly exaggerate the certainty of their findings on the witness stand, or testify to findings that have no basis in science at all. The Innocence Project estimates that half of all wrongful convictions are at least partly due to faulty forensic science.

The Melendez-Diaz decision recognized these problems. "A forensic analyst responding to a request from law enforcement may feel pressure—or have an incentive—to alter evidence in a manner favorable to the prosecution," Justice Antonin Scalia wrote in the majority opinion, adding, "Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well."

The decision didn't mandate that states change the underlying systemic problems with forensics that give rise to bias and improper incentives in the first place. It merely gave defendants the opportunity to raise these issues in court. But even that modest reform has the old guard up in arms. Last month, the Washington Post reported that all across the country, Melendez-Diaz "has prosecutors and judges shaking their heads in disgust," issuing dire warnings that "murderers could walk free" and "drunken driving cases could be dismissed." Lab workers just don't have time to traipse off to court to defend their results, the officials complain.

That's too bad. But the Bill of Rights protects us from government overreach. To say we should suspend constitutional protections because keeping them in place would prove inconvenient to the government rather misses the point. If there aren't enough analysts to both work the lab and testify in court, states will either have to budget more money for forensic analysis, or prosecutors will have to start prioritizing cases with the budgets they have. If the criminal justice system has adapted to new technology in a way that doesn't pass constitutional muster, it simply needs to change.

For example, the Post notes that an amicus brief written for the Melendez-Diaz case by a group of state attorneys general explained that the vast majority of crime-lab work involves testing for drug cases, and warned that a decision mandating confrontation could mean that more of those cases come to trial. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," the brief warned. Perhaps, then, prosecutors should stop devoting so many resources to consensual crimes. That would free up analysts to work on crimes that have actual victims.

If the Court significantly narrows the scope of Melendez-Diaz next term, the complaining judges and prosecutors may yet get their way. That's good news if you're merely concerned with efficiency. It's less reason to celebrate if your concern lies with the Constitution, or with ensuring a fair trial."

The column can be found at:

http://reason.com/news/show/135325.html

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ CASE: ARE WORRIES ABOUT SOTOMAYER'S TOUGH-ON-CRIME JURISPRUDENCE MISPLACED? SOME QUESTIONS THAT SHOULD HAVE BEEN ASKED; RADLEY BALKO;

"THIS IS ALL THE MORE TROUBLING GIVEN THE CRITICAL ROLE SOTOMAYOR WILL LIKELY PLAY ON KEY CRIMINAL JUSTICE CASES DURING HER LIKELY TENURE. IN THE LAST TERM ALONE, THERE WERE SIX CRIME CASES IN WHICH THE DEFENSE POSITION WON ON A 5-4 VOTE, WITH DEPARTING JUSTICE DAVID SOUTER CASTING A VOTE WITH THE MAJORITY. IN ONE OF THOSE CASES, MELENDEZ-DIAZ V. MASSACHUSETTS, THE COURT HELD THAT THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE GIVES CRIMINAL DEFENDANTS THE RIGHT TO CROSS-EXAMINE ANY FORENSIC EXPERT WHOSE WORK IS SUBMITTED AS EVIDENCE, A PARTICULARLY IMPORTANT DECISION GIVEN A DAMNING REPORT ON THE RELIABILITY OF FORENSIC SCIENCE ISSUED EARLIER THIS YEAR BY THE NATIONAL ACADEMIC OF SCIENCES. THE DECISION HAS ALREADY SENT SHOCKWAVES THROUGH THE CRIMINAL JUSTICE SYSTEM."

RADLEY BALKO; REASON MAGAZINE;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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The Melendez-Diaz case has prompted another column by Radley Balko, a senior editor at Reason Magazine - in this Bloggist's view one of the most perceptive commentators on the U.S. criminal justice system.

The column ran yesterday under the heading, "Criminal Justice Missing From Sotomayor Hearings" and the sub-heading, "No one cares to discuss the Supreme Court's most important function: protecting the rights of the accused."

"Last week's confirmation hearings for Supreme Court nominee Sonia Sotomayor included much of what we expected: Probing questions from Republicans on hot-button culture war issues such as abortion, gay marriage, gun control, race, and affirmative action; and deference, deflection, and fawning praise from Democrats. Almost entirely left out of the discussion was a subject you might think has some relevance to the Supreme Court: the criminal justice system," the column begins;

"Determining the extent of constitutional protections for suspects and defendants may well be the Supreme Court's most important task," it continues;

"The framers of the Constitution thought so: four of the 10 amendments that make up the Bill of Rights lay out explicit protections for criminal defendants. Yet even though the Court has addressed a number of important Fourth, Fifth, Sixth, and Eighth Amendment cases in recent years, Sotomayor was never seriously challenged on her record of criminal justice jurisprudence. The few times these issues were broached at all, it was in the form of a friendly question from a Democrat, phrased to demonstrate that Sotomayor will be as tough on crime as any Republican appointee.

