The Cadaver King and the Country Dentist

by Radley Balko

  For the better part of twenty years, Hayne performed approximately 80 percent of Mississippi’s state autopsies and testified in a similar percentage of its homicide cases. In that sense, what happened in Mississippi may be the most wide-reaching scandal to date. Few states have encountered revelations that strike as forcefully at the very foundation of its criminal justice system. And few states’ public officials have shown less concern or taken less action after having learned of the problem.

  In fact, part of the problem may just be how profound it really is. Even for a judge or prosecutor who never used Hayne, to concede that it was a mistake to let him dominate the autopsy referrals all these years would be to acknowledge that the system to which they’ve dedicated their careers is profoundly and fundamentally flawed. Who would review all of those cases to see which may have been tainted? Who would be set free? Would every Hayne case be retried, or only those in which his testimony was crucial to the outcome? What about all the civil cases? What about the cases in which his autopsy results cleared cops or jail guards of deaths in their custody? Who would bear the expense for all of these reviews? To admit to the full extent of the problem would also potentially open up the state to massive liability, likely in the hundreds of millions of dollars, possibly more, never mind the collateral damage to the state’s justice system generally.

  Still, at least some officials have called for that. Ken Winter, the former director of the Mississippi crime lab and head of the state’s police chiefs association, said so in a 2013 Huffington Post article. “I’ve been telling Jim Hood for years that this calls for [an] investigation into Steven Hayne and Michael West,” Winter said. “At the very least, we need a bona-fide cold case unit that looks for cases like this. And it needs to be done by people with some integrity, people who are willing to look for open murders, but who will also look for cases where an innocent person may have been convicted.”

  But voices like Winter’s have been rare, particularly when it comes to police and prosecutors. “This is a political problem, not a medical problem,” says Vincent Di Maio, the renowned medical examiner and author of several forensic pathology textbooks. “The government needs to do the right thing. But doing the right thing could hurt political careers, subject people to lawsuits, and force people to admit to making mistakes. Governments are made up of people. And people don’t like to put themselves in those positions.”

  By 2010 Mississippi Supreme Court justice Oliver Diaz had emerged as one of the most prominent critics of Hayne, and he did so from his perch on the state’s highest court. In Jones v. State, he rejected Hayne’s claim that the angle of bullet trajectory in a murder victim’s body was consistent with being shot by someone across the street where police had found a beer can containing the defendant’s DNA. As Diaz pointed out in his opinion, Hayne was not an expert in ballistics, and there were far too many variables for him to have reached that opinion. It wasn’t the first time Hayne had offered such speculation. Diaz was the lone dissenter in that case.

  The talkative, “proper Southern” Justice Diaz came to the court from the Gulf Coast, where a large portion of the state’s plaintiff’s bar is headquartered. After his election in 2000, he took some loans from a Democratic operative to pay off the debts he had incurred responding to attack ads. There was nothing illegal in that. But once judges are elected, they’re supposed to recuse themselves from any cases involving a party with whom they have a personal or financial interest. In a state as small as Mississippi, it can be difficult to discern where to draw that line. That also can make it easy to draw connections to make a judge appear corrupt.

  In 2003, Dunn Lampton, then a US attorney, indicted Diaz on allegations that he had tried to influence the court in a libel case involving the father of the man who gave him the campaign loan. As it turns out, the vote in that case was unanimous, and there was no evidence that Diaz had exerted any influence with other justices. Diaz was acquitted of the charges in 2005. But six days later, Lampton indicted Diaz again, this time on charges of tax evasion. The following year, Diaz was acquitted of those charges too. Lampton then filed a complaint against Diaz with the Mississippi Commission on Judicial Performance. That too was dismissed.

  The charges against Diaz fueled existing allegations that the Bush administration was running a politically motivated Department of Justice. They also came during the national backlash against trial lawyers. And in this instance, they may have also been personal: the man Diaz beat in the 2000 campaign was Dunn Lampton’s mentor. The late prosecutor’s crusade against Diaz would later serve as the inspiration for John Grisham’s book The Appeal.

  Diaz was up for reelection in 2008. Even though he’d been twice acquitted by a jury and cleared by the judicial commission, he was still running as a justice who had been twice indicted. Fighting those charges also forced him to sit out a good portion of his term. The law-and-order group the LEAA pounced. They ran a ghastly TV ad accusing Diaz of voting in favor of two “baby killers” and a man who was later executed for beating a woman to death. All three allegations were gross distortions. One of the cases should sound familiar. “When a six-month-old child was raped and murdered,” the menacing voiceover sneered, “Supreme Court Justice Diaz was the only one voting for the child’s killer.” The ad was referring to Jeffrey Havard.

  The LEAA ad was condemned by a committee set up by the Mississippi Supreme Court to review judicial election procedures. Several television stations eventually pulled it off the air, although by then it had run statewide for at least a week.

