The Cadaver King and the Country Dentist

by Radley Balko

  The reality was that capital defendants weren’t getting any legal representation after their first appeal. When their cases would then finally get to federal court, either by their own doing, with the help of a “jailhouse lawyer,” or through a pro bono attorney, federal appeals courts would find that their legal representation had been unconstitutionally defective. By refusing to fund an adequate public defender system, then, state lawmakers were contributing to the very drawn-out appeals process they were so fond of criticizing.

  In 1994, the Mississippi legislature responded to the soaring crime rate with a raucous debate over a bill intended to address prison overcrowding, but that quickly devolved into an orgy of punitiveness. “There was talk of restoring fear to prisons,” the New York Times reported of the debate in Jackson, “of caning, of making prisoners ‘smell like a prisoner,’ of burning and frying, of returning executions to the county seat.” Governor Kirk Fordice implored lawmakers to “make Mississippi the capital of capital punishment.” By the time it was over, the legislature had banned TVs, radios, CD players, and weight-lifting equipment from state prisons. They required inmates to wear striped uniforms with the word “convict” printed across the back. (Said one state representative, “When you see one of these boogers aloose, you’ll say, ‘I didn’t know we had zebras in Mississippi.’”)

  That summer, Governor Kirk Fordice took some time off to go on a big-game hunting safari in Africa. In his absence, Lieutenant Governor Eddie Briggs filled in as acting governor. Briggs, generally considered to be more moderate than Fordice, took the opportunity to convene a special session of the legislature solely for the purpose of passing laws to expand and expedite the death penalty. Among the bills under consideration: empowering elected judges, not juries, to impose the death penalty; expanding the doctrine of “harmless error” so fewer convictions could be overturned on “technicalities”; and adding a slate of new crimes to those already punishable by death.

  In the end, most of the measures never made it into law, but that was mostly due to partisan squabbling over who would get credit for them. When it came to executing more people more often in Mississippi, there was widespread, bipartisan support. By 1997, death penalty fervor even had many clamoring for the execution of a fourteen-year-old girl who had been accused of killing her newborn daughter.

  As most in the state saw it, the problem wasn’t that Mississippi didn’t have adequate protections for the innocent; it was that the protections that did exist were hindering the electorate’s blood lust. In 1994, in between the Brooks and Brewer verdicts, the Enterprise-Journal in McComb, Mississippi, editorialized, “As an effective deterrent to crime, the death penalty should be swift and certain. Unfortunately, the carrying out of the death sentence in America has been anything but that. Serious wrongdoers are condemned to die, and they often wait five, 10, 12 years or more for the penalty to be carried out.”

  In 1995, Fordice announced in his State of the State address that he wanted all death row inmates executed within three years of their conviction. The press endorsed Fordice’s call to action. Despite the Clarion-Ledger’s consistent and admirable demands to hire and support a state medical examiner, the paper also led the charge for speeding up executions. “For the death penalty to be a [sic] effective deterrent, it must be carried out quickly,” the paper editorialized in October 1995, just a few months after Kennedy Brewer was sentenced to death. “No one wants an innocent person to be executed, but appeal procedures could be changed to shorten the process.”

  Fordice continued to demand speedier, more frequent state-sponsored killing. In his 1996 State of the State address, he demanded a one-year limit on death penalty appeals, and asked the legislature to add high-volume drug dealing to the list of crimes punishable by death. In 1997, he held a news conference in which he was flanked by the widows of two men who had recently been murdered, one of them a former assistant attorney general. Fordice again lamented the state’s slow progress with executions, this time with especially dehumanizing language. States like Texas and Arkansas, Fordice complained, “are continually working down their inventory on death row, and ours continues to grow.”

  Again, the state’s press dutifully followed along. The Clarion-Ledger ran another supportive editorial in February 1998 that closed with this rhetorical flourish: “There are 58 names on the death row roster. Let’s let the sword of justice do its work.” At the time that editorial ran, there were eight men in Mississippi’s prisons who had been convicted of murder but would later be exonerated.