Sen. Chuck Schumer (D-NY), for example, noted with satisfaction in his introductory comments that over the course of her career, Sotomayor has "ruled for the government in 83% of immigration cases, in 92% of criminal cases." Sen. Amy Klobuchar (D-Minn.), a former prosecutor, used a portion of her Q&A with Sotomayor to highlight and praise instances in which Sotomayor was willing to excuse police officers who violated the Fourth Amendment. Democrats on the Senate Judiciary Committee also brought in law enforcement officials to testify in support of Sotomayor, including former Manhattan District Attorney Henry Morgenthau, former FBI Director Louis Freeh, and a representative from the Fraternal Order of Police. Republican members didn't call a single witness to critique Sotomayor's record on crime from the right. No wonder some criminal defense attorneys are worried.

One person neither party asked to testify is Jeffrey Deskovic, who was convicted at age 17 of a rape and murder he didn't commit. In 2000, Sotomayor and another judge on the 2nd Circuit Court of Appeals issued a curt, two-page ruling that refused to even consider Deskovic's innocence claim because his attorney filed four days late (the attorney says he was given bad information by a court clerk). "We have considered all of petitioner-appellant’s remaining arguments and find them to be without merit," the opinion read. Deskovic, who had already served 10 years, went on to serve another six before DNA testing led police to the actual killer. In a moving essay earlier this month, Descovic asked to be heard.

I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor's putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.

Last month, Vice President Biden told a gathering of law enforcement organizations that Sotomayor "has got your back," a startlingly inappropriate (even for Biden) assurance about a potential Supreme Court justice. Imagine the uproar if the vice president had said the same thing to the National Association of Criminal Defense Lawyers.

But Biden isn't the only one to share that assessment. Sotomayor's confirmation has been endorsed by eight major law enforcement groups. The L.A. Times reported last month that according to former colleagues, Sotomayor's time as a "zealous prosecutor" made her into "something of a law-and-order judge, especially when it comes to police searches and the use of evidence." New York criminal defense lawyer Gerald Lefcourt said Sotomayor "always seemed to be leaning toward the government," adding that she was "very police-like. Dismissive of what the defendant had to say about anything." Slate's Emily Bazelon also reported on one extraordinary case in which Sotomayor was able to convince a more conservative 2nd Circuit judge to join her in overturning a jury verdict against an off-duty police officer accused of threatening and assaulting a truck driver, on grounds that even off-duty cops have broad powers to make arrests.

If a Republican nominee had such a criminal justice track record, leftist advocacy groups would probably be up in arms—or at least concerned. And rightly so. But even criminal justice groups have been conspicuously quiet. The American Civil Liberties Union did publish a thorough review of Sotomayor's judicial record, but has maintained a sort of passive support for her nomination. Executive Director Anthony Romero said that although "the ACLU does not officially endorse or oppose US Supreme Court candidates, I have never been personally prouder of any appointment." Romero must have a short memory. The ACLU explicitly opposed Samuel Alito in 2006, and was publicly critical of John Roberts in 2005.

This is all the more troubling given the critical role Sotomayor will likely play on key criminal justice cases during her likely tenure. In the last term alone, there were six crime cases in which the defense position won on a 5-4 vote, with departing Justice David Souter casting a vote with the majority. In one of those cases, Melendez-Diaz v. Massachusetts, the Court held that the Sixth Amendment's Confrontation Clause gives criminal defendants the right to cross-examine any forensic expert whose work is submitted as evidence, a particularly important decision given a damning report on the reliability of forensic science issued earlier this year by the National Academic of Sciences. The decision has already sent shockwaves through the criminal justice system.

But just before ending its most recent term, the Court agreed to hear a case from Virginia (PDF) that raises similar issues regarding DNA testing. This has led some Court watchers to speculate that the minority in Melendez-Diaz sees Sotomayor as a potential ally who may join them to limit the scope of—or even overturn—last term's ruling. Sen. Klobuchar did ask Sotomayor about Melendez-Diaz, but only to express her disappointment with the ruling and her hope that the Court, presumably with Sotomayor's help, will overturn it. Sotomayor gave a typical confirmaiton hearing answer, acknowleding Klobuchar's concerns, stating that Melendez-Diaz is now established law, but ultimately refraining from speculating on how or whether she might limit its impact.

The New York Times reported in January that the Court is inching ever closer to eliminating or rendering impotent the Exclusionary Rule, which bars evidence obtained through illegal searches from being admitted at trial. Chief Justice John Roberts, the paper explained, is a longtime opponent of the rule, having led a campaign to repeal it as a young attorney in the Reagan administration. Replacing Souter, a fairly reliable defender of the Exclusionary Rule, with a former prosecutor like Sotomayor will likely at least narrow the rule’s application. Wall Street Journal reporters Jess Bravin and Nathan Koppel came to a similar conclusion last month, writing that while Sotomayor "stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice."

Content-free as they were, last week’s hearings were a tidy composite of the national debate over criminal justice issues. Which is to say that there really isn't any such debate. By conventional wisdom, defendants’ rights have traditionally been a concern only of the left. But you'd never know that by observing national politics. Criminal justice activists are fond of saying that Republicans are evil, but Democrats are spineless. That's not entirely accurate. Democrats such as Biden have been plenty active in dismantling constitutional protections against police power. Some of today's most draconian federal crime statutes were authored by Democrats.

