The Cadaver King and the Country Dentist

by Radley Balko

  It’s hard to comprehend how Sonya Smith must have felt upon hearing all of that. She had just lost her daughter to an especially heinous murder. Now this prosecutor—who presented himself as the champion of victims everywhere—was accusing her in open court of tacitly approving her own three-year-old daughter’s rape and murder, simply because she’d asked the jury to spare Levon Brooks’s life.

  Allgood then reared back for one last swing. “She was not the best mother to Courtney in life, and she remains so even in death,” he said. Allgood wielded the sword and shield for crime victims everywhere—just so long as they didn’t stand between him and the execution chamber.

  He continued, “You are told that the world is full of cruelty. And it is.” Sonya Smith undoubtedly agreed.

  To begin their closing argument in the sentencing phase of the trial, Levon Brooks’s attorneys asked Levon himself to address the jury. “I know I have been found guilty of capital murder,” he said, “but one thing I want y’all to know—I want y’all to have mercy on me and don’t kill me because I didn’t do it. Thank you.” Brooks sat down.

  Brooks’s attorneys then argued several mitigating factors. They argued that Brooks’s crime may have been caused by the fact that he was emotionally disturbed and of limited intelligence. Neither of these things was true, of course; they were trying to save his life. Still, they had already put a psychologist on the stand who claimed Brooks suffered damage to the portion of his brain that governs judgment and restraint. That isn’t uncommon in capital cases, but one can only imagine what Brooks must have made of it. Until all of this, he was a cheerful, well-liked man with a great job, a lot of friends, and a baby girl. Now, in the hope of sparing his own life, he had to sit and listen as his attorneys argued in open court about a defect in his brain that made him want to rape and murder little girls.

  Brooks’s attorneys also pointed to his good behavior in the time he had been incarcerated and awaiting trial, his “Christian background,” and the fact that his family had asked for him to be spared. Prather’s cocounsel, a black man, invoked the state’s history of lynching, though more as a rhetorical flourish than to draw any comparisons between the death investigation system that covered up lynchings and the one that had just convicted Brooks. While they couldn’t argue that Brooks was innocent—both attorneys made sure to acknowledge that the jury had already found him guilty beyond a reasonable doubt—they did tell the jury that they could spare Brooks’s life if they still had any doubt at all—anything less than reasonable doubt. They then begged the jury to err on the side of caution.

  The jury retired to deliberate, and at 7:25 p.m. sent a note to the court that they had reached a decision. Bailiffs brought Brooks from his jail cell back to the courtroom. The foreman passed a slip of paper to the court clerk, who then read it aloud:

  “We, the jury, find that the defendant should be sentenced to imprisonment for life in the Mississippi Department of Corrections.”

  Levon Brooks would live.

  10

  KEEP THAT WOMAN UNDER CONTROL

  When I go into a courtroom and render an opinion, it lays me open to savage attacks by unscrupulous men.

  —Michael West

  On June 18, 1993, Mississippi got its fifth state medical examiner. Department of Public Safety commissioner Jim Ingram appointed Emily Ward, a native Mississippian, to the position. The thirty-seven-year-old Ward had been a regional medical examiner in Mobile, Alabama. Ingram announced that Ward would also serve as director of the crime lab, the first person to hold both positions. Perhaps as important as anything else, Ward would have use of the state’s brand-new, twenty-seven-thousand-square-foot lab and morgue, which had been completed the previous year.

  The second woman to hold the office, Ward rose to the position even earlier in her career than Faye Spruill. Both were talented doctors and had thrived in an area of medicine that had proven itself open to women, at least comparatively. As in past searches for a medical examiner, though, there had been a shortage of applicants. The salary was still well below the national average, and after the tenures of Thomas Bennett and Lloyd White, the state had a reputation for being hard on those who took the job. Ward’s hiring nevertheless seemed promising. She was smart, board certified, and had experience both in and out of the state. Her roots in Mississippi gave her knowledge (or perhaps forewarning) going into the position that her predecessors didn’t have. And her experience in the more modernized Alabama system demonstrated to her that improvements were possible.

