by Radley Balko
seventy years after the Frye decision: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Daubert v. Merrell Dow Pharmaceuticals, Inc.: Daubert v. Merrell Dow Pharmaceuticals Inc., 113 (S.Ct. 2786 1993).
“settled” science in court: See Amici Curiae Brief, Physicians, Scientists and Historians of Science on behalf of William Daubert et ux., Doc. No. 92-102, A1-A5, and Amici Curiae Brief, Nicolaas Bloembergen et al., on behalf of Merrell Dow Pharmaceuticals, Inc.
“It’s mostly for show.”: Michael Saks, interview by Radley Balko.
prosecutors wanted more: Calvin Banks v. State of Mississippi, 725 So.2d 711 (Miss. 1997).
in the house: Ibid. (“Indeed, the victim had eaten a small amount of bologna, consistent with the amount bitten off the sandwich, shortly before her death.”)
from verifying his findings: Ibid.
“and two pieces of bread,”: Nikki Davis Maute, “Pictures Should Suffice in Overturned Murder Case, Coroner Says,” Clarion-Ledger (Jackson, MS), Dec. 10, 1997.
unusable for any other analyst: Calvin Banks v. State of Mississippi.
violated his right to a fair trial: Ibid.
in the case of Eddie Lee Howard: Calvin Banks v. State of Mississippi (Smith, J., concurring in part and dissenting in part).
Kemp was buried: Letter from Lloyd White, state medical examiner, to Chief Pete Bowen, Feb. 6, 1992; Transcript of record, State of Mississippi v. Eddie Lee Howard, 92-400-CR1 (Lowndes Cnty. Cir. Ct. May 22, 2000), 502.
convicted and sentenced to death: Eddie Lee Howard v. State of Mississippi, 697 So.2d 415 (Miss. 1997).
allowed Howard to represent himself: Ibid.
questionable forensic evidence: Ibid.
several media exposés: Traces of Guilt, BBC, Oct. 8, 1995; John Stossel, “Junk Science: What You Know May Not Be So,” ABC News Special Report, Jan. 9, 1997; Marcia Coyle, “‘Expert Science’ Under Fire in Capital Cases,” National Law Journal, July 11, 1994; Mark Hansen, “Out of the Blue,” American Bar Association Journal, Feb. 1, 1996.
two forensics organizations: “Ethics Committee Report,” American Association of Forensic Scientists, case no. 143 (1994); Andrew Murr, “A Dentist Takes the Stand,” Newsweek, Aug. 19, 2001.
suspended from a third: “Ethics Committee Report,” American Board of Forensic Odontology, complaint no. 93-B (1994); Murr, “A Dentist Takes the Stand.”
“numerous scholarly authorities”: Howard v. State of Mississippi.
to challenge West in court: Ibid.
to tear West down: Forrest Allgood, “District Attorney Offers Comments on Brewer, Brooks Cases,” Macon (MS) Beacon, Aug. 7, 2008.
“minority view nationwide,”: Howard v. State of Mississippi (Smith, J., dissenting).
bought into bite mark matching: See National Research Council of the National Academies of Sciences, Strengthening Forensic Science in the United States: A Path Forward (Washington, DC: National Academies Press, 2009), 107n81: “There is nothing to indicate that courts review bite mark evidence pursuant to Daubert’s standard of reliability.”
few had, if any: Erica Beecher-Monas, “Reality Bites: The Illusion of Science in Bite-Mark Evidence,” Cardozo Law Review 30 (2009): 1369; National Academies of Sciences, Strengthening Forensic Science, 107–108 (“Much forensic evidence—including, for example, bite marks and firearm and toolmark identifications—is introduced in criminal trials without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline”); 176 (“Although the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, and no large population studies have been conducted.… The committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others”); Report to the President—Forensic Science and Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Washington, DC: President’s Council of Advisors of Science and Technology, 2016), 87 (“Few empirical studies have been undertaken to study the ability of examiners to accurately identify the source of a bitemark. Among those studies that have been undertaken, the observed false positive rates were so high that the method is clearly scientifically unreliable at present”).
ran for coroner of Forrest County: Dr. Michael West, curriculum vitae, March 30, 2006.
She was told to “shut up.”: Dawn Young, “Inter Office Memo,” North Louisiana Regional Forensic Laboratory, Aug. 15, 1995 (relaying a phone call with Ward in which she says she was told to “shut up”); Emily Ward, interview by Radley Balko.
professional incompetence: Letter from Kris Sperry to Richard Zumwalt, Dec. 6, 1993; Emily Ward and Jim Ingram, interviews by Radley Balko.