Even as DNA testing has exposed serious flaws in a process once believed to be mostly (or at least tolerably) just, politics still really only affords one acceptible position on crime: We need to get tougher on it.

It's possible that worries over Sotomayor’s tough-on-crime jurisprudence are misplaced. Perhaps thus far in her career, her written opinions were bound by existing case law and procedural rules, and that as a precedent-setting Supreme Court justice she'll prove to be a staunch defender of the Exclusionary Rule and the Confrontation Clause, and her sensitivity to innocence claims will be sharpened by cases like Jeffrey Deskovic's.

It's possible. The problem is that we really have no idea. Because no one bothered to ask."

The column can be found at:

http://www.reason.com/news/show/134889.html

Harold Levy...hlevy15@gmail.com;

THE MELENDEZ-DIAZ CASE: CRITICAL COMMENT; HOUSTON CHRONICAL CASE WELCOMES THE DECISION IN EDITORIAL HEADED "ACCOUNTABILITY";

"LAST DECEMBER, RICARDO RACHELL WAS RELEASED FROM PRISON AFTER SERVING SIX YEARS FOR SEXUALLY ASSAULTING A CHILD, CLEARED BY DNA THAT HAD BEEN AVAILABLE ALL ALONG — A VICTIM OF SHODDY POLICE WORK AND INADEQUATE REPRESENTATION.

JUST LAST WEEK, ANOTHER HOUSTONIAN, GEORGE RODRIGUEZ, WAS AWARDED $5 MILLION BY A FEDERAL GRAND JURY FOR THE “DELIBERATE INDIFFERENCE” OF THE CITY TO DISCREDITED EVIDENCE FROM THE CRIME LAB WHICH LED TO HIS CONVICTION. HE SPENT 17 YEARS IN PRISON FOR A KIDNAPPING AND RAPE HE DID NOT COMMIT."

HOUSTON CHRONICLE EDITORIAL;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"Last week, the U.S. Supreme Court issued a significant ruling, one that upholds the right of a criminal defendant, during trial, to confront the analyst who prepared a forensic report if the prosecution plans to use that report as evidence," the Houston Chronicle editorial begins;

"The ruling, in the case of Melendez-Diaz v. Massachusetts, confirmed the confrontation clause of the Sixth Amendment, which provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him," the editorial continues;

"It was no surprise that Justice Antonin Scalia wrote the majority opinion. He was the author of the court’s 2004 decision, in Crawford v. Washington, which unanimously upheld that same principle.

Melendez-Diaz was a narrowly won decision (5–4), and one that will be revisited and clarified. But it was the right decision, one in which the Supreme Court reaffirmed its concern for the rights of criminal defendants, who are often left without adequate resources to defend themselves.

Nowhere has that lack been more obvious in recent years than in Houston, as evidenced by the Houston Police Department’s scandal-ridden crime lab, whose egregious mistakes, omissions and sloppy procedures have led to horrendous miscarriages of justice.

Last December, Ricardo Rachell was released from prison after serving six years for sexually assaulting a child, cleared by DNA that had been available all along — a victim of shoddy police work and inadequate representation.

Just last week, another Houstonian, George Rodriguez, was awarded $5 million by a federal grand jury for the “deliberate indifference” of the city to discredited evidence from the crime lab which led to his conviction. He spent 17 years in prison for a kidnapping and rape he did not commit.

Defense attorneys applauded the decision: Noted Houston attorney Stanley Schneider called the decision “outstanding. An individual’s right to freedom is the most precious thing we have, and the right to cross-examination is the backbone of our system of justice.”

But many prosecutors, and the court minority, complained that it would place an undue strain on forensic analysts and prosecutors. Scott Burns, executive director of the National District Attorneys Association, called it “a train wreck,” reported the New York Times.

But Harris County District Attorney Pat Lykos welcomed the decision, noting that since taking office last January, she has made good on her pledge to pass on all offense reports to defense attorneys and has proposed the creation, she told the Chronicle, of a “regional, independent crime lab, staffed by qualified scientists to meet the forensic demands of our justice system.”

Scalia pointed out that many states have already adopted the confrontation clause, saying “Perhaps the best indication the sky will not fall after today’s decision is that it has not done so already.”

As forensic science expands, so do the ranks of experts who interpret it. It’s reassuring to know they’ll be held accountable."

Harold Levy...hlevy15@gmail.com;

UP-DATE: PUTTING THE BITE ON DR. MICHAEL WEST; RADLEY BALKO'S LATEST EXPOSE;

"IN OCTOBER 2001, WORKING FOR PLOURD, A PRIVATE INVESTIGATOR NAMED JAMES RIX SENT WEST THE DECADE-OLD PHOTOGRAPHS OF THE BITE MARKS ON ANCONA’S BREAST. RIX TOLD WEST THAT THE PHOTOS WERE FROM THE THREE-YEAR-OLD UNSOLVED MURDER OF A COLLEGE STUDENT IN IDAHO. RIX THEN SENT WEST A DENTAL MOLD OF HIS OWN TEETH, BUT TOLD HIM THAT THEY CAME FROM THE CHIEF SUSPECT IN THE CASE. HE ALSO SENT A CHECK FOR $750, WEST'S RETAINER FEE."