  In fact, there may not have been a more execution-obsessed op-ed page in America at the time than the Clarion-Ledger’s. Between 1994 and 1998 alone, Mississippi’s largest newspaper ran thirty-eight unsigned editorials in support of the death penalty—calls to speed it up, expand it, or apply it in a particular case. When the Mississippi Supreme Court finally allowed DNA testing for Kennedy Brewer in July 2001, the paper published a staff editorial supporting Brewer’s right to have the DNA tested but added, “The existence of DNA does not refute the need for the death penalty.”

  By the early 1990s, advances in DNA technology allowed for testing that could exclude defendants as the source of biological material found at a crime scene. (The technology enabling DNA scientists to match biological evidence came along later.) By 2001, DNA testing had cleared eleven people who had been wrongly convicted and sentenced to death. In other words, “the existence of DNA” showed that the system could get it wrong, and far more often than most of the public believed. The death penalty didn’t cause the system’s flaws, but it did cement those flaws with an ultimate and irreversible punishment. By 2001, Kennedy Brewer had been on death row for six and a half years. At one point, he had been scheduled for execution. If the death penalty had been more “swift and certain,” as the Clarion-Ledger, Kirk Fordice, and a good chunk of Mississippi’s politicians and prosecutors had advocated throughout the 1990s, Kennedy Brewer would be dead. If the death penalty across the country had been “swifter” and more “certain,” the eleven men cleared by DNA testing across the country by 2001 would be dead, too.

  Perhaps the most perverse thing about Mississippi’s death penalty debate in the 1990s is that it was only by the grace of petty politics and fragile egos that the state never went on the execution binge that everyone seemed to want. Kirk Fordice’s goal to expedite executions and make Mississippi the “capital of capital punishment” was supported by the leaders of both major political parties, prosecutors, most of the judiciary, the state’s largest newspapers, and a healthy majority of Mississippians. Certainly, some of Fordice’s proposals wouldn’t have passed constitutional muster once they were inevitably challenged in federal court. But the main reason most of Fordice’s killing agenda was never enacted is that the other power players in Mississippi politics at the time—from Lieutenant Governor Briggs to Attorney General Mike Moore to the leaders in the state legislature—either didn’t want to give Fordice a political victory or wanted all the “tough on crime” credit for themselves. You could make a strong argument that Kirk Fordice’s likability problems saved Kennedy Brewer’s life.

  Without oversight from the state medical examiner’s office, Steven Hayne was flourishing. By the late 1990s his annual autopsy totals topped 1,500, which meant he was grossing three-quarters of a million dollars per year from county autopsy fees alone. But Hayne was also looking to do more private autopsies, where he often charged $1,500 or more per procedure, plus significantly more per hour for testimony and trial preparation than he got from the state. Around 1995, Hayne joined Investigative Research Inc. (IR) to help facilitate his work in private cases. Initially, IR was a small operation whose main clients were insurance companies that hired it to conduct arson investigations. After bringing Hayne aboard, IR expanded to take on investigations for life insurance companies, plus provide expert testimony in civil litigation, often related to medical malpractice and wrongful deaths.

  Meanwhile, two years after Emily Ward
left, Mississippi still didn’t have a state medical examiner. The coroners and prosecutors who had chased Ward out were fine with that. They both declared victory and pushed to ensure that no one like her occupied the office again.

  “All I can say is that Hinds County hasn’t missed a beat without [a state medical examiner],” coroner Robert Martin told the Clarion-Ledger. Jimmy Roberts agreed: “It seems to me things run smoother when we don’t have one.” Washington County coroner George Hampton told the paper that when he had a question about the job, he just asked Steven Hayne. “Anytime I have a question, I always call him, and he is able to respond whenever I need him.” Karl Oliver, the president of the coroners’ association, agreed. “The system is working absolutely fine,” he said.