  Hinds County coroner Robert Martin initially touted the hiring, saying he thought Ward’s education, experience, and personality would be an asset to the office. But he’d soon become one of her fiercest critics. And Ward would find out quickly that the men who ran the Mississippi criminal justice and death investigation systems weren’t any more ready for a woman telling them what to do in 1993 than they were in 1981.

  In September 1993, sixty-five-year-old Texas medical examiner Ralph Erdmann pleaded no contest to seven counts of faking autopsy reports. Erdmann had already given up his medical license the previous month. He was sentenced to ten years of probation and a $17,000 fine.

  Since the early 1980s, Erdmann had been performing autopsies on a contract basis for as many as forty rural Texas counties that couldn’t afford to hire a forensic pathologist of their own. For the law enforcement officials in those counties who needed an autopsy, Erdmann made it awfully easy. He was willing to come to them, saving them the cost of shipping bodies to state labs. But because most of those counties didn’t have the proper facilities, Erdmann had to improvise. He performed autopsies not just in funeral homes but also in garages, alleys, and parking lots. According to true crime author Jim Fisher, who profiled some of Erdmann’s work, Erdmann “once performed an autopsy on a door laid across two fifty-five-gallon drums.”

  Erdmann also had a reputation for producing key evidence that helped authorities crack difficult cases. He called himself the Quincy of the Texas Panhandle, after the popular TV forensic pathologist played by Jack Krugman. But because Erdmann didn’t really report to anyone, no one bothered to check just how many autopsies he was doing, or how well he was doing them. The only thing that mattered, it seemed, was that he helped the prosecutors and police officials who hired him.

  By the early 1990s it began to catch up with him, in part because his sloppiness began to undermine convictions. In one case, he somehow lost the head of a murder victim. That proved a problem for the state, because the head contained the bullet that prosecutors needed to charge their main suspect. In another case, Erdmann autopsied the body of a man found in a dumpster with a fresh bullet wound to his head. But Erdmann determined that he had died of pneumonia.

  On several occasions Erdmann had documented the weight of body organs that subsequent investigations revealed he had never removed. When a panel of pathologists was finally convened to review Erdmann’s work, they found that in a third of the autopsies they reviewed, Erdmann hadn’t even cut open the body.

  Still, as Texas defense attorneys began to complain about Erdmann, prosecutors didn’t budge. Instead, they retaliated. When two police officers testified that Erdmann had lied about his results in a case, prosecutors indicted the cops for perjury. One defense attorney who had helped expose Erdmann was himself indicted for witness tampering. The “tampered” witness was Erdmann himself, who complained that the attorney had been threatening him. Even after acknowledging his mistakes, Texas officials at first defended Erdmann, making the argument that he was simply doing his best to help less affluent counties catch up with mounting caseloads.

  The parallels to the situation in Mississippi are hard to miss. One Mississippi Supreme Court justice fretted in a 1999 dissenting opinion that after the court’s ruling in a bite mark case, “we risk having [Michael] West become the Ralph Erdmann of Mississippi.”

  There are a couple important differences, but they aren’t favorable to Mississippi. When Erdmann was finall
y exposed, Texas officials convened a panel of pathologists to review his work. Old cases were reopened and reinvestigated by credible and qualified experts. Erdmann was also ultimately held accountable. That still hasn’t happened in Mississippi.

  There is one other major difference between Ralph Erdmann and what was occurring with Michael West and Steven Hayne. For years after he was exposed, Erdmann was cited as the poster child for bad forensics—a walking, talking argument for more oversight and better checks on expert witnesses. In their 2000 book, Innocence Project cofounders Barry Scheck and Peter Neufeld described the number of autopsies Erdmann did each year as “astonishing.” That number?—about 300 autopsies per year. In fact, the most autopsies Erdmann ever did in a year was 480.

  In his prime, Hayne could pull that off before the magnolias bloomed.

