by Radley Balko of Huffington Post
August 29, 2011
A widening scandal involving two longtime expert witnesses may become an issue in Mississippi’s race for attorney general this fall. Incumbent Attorney General Jim Hood has long defended two prolific but controversial forensic specialists who have come under fire in recent years: medical examiner Steven Hayne and forensic dentist Michael West.
West has testified in about a hundred cases over the years, and Hayne has testified in thousands. Critics have alleged for years that the two are guns for hire, willing to say on the witness stand whatever prosecutors need in order to win a conviction.
In 2008, two men — Kennedy Brewer and Levon Brooks — were exonerated by DNA testing in the rapes and murders of two little girls in the early 1990s. Combined, the two served more than 30 years in prison and Brewer was nearly executed. In both cases, Hayne and West claimed to have found bite marks on the victims’ skin that no other medical personnel saw. In both cases, West then claimed to have used his now-discredited bite mark expertise to match those bite marks to the prosecution’s chief suspect. A third man, Albert Johnson, was later arrested and confessed to both crimes.
Hood’s opponent this fall is Steve Simpson, a former prosecutor and circuit court judge who served most recently as the head of Mississippi’s Department of Public Safety. It was in the latter position that Simpson effectively terminated Hayne in 2008, ending the doctor’s 20-year near-monopoly on the autopsy referrals Mississippi prosecutors and coroners send to forensic pathologists.
West has been widely considered a fraud for some time, and hasn’t testified in Mississippi courts in several years. But there are still people in prison based on his testimony, and Hood continues to defend those convictions, including the conviction of one man sitting on death row.
Earlier this month, I wrote about Leigh Stubbs, a Mississippi woman serving a 44-year prison sentence for assault and drug offenses. Stubbs was convicted based primarily on testimony from West. In Stubbs’ case, West gave the kind of bite mark testimony for which he has become infamous, but also claimed he could “enhance” a grainy security video that even the FBI crime lab said was useless.
Last week, Hood responded to the Stubbs case on a local television station, saying that there was other evidence of Stubbs’ guilt than West’s testimony, though he didn’t say what that evidence was.
Hood also told the TV station that his office is looking into 20 cases that may have been tainted by West’s testimony. That’s interesting, because it’s the first time a Mississippi state official has made any mention of a voluntary investigation into either Hood or West. In the past, they’ve waited for defense attorneys or organizations like the Innocence Project to bring challenges case by case — and then typically opposed those challenges. But when Hood’s office was asked for a list of what cases they’re investigating, or if The Huffington Post could speak to the attorney in charge of the investigation, they simply responded, “We cannot release any of the information you are requesting at this time.”
In the past, Hood has been open, a critic might even say self-promoting, about his office’s investigations. So it’s odd that he’d be secretive about this one.
“If there’s some sort of investigation or review of West cases going on, this is the first I’ve heard of it,” Simpson said. “And I don’t know why you do it in secret. I’d certainly be interested to know what cases they’re looking at, and what sorts of resources they’re using.”
Hood and Simpson butted heads last year over Hayne, the industrious contract medical examiner Simpson effectively fired the year before. According to his own court testimony, Hayne did somewhere between 1,500 and 1,800 autopsies in Mississippi per year, every year, for nearly two decades. To put that number into perspective, the National Association of Medical Examiners recommends a single doctor do no more than 250 autopsies per year. Hayne also isn’t certified in forensic pathology by the American Board of Pathology, which is generally recognized as the only reputable certifying agency in the field.
Hayne’s workload and the scientific validity of his testimony have been criticized by numerous peers and colleagues over the years, culminating in a 2008 Mississippi Supreme Court decision (PDF) throwing out the murder conviction of 13-year-old Tyler Edmonds, who was accused of holding a gun with his sister and simultaneously pulling the trigger, killing his sister’s husband while he slept. Hayne testified that he could tell by the victim’s bullet wounds that there were two hands on the gun that fired the fatal bullets.
Hayne has since resigned from the National Association of Medical Examiners in the face of an ethics inquiry.
In 2008, Simpson effectively terminated Hayne, and said until he could hire an official state medical examiner, Mississippi would send its autopsies to a private firm in Nashville, Tenn. The state medical examiner’s office, which is tasked with overseeing the autopsies carried out on a local level, had been vacant for 15 years until Simpson hired Dr. Adel Shaker last year.
The last two people to hold that position, Emily Ward and Lloyd White, aghast at how autopsies were being conducted in the state, had tried to implement some reforms … and were effectively chased out of the state by West, Hayne and their allies in the coroner’s and district attorney’s offices. With the office vacant, there was no one to question how post-mortem examinations were assigned and performed.
“I hired Mississippi’s first state medical examiner in more than a decade. Jim Hood fought me on that,” Simpson told The Huffington Post. “I’d be delighted for this to become a campaign issue.”