  Michael West had done such a convincing job with his public advocacy that his hometown paper, the Hattiesburg American, recommended abolishing the state medical examiner entirely. A staff editorial opined, “A competent coroner and pathologist working at the local level are more than qualified to conduct death investigations and render accurate opinions.… Mississippi can do without a state medical examiner. As far as we’re concerned—pardon the pun—this is a dead issue.” For good measure, the editorial also quoted West: “In my 16 years in this field, I’ve never seen one instance where a state medical examiner was needed. Not one.”

  For their part, state officials weren’t going out of their way to find Ward’s replacement. The position was advertised with a salary of $69,000, which would have made whoever took the job the lowest paid state medical examiner in the country. One needn’t be a conspiracy theorist to wonder if the Mississippi offer wasn’t intended to prevent qualified candidates from applying.

  It seems clear that most powerful people in the state’s criminal justice system wanted the office to remain vacant. Legislators didn’t feel particularly obligated to offer more, because no one who had their ear was really complaining. From the legislature’s point of view, the state was saving money by not funding the salary and benefits of a state medical examiner and a full office of support staff. From the counties’ perspective, the $500 autopsy fee remained the same whether the funds went to the state medical examiner’s office or to Steven Hayne’s bank account. The former might give prosecutors a more professional autopsy, but the latter often guaranteed a conviction. The coroners were happy. Police and prosecutors were happy. People charged with serious crimes were going to prison.

  Yet in reality, even setting aside the problems with Hayne’s massive workload, the state was still losing a lot of money. As the legislature was partially funding the medical examiner’s office, it was also providing funding for staff and upkeep for the modern state morgue that had been built especially to facilitate autopsies. It went largely unused. Mississippi taxpayers were paying twice for the same government function, once to build and maintain a fancy new state morgue and crime lab, and then again for Hayne’s after-hours, assembly-line autopsies at a private morgue. But because the fees were paid by the individual counties, the wasted money wasn’t apparent to public officials, much less to taxpayers.

  The following year, the Clarion-Ledger published another article about the vacant state medical examiner position. This time, it was Michael West who assured Mississippians that he and Steve Hayne had it all under control. Perhaps the state needed a functionary in the state medical examiner’s office to handle paperwork, West argued, but nothing more. “We need someone who can help the police and organize the coroners,” he said. “What we don’t need is a medical pathologist who wants to argue with other pathologists about cause of death, which has happened in the past.”

  That’s exactly what the state needed.

  A few years after Hayne joined Investigative Research, he consulted on two lawsuits against a company called Graco Children’s Products. The lawsuits alleged that the company’s defective infant rockers had caused two babies to suffocate. Hayne had done the original autopsies on the children and in both cases originally said they had died of Sudden Infant Death Syndrome (SIDS)—a conclusion a medical examiner makes only after excluding nearly everything else. After he was contacted by the attorneys for the parents bringing the lawsuits, he changed his diagnosis to death by positional asphyxiation, which he said was caused by a defect in the rocker. The children’s bodies had by then been buried. There is no indication that they were ever exhumed and reexamined.

  In a deposition for the case, Hayne claimed that at the time he did the original autopsies, deaths by positional asphyxiation were commonly misdiagnosed as SIDS. Coincidentally, he said that just four months prior to the deposition, just at about the time the attorneys for the plaintiffs in the case approached him, positional asphyxiation had “come to the forefront” of “medical knowledge.”

  Forensic specialists say Hayne’s explanation doesn’t add up. “It would be very difficult to change from SIDS to asphyxiation,” said James Starrs, a professor at George Washington University and author of several forensic textbooks, in a 2007 interview. “The latter is a more specific diagnosis, one that would require the presence of symptoms Hayne should have noticed during the original autopsies.”

  That he didn’t certainly raises questions about whether he either badly botched the autopsies or concocted the diagnosis for the lawsuit. Investigative Research then invoiced the plaintiffs’ attorneys for Hayne’s services. His price: $37,000.

  John Stossel’s ABC News report featuring Michael West finally aired in 1997. The segment was part of an hour-long special about “junk science.”

