"Indeed, and Without a Doubt"

How a Mississippi dentist may be sending innocent people to jail.

Radley Balko | August 2, 2007

(Page 2 of 2)

Despite all of this, Mississippi's State Supreme Court affirmed Kennedy Brewer's conviction in 1997 in an opinion that validated Dr. Michael West and his status as a bite mark expert, even while acknowledging his one-year suspension from the American Board of Forensic Odontologists (still in effect at the time of the Brewer trial), and that his testimony was thrown out in the bologna sandwich case.

Nevertheless, the court found, Dr. West still possessed the "knowledge, skill, experience, training and education necessary to qualify as an expert in forensic odontology."

In 2002, Kennedy Brewer's lawyers were able to get the state to conduct DNA tests on the semen found inside Christine Jackson's body. At the time of his original trial, the semen sample was too small for DNA testing, and Brewer's lawyers had to fight to keep it from being destroyed. More advanced technology enabled the smaller samples to be tested, and in 2002, Mississippi's crime lab found the semen actually belonged to two separate men. But neither of them was Kennedy Brewer. Brewer's attorneys are now looking into a similar murder of another little girl at about the same time and in the same area that Christine Jackson was killed.

Based on this new evidence, Kennedy Brewer was awarded a new trial. But prosecutors still refuse to exonerate him or release him from prison. Instead, they're going to try him again. And they're going to use Dr. West again. West has said in interviews that he stands by his analysis, and that his bite mark expertise indicates Kennedy Brewer was still involved in Christine Jackson's death, even if his semen wasn't a match with that found at the crime scene (when reached at his private dental practice, West said he was "not interested" in an interview for this article).

There are other problems with Dr. West's examination of Jackson, including a video never shown to the original jury that the trial court judge noted showed West and his assistants acting "rather callous" during the examination, blaring "inappropriate" music during the procedure, and "carrying on conversations" unrelated to the examination.

The Kennedy Brewer case and Dr. Michael West are symptomatic of a larger flaw in our adversarial criminal justice system—the use of expert testimony to explain complicated scientific evidence. A charlatan like Dr. West, who has little respect from his peers, can with charisma, personality, and impressive-sounding credentials convince a jury to take his word over that of an expert far more careful and deliberate in his analysis. In some cases, indigent defendants can't afford to hire their own experts at all, leaving a state's expert like West as the only testimony on the available forensic evidence.

Forensic scandals have been troublingly common of late, with phony experts, fake results, and incompetent testing recently uncovered in Virginia, Maryland, Kansas, Illinois, and Texas, to name just a few. Courts need to take a more active role in weeding out the Michael Wests of the world before they ever take the witness stand.

But professional organizations also need to be more vigilant about policing their own. Dr. West's peers should more vocally have questioned his methods long before he was permitted to testify more than 70 times in courts across the country. One would think they'd step up their standards to protect the integrity and reputation of their profession. But these continuing scandals suggest another, more urgent reason: to prevent bad science from sending innocent people to prison.

Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.

Comments

|8.2.07 @ 8:49AM|#

The jury found Dr. West more credible. And that's big problem.

little typo there.

|8.2.07 @ 8:52AM|#

You mean CSI and Law and Order aren't true?

|8.2.07 @ 8:58AM|#

Has it never occurred to this prosecutor that if they convict the wrong guy, which is what it looks like in this case, they automatically let the ACTUAL KILLERS go? At least two men, neither of them being the defendant raped this little girl, but we're, uh, not going to look for them? If I lived in that county I'd be recruiting somebody to run against this DA in a heartbeat.

|8.2.07 @ 8:58AM|#

Six of 10 wrongly traced the bite mark back to an innocent person.

...

Conveniently, he claims his unique method can't be photographed or reproduced, which he says makes his opinions unimpeachable by other experts.

A 60% error rate for the profession, but he's infallible.

The DNA evidence doesn't back him up.

That isn't science, it's religion.

|8.2.07 @ 8:59AM|#

. Damn tags. I need the Urkobold's book.

|8.2.07 @ 9:10AM|#

Science doesn't matter.It's all about cpnvictions.Breath machines used in Dui cases have a 20% error margine either way yet they are considered absolute in court.How many times have we seen DA's fight DNA tests just to save a conviction?

|8.2.07 @ 9:16AM|#

The DA doesn't want to appear soft on people who've been falsely imprisoned.

|8.2.07 @ 9:30AM|#

Sounds like there are a lot of really lousy defense attorneys out there.

Episiarch|8.2.07 @ 9:34AM|#

That isn't science, it's religion.

Actually, it's ego.