“whether she [Ward] likes it or not.”: “County Looking for Place to Dump Its Garbage with Closing of Landfill,” Clarksdale (MS) Press Register, Oct. 6, 1993.
in his bid for reelection: “Re Elect Charles Scott,” Clarksdale (MS) Press Register, Aug. 7, 1995.
losing business to them: “Shop Around,” Town Talk (Monroe, LA), Oct. 12, 1993.
“a yes-man for the police.”: John Andrew Prime, “Monroe Area No Longer Uses Caddo Coroner,” Times (Shreveport, LA), Oct. 11, 1993.
just a letter to the editor: Letter from Dawn Young to Kris Sperry, Aug. 1, 1995.
didn’t retain the tissue: Letter from Steven Hayne to Joe Meng, May 16, 1994; letter from Dawn Young to John Hammons, Oct. 19, 1994; letter from Dawn Young to Steven Hanson, March 13, 1996.
died three months earlier: Letter from Hayne to Meng; letter from Young to Hammons; letter from Young to Hanson.
“failed to do so.”: Letter from Young to Hammons.
“unheard of in the field of pathology.”: Ibid.
interview for Reason magazine: Mississippi medical malpractice defense attorney, interview by Radley Balko.
“from a Steven Hayne autopsy.”: Ibid.
“and the medicolegal system.”: Letter from Kris Sperry to Dr. Richard Zumwalt, Dec. 6, 1993; letter from Kris Sperry to Ethics Committee of American Academy of Forensic Sciences, Dec. 6, 1993; letter from D. M. Lucas to Kris Sperry, Dec. 17, 1993.
“most obvious trespasses.”: Letter from Kris Sperry to Dawn Young, Jan. 9, 1995.
“to point out the difference.”: Vincent di Maio, interviews by Radley Balko.
“to review them.”: Letter from Young to Sperry.
“in a false light.”: “Complaint for Libel/Slander/Defamation, Tortious Interference with and Injury to Business and Contractual Relations, and Conspiracy,” Steven T. Hayne v. Dawn B. Young, George M. McCormick, and Forensic Pathologists, Inc., No. CV96–1837, July 31, 1996.
“action on a national scale”: Letter from Young to Sperry.
still inside and still intact: Transcript of hearing on exhumation, State of Louisiana v. Jimmie Duncan (Ouachita Parish, LA, March 18, 1994), 13. (Note: Hayne responded to the accusation in the same hearing by stating that he always removes the organs in an autopsy “unless I am specifically prescribed [sic] during the course of a private autopsy” not to), Ibid., 52.
that had nothing on them: Transcript of hearing on exhumation, Louisiana v. Jimmie C. Duncan, questioning of Cecil McCormick, March 1994, 13. (Note: When asked about the allegation, Hayne responded, “I was not aware of Dr. Harlan having a problem with slides. If he had requested slides, they would have been sent off. If I reviewed a case signing it out and described the tumor of the kidney, the tumor would be there.”)
the summons and complaint: Hayne v. Young et al., CV96-1837 (U.S. District Ct. Western Dist. of Louisiana, 1996); Notice of Intent to Dismiss for Failure to Prosecute Under LR 41.3W, CV96-1837, Sept. 22, 1997, Hayne v. Young et al.
December 18, 1993, 9:35 p.m.: Radley Balko, “Manufacturing Guilt,” Reason, Feb. 19, 2009, http://reason.com/archives/2009/02/19/manufacturing-guilt; Haley Oliveaux autopsy video, Dec. 18, 1993.
he found her
in the water: State Ex. Rel. Jimmie C. Duncan v. Burl Cain, Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary Hearing Case No. 94-F0042 (Ouachita Parish, Louisiana, District Ct. 2008), 13.
he was bad for Allison and Haley: State of Louisiana v. Jimmie C. Duncan; Kathy Kelly, interview by Radley Balko; Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 10–13.
turned to Steven Hayne and Michael West: Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 15.
Mississippi Mortuary Services in Pearl: State of Louisiana v. Jimmie C. Duncan.
witnessed the autopsy: Ibid.; Haley Oliveaux autopsy report, Dec. 19, 1993; Balko, “Manufacturing Guilt.”
before conducting exams: “Medical Examiner, Coroner and Forensic Pathologist Independence,” National Association of Medical Examiners Position Paper 3, no. 1 (2013), https://netforum.avectra.com/public/temp/ClientImages/NAME/00df032d-ccab-48f8-9415-5c27f173cda6.pdf.
come up with false positives: See Barbara O’Brien, “Prime Suspect: An Examination of Factors that Aggravate and Counteract Confirmation Bias in Criminal Investigations,” Psychology, Public Policy and the Law 15 (2009): 315; Michael J. Saks and D. Michael Risinger, “Baserates, the Presumption of Guilt, Admissibility Rulings, and Erroneous Convictions,” Michigan State Law Review (2003): 1051.
nearly all the parish’s autopsies: Transcript of hearing, State of Louisiana v. Jimmie C. Duncan, questioning of Ouachita Parish coroner Claude Smith, 28–29; questioning of Steven Hayne, 41. (Note: The questioning of Smith says the parish began contracting autopsies in 1992, but Hayne says in May 1994 that it was “six, eight months ago.” Given other documentation, Hayne’s estimate is likely the correct one here.)