RADLEY BALKO: REASON;

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As promised, Radley Balko has delivered his latest expose on Dr. Michael West - a "sting" video - on Reason Online;

The actual video can be accessed by cutting and pasting:

The expose appeared earlier today under the heading: "A Forensics Charlatan Gets Caught in the Act: Video from a defense attorney's sting exposes Mississippi bite-mark "expert" Michael West."

"In 1992, a Phoenix man named Ray Krone was convicted of murdering a cocktail waitress named Kim Ancona," the expose begins;

"The crime was brutal," it continues;

"Ancona had been sexually assaulted, stabbed multiple times, and bitten on her breast and neck. Krone was indicted after a local dentist named Scott Piette, who had received all of five days of forensic training, told police and prosecutors that Krone’s crooked teeth created the marks on Ancona’s body.

At trial, a more experienced bite-mark analyst from Las Vegas named Ray Rawson confirmed Piette's findings: The bite marks on Ancona’s neck could only have come from Krone. Rawson included a 39-page report with his testimony. It must have been convincing, because the jury convicted Krone despite no other physical evidence linking him to the crime. He was sentenced to death.

In 1995, Krone was given a new trial after an appeals court threw out his conviction over an unrelated legal technicality. Rawson testified again. And Krone was convicted again. After the second trial, however, the judge refused to sentence Krone to death, writing, "The court is left with a residual or lingering doubt about the clear identity of the killer."

The judge’s misgivings proved prescient. Over the strenuous objections of prosecutors, who maintained that Rawson’s testimony was in itself sufficient to affirm Krone’s conviction, Krone's attorney Christopher Plourd succeeded in getting a court to force the state to turn over biological evidence from the crime for DNA testing. The testing proved Krone was innocent. It also provided a match to Kenneth Phillips, a man who arguably should have been a suspect from the start. Phillips lived less than a mile from the crime scene, was already on probation for assaulting a female neighbor, and was arrested three weeks after Ancona’s murder for sexually assaulting a seven-year-old girl. Several witnesses had described a man fitting Phillips’ height, weight, and complexion to police near the crime scene the night of the murder.

After 10 years in prison, including two spent on death row, Ray Krone was exonerated and released from prison in 2002.

But Krone’s lawyer wasn’t quite finished. In addition to his job as a criminal defense attorney, Christopher Plourd is a legal specialist in forensic science, having served on several government commissions looking at the role of DNA testing in the criminal justice system.

Plourd was livid that his client could have been convicted not once, but twice, based on obviously erroneous testimony that was presented as scientific. It seemed to confirm what Plourd and other critics of bite-mark analysis have long suspected—that there is little "science" behind the method at all. So in 2001, the lawyer decided to conduct a “proficiency test” on some unknowing and prominent bite-mark expert.

Plourd chose Mississippi dentist Michael West for his test. West had long been under fire for dubious testimony in dozens of criminal cases, including one in which he claimed to be able to match the bite marks in a half-eaten bologna sandwich found at the crime scene to the dentition of a defendant. I’ve written extensively on West over the last few years, most recently in a feature about the 1992 Louisiana murder trial and eventual conviction of Jimmie Duncan. In that case, I obtained a video showing West repeatedly jamming Duncan’s dental mold into the body of the young girl Duncan was accused of killing. Forensic specialists say that what West does in the video isn't a remotely acceptable method of analysis, and may amount to criminal evidence tampering. Duncan is on death row in Louisiana, based in part on West's analysis.

Plourd selected West because, even though the dentist was still active in the Mississippi and Louisiana courts, he had been suspended from the American Board of Forensic Odontology since the mid-1990s, and therefore might not be aware of the somewhat notorious Krone case. Plourd was right.

In October 2001, working for Plourd, a private investigator named James Rix sent West the decade-old photographs of the bite marks on Ancona’s breast. Rix told West that the photos were from the three-year-old unsolved murder of a college student in Idaho. Rix then sent West a dental mold of his own teeth, but told him that they came from the chief suspect in the case. He also sent a check for $750, West's retainer fee.

Two months later, West sent Rix a letter and accompanying 20-minute video. In the video, West meticulously explains the methodology he uses to match bite marks to dental molds. Using the photo of Ancona’s bitten breast and Rix's own dental mold, West then reaches the conclusion Plourd and Rix suspected he would: That the mold and the photos were a definite match.

"Notice as I flex the photograph across these teeth how it conforms to the outline very nicely," West explains confidently. "The odds of that happening if these weren’t the teeth that created this bite would be almost astronomical." He adds that the "matching" patterns he found between the photo and the dental mold "could only lead an odontologist to one opinion and that [is] these teeth did create that mark."

Though Plourd’s proficiency test has been noted in court briefs and law journals, this is the first time the video of West’s analysis has been published.