  For seventy years after the Frye decision—the case that set the standard for distinguishing good expert testimony from bad—the US Supreme Court steered clear of establishing any rules for the use of science in the courtroom. In 1993, the court finally addressed the issue in a series of rulings known as the Daubert decisions.

  The main decision came in Daubert v. Merrell Dow Pharmaceuticals, Inc. A group of parents had sued Merrell Dow, the large pharmaceutical company. They alleged that its drug Bendectin, which pregnant women took for morning sickness, had caused birth defects in their children. Ostensibly, the case required the plaintiffs to provide scientific evidence showing that Bendectin caused changes in embryonic development. It became the landmark case in which the US Supreme Court first began to rethink Frye, expert witness testimony, and the relationship between science and law.

  On one side of the argument were those who believed that Frye was too rigid, that it excluded emerging science that was valuable but hadn’t yet gained “general acceptance” within its field. On the other were those who believed that the courts needed to reconcile the fundamental epistemological differences between science and law and to adopt a standard that permitted only “settled” science in court.

  It was a lot to ask of nine justices, most with very little scientific background. The court ended up attempting to split the difference and may have made things worse. Functionally, the Daubert decisions continued what was perhaps the worst but also most inevitable legacy of Frye: making judges the gatekeepers. The court instructed federal judges to evaluate expert testimony on factors such as whether an expert’s claims are testable, whether the conclusions offered are subject to peer review, whether the methods are governed by standards and protocol, the error rate of those methods, and whether a witness’s general testimony has been accepted within a particular scientific community.

  It hasn’t worked out well. In many ways, Daubert exacerbated the problems created by Frye. It loosened the standard for the admission of scientific and other technical evidence, but also institutionalized the judge’s role as the gatekeeper of such evidence. If that was ever going to work, the Supreme Court should have also required judges to meet some minimum competency in scientific literacy. Of course, it didn’t have the power to do that. The fallout has been disastrous: inconsistent rulings about the same type of evidence from district court to district court, and between federal courts of appeals. And to the extent that the courts have been on the same page, it has generally been to let bad science in, which essentially delegates the gatekeeping job to juries.

  “When I read Daubert analyses by judges, it reminds me of what happens when you ask undergraduate students to evaluate the validity of syllogisms,” says Professor Michael Saks. “The only thing they know is that they agree with the outcome. And so instead of going through the analysis to reach their conclusion, they begin with their answer, then bluff their way through the analysis. It’s mostly for show.”

  Daubert also exacerbated the ongoing tension between forensic science and science more generally. The former has always seen itself as a tool of the justice system. It was never a product of scientific inquiry. Fields like fingerprinting, arson investigation, blood spatter analysis, ballistics analysis, and tool mark analysis were all developed within the sphere of law enforcement to serve police and prosecutors in solving and prosecuting crimes, not by scientists employing the scientific method. Science is a process of observation, testing of hypotheses, and revision based on the results of those tests. For scientists, being wrong is all part of the pursuit of knowledge. Science is a collaboration. Because forensics was born of our adversarial justice system, it is not collaborative and in fact tends to be contentious—the pattern-matching fields especially. For a forensic analyst, being wrong means a wrongful conviction, or the wrongful exclusion of a guilty party, and serious damage to an analyst’s reputation (though not as much as one might think). Less scrupulous analysts adapt accordingly: they just never admit they’re wrong. And because most forensic specialties are entirely subjective, it was for a long time nearly impossible to prove an analyst got it wrong. That is, until DNA.

  On August 14, 1993, Amy Ware, an elderly woman in Clay County, Mississippi, ate a bologna sandwich for lunch. Sometime that same afternoon, a man broke into her house, robbed her, and murdered her. Suspicion quickly fell on Calvin Banks, who had been playing poker nearby. There was circumstantial evidence to implicate Calvin Banks, but not much. So prosecutors wanted more.

