by Radley Balko
“You have to eat, right doctor?” Allgood asked.
“Yes, sir,” West replied. They then moved on to the case at hand.
Allgood first asked West about the fact that Courtney Smith had been embalmed before his examination, and what effect that might have had on his analysis. West answered that it would minimize the tendency of skin samples to retract after they’ve been extracted. Allgood had anticipated that Prather would ask West about the embalming, which would alter and distort the skin. He also knew that West would be asked about his failure to apply a retainer to keep the skin sample in its preexisting shape once it was extracted from the body. West’s answer solved both problems. The embalming process’s tendency to minimize skin shrinkage had serendipitously counteracted West’s failure to use a retainer. Thus, the bite mark and all the minute details within it that he’d later claim were critical to his ability to match it to Levon Brooks had been perfectly preserved.
Allgood next asked West how bite marks could be matched to a specific person. West responded that “everyone’s teeth are unique,” citing a study from the early 1980s that has since been widely debunked and didn’t actually prove the uniqueness of human dentition in the first place. Allgood followed up, “Just like fingerprints or tool marks, then?”
“Exactly,” West responded.
Allgood walked West through his “exclusion” of the first twelve dental molds provided to him by the sheriff’s office, and then to his analysis of Levon Brooks’s mold two days later. This exchange followed:
Allgood: All right. And is that man sitting in the courtroom right now?
West: He doesn’t look the way I—the way I—his appearance has changed from when the time I saw him.
Allgood: Okay.
West: This is a photograph of what he looked like the day I examined him.
Allgood: Okay, but is this, in fact, the same man?
West: I—I believe I—I can look at his teeth and tell you if it’s him.
(LAUGHTER IN COURTROOM)
One could almost forget that a man’s life hung in the balance. The transcript doesn’t indicate whether Levon Brooks thought this was funny.
West then began to explain how he could say that Levon Brooks and only Levon Brooks could have left the marks on Courtney Smith’s wrist. But before he could get too far into his answer, Allgood needed one more piece of misinformation.
“Now let me back you up just a second,” Allgood said. “First of all, Doctor, these examinations, are they generally accepted in the scientific community as being positive for the positive identification of an individual through a bite mark?”
“Yes, sir,” West said.
West was wrong. Bite mark analysis may have been accepted at the time in parts of the forensics community (though it has always been controversial even there), but its underlying assumptions have never been verified or accepted by the scientific community.
West then went deep into the details of his analysis. He invoked technical dental terms and interspersed them with the parlance of bite mark analysis. He explained how the “cutting edges” of Levon Brooks’s teeth had “very definite fractures and bevels.” He talked about their “L-shaped” curve and how one tooth had “a scalloped-out area with a sharp edge.” On the backsides of his teeth, Brooks had “some chips and fractures” and “some wear—what we call wear facets.” The “facets” were apparently how West made his positive identification. “When you open and close your teeth and as you get older, the upper and lower teeth wear together so that the cutting edge of the lower teeth actually wears a groove in the back of the upper teeth,” he said.
West then talked about the orientation and location of the alleged bite. He first had to determine how the assailant was oriented to the victim to leave the sort of bite he had just analyzed. To demonstrate, West used the Wispy Walker doll he’d bought at the discount mart.
Then there was the skin itself. “Being bit on the skin on your arm is different from being bit on the skin on your stomach or your buttocks or on your legs,” West explained. “You have to determine: is this tissue flabby, is it firm, does it have a lot of fat, does it have a lot of give, is it supported, is it tight, loose, et cetera. So what you’re actually looking at is if he’s in this position and taking into account these anatomical properties of the skin, you try to determine what type of dynamics are going to occur when the teeth grab into the skin and pull across it.”