NOTE: The video below includes a photograph of bite marks on a post-mortem breast. Viewer discretion is advised."

Harold Levy...hlevy15@gmail.com;

UP-DATE: DR. MICHAEL WEST: RADLEY BALKO TAKES ON HIS CLAIM THAT HE HAS "LOST FAITH IN THE SYSTEM;" RADLEY PROMISES TO LAUNCH NEW EXPOSE TOMORROW;

"WEST WAS ACCEPTED AS AN EXPERT BY COURTS ALL OVER THE SOUTH. BUT HE WAS ALSO GETTING CALLS BECAUSE PROSECUTORS DIDN'T HAVE ANY OTHER EVIDENCE, OR AT LEAST NOT ENOUGH TO ENSURE A CONVICTION. AND BECAUSE PROSECUTORS WERE SO EAGER TO WIN CONVICTIONS, THEY DIDN'T BOTHER TO LOOK AT WEST'S RIDICULOUS CLAIMS WITH ANY SKEPTICISM. ANY SCIENTIST WHO CLAIMS HE HAS DEVELOPED A TEST THAT ONLY HE CAN PERFORM, AND THAT CAN'T BE DUPLICATED OR PHOTOGRAPHED—AS WEST DID WITH HIS BLACK LIGHT AND YELLOW GOGGLES METHOD OF IDENTIFYING BITE MARKS—ISN'T A SCIENTIST."

RADLEY BALKO: REASON;

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Feisty journalist Radley Balko, who has played a pivotal role in bringing down Drs/ Michael West and Steven Hayne, returned to the attack yesterday, with a challenge to West's assertion to the Associated Press that he has "lost faith in the system."

"Tomorrow, I'll have another investigative piece here at Reason about self-proclaimed Mississippi bite mark expert, Dr. Michael West," Balko begins, in his Internet publication "Reason."

"This latest article details a sting an attorney set up on West that pretty conclusively shows West to be a fraud," he continues;.

"It's good timing, because earlier this month, West gave an interview to the A.P. in which he defended his court testimony over the years. The interview came in response to recent lawsuit filed by Kennedy Brewer and Levon Brooks, two men convicted of separate rapes and murders almost entirely thanks to West's bite mark expertise. The two were later exonerated by DNA evidence. A third man has since confessed to both crimes.

Much of the interview consists of West's usual defense—that someone else must have raped and killed the victims while the men West helped convict bit them. It's absurd. It would require two boyfriends, on occasions two years apart, who lived within miles of one another, to have each bitten the young daughters of their girlfriends while a third man, the same man, raped and killed the girls.

But there are a couple of parts of the article that are worth addressing. First:

“What did I testify to that was incorrect? If they knew that they didn’t kill this child and I never testified that they killed this child, where have I torted them?” West said.

He "torted" them by giving testimony unsupported by any scientific literature (other than journal articles written by West himself), knowing full well that his testimony would be used to help convict them. West's behavior in the Jimmie Duncan case, which occurred at about the same time as the Brooks and Brewer cases, and which I wrote about last April, suggests that at the very least he at the time was employing a method of analysis that has been thoroughly discredited, even by other experts in the already suspect field of forensic odontology. That's at best. At worst, he was manufacturing evidence.

West, in court documents filed this week, also says his testimony wasn’t the basis of Brewer’s conviction, saying it wasn’t the “the centerpiece of the prosecution.”

This is false. The bite marks were the only physical evidence linking either Brooks or Brewer to either crime. Moreover, when DNA testing on the semen found in the victim initially cleared Kennedy Brewer back in 2002, District Attorney Forrest Allgood refused to exonerate Brewer, citing West's bite mark testimony as proof that even if Brewer didn't rape and kill the little girl, the bite marks West was able to match up showed Brewer must have had something to do with her death. Allgood's clinging to West's testimony kept Brewer in prison an extra five years.

Speaking of Allgood:

“I told Dr. West years ago that we were not going to use him anymore because, quite frankly, he carries too much baggage,” said District Attorney Forrest Allgood in Columbus. “You spent your whole trial defending him as opposed to trying the defendant.”

I don't know what Allgood means by "years ago," but again, he was relying on West's testimony as late as 2007 to keep Kennedy Brewer in jail. Allgood also continued using West well after West was suspended by the American Academy of Forensic Sciences in 1994. And note that Allgood doesn't say he stopped using West because West is unscientific. Only because it made it harder to win and protect convictions.

“I don’t want to do any more death information. I don’t want public office,” West said. “I’ve lost faith in the system.”

Tragic. Reminds me of the old Groucho Marx line, "I refuse to join any club that would have me as a member."

District Attorney Ronnie Harper of Lauderdale County said West was once accepted as an expert by courts all over the South.

“This is not some witch doctor that people were calling because they didn’t have any other evidence. People thought the guy knew what he was talking about,” Harper said.