  Ware’s body was taken to Steven Hayne to be autopsied, and Hayne then consulted West. Local police had found a half-eaten bologna sandwich at the crime scene, and froze it as possible evidence. West wouldn’t get around to examining the sandwich for several months, but when he did, he claimed that the bite marks in the sandwich were “consistent” with the teeth of Calvin Banks and “inconsistent” with the teeth of Amy Ware.

  There was one problem, which West apparently hadn’t realized: in Ware’s stomach, Hayne had already documented finding a portion of bologna roughly equal to what was missing from the sandwich that police found in the house. Banks was convicted anyway, but this would become known as the Bologna Sandwich Case, a go-to example of Michael West’s excesses.

  In 1997, the Mississippi Supreme Court threw out Banks’s conviction, but not because of West’s testimony. Instead, the court was troubled by the fact that West had discarded the sandwich after examining it. Here again West had “matched” a critical piece of evidence to a suspect, then destroyed it, thus preventing another analyst—and Banks’s defense counsel—from verifying his findings.

  West claimed he tried to preserve the sandwich by taking photographs—“three pieces of meat and two pieces of bread,” he reported—but the bologna began to putrefy, so he tossed the sandwich in the trash. When asked why he didn’t freeze it, West said he had considered doing so, but he found from testing other bologna that the freezing dehydrated and shriveled the meat, making it useless for other analysts. Instead, he took photos. Of course, the sandwich had already been frozen for months before West himself analyzed it. He didn’t explain why the freezing process didn’t make the bologna unusable for him but would have made it unusable for any other analyst.

  In reversing the conviction, the majority emphasized that their opinion should not affect the ability of prosecutors to use West or bite mark evidence in other cases. In fact, the majority opinion arguably affirmed bite mark evidence by finding that it was Banks’s inability to have his own forensic odontologist test the sandwich that violated his right to a fair trial. In other words, it wasn’t the evidence that was the problem; it was only Banks’s inability to test it for himself.

  There was a dissenting opinion in that case. Mississippi Supreme Court justice James Smith would have upheld the conviction. In his dissent, Smith referred to the court’s ruling earlier that year in the case of Eddie Lee Howard. In 1994, Howard was convicted of raping and murdering eighty-four-year-old Georgia Kemp. The victim’s body was found in her Columbus, Mississippi, home by firefighters after a neighbor noticed smoke coming from the house. Investigators concluded that the fire had been set intentionally. Kemp’s body was take
n to Hayne, who concluded that she had been stabbed to death. He also said he found signs of rape, although the rape kit turned up no biological evidence that technology available at the time could test for DNA. Notably, Hayne made no notes in his autopsy indicating that he had found possible bite marks. After the autopsy, Georgia Kemp was buried.

  Eddie Lee Howard was unemployed at the time of the murder, lived with a relative near Kemp’s house, and had been arrested before for a sex offense. Three days after Kemp was buried, law enforcement zeroed in on him as a potential suspect, and West was brought in to take another look at the case. Kemp’s body was exhumed.

  West concluded that some marks that Hayne had identified on Kemp’s body—but hadn’t noted to be suspicious in his autopsy report—were human bites. He then made an impression of Howard’s teeth and concluded that the bites could only have come from Howard.

  As in other cases, West again made the odd claim Howard had only bitten Kemp with his upper teeth. To claim he could make a unique match based on that was especially suspect in this instance because Howard’s upper teeth had actually been replaced with a manufactured denture. And yet in 1994, Eddie Lee Howard was convicted and sentenced to death.

  Howard represented himself at his first trial. In 1997, the Mississippi Supreme Court overturned his conviction. In a 5 to 3 vote (one justice did not participate), the court found that the trial court had improperly allowed Howard to represent himself. But the justices also discussed West and bite mark evidence, and the back and forth was an apt demonstration of just how out of their element judges can be when assessing questionable forensic evidence.

  By the time of Howard’s appeal in 1997, West had been the subject of several media exposés. He had resigned from two forensics organizations and been suspended from a third. West’s bite mark testimony was the only physical evidence linking Howard to the crime scene. The police found no blood, semen, hair, or any other biological evidence that could be traced back to him.