The Cadaver King and the Country Dentist

by Radley Balko

  The only dissent came from Justice Charles McRae, at the time the court’s most astute justice on these issues. McRae made all of the right arguments—that bite mark analysis in general was entirely subjective, had no scientific support for its underlying premises, and lacked any uniform criteria or methodology for determining a “match.” He also included a pretty thorough rundown of West’s long and growing list of transgressions.

  Unfortunately, just about anything McRae did on the court at that time was overshadowed by a recent drunk driving arrest. A state supreme court justice had just written the most critical and accurate assessment of West by any Mississippi judge to date. But few would hear him.

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  PRAYERS FOR RELIEF

  Whatever problems our system has, it cannot be as bad as all that.

  —Judge J. Harvie Wilkinson III, Fourth Circuit Court of Appeals

  By 2000, Michael West had lost his position as Forrest County coroner, and Hayne hired him as an assistant. And though at least some prosecutors began steering clear of West, others, like Forrest Allgood, continued to use him. In fact, as the public criticism of West mounted, Allgood’s defense of the dentist became strident and unmoored from reality.

  During the second trial of Eddie Lee Howard, the man convicted of raping and killing Georgia Kemp and then setting her house on fire, the defense had brought up all of the usual allegations against West. Perhaps Allgood sensed that momentum was building against his star witness, and he was growing restless. Perhaps he feared how that would reflect on his own career. Whatever his motivation, he delivered a closing argument that was the most embarrassing defense of either Hayne or West ever uttered by a Mississippi public official. By the time he was finished, Allgood had essentially argued that children would one day be reading about West in their history books.

  “Ladies and gentlemen… I expect that much of what you hear when I sit down will be an attack,” he began, anticipating what Howard’s attorneys would say in their own closing arguments. “An attack primarily on one man and one thing, Dr. Michael West.” Allgood conceded that West could be brash and evasive, and that he possessed an ego that probably wouldn’t fit into the courtroom—a line that likely elicited some chuckles. But then came the exaltations.

  West, Allgood said, was “also guilty of being a pioneer, a visionary, somebody that has found something new and pushed it to the limits, something that is now accepted throughout his profession as the standard.”

  The first few items in that list were arguably true, though not in the way Allgood intended. The last line was false. Bite mark analysis was not accepted within or endorsed by the scientific community at large, and even West’s fellow bite mark analysts had begun to distance themselves from him.

  Allgood went on. “Whether we like to think so or not, the progress of mankind has been carried forward on the backs of people like Michael West,” he rhapsodized. “You don’t have to look far if you’ll look into history. The church threatened to burn Copernicus because he dared to say that the planets didn’t revolve around the earth.”

  Allgood then paused. “So it was with Michael West.”

  Michael West was no longer merely a credible expert witness. He was an intellect for the ages. He wasn’t just a skilled bite mark analyst; he was a martyr, a paladin for truth who had been persecuted for his dogged pursuit of knowledge. (Never mind that in his grandiloquence, Allgood conflated Copernicus with Galileo.)

  As for West’s suspensions and resignations, Allgood assured the jury, they “hadn’t slowed him up one bit. He still testifies as an expert. He still lectures on bite marks. He still lectures on ALI, alternate light imaging, and, yes, he’s a leader in his field.”

  Allgood wasn’t wrong here. West did still testify. That was exactly the problem. Not finished, Allgood went on to call West “cutting edge,” “a man who wears many hats,” and he weirdly praised West’s expertise in “ergonomics.” Finally, Allgood told the jury that West “is an individual who is very interested in forensic sciences, and has plunged headlong into them with the enthusiasm of a three year old child.”

  The jury then convicted Eddie Lee Howard a second time. And for a second time, a jury sentenced him to die.