This is partially true. West was accepted as an expert by courts all over the south. But he was also getting calls because prosecutors didn't have any other evidence, or at least not enough to ensure a conviction. And because prosecutors were so eager to win convictions, they didn't bother to look at West's ridiculous claims with any skepticism. Any scientist who claims he has developed a test that only he can perform, and that can't be duplicated or photographed—as West did with his black light and yellow goggles method of identifying bite marks—isn't a scientist. And his test isn't science. Plenty of people in the forensics community were sending out red flags about West dating back to the early 1990s. Prosecutors refused to heed those warnings out of self-interest. The "everyone else was doing it" defense doesn't fly.

Alternate light imaging that West pioneered is still being used today, said Dr. Robert Barsley, a Louisiana State University dental professor and the secretary of the American Academy of Forensic Science.

“In fact, in dentistry today, it’s used to detect cancer,” said Barsley, a friend of West. Barsley acknowledged the attention surrounding West hasn’t helped the use of bite mark evidence at trial.

“Certainly in some cases, not only Dr. West’s cases, people disagreed with the results of odontology. Anytime you have disagreements that lessens the impact of the evidence,” Barsley said.

Penalty flag on the A.P reporter, here. It would probably be helpful to know that the expert defending West in this passage is not only a friend, but was actually a co-author on many of West's journal articles about the use of fluorescent light to identify bite marks. Barslay absolutely has an interest in defending West's methods, given that he helped popularize them. That should have been included in the article.

I hadn't heard that some form of West's methods for bite mark identification are now being use to detect cancer. That may be. But I'm not sure how that's relevant to their efficacy in identifying bite marks, and matching them to one suspect to the exclusion of everyone else.

Finally, Barsley's understatement of what's at stake here is laughable. This is not about "people" disagreeing with West's testimony. And it's not about the "impact" of odontological evidence. It's about near unanimity among forensic scientists that West has for years been giving testimony based on forensic methods that have zero basis in science. And he's been doing it to help put people in prison. Or send them to death row. West's methods are pretty roundly condemned even within the field of forensic odontology, a field that itself was recently lambasted by a report published by the National Academy of Sciences."

Harold Levy...hlevy15@gmail.com;

PERSPECTIVE: HOW RADLEY BALKO'S PROBING JOURNALISM LED TO DR. STEVEN HAYNE'S DEMISE; (ALTHOUGH STATE OFFICIALS CONTINUED TO DEFEND HIM!)

"EVEN IN FIRING HAYNE, SIMPSON TEMPERED HIS PRESS CONFERENCE WITH PRAISE FOR THE DOCTOR. ATTORNEY GENERAL JIM HOOD, WHO FREQUENTLY USED HAYNE WHEN HE WAS A DISTRICT ATTORNEY, ALSO VIGOROUSLY DEFENDED HIM IN THE LOCAL PRESS. SIMPSON SAID HIS AGENCY HAS NO INTENTION OF REVIEWING ANY CASES WHERE HAYNE HAS TESTIFIED. HE HAD "NO COMMENT" ON THE PERSISTENT ALLEGATIONS THAT HAYNE HAS REPEATEDLY GIVEN FALSE AND IMPROPER TESTIMONY DURING HIS 20-YEAR REIGN. HAYNE WAS TO REMAIN ON CONTRACT WITH THE STATE FOR AN ADDITIONAL 90 DAYS TO COMPLETE A BACKLOG OF 400 TO 500 AUTOPSY REPORTS."

RADLEY BALKO; REASON;

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Radley Balko described the State of Mississippi's decision to fire Dr. Steven Hayne in the November 2008, edition of reason.

"In our November 2007 issue, reason exposed some significant problems with Mississippi's forensic system," his story began.

"The article focused on Steven Hayne, the doctor who for two decades has conducted the vast majority of Mississippi's autopsies. (Hayne says he performs 1,500 to 1,800 autopsies per year, an impossibly high number.) reason interviewed medical examiners across the country who reviewed Hayne's work and found it sloppy and incompetent, and who cited several examples where Hayne's trial testimony may have put innocent men in prison," he continued.

"Drawing on reason's reporting, the criminal justice advocacy organization the Innocence Project called on Mississippi to bar Hayne from doing any more autopsies in the state. On August 5, the state finally severed its ties with Hayne. Commissioner of Public Safety Stephen Simpson announced that Hayne would be removed from the state's list of approved medical examiners and that Mississippi would begin contracting its criminal autopsies to a private firm in Nashville.

The case against Hayne was strengthened by the February release of two men, Kennedy Brewer and Levon Brooks, from the Mississippi State Penitentiary in Parchman. Brewer and Brooks were both accused of raping and killing young girls in the early 1990s in similar crimes that occurred within miles of each other. Brooks was sentenced to life in prison, Brewer to death. Hayne performed the autopsy in both cases, and in both cases Hayne and the disgraced forensic odontologist Michael West identified bite marks on the bodies of the victims that they say implicated the defendants. DNA testing later showed both men were innocent. Also in February, police arrested Albert Johnson, who confessed to both crimes.

Even in firing Hayne, Simpson tempered his press conference with praise for the doctor. Attorney General Jim Hood, who frequently used Hayne when he was a district attorney, also vigorously defended him in the local press. Simpson said his agency has no intention of reviewing any cases where Hayne has testified. He had "no comment" on the persistent allegations that Hayne has repeatedly given false and improper testimony during his 20-year reign. Hayne was to remain on contract with the state for an additional 90 days to complete a backlog of 400 to 500 autopsy reports.