The first part of West’s answer is unquestionably true. It’s one of the main reasons why bite mark analysis just isn’t credible. There’s simply no way to systematically account for so many variables, along with countless others, such as whether and how much the victim resisted, whether the bite was direct or grazing, which direction the victim may have attempted to pull away, how the victim heals, and the aforementioned problem of skin samples shrinking after excision. Neither West nor any other bite mark analyst has ever offered a calculable way to measure, quantify, or adjust for all of these variables. Instead, they simply eyeball it. They guesstimate. They approximate. That means that the weight of their opinions swings almost entirely on their personal credibility and their ability to persuade. And that means that establishing their credibility with cops, prosecutors, judges, and juries is critically important—far more important than the content of their testimony. This is why West built out a twenty-plus-page CV. It’s why he collected titles, and it’s why he wrote articles for every magazine, newsletter, and journal that would publish him.
Even given West’s typical nonsense about bite mark matching, his testimony in Brooks’s case was especially hard to swallow. The marks on Courtney Smith’s wrist were tiny and wouldn’t be easily identifiable as bite marks to any mere lay person. West needed to account for this. So he posited that Brooks only bit the girl with his two upper incisors, and that only portions of Brooks’s incisors actually left those marks. In other words, West was making a positive identification of Brooks based only on two small marks made by portions of just two of Brooks’s teeth.
Fortunately, West assured the jury, his pioneering technique with ultraviolet light was perfectly suited for such intricacies. West said the details were too complicated for a lay jury (he added that he was currently involved in a project to “fully describe all of the—uh—biochemical, electrophysical, and optical properties of skin”), but that “for a thumbnail sketch, damaged tissue absorbs UV, healthy intact tissue does not.” He said his technique utilized those properties to reveal minute tears and patterns in Courtney Smith’s skin that could only have been created by the teeth that bit her.
West next explained that the plaster models he had created of Brooks’s teeth didn’t provide enough detail for such a delicate analysis. He needed a material capable of capturing more detail. So West revisited Brooks in jail and had him open his mouth again while West pressed Silly Putty—actual Silly Putty—against the back of Brooks’s upper incisors. The reason: West said Silly Putty was better for recording the intricate “facets” on the back of Brooks’s front tooth that he needed to capture in order to compare the corresponding “bunching” he found deep in the alleged wound on Courtney Smith’s wrist.
It’s important to appreciate the full scope of West’s “creativity” here. He was claiming that the dental substrate he had carefully applied to Brooks’s teeth in a controlled environment—a material designed to capture and preserve the unique characteristics of a patient’s teeth—was insufficient to convey the level of detail he needed to make a positive identification. Yet somehow, the spongy, fungible skin of a three-year-old girl was able to record and preserve those same nuances—this after a bite allegedly delivered outside, as the biter was committing a murder and sexual assault, and after the body had been submerged in water for thirty-six hours, had dried out, and had been embalmed.
Moreover, in his initial analysis of Brooks’s teeth, West concluded that they were “highly consistent” with the alleged bite mark, but not a “match.” Allgood’s office then
asked West if he could give them something more certain. That’s when West turned to the Silly Putty, the goggles, and the ultraviolet light—just to be certain.
After running through his analysis, West confidently told the jury, “I have no doubt that the teeth of Levon Brooks did and indeed leave the bite mark on the wrist of Courtney Smith.”
During cross-examination, Prather got West to admit that bite mark matching was a subjective field, and at the time was practiced by only ninety-two people in the country. He also got West to admit to some pretty embarrassing mistakes. West had actually lost the dental molds taken from Sonya Smith, preventing expert Harry Mincer from analyzing them. More crucially, West had also lost the lower dental mold of Levon Brooks. And as important as he claimed the Silly Putty had been to his analysis, he didn’t preserve that either. He sent Mincer only black and white photos he had taken of the Silly Putty after pressing it against Brooks’s teeth. There was of course no way Mincer could verify from two-dimensional photographs all those intricate details West claimed to have found. Everyone would just have to take West’s word for it.