  The Supreme Court’s Daubert decisions of the early 1990s didn’t do much to keep bad science out of the courtroom. In fact, they may have made things worse. One effect of the decisions was to create a market for certifying organizations to confer “expert” status on would-be forensic witnesses. As a result, forensics today is awash in a sea of acronyms. Some of these groups are legitimate, but many are pay-to-play certification mills. The net effect is that for a fee, just about anyone who wants to can get “accredited” in a given field of forensics by finding a group willing to sell them a slip of paper to frame and hang on a wall. The courts have essentially ceded responsibility for sorting the sea of acronyms to attorneys.

  Steven Hayne is a good example. The organization Hayne most often says has certified him is the American Board of Forensic Pathology. That name sounds suspiciously similar to the American Board of Pathology, a widely recognized certifying organization—and with good reason. Whereas a medical examiner certified by the ABP would say on the witness stand, “I’m certified in forensic pathology by the American Board of Pathology,” Hayne would say, “I’m certified by the American Board of Forensic Pathology.” The two claims sound virtually the same, but there’s a world of difference between them.

  When asked in 2008 whether someone should testify in court to being “board certified” without having passed the ABP test, Joseph Prahlow, the then-president of the National Association of Medical Examiners, replied, “When you say you’re ‘certified,’ it means the American Board of Pathology.” When told that Hayne routinely says he’s “board certified in forensic pathology” despite not passing the exam, Prahlow replied, “That is very disturbing to me. There’s definitely a problem with that.”

  As a result, in the vast majority of cases in which Hayne invoked the organization, judges, jurors, and even opposing attorneys could be confused and not realize that the American Board of Forensic Pathology is an entirely different organization from the American Board of Pathology.

  Or to be more accurate, it was an entirely different organization. The group hasn’t existed since 1996. When it did exist, it was part of a larger Las Vegas–based organization called the American Academy of Neurological and Orthopedic Surgery (AANOS). For years, AANOS issued “certifications” in dozens of medical fields.

  If it seems odd that a group of neurological and orthopedic surgeons would be certifying doctors in forensic pathology—an entirely different field—it is. A 1994 profile of the group in the journal Medical Economics reported that AANOS offered certifications in more than fifty medical specialties, including “such exotic fields as bionic rehabilitative psychology, ringside medicine and surgery, percutaneous discectomy, and radiofrequency surgery.” The group was founded by Michael Rask, a surgeon, an eccentric, and apparently a devoted fan of Frank Sinatra—he changed his name to Bartholomew Sinatra shortly before he died.

  Hayne also claimed certification by another organization with an even odder history. The august-sounding American College of Forensic Examiners Institute (ACFEI) was founded by Robert Louis O’Block, a criminal justice professor who, according to a 2000 ABA Journal article, had been terminated from Appalachian State University in 1991 for plagiarism. (In the same article, O’Block insisted that his termination was retaliation for whistle-blowing.)

  At his subsequent teaching gig, O’Block developed an interest in the field of handwriting analysis. But when he applied for membership with an existing organization of forensic handwriting experts, they rejected him. So he decided to form his own credentialing organization for handwriting and put himself in charge. In 1992 he founded the American Board of Forensic Handwriting Analysts. Fraud magazine reported in 2012 that as O’Block expanded his group to other disciplines, he also hired his first national trai
ning director for the organization, a high school graduate with no college experience who claimed he could enlarge women’s breasts through hypnosis. (The breast-enlarging hypnotist would later resign as a result of his own doubts about O’Block’s credibility.)

  And yet, somehow, O’Block continued to collect new members to his organization. In 1995, he renamed the organization the American College of Forensic Examiners. He added the word “institute” after objections from a group already using the ACFE acronym. He formed a board of directors consisting of himself, his wife, and his two minor children. He paid himself a salary just over $50,000 per year and started a hotline to hook his members up with lawyers in need of expert witnesses (1-800-4AExpert).

  The ABA Journal reported that by the year 2000, the ACFEI offered “boards” in eleven specialties and claimed over thirteen thousand members and seventeen thousand diplomates (a member could be a diplomate in more than one field). Revenues for the group cleared $2 million, and O’Block’s salary jumped to $200,000 per year.

