by Radley Balko
In agitating for Ward’s removal, Kitchens, Robert Martin, and her other political enemies had argued that she should be replaced by a bureaucrat instead of another doctor. This was also the thinking behind the “privatization” bill West was pushing. The old guard needed a state medical examiner’s office to handle paperwork and process records, but they didn’t need the hassle of any real oversight. They’d get exactly that. Soon the Mississippi Medical Examiner’s Office would be run by a nonmedical administrator. The position of state medical examiner would remain vacant for the next fifteen years.
Michael West couldn’t resist gloating about his victory. “She [Ward] has attempted to destroy the death investigation system in Mississippi,” he told the Clarion-Ledger. “She seems to be a very incompetent individual.”
At the time West gave that quote, it had been just three months since his testimony helped send a second innocent man to prison.
11
VESSELS OF WRATH, FITTED FOR DESTRUCTION
It’s just another day in America, and we have lost our sense of outrage.
—Forrest Allgood
As in Levon Brooks’s case, Forrest Allgood’s opening statement in Kennedy Brewer’s trial was understated. After briefly recounting the scene on the evening Christine Jackson disappeared, Allgood plainly promised the jury, “The State intends to prove to you simply that sometime either on the late evening of May second, nineteen hundred and ninety-two, or in the early morning of May third, nineteen hundred and ninety-two, Kennedy Brewer choked and killed a three-year-old child, Christine Jackson, after he had sexually battered her.”
But even with Michael West’s powers at his disposal, Allgood had a couple of problems. Based on the initial investigation by law enforcement, Gloria Jackson was also in the house during the time Christine disappeared, and Jackson told virtually the same story as Brewer: she had no idea precisely how or when the little girl went missing. The only difference was that there was no physical evidence linking Jackson to the crime. (The only such evidence against Brewer came from West.) Allgood could only hope that the narrative would somehow change from the time of the investigation, and that Brewer’s defense attorneys wouldn’t notice. He was in luck.
When Deputy Sheriff Bud Permenter initially interviewed Gloria Jackson at her house on that Sunday morning, he asked her when she had last seen Christine. Jackson responded that she saw Brewer pick Christine up off of their bed and place her on the pallet before they went to sleep. In the fall of 1992, when Brewer and Jackson were both facing possible capital murder charges, Permenter testified at a preliminary hearing for the case. Allgood asked him about that interview.
“She saw this child being actually picked up out of the bed and put on a pallet next to the bed at that time?”
“That is correct,” Permenter answered.
Later at the same hearing, Permenter testified that Jackson had told him that the youngest child, who was sleeping in the bed with the couple, started crying. Brewer got up, retrieved a bottle and diaper for the baby, and came back to bed. Allgood then asked Permenter if Jackson had told him that when she woke up at that point, she again saw Christine sleeping next to the bed. He said she had.
The narrative was clear: Jackson saw her daughter Christine after she got home that night. But by the time of the trial two and a half years later, the narrative had changed. Jackson was Allgood’s first witness. Early in her testimony, the prosecutor asked her to describe what she saw when she returned home from the Santa Barbara Club and got ready for bed. This time, Jackson said she saw what she “thought” was Christine. Allgood swooped in.
“Now let me stop you for a minute,” Allgood said. “You said like you thought it was her. Did you see any arms?”
“No,” Jackson answered.
“Did you see any legs?”
“No.”
“Did you see her head?”
“No.”
“What did you see him pick up, Mrs. Jackson?”
“Nothing really ’cause I really wasn’t paying too much attention.”
As for the period of time that Jackson had claimed that Brewer had gotten out of bed to get a baby bottle and a diaper, Allgood simply asked, “At any time… did you ever see your daughter, Christine Jackson, in that house?”
“No,” Jackson answered.
Back when Jackson was still suspected for the crime, Permenter said Jackson seemed certain that she saw the girl. Now that it was just Brewer on trial, she wasn’t so sure. There is nothing in the official record of the case to explain why Jackson would so radically alter her story, but there is some compelling circumstantial evidence. Jackson had initially been charged as an accessory after-the-fact. That’s because if Brewer committed the crime, according to her initial statements to Permenter, Jackson had to have known about it. But in the years between Jackson’s arrest and Brewer’s trial, the charges against her were dismissed. After that, Jackson not only changed her story but also offered some new incriminating evidence. She claimed that soon after she and Brewer were arrested, the two of them got into an argument in the jail. As she taunted Brewer about what would happen to him in prison for being a child killer, Brewer allegedly retorted, “It should have been you [Jackson] that I killed.”
Jackson claimed that she contacted jail personnel soon afterward to alert them to Brewer’s confession. But there’s no written record of her having made any such contact, nor did Allgood produce anyone from the jail who could corroborate her claim.
Unfortunately, when Brewer’s lawyers cross-examined Jackson, they didn’t appear to even notice that the story had changed, much less challenge Jackson on it, or ask in front of the jury if she had struck a deal with prosecutors. They never inquired why the accessory charge had been dropped. Without Gloria Jackson as a suspect, the prosecution could focus solely on Kennedy Brewer.
