by Radley Balko
There was some other evidence against him, but in the majority opinion, Chief Justice Dan Lee acknowledged that the state’s case was largely reliant on West. He also noted that “numerous scholarly authorities” had called bite mark evidence into question, one of the first court opinions to do so. That welcome bit of skepticism in a majority opinion suggested that at least one time, the Mississippi high court had come tantalizingly close to declaring that bite mark analysis wasn’t scientifically reliable enough to be used in criminal trials. But not close enough. Instead, Lee argued that the bite mark evidence in Howard’s case was fine, because Howard had been given the opportunity to challenge West in court.
This is precisely the sort of scenario that the Supreme Court’s Daubert decisions were supposed to preclude. Leaving the interpretation of bite mark evidence to the jury relegated the most critical question—Is this legitimate science?—to the adversarial nature of a criminal trial, in which a jury’s decision could be influenced by a wide range of factors not at all related to science. The most relevant such factor was usually the respective charisma and persuasiveness of the opposing experts. To Mississippi juries, West was a hometown hero who gave lectures in China and to the FBI, yet still chose to continue practicing dentistry in Hattiesburg and help put bad guys away in Mississippi. Prosecutors, with West’s help, often portrayed defense witnesses and West’s critics as hired guns motivated by professional jealousy to tear West down.
In his opinion in Eddie Lee Howard v. State of Mississippi, Justice Smith made the arguments that he’d resurrect in the Bologna Sandwich Case a few months later. He pointed out that West had already testified forty times in six states, and that bite mark evidence had been accepted in every court in which it had been submitted. He scolded his colleagues for expressing any skepticism about bite mark evidence at all, writing that the majority had left “an impression that this court does not favor allowing such evidence,” and for suggesting that “there is little consensus in the scientific community” to support the claims of bite mark analysts. “This is clearly the minority view nationwide,” Smith wrote. He was right about the courts—they had bought into bite mark matching. He was wrong about actual scientists—few had, if any.
Had the court barred bite mark evidence and Michael West in 1997, it seems likely that it would have ended or at least curtailed his career. It probably also would have forced a reexamination of countless cases, including those of Levon Brooks and Kennedy Brewer. But it didn’t happen. The Mississippi Supreme Court would revisit Michael West and bite mark matching several times in the years to come. The justices’ line on the controversy would get increasingly strident, defensive, and protective of West and his discipline. More people would go to prison. And Kennedy Brewer would nearly be executed.
In the fall of 1994, West made a move that would expand and solidify his position in Mississippi: he ran for coroner of Forrest County. He won. West now held an official state position. For a man who collected titles and credentials, it was a smart move. Of course, West’s ability to win an election made him no more credible or knowledgeable than before. But a good chunk of the public doesn’t know the difference between a coroner and a medical examiner. They may assume that simply by virtue of the office, coroners must know a lot about forensic pathology. An elected title also gave West power, authority, and bargaining power. It gave him more access to state officials and likely made him more credible still in the eyes of police, prosecutors, judges, and juries. Most importantly, it gave him a platform. He’d use it to protect the status he and Hayne had attained within the state’s death investigation system.
Meanwhile, it wasn’t long before Emily Ward ran into problems. Soon after taking office, Ward began trying to standardize the way autopsies were done in Mississippi. When she noticed the way Hayne was working, she tried to tell her superiors. She was told to “shut up.”
It also didn’t take long for the incumbent powers to take notice of Ward. Within just a few months of her appointment, and almost immediately after she tried to impose some oversight onto the autopsy system, Hayne complained about Ward to DPS commissioner Jim Ingram, alleging she had demonstrated professional incompetence. And even early on, some of the state’s coroners wanted nothing to do with Ward. In Coahoma County, for example, coroner Charles Scott told his county board of supervisors that he’d keep using Hayne, despite warnings from Ward and his own police officials. The local paper reported that he described Hayne as “just as qualified as Ward, if not more so,” and told the supervisors, “When it comes to a difficult homicide, Hayne is going to be my man, whether she [Ward] likes it or not.” West and Hayne would later sign a newspaper ad endorsing Scott in his bid for reelection.