  Today, the ACFEI claims to be the largest forensic certification organization in the country. It may well be. It boasts celebrity spokespersons from the forensics world, like famed medical examiner Cyril Wecht and forensic analyst Henry Lee.

  Hayne, like many other ACFEI diplomates, was grandfathered in for his certification. He had only to provide a résumé and pay a $350 fee. The Wall Street Journal reported in 1999 that ACFEI candidates who weren’t grandfathered in have to score 75 percent or higher on an ethics test. But the test was largely symbolic. It included questions like, “Is it ever okay to misrepresent yourself?” and “Is it ever okay to stretch the truth?” Failing applicants could retake the test up to three times. Even the test requirement could also be waived entirely if a candidate’s application accumulated a hundred “points.” Points weren’t determined by ACFEI but by applicants themselves, using the honor system. And even that could be waived.

  The ABA Journal interviewed a psychiatry professor at Washington University in St. Louis who received ACFEI certification without even trying. And a prison inmate named Seymour Schlager was able to obtain a certification by ACFEI’s American Board of Forensic Medicine while serving time for attempted murder. In 2002, a woman was able to get certification by using the name of her cat.

  Despite awarding thousands of certifications, ACFEI hasn’t always been forthcoming about whom it certifies. When asked over the years, the organization has said such information is confidential, seemingly an odd practice for an accrediting group.

  Despite ACFEI officials’ protestations that the organization is not a “certification mill,” in 2012 a journalism graduate student named Leah Bartos was able to get certified as a “forensic consultant,” despite having no prior experience in forensics. According to Bartos, no one from ACFEI ever contacted any of her professional references.

  In the end, both ACFEI and AANOS allowed Hayne to continue to claim to be board certified in forensic pathology without technically perjuring himself. Most of the time, no one in the courtroom knew enough to ask further questions.

  Of course, even properly credentialed experts can still give noncredible testimony. But proper credentials at least establish a baseline. They can define a minimal level of demonstrated competency in an expert witness. Nevertheless, that presumes judges, prosecutors, and defense attorneys will know which credentialing groups are legitimate and which aren’t. “Credentials are often appealing shortcuts,” Michigan circuit court judge Donald Shelton told Bartos in her 2012 ProPublica report. Fancy titles can have a disproportionate effect on juries. “Jurors have no way of knowing that this certifying body, whether it’s this one or any other one, exacts scientific standards or is just a diploma mill.”

  Ideally, the courts would help jurors sort all of this out. There just hasn’t been much interest.

  In the late 1990s and early 2000s, Mississippi saw an increase in convictions based on Shaken Baby Syndrome (SBS), a controversial diagnosis that holds that if a trio of specific symptoms are found in a dead child, the death could only have been caused by violent shaking, even if there is no corresponding impact to the head. It’s a convenient diagnosis in that it provides prosecutors with a method of homicide (shaking), a likely suspect (the last person alone with the child), and intent (built into the diagnosis is the notion that babies only die this way after exceptionally violent shaking).

  But over the last decade or so, the diagnosis has come under increased scrutiny. Even the doctor who first came up with the theory has now expressed doubts about it. Recent research has shown that falls, blows to the head, and even some illnesses and genetic conditions can cause the same set of symptoms. It isn’t that all SBS cases are wrongful convictions, of course; it’s that the trio of symptoms themselves shouldn’t be the sole basis of a conviction. A number of convictions have been overturned. Many more are under review.

  Defense attorneys interviewed for this book say there has long been a sentiment among some police and prosecutors in Mississippi that when it comes to babies who die unnatural deaths, “there are no accidents.” Someone killed the child, either willfully or through criminally negligent parenting. Babies don’t die without someone being at fault. Therefore, somebody must be punished.