The New York and Mississippi Innocence Projects say they're looking at more than 200 cases where Hayne gave improper testimony and may have helped convict an innocent person."

Harold Levy...hlevy15@gmail.com;

BREAKING NEWS: KENNEDY BREWER AND LEVON BROOKS FILE FEDERAL CIVIL RIGHTS LAWSUIT AGAINST HAYNE AND WEST;

"“IT TOOK A WHILE TO SERVE THEM WITH THE PAPERS BECAUSE IT WAS HARD TO TRACK DOWN WEST,” MCDUFF SAID.

ATTORNEY ROBIN ROBERTS OF HATTIESBURG, WHO HAS REPRESENTED WEST IN OTHER CASES, SAID HE HAD NOT SEEN WEST, WHOSE DENTIST OFFICE IS NOW CLOSED, IN AT LEAST A YEAR.”

RADLEY BALKO: THE AGITATOR; PHOTOS; LEVON BROOKS (LEFT); KENNEDY BREWER (RIGHT);
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Radley Balko reports in The Agitator that over the weekend, Kennedy Brewer and Levon Brooks filed a federal civil rights lawsuit against Steven Hayne and Michael West. This part of the story is interesting:

"The lawsuits filed in February represent only one side of the legal argument," Balko reported earlier today.

"Plaintiffs’ attorney Rob McDuff of Jackson said Friday he’s still waiting for a response from West," Balko continued;

"“It took a while to serve them with the papers because it was hard to track down West,” McDuff said.

Attorney Robin Roberts of Hattiesburg, who has represented West in other cases, said he had not seen West, whose dentist office is now closed, in at least a year.

In cases just two years apart, Brooks and Brewer were each convicted of raping and murdering the young daughters of their girlfriends, almost entirely due to the bite mark testimony Hayne and West gave at trial.

Between them, the two men served more than 30 years in prison. Brewer spent most of his time on death row. Both were released last year after a check of the state’s DNA database matched a man named Justin Albert Johnson. Johnson then confessed to both crimes."

Harold Levy...hlevy15@gmail.com;

PERSPECTIVE: KENNEDY BREWER AND LEVON BROOKS; MISSISSIPPI'S FAILURE TO COME TO GRIPS WITH INJUSTICE; GREAT JOURNALISM FROM RADLEY BALKO;

"MEANWHILE, AS HAYNE CONTINUES TO DO AUTOPSIES AND TESTIFY, DEFENSE ATTORNEYS IN A HANDFUL OF CASES HAVE ATTEMPTED TO IMPEACH HIM BY CITING MY REPORTING, AS WELL AS THE OTHER CRITICISM FROM HAYNE'S PEERS. THE COURTS HAVE DISMISSED THESE MOTIONS. THEY ALSO OFTEN REFUSE EVEN TO GIVE AN INDIGENT DEFENDANT FUNDS TO HIRE HIS OWN EXPERT TO REVIEW HAYNE'S WORK, LEAVING HAYNE AS THE ONLY MEDICAL EXPERT TO TESTIFY AT TRIAL."

RADLEY BALKO: SLATE;

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In recent posts I have focused on journalist Radley Balko's unflinching battle to expose the unwillingness of the Mississippi criminal justice system to correct its lethal errors - and the poisonous role played by Doctors Michael West and Steve Haynes (The Bite-Marks Men) in serving up wrongful convictions to the state.

In the light of a recent developments - including the lawsuit launched by Mssrs. Brooks and Kennedy last week, it is worth revisiting Balko's article "The Bite-Marks Men: Mississippi's criminal forensics disaster," on Wednesday February 20.

"Between them, Kennedy Brewer and Levon Brooks served more than 30 years in Parchman Penitentiary in Mississippi," the article begins;

"Brewer was sentenced to death, Brooks to life without parole," it continues;

"The crimes for which each was convicted are remarkably similar: A female toddler was abducted from her home, raped, murdered, and abandoned in the woods. In each case, Mississippi District Attorney Forrest Allgood decided early on that the boyfriend of the girl's mother was the culprit. In each case, he asked Dr. Steven Hayne to perform the autopsy. And in each case, Dr. Hayne called in Dr. Michael West to perform some analysis of bite marks on the children. West claimed to have found bite marks that had been missed by other medical professionals and then testified in court that he could definitively match these marks to the teeth of the men Allgood suspected of committing the murders.

In each case, West was wrong. Two weeks ago, Mississippi Attorney General Jim Hood announced that police had arrested 51-year-old Albert Johnson for the toddlers' murders. Johnson's DNA matched that found at the scene in both crimes. And according to Hood, when confronted with the evidence, Johnson confessed to both crimes. Brewer and Brooks were released from prison last week. These may turn out to be the first in a string of exonerations we'll see coming out of Mississippi. For the last 20 years, the state's criminal autopsy system has been in disrepair. Nearly every institution in the state has failed to do anything about it.