Frustrated, Ward contacted George McCormick, the medical examiner in north Louisiana, and Kris Sperry, the deputy chief medical examiner in Atlanta (he would later become the Georgia state medical examiner). The three of them began looking into Hayne’s background.
As it turns out, by the time Ward reached out to him, McCormick had already heard complaints about Hayne from other medical examiners in the region. Part of McCormick’s motivation was undoubtedly personal. Hayne and West had begun expanding their autopsy empire into Louisiana, particularly in McCormick’s part of the state. So he was losing business to them. Local officials said they switched to Hayne because McCormick was slow with his reports. But McCormick told the Associated Press it was because “he sometimes disagrees with police over what led to a death.” He added, “I’m not supposed to be a yes-man for the police.”
Like Ward, McCormick was troubled by the number of autopsies he heard Hayne had been doing, and he worried about the stories he was hearing about the quality of Hayne’s work. So he asked his lab director, Dawn Young, to begin compiling a file.
Young first looked into some of the publications Hayne listed on his CV. Some didn’t appear to exist. Many weren’t from medical or forensic journals. One other article Hayne had listed as published was actually just a letter to the editor.
Young also found several cases in which Hayne had failed to preserve tissue samples. In many cases, microscopic examination of tissue is a critical part of determining how an injury occurred. In her letters, Young recounted a correspondence with an attorney who wrote about an incident in May 1994, in which he had requested the preserved wet tissue from an autopsy Hayne had performed in a criminal case. In his reply, Hayne told the attorney that federal guidelines only recommend preserving wet tissue long enough to make a diagnosis. Since he had already made his diagnosis in the case, Hayne didn’t retain the tissue.
Hayne’s explanation was wrong. There were no such federal guidelines. According to guidelines published by the College of American Pathologists, the certifying organization for pathology labs, wet tissue should be retained for six months, presumably to give opposing experts a chance to examine them—which is precisely what this attorney was trying to do. The decedent in that case had died three months earlier.
Young found other cases in which Hayne also refused to produce wet tissue slides. In those cases, too, Hayne claimed he was merely following some federal law, regulation, or guideline. “He has been asked in the past to produce this rule,” Young wrote, “but has failed to do so.” In a letter to another attorney, Young wrote that Hayne’s failure to produce slides was “unheard of in the field of pathology.” Other attorneys would complain about this in future cases. “Most autopsies produce 20–30 tissue samples,” one Mississippi attorney who has faced Hayne in both civil and criminal cases said in a 2007 interview for Reason magazine. “I’ve never seen a tissue sample from a Steven Hayne autopsy.”
In December 1993 Sperry wrote to both the American Board of Pathology and the American Academy of Forensic Sciences to request an ethics investigation into Hayne’s qualifications. He argued that though Hayne was not board qualified in forensic pathology as most forensic pathologists understood the term, he was deliberately confusing judges and juries by claiming certification
from less credible groups with official-sounding names. He called Hayne a “rather blatant fraud that is being perpetrated on the people of Mississippi, the forensic community, and the medicolegal system.”
Neither organization showed much interest. According to Sperry, no one seemed “particularly interested in pursuing any matter that is not, quite frankly, a complete giveaway, and it appears that they will happily rationalize themselves out of any controversial situations, most probably to avoid any litigation that might arise from challenging any but the most obvious trespasses.”
This is yet another theme that would resonate throughout Hayne’s career. Despite being made aware of his transgressions on multiple occasions dating back to the early 1990s, none of the professional organizations to which he belonged did much about it, at least until 2008. Because of their inaction, Hayne could continue citing his affiliation with those groups when vouching for his credentials in court. “It’s a problem,” says Vincent Di Maio, a renowned medical examiner and author of several textbooks on forensic pathology. “You have to understand that these organizations are toothless. They publish guidelines, but then don’t have the guts to sanction members who violate them. They don’t want to be sued. With the exception of the American Board [of Pathology], membership in these groups doesn’t mean competence. But juries can be misled into seeing it that way. Too many judges and attorneys don’t know to point out the difference.”