  Steven Hayne testified to SBS in several cases. The Clarion-Ledger reported in 2014 that since 2000 there had been eleven such convictions in the state. Because these cases often end with a plea bargain before trial, most don’t leave much of a public record. So it’s hard to say exactly how many relied on a diagnosis from Hayne. But given the percentage of the state’s autopsies he was doing at the time, it seems likely that he was involved in many of them.

  In most SBS cases, prosecutors would first file murder charges, then later allow the defendant to plead down to a lesser charge like manslaughter. But there are two cases in which Hayne’s SBS diagnosis led not only to a murder conviction, but also a death sentence. The first is that of Devin Bennett, who in 2000 was accused of killing his infant son, Brandon. In an odd twist, Bennett’s attorneys actually brought in Emily Ward to rebut Hayne’s testimony. Ward, then working for the state of Alabama, was reluctant to testify, given her history in Mississippi. She made her way to court only after an Alabama court ordered her to appear. After she was questioned by Bennett’s attorney, the prosecutor aggressively cross-examined Ward about her fights with Hayne, West, and the state’s coroners and prosecutors. Ward’s efforts to clean up the state had put her under attack all over again; only this time, a man’s life was at stake. The tactic apparently worked—the jury convicted Bennett and sentenced him to death. The Mississippi Supreme Court upheld the conviction. The court had no problem with prosecutors probing Ward’s “personal feelings about Dr. Hayne and her forthrightness in the reasons for leaving her employment.”

  “That case was like a lot of others where a baby died, and so someone had to pay for it,” Ward said in a 2008 interview. “But I still think about it. I think it was a miscarriage of justice. I still think Devin is innocent.”

  The SBS conviction of Jeffrey Havard demonstrates as well as any other how without DNA testing, it can be nearly impossible to overturn convictions based on faulty forensic testimony. In many of these cases, the degree to which the courts went out of their way to avoid confronting the obvious problems with Hayne and West isn’t apparent until you really dig into the details. Only after reading the court opinions after successive challenges do you begin to see problems, such as how one opinion can directly contradict another but still reach the same outcome, the intellectually dishonest approach courts often take with unfavorable forensic evidence, and how, too often, defendants never really stand a chance of getting a fair hearing.

  Havard’s case embodies all of these problems. The story begins on the evening of February 21, 2002, when Havard was watching Chloe, the six-month-old daughter of his girlfriend, Rebecca Britt. According to Havard, at some point Chloe had spit up on her clothes and bedding, so he gave the girl a bath
. As he pulled her up out of the tub, she slipped from his grip and fell. As she fell, she struck her head on the toilet.

  Havard would say that the bump on Chloe’s head didn’t appear to be serious, so he dressed her in clean clothes and put her to bed. Not wanting to worry Rebecca (or perhaps not wanting to anger her), he said nothing about the incident when she returned. When she did get home, Rebecca checked on the baby, who seemed fine. She and Havard ate dinner and went about their evening.

  Later that night Chloe stopped breathing. When Havard and Rebecca couldn’t get her breathing again, they rushed her to a hospital. Chloe died shortly thereafter.

  When the emergency room doctors examined Chloe, they discovered that her anus was dilated. This isn’t uncommon in infants shortly after death. It’s also common in infants who are still alive but have lost brain function. Unfortunately, even trained medical staff sometimes mistake it for sexual abuse.

  Steven Hayne performed an autopsy the following evening. In his autopsy, Hayne noted a one-centimeter contusion on Chloe’s rectum, which he documented in a photograph. But his autopsy report made no mention of any evidence of sexual assault. He also found symptoms he said were consistent with Shaken Baby Syndrome.

  Unfortunately, Havard didn’t admit that he dropped Chloe until a videotaped interview two days after her death. That meant his story had changed. That, the statements from the ER staff about possible sexual abuse, and Hayne’s SBS diagnosis were enough for local officials to arrest Havard and charge him with capital murder. The district attorney said he would seek the death penalty.