In his testimony, Steven Hayne noted that after having been submerged in water for several warm spring days, Christine Jackson’s body had begun to decompose. He testified that he had observed “skin slippage” and “putrefaction,” both of which are common under those circumstances. He determined that Christine had been strangled to death—she hadn’t died of freshwater drowning.
As for the other suspicious marks, Hayne “thought that they were bite wounds.” That’s when he called in Michael West. Anticipating what Brewer’s lawyers would later argue, Allgood asked Hayne whether it was possible that those marks had been the result of decomposition or insect bites. Hayne replied that based on his extensive experience, he could distinguish the types of marks that were the result of decomposition or insect activity—the marks on Christine’s body were not from insect activity, he said.
Once again Hayne allowed West to excise the skin that contained the alleged bite marks, which other forensics experts say is an abrogation of his duties as a medical examiner. At least nine forensic specialists have reviewed the work of Hayne and West in the case, and all nine have concluded that it simply wasn’t reasonable for them to have concluded that the marks on Jackson’s body were human bites. All have said they were either insect bites or some other injury, but they were definitely inflicted after Jackson’s death. Even medical examiner Michael Baden, a friend of Hayne who has at times defended him from critics, concluded, “In my opinion, Christine Jackson’s skin damage should have been recognized as, predictably, having occurred after her death given the conditions where and when the body was found. It is further my opinion that it was a serious mistake to misidentify the decomposition changes as being the result of an adult human bite mark.”
West’s mounting trouble with various professional forensics organizations might have given your average prosecutor pause. Not Forrest Allgood. Neither Allgood nor West even made an effort to keep West’s professional troubles out of the trial. Instead, they took a different tack: they would argue that West was right, and all his critics were jealous of him for it.
West admitted on the stand that in recent years, a couple cour
ts had prevented him from giving certain types of testimony, and in other cases charges against a suspect implicated by his analysis had later been dismissed. But he brushed off the investigations and criticisms as being from “vastly ignorant” scientists who were unable or unwilling to appreciate the value of his work because of either envy or their own professional limitations.
West freely admitted that there was no known error rate in the field of forensic odontology. When asked if he knew his own, individual error rate, West answered, “My first marriage ended in divorce. My second marriage is current. So I made one mistake.” The court reporter noted in a parenthetical that West laughed. The record doesn’t reflect Kennedy Brewer’s reaction.
Nevertheless, to hear West tell it, there wasn’t a forensic expert around who could match his pedigree. He went through all the usual highlights of his career, adding this time that he’d soon be featured in an upcoming hour-long documentary on the BBC. (The documentary, as it turned out, would be critical of West.)
After the questioning about his qualifications, Brewer’s lawyers asked the court to bar West from testifying. “Doctor West has no regard for the standard of reasonable degree of scientific certainty,” they argued. They explained that his opinions were entirely subjective, that he had been caught misrepresenting facts in other cases, and that he had called bite mark analysis “as much of an art as it is a science.”
Few people disagreed with any of that. Even most bite mark analysts admit that the field is subjective—more opinion than science. It was also well understood by all parties that West himself was a controversial figure. But Allgood and Brewer’s lawyers were also only arguing about West personally, not the pseudoscience of bite mark matching in general. This was the position in which the courts often put the lawyers defending those accused by Michael West: they could argue either that West wasn’t credible or that bite mark analysis wasn’t credible. Both were true. But defense attorneys were usually forced to pick one or the other.
In Brewer’s case, as with so many others, neither argument would have been successful. Less than two years before, in the same county, the same court had allowed West’s testimony to help convict and imprison Levon Brooks. A few weeks before Brewer’s trial began, West had helped secure a murder conviction in the Bologna Sandwich Case. The judge in Brewer’s trial was also the judge in that trial. A ruling finding that West or forensic odontology wasn’t credible would have undone those and other convictions. It was a lot to ask of a district court judge.
Not unreasonably, then, Brewer’s lawyers retained their own bite mark specialist to rebut West specifically. That expert—Dr. Richard Souviron—not only disagreed with West’s findings and the rigor of West’s analysis, but told the jury that the marks on Christine Jackson weren’t bite marks. Souviron also chaired the American Board of Forensic Odontology (ABFO) committee that suspended West. At first blush, that would seem to make him an ideal foil for West. But it would backfire.
Allgood’s cross-examination of Souviron was devastatingly effective. It was also incredibly misleading and took advantage of the Hobson’s choice that put Brewer’s attorneys in a bind. First, Allgood got Souviron to concede that the ABFO had recently approved the same “direct comparison” method that West used in the Brewer case. Then he got Souviron to admit that West was one of the leading bite mark analysts in the country, even a true “pioneer.” Finally, Allgood clearly had carefully reviewed the ABFO’s guidelines, including the transcripts of several meetings of the executive board. He got Souviron to admit that the ABFO actually had no hard and fast rules regarding how bite mark analysts should express probability when discussing their findings in court. Allgood pointed to one ABFO survey that found that 8 percent of the group’s members disagreed with the language the ABFO recommended (but didn’t require) to express an analyst’s most confident conclusions: “reasonable medical, dental scientific certainty.”