Last November, I wrote an investigative feature for Reason magazine about all of this, focusing in particular on the way in which Dr. Hayne has come to monopolize the state's autopsy business. I was astonished by what I found. Contrary to the story lines on shows such as CSI, forensics is far from an exact science. Even something seemingly as precise as DNA testing still requires careful preservation of evidence and is subject to human error and malfeasance. One key problem is that forensics labs often fall under the auspices of prosecutors. Even honest crime-lab workers, medical examiners, and other experts can be subtly influenced to make evidence conform to a prosecutor's wishes. In recent years, scandals have rocked crime labs across the country, even labs once considered world-class, such as the FBI's crime lab and the state lab in Virginia. In Mississippi, what's especially troubling is that state officials have had plenty of warning that something is wrong, and they've steadfastly refused to do anything about it.

According to the National Association of Medical Examiners, a doctor should perform no more than 250 autopsies per year. Dr. Hayne has testified that he performs 1,200 to 1,800 autopsies per year. Sources I spoke with who have visited Hayne's practice say he and his assistants will frequently have multiple bodies open at once, sometimes smoking cigars and even eating sandwiches while moving from corpse to corpse. They prefer to work at night, adding to their macabre reputation.

Hayne isn't board-certified in forensic pathology, though he often testifies that he is. The only accepted certifying organization for forensic pathology is the American Board of Pathology. Hayne took that group's exam in the 1980s and failed it. Hayne's pal Dr. West is even worse. West has been subject to exposés by 60 Minutes, Time, and Newsweek. He once claimed he could definitively trace the bite marks in a half-eaten bologna sandwich left at the crime scene back to the defendant. He has compared his bite-mark virtuosity to Jesus Christ and Itzhak Perlman. And he claims to have invented a revolutionary system of identifying bite marks using yellow goggles and iridescent light that, conveniently, he says can't be photographed or duplicated.

Mississippi's system is set up in a way that increases the pressure on forensics experts to find what prosecutors want them to find. The state is one of several that elect county coroners to oversee death investigations. The office requires no medical training, only a high-school diploma, and it commonly goes to the owner of the local funeral home. If a coroner suspects a death may be due to criminal activity, he'll consult with the district attorney or sheriff, then send the body to a private-practice medical examiner for an autopsy. The problem here is that a medical examiner who returns unsatisfactory results to a prosecutor jeopardizes his chance of future referrals. Critics say Hayne has become the preferred medical examiner for Mississippi's coroners and district attorneys, because they can rely on him to deliver the diagnoses they're looking for.

Under state law, this whole process is supposed to be overseen by a board-certified state medical examiner. The last two people to hold that office, Dr. Lloyd White from 1988 to 1992 and Dr. Emily Ward from 1993 to 1995, were appalled at the way the state was handling death investigations. Both tried to implement reforms. And both were met with fiery resistance. Dr. Ward's tenure was particularly raucous. West (who at the time was the elected county coroner for Forrest County) circulated a petition signed by slightly more than half the state's coroners calling for her resignation. The legislature has largely refused to fund the office since. It's been vacant since 1995.

Meanwhile, as Hayne continues to do autopsies and testify, defense attorneys in a handful of cases have attempted to impeach him by citing my reporting, as well as the other criticism from Hayne's peers. The courts have dismissed these motions. They also often refuse even to give an indigent defendant funds to hire his own expert to review Hayne's work, leaving Hayne as the only medical expert to testify at trial.

That's what happened in the case of Jeffrey Havard, on death row in Parchman for killing his girlfriend's infant daughter. Before trial, Havard's lawyer asked the court for money to hire an outside expert, citing concerns about Hayne's credibility. The request was denied. After Havard's conviction, his legal team was able to get former Alabama State Medical Examiner Dr. Jim Lauridson to review Hayne's work. Lauridson found it lacking, to say the least. He told me last fall that Havard's case is "a travesty of justice." Yet in a ruling Kafka would not believe, the Mississippi Supreme Court refused to even consider Lauridson's review of Hayne's autopsy. The review was new evidence, the court determined, and should have been introduced at trial.

After the Brewer and Brooks exonerations last week, the Innocence Project's Peter Neufeld called for an investigation into Hayne and West. Even before that investigation happens, Hayne and West should stop testifying or doing autopsies. The state also needs to review every case in which either of these two men has ever testified; such investigations have followed forensic scandals in West Virginia, Oklahoma City, Houston, and other places.

As those other scandals indicate, Mississippi certainly isn't the first state to have problems with its forensics system. The difference is that other jurisdictions have responded with thorough investigations and honest efforts to correct deficiencies and repair damage done. Over the years, Mississippi has had ample such opportunities, and state officials have done nothing. Perhaps more exonerations will force the state to change its bad ways. But thus far, there's no sign of that: In a recent article that ran in Jackson's Clarion-Ledger, Attorney General Hood defended Hayne's integrity and expertise, even as he was exonerating Brewer and Brooks, two men wrongly imprisoned due in part to Hayne's work.

Harold Levy...hlevy15@gmail.com;