What kind of animal must you be to completely make up (this is what I assume he is doing with the techniques that no one else can see) "evidence" that can sentence someone to death?

|8.2.07 @ 9:41AM|#

Dan T.,mant of these people do not have the resources to challenge the charges.Many have a public defender who generally plea bargines.In DUI many states do not allow challanges to a BAC machine.Prosecutors are more and more politicians moving up on the bodies of others.

jimmydageek|8.2.07 @ 9:42AM|#

Karen | August 2, 2007, 8:59am | #

. Damn tags. I need the Urkobold's book.

Have you heard? It's now part of Oprah's Book Club.

|8.2.07 @ 9:44AM|#

Dan T.,mant of these people do not have the resources to challenge the charges.Many have a public defender who generally plea bargines.In DUI many states do not allow challanges to a BAC machine.Prosecutors are more and more politicians moving up on the bodies of others.

I agree totally, but what can you say? The whole point of our criminal justice system sometimes seems to be to put poor people in jail.

I sometimes wonder if plea bargins should not be allowed at all.

Jane|8.2.07 @ 9:52AM|#

Does it matter? Sometimes when a serious crime is committed, the public demands that someone be punished. If the real person cannot be found someone else must be punished. The purpose of the justice system is not justice, it is to get convictions. Justice is server by having an expensive defense lawyer.

stuartl|8.2.07 @ 10:00AM|#

...are symptomatic of a larger flaw in our adversarial criminal justice system...

Just curious, but is Mr. Balko recommending a French style inquisitorial system, using an investigating magistrate or judge?

Radley Balko|8.2.07 @ 10:06AM|#

No. Just that public defenders be given the means to hire their own experts, and that courts, professional organizations, and oversight agencies do more to weed out frauds.

|8.2.07 @ 10:07AM|#

Justice is server...

Aah, Jane is the Borg. That splains it.

|8.2.07 @ 10:10AM|#

Conveniently, he claims his unique method can't be photographed or reproduced, which he says makes his opinions unimpeachable by other experts.

I would argue that any evidence which is "unimpeachable" should be per se inadmissible. Actually, now that I think about it, I don't see how "unimpeachable" evidence could survive a challenge under either Daubert or Frye, the two main cases under which scientific evidence is scrutinized in the United States. Generally speaking, scientific evidence would either have to be accepted within the scientific community or demonstrably reliable through repeatable testing. I fail to see how "unimpeachable" evidence--developed by one rogue "scientist"--can meet either standard.

So I guess this is a long comment to say I agree with Dan T. ("Sounds like there are a lot of really lousy defense attorneys out there.")

|8.2.07 @ 10:10AM|#

Whoa...did Radley really just advocate that public defenders (lawyers paid with money stolen from us at gunpoint to defend those who don't work hard enough to afford their own) need even more money?

|8.2.07 @ 10:11AM|#

I think the Mr. Balko is showing we are moving in the French direction.In many cases people must prove themselves not guilty.The Duke boys for example.It is so expensive even, in minor matters to defend yourself many plead just to end the torment.How do you defend against witnesses such as this dentist?The state gives him crediblity just by putting him on the stand.

|8.2.07 @ 10:20AM|#

Why don't we pick experts like we pick juries? There's a pool of registered experts we can select from, maintained by some oversight group, and when the case turns on a matter of technical expertise the two sides get together and agree on who should be chosen.

There are huge problems with this, of course, but they by and large are different problems than the current system has.

edna|8.2.07 @ 10:27AM|#

So I guess this is a long comment to say I agree with Dan T. ("Sounds like there are a lot of really lousy defense attorneys out there.")

or lousy judges. i've been involved in cases (as expert witness, not attorney!) where the judge in essence says, this court has already accepted that xxx is scientifically valid, the defense may not pursue that argument or produce its own experts to dispute this. i would guess that this is the case in those ms courts.

|8.2.07 @ 10:34AM|#

edna,that happens all the time in DUI cases.

|8.2.07 @ 10:46AM|#

or lousy judges. i've been involved in cases (as expert witness, not attorney!) where the judge in essence says, this court has already accepted that xxx is scientifically valid, the defense may not pursue that argument or produce its own experts to dispute this. i would guess that this is the case in those ms courts.

I would think that to some degree the court has to do that.

Marv Albert|8.2.07 @ 11:18AM|#

His testimony comes from way downtown!

tomWright|8.2.07 @ 11:19AM|#

Witch doctors are next, channeling tree spirits as witnesses.

Hey, can you dis-prove it?

No?

Then it is true and unimpeachable.

edna|8.2.07 @ 12:27PM|#

jb, there is the use of (i think they're called) "special masters," but the judge has to decide to use them and the judge gets to pick them. if the judge is that too-common combination of scientifically ignorant and ignorant of his ignorance, bad shit happens.

Colonel_Angus|8.2.07 @ 12:29PM|#

This guy is like Joseph Smith. Sees things no one else can see. Dumb dumb dumb dumb dumb.