In August 1995, Young wrote to Sperry again. She claimed to have found two civil cases in which she alleged that Hayne had committed perjury. In one case, Hayne claimed to have formed his opinion after reviewing some microscopic slides. But the doctor who performed the original autopsy testified under oath that not only had he never given the slides to Hayne, the two had never spoken. In the other case, Hayne testified that he had reviewed slides from an autopsy conducted by a doctor who actually worked in Young’s lab. Young would have been the person who sent the slides from that case to Hayne. “As the custodian of records and materials for this laboratory,” she wrote, “I can and will testify that I have not sent these materials to him, nor has he appeared in our office to review them.” (In a subsequent court filing, Hayne’s attorney called the perjury accusations “untrue” and “defamatory,” and claimed they painted Hayne “in a false light.”)
“As you can see,” Young wrote, “the evidence is mounting and we are attempting to handle matters on a local level. However, the time is drawing near to have some action on a national scale.”
Sperry later alleged to Young and McCormick that he had consulted on a case in which a body Hayne had autopsied was exhumed. In his autopsy report, Hayne claimed to have removed, weighed, and dissected the decedent’s internal organs. But when Sperry opened up the body after exhumation, all of the organs were still inside and still intact. McCormick later gave court testimony about a conversation with the Tennessee state medical examiner, who told him Hayne first failed to produce slides in a case in which he had found cancer on a kidney and then produced slides that had nothing on them.
When Hayne got word of the complaints filed against him, he filed notice of his intent to sue Young and McCormick, alleging libel, conspiracy, and “tortious interference with and injury to business and contractual relations.” The lawsuit was later dismissed when Hayne failed to serve the summons and complaint. Of course, a lawsuit would have opened his records up to discovery, which could have been damaging for him. But he certainly sent a message: criticize him, and you could expect to spend some time in court.
The lifeless body of twenty-three-month-old Haley Oliveaux lay awkwardly across a metal autopsy table at Mississippi Mortuary Services in Pearl. A red block propped under her shoulders elevated her chest, causing her head to tilt backward and her arms to spill off to the side. The toddler’s head hung at an angle that caused her fine blonde hair to fall away from her face, exposing her right cheek, the right side of her forehead, and her hairline. There was light bruising around her ear and right eye, but there were no visible scrapes, cuts, or abrasions on the right side of her face. More importantly, the skin of her right cheek was smooth and unblemished. In a heavy drawl, Michael West’s voice announced the date and time: December 18, 1993, 9:35 p.m.
Oliveaux had drowned in a bathtub that morning in West Monroe, Louisiana, while in the care of her mother’s boyfriend, Jimmie Duncan. Allison Oliveaux left for work at around eight forty-five a.m. Duncan told police he put the girl in the tub and then went to do some dishes. When he returned to the bathroom to dry her off, he found her in the water.
Haley lived a short and unhappy life. Her parents had divorced, and her father was in prison. She lived with Duncan and her mother in West Monroe. In early November 1993 she was twice taken to the hospital after suffering seizures. That same month, she was again admitted to the hospital. This time, her mother said the girl had pulled a chest of drawers down on top of herself while climbing to reach for a piggy bank. She suffered multiple skull fractures and some bruising on her left elbow. An investigation by the West Monroe Police Department and Ouachita Parish Child Protective Services found no evidence of abuse. Still, to Allison Oliveaux’s family, it seemed suspicious. They didn’t care much for Duncan. He and Allison both used drugs. At the very least, they thought he was bad for Allison and Haley.