In fact, in 2009, Hood assisted the state’s coroners and prosecutors with a plan to bring Hayne back, even after Simpson had fired him. Hood issued an opinion allowing Mississippi counties to become independent districts for the purpose of conducting death investigations, essentially allowing them to ignore Simpson’s directive removing Hayne from the state’s list of medical examiners qualified to perform autopsies. Simpson then went to the state legislature, where he got a bill introduced that would require anyone performing autopsies for the state to be certified by the American Board of Pathology. Hood actively lobbied against that bill, and even sent out an email derisively referring to the bill as “an Innocence Project bill” and “potentially harmful legislation.”
“I was really pretty shocked to find out that Hood was working against me on that,” Simpson said. “All this legislation said was that anyone who performs an autopsy for a county in Mississippi must meet the minimum standard of board certification. And Hood tried to have that bill defeated.”
The bill passed, barring Hayne from doing any more autopsies in the state. Hayne is still free to testify, however, and still takes the stand regularly in Mississippi, mostly to testify in retrials of cases in which he has already testified, and the backlog of over 600 cases he had when he was terminated. He has also begun advertising his services to the state’s defense bar.
While Mississippi’s Supreme Court threw out Hayne’s testimony in the Edmonds case, it has also repeatedly ruled in subsequent cases that Hayne is still qualified and permitted to testify in the state’s courts, and that questions regarding the reliability of his testimony alone are not enough to reopen old cases.
Simpson says that if elected, he’d be open to challenges in cases involving Hayne or West. “I’m a former prosecutor and a former judge, and I know that in many of those cases, you’re going to have other incriminating evidence,” he explained. “It’s rare that guilt or innocence would turn on a medical examiner’s testimony. But it can certainly happen. And we’ve had these exonerations, which shows that it has happened. So in those cases where Hayne or West was the key part of the prosecution’s case, I’d certainly be open to reviewing them.”
But Simpson stopped short of promising a thorough investigation. “I don’t think it’s the job of an attorney general to conduct that kind of investigation. It’s great that we have groups like the Innocence Project, and it’s up to them and defense attorneys to find and bring these cases,” Simpson said.
But critics say waiting on overworked defense attorneys and advocacy groups with limited resources to bring cases one at a time misses the urgency of the problem. “We have three attorneys on staff, who also teach at the law school,” said Tucker Carrington, director of the Mississippi Innocence Project. “Other states have had these types of investigations after discovering forensics fraud or major flaws in the criminal justice system. The Mississippi Constitution gives the attorney general almost unfettered discretion to protect the public.”
Carrington points out that Attorney General Hood has used that authority to launch a number of high-profile investigations into corporate fraud. “You have to believe that decades-long forensic fraud is as important as people getting ripped off by Bell South on their cell phone contracts. And this is worse in that the fraud was abetted by the state, and that people are in prison because of it. So not only is it possible, I think the attorney general has a particular responsibility to do something about it.”
Carrington says Simpson deserves credit for what he has done already: “He completely reformulated how the state medical examiner is hired and fired. That’s all now done by an independent board. It has completely de-politicized the process, which is exactly what was needed.” But Carrington adds, ” Simpsondid recognize the scope of the problem. It’s Inconsistent to say we had this huge problem that needed to be corrected going forward, but then to play down the population of people who may have been affected by the problem — the people who may have been wrongly incarcerated.”
Paradoxically, the sheer magnitude of the problem may be what prevents even well-intentioned public officials from looking into it. Hayne testified in an estimated 70 percent of the state’s homicide cases over about a 20-year span. He also testified in hundreds of civil cases — mostly wrongful death and medical malpractice lawsuits. In a state that has seen a number scandals involving the plaintiff’s bar, those latter cases could bring more scandals — scandals that could implicate public officials. One critic, a doctor who moved to Mississippi from the East Coast, told me quite bluntly that, “in Mississippi, the cause of death is open to the highest bidder.” (That doctor incidentally, was later arrested and charged by the U.S. Attorney for the Northern District of Mississippi for violations of the Mann Act. U.S. District Judge Neal Biggers later dismissed the charges, calling the case “manufactured,” the attempts to railroad the doctor “blatant,” and added that, “something is going on here that is not on the surface.”)
Hayne also performed the autopsies in countless cases where someone died in police custody, invariably concluding that the deaths were accidental, suicides or from natural causes. In other cases, many times involving poor or powerless people, Hayne diagnosed natural causes or suicide where other medical examiners subsequently found evidence of homicide.
As for West, he has testified in dozens of cases, but has also consulted in child abuse or child custody investigations. There are at least two people still on death row based on questionable bite mark evidence from West and Hayne (one in Mississippi and one in Louisiana). There are at least two other men on death row due primarily to testimony from Hayne that has since been called into question by other, more credible forensic pathologists.
A thorough investigation into the damage these two and their enablers in the coroner’s and DA’s offices have done could send fissures racing to the very foundation of Mississippi’s justice system. It could cause the reopening of hundreds of criminal cases and cast a shadow on the integrity of the state’s civil justice system. It could also implicate a number of public officials and politicians. All of which is precisely why it needs to happen. And all of which is precisely why it probably never will.