He called in Michael West: Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 2.
with Jimmie Duncan’s teeth: Letter from Michael West to Charles Cook, Dec. 30, 1993.
“positive match” to Duncan: Ibid.
indicative of sexual abuse: Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 18; Haley Oliveaux autopsy report, Dec. 19, 1993.
copy of it in the prosecutor’s file: Kelly, interview; Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 23.
after the chest-of-drawers incident: Haley Oliveaux autopsy video, Dec. 18 and 19, 1993; Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 57–62.
captured on video: Haley Oliveaux autopsy video, Dec. 18 and 19.
viewing the video in 2009: Michael Bowers, interview by Radley Balko; Balko, “Manufacturing Guilt”; Haley Oliveaux autopsy video, Dec. 18.
“a damn lie.”: Jerry Mitchell, “Forensic Dentist Defends Work He’s Done in Autopsies,” Clarion-Ledger (Jackson, MS), Feb. 28, 2009.
affidavit for Jimmie Duncan’s defense: Michael Bowers, interview by Radley Balko.
after viewing the tape: Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 55–56, 107–108; letter from Dr. Michael West to Charles Cook, Dec. 30, 1993; Jerry Mitchell, “Video Raises Autopsy Questions,” Clarion-Ledger (Jackson, MS), Feb. 27, 2009.
they weren’t human bites: Mitchell, “Forensic Dentist Defends Work.”
bite mark analyst to replace him: State of Louisiana v. Jimmie C. Duncan; Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 26 (citing state’s brief acknowledging that West is “controversial” after prosecutors had replaced him with another expert).
injury was weeks old: Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 61, 106–109; trial transcript, State of Louisiana v. Jimmie C. Duncan, 375.
wasn’t a bite mark at all: Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 32–35; trial transcript, State of Louisiana v. Jimmie C. Duncan, 667.
turned out to be false: Radley Balko, “Meet Jay Via: One Bad Cop, in One County, Who Did a Whole Lot of Damage,” Washington Post, Dec. 11, 2015; Jimmie C. Duncan v. Burl Cain, Supplemental Petition.
“That guy is crazy.”: Bowers, interview.
“because of the death penalty.”: Mitchell, “Forensic Dentist Defends Work.”
including the anus: Kelly, interview; Jimmie C. Duncan v. Burl Cain, Supplemental Petition, xi.
inflicted near the time of death: Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 85–86.
never sent either: Ibid., 103–104.
the records had been destroyed: Kelly, interview; Radley Balko, “The Continuing Saga of Steven Hayne,” Reason, Dec. 6, 2010; Jimmie C. Duncan v. Burl Cain, Supplemental Petition, 286–287.
deaths in police custody: Ward, interview.
“often ignored in probes.”: Grace Simons, “Murder: Who Does Autopsy?” Clarion-Ledger (Jackson, MS), Aug. 20, 1994.
“the girl who brought you.”: Ibid.
she told them what she had found: Ibid.
Kitchens found this unacceptable: Letter from John T. Kitchens to Jim Ingram, March 15, 1994.
“the defendant’s advantages,”: Ibid.
office was prosecuting the case: Ibid.
Ingram a similar letter: Letter from Edward J. Peters, district attorney, to Jim Ingram, commissioner of public safety, March 15, 1994.
rebukes of the state’s public defender system: See Assembly Line Justice: Mississippi’s Indigent Defense Crisis, NAACP Legal Defense and Education Fund, 2003, www.sado.org/fees/2003-02-01-assembly_line_justice.pdf.
“law enforcement and prosecutors.”: Kelly M. Pyrek, Forensic Science Under Siege: The Challenges of Forensic Laboratories and the Medico-Legal Investigation System (Boston: Elsevier Academic, 2007), 193.
“no problem talking to the defense.”: Vincent Di Maio, Frontline, PBS, Feb. 1, 2011.
she deemed it was necessary: Letter from Charles S. Head to Jim Ingram, Commissioner of Public Safety, March 10, 1994.
“contributing to the obstruction of justice.”: Simmons, “Murder: Who Does Autopsy?”