Even a charge of negligent homicide would be difficult to win. Oliveaux was nearly two. Perhaps leaving her in a bathtub for ten to fifteen minutes wasn’t prudent parenting, but it was far from clear that it was criminal conduct. But the county’s law enforcement officials had recently heard about the two forensic experts in Mississippi who were promoting cutting-edge technology to find bites, bruises, and other wounds that no one else could see. So they turned to Steven Hayne and Michael West. Perhaps they could find the evidence the state needed to put Jimmie Duncan away.
Haley Oliveaux’s body was sent 120 miles east to Mississippi Mortuary Services in Pearl. A police chief, a police detective and captain, and two assistant district attorneys went with the body and witnessed the autopsy. That wasn’t unusual, but it also wasn’t recommended. The National Association of Medical Examiners encourages doctors to maintain their independence—for example, by avoiding interactions with investigating law enforcement officials before conducting exams. Such interaction can bias a doctor’s conclusions. In fact, studies have shown that the more details crime lab analysts know about a case before conducting their analysis, the more likely they are to come up with false positives.
A search of court records suggests that the Oliveaux case was one of Hayne’s first in Ouachita Parish. Hayne got the job at about the time he and West had begun advertising their services in northern Louisiana. Within a year he was getting nearly all the parish’s autopsies.
In his initial examination on the night of December 18, Hayne suspected the presence of possible bite marks on Oliveaux. He called in Michael West. The following morning, West concurred with Hayne, noting bite marks on the girl’s elbow and near her ear. In a subsequent examination, West declared that those marks were “consistent” with Jimmie Duncan’s teeth. More importantly, he also claimed to have found a mark on her cheek that he said was a “positive match” to Duncan.
For his part, Hayne determined that Oliveaux had been “forcibly drowned” and said he found lacerations on her anus that the state would later suggest were indicative of sexual abuse.
District Attorney Jerry Jones charged Duncan with capital murder, alleging he had raped Oliveaux in the bathtub, forced her head underwater, bitten her, and drowned her. Jones would seek the death penalty.
The video of West’s examination of Haley Oliveaux wouldn’t see the light of day for another fifteen years, when Jimmie Duncan’s post-conviction attorneys found a copy of it in the prosecutor’s file. In it, West examined Oliveaux twice. The first five minutes of the video took place on December 18. During this portion of the video, West makes no mention of any scrapes or abrasions on Oliveaux’s cheek, and there are no such injur
ies apparent on the tape. At the 4:57 mark, there’s a break in the video, marking the lapse between the two exams. The video picks up on the following day, December 19. The camera returns to Haley Oliveaux’s face. Strikingly, where the first video showed no blemishes at all, a conspicuous abrasion now appears to the right of Oliveaux’s mouth. West’s hand then enters the frame, holding a plaster dental mold taken earlier that day from Jimmie Duncan. West then repeatedly presses the front part of the dental mold directly into the mark on Oliveaux’s cheek. Over the next two minutes of the video, he does this seventeen times. At another point, he drags Duncan’s mold across Oliveaux’s face, beginning near her lips, then scraping the plaster teeth down her face to her jaw. He does this for another minute. West then moves to Oliveaux’s elbow and pushes Duncan’s dental mold onto an old bruise that, according to Duncan’s attorneys, hospital records showed she had suffered weeks before her death, after the chest-of-drawers incident. West would later claim that the mark was inflicted by the back right side of Duncan’s upper teeth.
At the 9:32 mark, West asks an assistant in the room to turn out the lights. A fluorescent black light then flickers on. This is the West Phenomenon in action. With the lights out, West continues to jam the plaster cast into the girl’s cheek, elbow, and arm. Over the course of the twenty-four-minute video, West pushes, drags, or scrapes the cast of Duncan’s teeth into and onto the girl’s body at least fifty times.
West had described this method in court testimony in previous cases, but this was the first known time it had been captured on video. Forensic experts who watched the video were astonished. “This is the best documentation I’ve ever seen of Dr. West’s junk bite mark comparisons,” said Michael Bowers, a deputy medical examiner for Ventura County, California, after viewing the video in 2009. Bowers was one of the earliest critics of West and later of bite mark analysis in general.