  Diaz eventually lost the election by sixteen points. His loss slowed any momentum that may have been building toward a proper review of Hayne’s tenure in Mississippi. Diaz’s last opinion was a dissent in a death penalty case. In it, he reflected on capital punishment and his own experience on the receiving end of the criminal justice system. “My unique life experiences have shown me—to a greater degree, I submit respectfully, than any other justice voting today—the potentially oppressive power of government prosecution,” he wrote. “Innocent men can be, and have been, sentenced to die for crimes they did not commit. In 2008 alone, two men—both black—convicted of murders in Mississippi in the mid-1990s have been exonerated.… One of these men, Kennedy Brewer, spent an astonishing six years on death row. Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths.”

  Each year, the various innocence projects around the country gather together to discuss their work, learn about developments within the field, and socialize with colleagues. The group also invites all the exonerees from the previous year to attend, with all expenses paid. Levon Brooks and Kennedy Brewer received their invitations in 2008.

  It was a surreal moment for both men. The conference was in Santa Clara, California, and neither had ever been on an airplane. In fact, with the exception of west Alabama, which borders Noxubee County, neither had ever been outside the state of Mississippi. Levon Brooks almost didn’t make it. When Brooks returned home from prison, he had a difficult time tracking down his personal records, not an uncommon problem among exonerees who have spent years behind bars. Because the conference was just a couple of weeks after his release, Brooks hadn’t had time to get a new photo ID. The Mississippi Department of Motor Vehicles refused to make an exception for him.

  Fortunately, American Airlines was more forgiving. When notified of his predicament, the airline sent gate agents to meet Brooks at the airport. He presented them his Parchman Penitentiary identification badge—now expired—and they welcomed him onto the plane.

  The two exonerees marveled at California. Neither had ever seen the ocean, so they gingerly waded into the Pacific—but not too far. They gazed in awe at the towering trees in Big Basin Redwoods State Park. They toured an art museum with the Innocence Project’s Pe
ter Neufeld. They bought new clothes. Brewer bought mirrored sunglasses. Brooks sported jeans still lined with the crease from the store shelf. They looked at sushi, then opted for something else. They politely tried craft beer, but quickly returned to their old standby: Bud Light. At one point they ran out of their favorite brand of tobacco dip and spent the better part of a morning hitting up convenience stores across Santa Clara until they found it. They also met Ed Blake, the man who helped set them free.

  The entire adventure took place in Kary Mullis’s backyard, just miles from where he had once pulled over along a stretch of Pacific Coast highway to ponder the thoughts that—all these years later—ignited the chain of events that ultimately brought Brooks and Brewer to California.

  Outside the courts, Steven Hayne began to face mounting criticism from others in his profession. In 2008, members of both the College of American Pathologists and the National Association of Medical Examiners investigated complaints against him. The Innocence Project of New York also filed a complaint with the Mississippi Board of Medical Licensure, requesting that the board revoke Hayne’s license. Dwalia South, the new president of the Mississippi State Medical Association told Reason magazine, “I don’t know why Dr. Hayne is still a member of our organization. I’m going to try to get him booted. I can’t believe he is allowed to take the stand and use our organization’s name to boost his credentials. That isn’t right.… What he’s doing is unethical and unprofessional. It’s malpractice.”

  There was more. The newspaper in Hattiesburg, the state’s fourth-largest city, called for a comprehensive review of the cases in which Hayne had testified. And Louisa Dixon, the former public safety commissioner and crime lab director, wrote a long op-ed in the Clarion-Ledger criticizing Hayne and explaining why the state’s death investigation system needed both a state medical examiner with a full staff and a dramatic overhaul.

  One might think that after such criticism from such varied sources—not to mention the Brooks and Brewer exonerations—the state’s prosecutors would be a bit chastened, and perhaps be reviewing their case files for other questionable testimony from Hayne or West. Perhaps, as had happened in other jurisdictions, they’d even work with a group like the Innocence Project to help uncover other possible wrongful convictions.

  Not in Mississippi. In March 2008, the Mississippi Innocence Project and the Innocence Project of New York sent an open records request to every prosecutor in the state, asking for copies of reports of any autopsies Hayne had done for that office at the state crime lab. The attorneys for the organization weren’t demanding that prosecutors reopen these cases; they were only asking for the records so they could conduct a review themselves.

  The next day, Mississippi Prosecutors Association president Ben Creekmore—the same man who had apologized to Kennedy Brewer in the well of a Noxubee County courtroom—said he’d be advising all members of his organization to refuse the request. He told the Associated Press, “There are families all across the state of Mississippi who would be affected by the wholesale release of information related to the death of their loved ones.”

  Taking advantage of Mississippi’s stingy open records law, the state’s prosecutors followed Creekmore’s advice. The rejection letters poured in. None of the state’s twenty-two district attorneys complied, and sixteen sent letters denying the request. Most of the letters included boilerplate legalese about privacy, burdensomeness, and how their work product was exempt under the state’s open records law. The latter, even if true, didn’t bar them from turning over the reports; it only gave them the option to refuse.