After getting Souviron to concede all of that, Allgood moved in for the kill.
“I’m curious, Doctor. Did y’all suspend 8 percent of your membership upon finding that out?”
“Absolutely not,” Souviron answered.
“Only Michael West, isn’t that right?”
Allgood then drove the point home. He asked if “this business of forensic odontology is somewhat of an art.”
Souviron said it was.
Allgood’s point was that Souviron and the ABFO had unfairly targeted West. He was half right. The ABFO was singling out West, but not unfairly. What Allgood had demonstrated is that the entire field of bite mark analysis is bogus. At best, the ABFO was a loose confederation of dentists, most of whom moonlighted as crime solvers. Their techniques weren’t uniform, they had no consistent standards, and the terminology they used to describe their findings was bound only by their own imaginations. West’s only sin—at least within this group—was that his imagination was a bit too flamboyant. He was disciplined not because “indeed and without a doubt” was any less steeped in science than the terminology used by any other member of the ABFO; he was disciplined because his bombast and self-promotion had become an embarrassment to his colleagues. Michael West was definitely a liability. But the bite mark community also did a fine job of embarrassing itself without him.
The problem for Kennedy Brewer was that his attorneys had already conceded that bite mark analysis in general was a legitimate field. If the field itself was legitimate, and West’s methods weren’t significantly different from those of his fellow bite mark analysts, then there was no reason to keep West from testifying. So the trial judge ruled on the motion the same way the judges and appellate courts before him had. West could testify, but Brewer’s attorneys could challenge him. Somehow that would make it all fair. Both the Daubert and Frye rules envisioned judges as gatekeepers who carefully distinguished good science from bad. In reality, judges tend to act more like ushers. Everyone is welcome.
West resumed the stand and didn’t miss a beat. He explained to Brewer’s jury that he had begun his examination by comparing the unique features of the marks on Christine’s body to the unique “class and individual characteristics” of Brewer’s teeth. Class characteristics, West explained, are identifying features found in specific groups of objects. As a metaphor, he asked jurors to consider a box of flat-head screwdrivers and a box of Phillips screwdrivers. Though each of the Phillips screwdrivers may be different sizes, they all display the same class characteristic—a Phillips-head shape—which is not shared by the flat-head screwdrivers. According to West, these same class differentiations can be seen in an individual’s dentition: the arch, the shape of the jaw, an overbite or underbite, and so forth.
By contrast, he explained that “individual characteristics” arise because of “random wear and tear.” They include things like chipped or broken teeth. Sometimes these individual characteristics aren’t obvious, such as small cracks or other tiny imperfections on the biting surface of a tooth.
All of that is true. The problem is that West claimed that these distinguishing characteristics are detectable in the marks that individual teeth leave in human skin. There’s just no evidence that they are.
Over pages and pages of the trial transcript, West displayed black and white photos for the jury as he walked them through his methods in excruciating detail. This was a man who had invented his own realm. It was a realm in which places most of us have never considered—the surfaces of our teeth—come alive, blown up on slides to reveal otherworldly landscapes of ridges, crevices, elevations, and depressions. According to West, these formations leave signature imprints when teeth rip into human skin. West’s jargon must have sounded sophisticated to jurors. The exhaustive manner in which he described his procedures undoubtedly made him seem cautious, careful, and analytical. How could any lay juror find fault with what he was saying?
Unlike the autopsy of Courtney Smith, West and Hayne had recorded their examination of Christine Jackson. So in this case West’s “direct comparison” me
thod was on video, though the judge ultimately refused to let it be shown at trial. (The trial judge ruled that because the video depicted the doctors and assistants carrying on unrelated conversations, blaring music, and behaving in a “callous” manner, it was too prejudicial to show to the jury.) Though the video has never been made public, Brewer’s attorneys have seen it and have shown it to other forensic specialists. After viewing the video, David Senn, another bite mark analyst, wrote in 2011 that during the examination, “Dr. West placed Kennedy Brewer’s dental models directly onto Christine Jackson’s body multiple times—with sufficient force to create [visible] marks.” This was now the second time a forensic specialist had suggested that West’s direct comparison method actually created the very bite marks later used to implicate a suspect.
West wrapped up his testimony on March 23. Earlier that day, the court had been informed of an urgent problem. A rumor circulated that later that night, the TV news program 20/20 would air an unflattering expose of West and his novel bite mark theories. So just before dismissing everyone for the night, the judge gave some unusual instructions to the jury. “Also, it has been my understanding that for this evening and for this evening alone, the television sets have been removed by the management of the hotel from your rooms,” he said. There was indeed a news program preparing an expose of West—ABC News Special Report with John Stossel. But the episode wouldn’t air for another two years.
Kennedy Brewer’s attorneys had their own problems to address at trial. The first was the state’s claim that no one other than Brewer had access to the house during the time that Christine Jackson disappeared. Brewer himself, along with Jackson, had agreed that the locking mechanism on the front door—the bent nail—was accessible only from the inside. And Brewer, from the very first moment he was questioned by the deputy sheriff, was adamant that no one came in the front door that night except Gloria Jackson, whom he let in when she returned from the club.