West also admitted to something that would come up in future cases: one step of his analysis actually involved pressing the suspect’s dental mold directly into the alleged bite marks on the victim. This method of analysis has been strongly denounced by other forensic experts, who have pointed out in this and other cases that it distorts the evidence and may even create marks where none existed before. Later, video from two other cases in which West used this method would strongly suggest he did exactly that—he actually created the marks he claimed came from the defendant. At the time, however, the “direct comparison” method was deemed acceptable by the American Board of Forensic Odontology, in part because West was so influential in the early years of that organization. The ABFO has since abandoned the method.
In this case, it was especially wrongheaded. Human skin gets increasingly fragile and pliable as it begins to decay. Courtney Smith’s body had been submerged in water for thirty-six hours. By pushing Brooks’s dental mold directly into the skin, West was distorting the skin, possibly even creating the very patterns he would later say were crucial to his conclusions. He was also altering the skin so that no subsequent expert could analyze the sample in its original condition, making it impossible for anyone to verify his conclusions.
Prather asked West about this. How could he be sure that he hadn’t altered the mark itself? West responded, “I did my best to see that that didn’t happen.”
On redirect, Allgood asked West about how he compensated for distortion. How did he know how to adjust for decomposition, healing, embalming, retraction, variations in skin, and the myriad other variables that could alter a bite mark?
West gave a meandering answer. “Every bite mark or wound pattern has a—a degree of distortion,” he said. “Uh—to me the whole technique of being able to analyze wound patterns is actually the ability to compensate for distortion.”
Again, he merely eyeballed it. He went on: “When I take impressions of teeth they are not exact duplicates because the word exact means exact. There is going to be a difference of maybe a few microns.”
This was classic West—faux humility followed by outlandish boasting. It’s also meaningless drivel. A micron is one one-millionth of a meter. The width of a human hair is ten to two hundred microns. The substrate that dentists use to make molds of patients’ teeth is thick and gloppy. The process by which the mold is pushed into teeth and then removed is messy and imprecise. The end product is a reasonable likeness of teeth for the purposes of orthodontia or cosmetic alterations, but the notion that it could be an exact replica to within a few microns is ludicrous.
West closed his testimony with a doozy. He said he wanted to make sure the jury knew of his fidelity to his vocation and his recognition of the seriousness of this particular case. On the one hand, he explained, he was well aware that his expert opinion could likely “cost a man his freedom.” But he also understood that if he helped implicate the wrong man, it might also “allow an individual to still be loose in the community.” For those reasons, Michael West assured the jury, he went “the extra mile on this one.”
In the end, West managed to do both. He helped an innocent man lose his freedom and helped a killer to remain loose in the community. He then billed Noxubee County $2,902.12 for his testimony.
To make the rest of its case, the state also called Deputy Earnest Eichelberger, Investigator Harry Alderson, Sheriff Cecil Russell, and various members of the Smith family. Brooks’s attorneys called several witnesses who put Brooks at the Santa Barbara Club until three or three thirty a.m. The defense also tried to show that Eichelberger’s investigation was sloppy and incomplete. No one asked Uncle Bunky to testify.
The most interesting witness for the defense was Sonya Smith, Courtney’s mother. Consistent with her affidavit, Sonya Smith testified that when she and Brooks dated, he had never come into her home. At most, she said, she might go out to meet him in his car, but they usually met somewhere else. She verified that they had broken up months before Courtney’s death and that Brooks had never been to her current residence on Phillips Loop.
After the defense rested, the judge advised Levon Brooks of his right to testify. He declined. The trial then moved to closing arguments.
In addition to the misinformation he fed the jury about Ashley Smith’s testimony, Allgood’s closing argument in the guilt phase of Brooks’s trial was basically a rehashing of the evidence (or in the case of the fictitious broom handle, nonevidence). Prather had pointed out to the jury that the state had called no witnesses from the crime lab. That’s because there was no biological evidence to link Brooks to the crime scene. Allgood countered this by hanging his hat on one of the least reliable forms of evidence: eyewitness testimony from a child. And in this case, Ashley Smith. “You don’t get any better evidence than that,” he said.