  Like nearly all the other district attorneys, Twelfth Circuit DA John Mark Weathers, whose jurisdiction included Michael West’s own Forrest County, said he was unaware of any wrongful convictions in his circuit. However, he wrote, if the Innocence Project was aware of such a case, they should forward him the name of the victim, the name of the defendant, the date and place of the crime, the case number, and all other factual information so his office could investigate. He missed the point entirely. The purpose of the request was to review old cases to find possible wrongful convictions. If the Innocence Project lawyers had already been aware of a wrongful conviction, they’d almost certainly already have the autopsy report.

  In 2010, two years after Weathers stated he was “unaware of any wrongful convictions” in his circuit, three men—Philip Bivens, Larry Ruffin, and Bobby Ray Dixon—were exonerated by DNA testing for a 1979 rape and murder in Forrest County. The DNA matched a man who had committed a similar crime in the county two years earlier. Ruffin died in prison in 2002. Dixon was released on medical parole in August 2010 but died a month before he was exonerated. Only Bivens lived to see his name cleared. Of course, Weathers had no role in those cases, nor did Hayne or West. And Weathers himself didn’t oppose the DNA testing that cleared the three men. But that the exonerations came so soon after Weathers declared he knew of no such cases in his district only underscored how easily injustices could slip through the cracks.

  In February 2009, the National Academy of Sciences released a long-awaited report on the state of forensics in America’s courtrooms. The report was a broad denunciation of many fields of forensics commonly thought to be reliable. But it was particularly critical of bite mark analysis. The report found that bite mark analysis “is introduced in criminal trials without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline.” Analysts were too often provided with only a suspect and a few alternatives, which created the potential for “large bias.” Blind comparisons were rare, and once law enforcement officials got the match they wanted, they rarely turned to a second analyst for confirmation.

  The report’s final paragraphs were its most critical. Despite the fact that practitioners felt that human skin could register and preserve enough detail from a bite to match it to someone’s teeth, “no scientific studies support this assessment.” The report added that its authors found “no evidence of an existing scientific basis for identifying an individual to the exclusion of all others.”

  The NAS report was widely expected to be a watershed event in forensics. But those predictions underestimated the intransigence of the status quo. Prosecutors continued to use and defend bite mark evidence around the country.

  In the years since the NAS report, more reports from the scientific community have criticized bite mark evidence with increasingly strong language. In February 2016, the Texas Forensic Science Commission, which was formed after revelations that the state had executed an innocent man based on bad arson science, recommended a moratorium on bite mark evidence. And in September 2016, the President’s Council of Advisors on Science and Technology (PCAST) not only found no scientific research to support bite mark comparison but also found “the prospects of developing bitemark analysis into a scientifically valid method to be low.”

  As of this writing, no court in America has upheld a challenge to the validity of bite mark evidence. Every defendant who has tried has lost.

  While these reports have aimed their heaviest criticism at bite mark analysts, they’ve generally been critical of all the pattern-matching disciplines. The law enforcement community hasn’t taken the criticism well. After the PCAST report was published, US attorney general Loretta Lynch dismissed it out of hand, and the Justice Department released a statement declaring that it had no intention of implementing the group’s recommendations. This put President Barack Obama in an interesting position. His council of science advisors had strongly recommended reforms that his attorney general had just disavowed. The following December, Obama touted the PCAST report in an article for the Harvard Law Review about his administration’s successes in criminal justice reform. What the article didn’t mention: when it mattered most, Obama had sided with Lynch. The PCAST recommendations were never implemented at the DOJ.

  This was particularly unfortunate because although the FBI crime lab has a reputation as one of the m
ost elite labs in the world, the agency has its own troubled history with bad forensics. Only recently, the FBI admitted that its hair fiber analysts had been overstating their findings in courtrooms for two decades and over thousands of cases. To make matters worse, those analysts had trained hundreds of analysts at state and local crime labs across the country. Even after the FBI admitted its mistake, federal prosecutors did only the bare minimum to notify defendants whose convictions may have been affected by the tainted testimony.

  Prior to that, the lab admitted that it had been wrong about bullet analysis. For years, the agency claimed that every batch of manufactured ammunition has a unique chemical signature. Therefore, if a bullet found at a crime scene matched the signature of bullets found in a suspect’s home, the bullets could only have come from the same box. The theory was bogus.

  The FBI had also botched its investigation of the anthrax attacks in 2001, leading to the wrongful arrest and persecution of Steven Hatfill, and had mistakenly matched a partial fingerprint taken from the 2004 Madrid train bombings to Oregon attorney Brandon Mayfield. Given all of that history, Lynch’s assertion that the DOJ didn’t need to implement the PCAST reforms because the FBI had internal procedures to ensure it was using good science wasn’t particularly reassuring.

  Recent investigations, exonerations, and studies have also revealed scientific shortcomings in ballistics comparison, tire tread analysis, shoe print analysis, handwriting analysis, and even fingerprint matching. Shaken Baby Syndrome has come under scrutiny. Drug field test kits have been shown to have scandalously high rates of false positives, as have drug-sniffing dogs and dogs used to identify suspects based on scents taken from clothes or from the air.