  Stossel delved into West’s analysis and reported that West had been sending a brochure to police departments in Mississippi and Louisiana to advertise his services. In the brochure, West offered to come and explain his methods to any police agency willing to pay him $900—which is to say that for $900, he’d come and tell police departments why they should hire him in future cases. According to Stossel, West’s brochure promised that “he can turn cases that were once unsolved into police convictions.” The segment also included footage in which West boldly declared, “All talents, all gifts that I possess are directed straight from God.”

  By 1998, West had been criticized in the American Bar Association Journal, the National Law Journal, ABC News, and the New Orleans Times-Picayune. He had been forced to resign from the American Academy of Forensic Sciences and the International Association for Identification, and had been suspended from the ABFO. His testimony had been thrown out in three separate murder cases, and he had caused the wrong man to be arrested and jailed for a year in a murder case in Humphreys County—after which the real killer went on to kill again. It’s also the year that the Mississippi Supreme Court officially gave Michael West its endorsement.

  The endorsement came by way of Kennedy Brewer’s appeal, which the justices were hearing for the first time. In dismissing Brewer’s claims about West, the court laid out a litany of excuses and explanations for West’s behavior and mistakes. The majority explained away the rising chorus of critics as mere differences of opinion between professionals. The opinion claimed that “the record evidence shows that Dr. West possessed the knowledge, skill, experience, training and education necessary to qualify as an expert in forensic odontology.” The court ruled that the “problems he encountered”—a self-serving, antiseptic description of West’s history—“went to the weight and credibility to be assigned his testimony by the jury—not his qualifications.”

  The court then rejected all of Brewer’s other claims and upheld his conviction. It ordered his execution to be scheduled within sixty days of the dispensation of his case. There was no dissent.

  The next year, the court rejected Levon Brooks’s appeal, too. The state’s brief in Brooks’s case is a study in prosecutorial tunnel vision. It’s clear from the brief that its author—who worked in the attorney general’s office—made little effort to confirm the veracity of the damning statements Allgood made at Brooks’s trial. The meandering, contradictory, often fantastical answ
ers Ashley Smith gave over the course of her two police interviews and trial testimony? Here’s how the state characterized them: “Ashley’s identification of Brooks was immediate and unwavering, through the first interview, the photo lineup and the trial itself.”

  This is simply false. It’s either a lie or a false statement arising from stunning inattention to the facts. It is of course the job of the attorney general’s staff to defend convictions. But the office is also supposed to serve the interests of justice. Here, the state’s brief merely parroted Allgood’s closing argument. It made no effort to look back to verify if it was actually true.

  The brief then addressed the court’s denial of Kennedy Brewer’s appeal the year before. Its characterization of that decision is chilling:

  Brewer v. State was a case from the same trial court as the case at bar, arising from the murder of another three-year-old in the same small town as in the present case. The facts of the two cases are almost unbelievably similar. Brewer was convicted of murder and an important part of the state’s evidence was a bite mark comparison of Brewer’s teeth with the marks left on the child’s body. The Court found this evidence to be sufficient for conviction. Brewer, unlike the present case, resulted in a death penalty for the defendant. If this evidence passed the heightened scrutiny of death penalty cases, there is no reason why it should be held inadmissible in the present case.

  It turns out that when properly motivated, state officials were able to see the remarkable similarities between these two cases after all. They just couldn’t take the next step—asking if the same man committed both crimes. That would require considering the possibility that the state got it wrong.

  The court voted 8 to 1 to uphold the conviction. With respect to the bite mark evidence, the majority first found that because Brooks didn’t object to Michael West’s credentials at trial, he was procedurally barred from raising them in his appeal. But the court also went a lot further than it needed to. It ruled that bite mark analysis was now universally admissible in Mississippi courts—a form of evidence just as reliable as fingerprints or DNA. When the Clarion-Ledger reached out to Michael West for his reaction, West reported that he was “elated.” “It’s taken us quite a while to get to reach this point,” he said. “For many years I’ve had to endure the assaults of defense attorneys on the validity of bite marks.”