Allgood told the jury that the investigation didn’t really “get rolling” until Ashley picked Brooks out of that first photo lineup. “Guess whose teeth marks then wind up on her sister’s body but the same man she pointed out?” Allgood asked. “Gee, what a coincident [sic]. Gosh that’s funny how that worked out, isn’t it?” Of course, it wasn’t a coincidence at all. On the witness stand, Michael West had a history of matching bite marks on a body to the authorities’ chief suspect.
The jury began deliberations around six p.m. on January 17, 1992. After three hours, the foreman told the judge that they were irreconcilably divided. The vote stood at 10 to 2. The defense asked for a mistrial. The judge refused and told the jury to retire for the night. They would begin deliberations again in the morning. At 2:25 p.m. the following afternoon, the jury announced that they had reached a verdict. The bailiff brought Brooks in to hear his fate.
The judge warned the courtroom against outbursts or displays of emotion. When he was finished, the court clerk read the verdict:
“We the jury find Levon Brooks guilty of capital murder.” Court would resume the following Monday morning to decide if Brooks would die.
That Monday morning happened to be Martin Luther King Jr. Day, which at the time wasn’t yet officially observed in Mississippi. As most of the rest of the country paid homage to the civil rights leader, the jury that had just convicted Brooks based on evidence produced by an archaic system designed to cover up lynchings would now decide if he should live or die. A monument to fallen Confederate soldiers stood just outside the courthouse.
During the sentencing phase, Forrest Allgood recalled Steven Hayne, who testified that Courtney Smith likely suffered a lot of pain as she was assaulted and murdered, an attempt to establish that the crime was especially heinous.
Prather called Brooks’s parents, who pleaded for mercy and told the jury that Brooks was “a sweet boy.” Both stated that they didn’t believe he had committed the crime. Prather also called Brooks’s girlfriend, Barbara Pippin, with whom Brooks had a one-year-old daughter. She was born
shortly after he was arrested. Pippin testified that she had two kids of her own, and that Brooks had always been helpful and kind to them. The defense called Brooks’s sister Patricia Rice. She had four daughters and said Brooks often helped her take care of them. They also called a teacher from the elementary school where Brooks worked. She merely testified that Brooks was cordial and punctual, but the real intent may have been to get the jury to decline a death sentence by making them doubt Brooks’s guilt. Jurors had now heard three separate witnesses say that Brooks had cared for or had access to children, yet Courtney Smith’s murder was the first time he had ever been accused of harming one.
The defense also called Sonya Smith. She too asked that the jury give Brooks a life sentence. That the victim’s mother requested her daughter’s convicted killer be spared the death penalty must have had a profound effect on the jury. It’s also clear that Sonya Smith was never entirely convinced that Levon Brooks was guilty.
Allgood then rose to present his closing. He began with three arguments that were unassailable: First, the crime had been committed in the course of a sexual battery. Second, the crime was committed in the course of a kidnapping. And third, the murder was especially heinous, atrocious, and cruel. These were all easy things to prove. There was no question that Courtney Smith was abducted from her home, sexually assaulted, and tossed into a pond to die. And Levon Brooks had just been convicted for it.
Allgood then closed his case with a particularly heartless tactic: he waged a ruthless attack on Sonya Smith, Courtney’s mother. He began by telling the jury that Smith had “failed her daughter in life,” implying it was her fault that a man had abducted Courtney from her home, raped her, and murdered her. Allgood went on: “Just because she does not believe in the death penalty, just because she does not believe that’s the appropriate sentence… does that somehow erase… the monstrosity of what was done? Does that somehow make it okay—that it’s okay to kill little girls in Noxubee County, Mississippi, if their mother agrees to it?”