“appointed by the state.”: Ibid.
“flimsy excuses”: “Medical Examiner,” Clarion-Ledger (Jackson, MS), Aug. 29, 1994.
“the practice must end.”: Ibid.
“with an empty top slot”: Ibid.
letters to the editor in support of Ward: “Medical Examiner Ought to Be Impartial, Help All,” Clarion-Ledger (Jackson, MS), Nov. 1, 1994.
“I don’t think that’s right.”: “Bradford Signs Protest Petition Criticizing SME,” Scott County (MS) Times,” March 29, 1995.
an affair with her: L. W. “Bump” Calloway, interview by David Fechheimer, Feb. 25, 2012.
“bull-dyke” whose do-gooderism: Former Mississippi sheriff, interview by Radley Balko.
taking orders from her: Ibid.; Calloway, interview.
but emboldened her critics: Jim Ingram, interview by Radley Balko; Ward, interview.
undermining the coroners’ authority: Coroner Petition, Jan. 27, 1995; letter from Dr. Michael West to “Fellow Coroners,” Jan. 27, 1995.
“how vindictive she can be.”: Coroner Petition; Letter from West to “Fellow Coroners.”
“we all must work and live in.”: Coroner Petition; Letter from West to “Fellow Coroners.”
at least publicly: Grace Simmons, “42 Coroners Say Examiner Is Failing Post,” Clarion-Ledger (Jackson, MS), March 24, 1995.
“this woman under control.”: Ibid.
Jimmy Roberts’s bottom line: Ibid.
“fifth-graders had written it”: Grace Simmons, “42 Coroners Say Examiner Is Failing Post,” Clarion-Ledger (Jackson, MS), March 24, 1995.
“competent, and willing to cooperate.”: Ibid.
“or been fired.”: Ibid.
“she is doing a good job.”: “Medical Examiner,” Clarion-Ledger (Jackson, MS), March 27, 1995.
Emily Ward resigned: Ibid.
“money off the system.”: Grace Simmons, “State Autopsy System Ailing, Former Medical Examiner Says,” Clarion-Ledger (Jackson, MS), June 25, 1995.
“a very incompetent individual.”: Emily Wagster, “State Medical Examiner Steps Down Under Fire,” Clarion-Ledger (Jackson, MS), June 21, 1995.
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CHAPTER 11: VESSELS OF WRATH, FITTED FOR DESTRUCTION
“sexually battered her.”: Transcript of record, State of Mississippi v. Kennedy Brewer, No. 94-16-CR1 (Lowndes Cnty. Circuit Ct. March 21, 1995) (hereinafter “Brewer trial transcript”), 371.
little girl went missing: Ibid., 31.
came from West: Ibid., 31–35.
they went to sleep: Ibid., 31.
“That is correct,”: Ibid., 31.
He said she had: Ibid., 31.
“No,” Jackson answered: Ibid., 427, 441.
charges against her were dismissed: Ibid., 444.
“that I killed.”: Ibid.
corroborate her claim: Ibid., 444–445.
accessory charge had been dropped: Ibid., 443–444; Gloria Jackson, interview by James Green, Oct. 7, 1993. In a 2017 email interview, Forrest Allgood wrote that though he doesn’t recall certain details of the case after twenty-plus years, he did maintain that Jackson never faced any charges. The fact that Jackson was jailed, and that she herself says in her police statement that she had been charged as an accessory to capital murder, suggests otherwise. In any case, Allgood maintains that “nothing was dropped for her testimony.”
under those circumstances: Brewer trial transcript, 491.
freshwater drowning: Ibid., 499–500, 505.
“they were bite wounds.”: Ibid., 507.
not from insect activity: Ibid., 508.
duties as a medical examiner: See Declaration of J.C. Upshaw Downs, M.D., Dec. 1, 2011, 14–15, Steven Hayne v. the Innocence Project, No. 3:09-CV-218-KS-LRA (S.D. Miss. 2011), 17.
inflicted after Jackson’s death: Ibid., 17 (“It was not reasonable for Dr. Hayne to conclude that the external findings could be premortem or even perimortem human bitemarks”); declaration of David Senn, Nov. 30, 2011, Hayne v. Innocence Project, 6 (“There were no indications from the photographic and videographic images of the skin lesions seen on the body of Christine Jackson that human biting was the cause of those lesions. As there were no lesions resembling human bitemarks, there was no medical, dental, or scientific reason for Dr. Hayne to call in Dr. West to collect bite or dental evidence in the Brewer case.”).
“result of an adult human bite mark.”: See Declaration of Michael M. Baden, M.D., Nov. 30, 2011, Hayne v. Innocence Project, 5.