And why the hell are coroners elected?

|8.2.07 @ 12:47PM|#

keep em coming Radley

|8.2.07 @ 1:08PM|#

Rednecks!!!! why do they insist on staying 50 years behind the rest of the civilized world

|8.2.07 @ 1:49PM|#

Last year, a friend of mine who does car accident reconstruction was hired to do a case in Detroit, Michigan, but the other side hired their own forensic investigator first. So his first step was to review the other guy's report and then make his own.

He found more than 30 errors, not just in the math and science departments, but simple things like measurements of the vehicles and the road itself. It turns out that this "expert" had 0 certification (and a degree in electrical engineering) and had been doing this for 20 years. Not only did his testimony win the case, but his report was also sent to all the major law firms in that area that handle car accidents as a "don't hire this guy or we will tear him to pieces."

But integrity doesn't mean shit sometimes - he was pulled aside a couple of months ago by his Ohio-based accident reconstruction firm and basically told that he needed to be more "helpful" to the people who hired him, because two of his reports basically found for the other side with his evidence. He was pretty much reprimanded for telling the truth. Don't let the facts get in the way of a good case.

brian|8.2.07 @ 3:00PM|#

Dan T.
I agree totally, but what can you say? The whole point of our criminal justice system sometimes seems to be to put poor people in jail.

I sometimes wonder if plea bargins should not be allowed at all.

I disagree, and here's why:

Let's say we had no plea bargains. In this case, the DA would have to give a speedy trial to every person accused of a crime. In order to do this, one of two things would have to happen: 1) the budget and staffing of the DA's office would have to be extraordinarily high to cover all of those cases at once, or 2) the DA's office would divide its smaller budget and staff among many different cases.

Since 1) is undesireable, due to its expense, let's assume 2) happens. If 2) happens, the conviction rate would drop as the DA's office cannot devote its full efforts to every trial. This means that criminals would have a much smaller chance of being convicted if caught in a crime. This gives potential criminals less reason to obey the law.

Now suppose we introduce plea bargains. Instead of prosecuting many cases, the DA can offer pleas to defendants, reducing the number of cases it has to try. Then, the DA's office can focus all of its efforts on its relatively few trials, increasing the conviction rate. Now, potential criminals realize that they are much more likely to face punishment if they break the law because they will either get a plea or get a trial with a higher probability of being found guilty.

So really, plea bargains actually deter potential criminals from breaking the law (and save taxpayer money).

brian|8.2.07 @ 3:05PM|#

On plae bargains: note this is exactly what the RIAA has done with its lawsuit letters. It sent out hundreds(thousands?) of pre-settlement letters saying "pay us several thousand dollars or we'll take it to court and sue you for hundreds of thousands of dollars."

If everyone collectively decided to go to court, the RIAA would have a tough time winning any suits. If only a few go to court, the RIAA would easily win with expensive lawyers. But most people don't want to take the risk of being the only one to go to trial and therefore lose a ton of money. Since they realize that others are likely to settle, they realize that their chances of winning in court are small, so they settle too.

brian|8.2.07 @ 3:06PM|#

Edit: In my previous post's last sentence, "they" refers to those being sued by the RIAA.

Danny|8.2.07 @ 3:23PM|#

Has anybody seen the movie "Mystery Men"? The Invisible Boy reminds me of this "specialist". The only time he could become invisible was if nobody was looking. The irony was that it worked in the movie--why not here?

I'm not religious, but I'd say hell is already here when such unjustices happen in our "Justice" System.

|8.2.07 @ 5:54PM|#

Re: Plea bargains

While I see the point you're trying to make, Brian, I disagree that it is the proper way to go about things. With plea bargaining in place, DA's use the shotgun effect when prosecuting people. They just trump up ridiculous charges and hope that fear of horrific jailtime or death will prevent the suspects from using their legal right to a trial by their peers. This goes against my ideas of justice. If the DA can't prove in a court of law that the suspect is guilty than he should be set free.

As you pointed out, if the DA had to go to trial in every case then they would soon run out of money. With no money, they'd have to reconsider trying people for such ridiculous crimes as drugs and prostitution. The problem isn't that the DA doesn't have enough money, it's that it has too much.

|8.2.07 @ 8:19PM|#

That's Forrest County, from a local. Please get it right.

Raytubebot bleepbot|8.3.07 @ 12:33PM|#

As a former resident of the remote state of Dixie, The Free State of Jones, and the town of Hattiesburg, I am very pleased to see some light thrown on this guy. I can tell you from my personal experience sitting next to him at the End Zone bar, that he is well known for his bullshit, and proud of it. Of course, if you look a just down the street, you will find that there has been a long history of 'good ole boy' corruption throughout the legal and police systems there. That's common in the South, but for some reason, this guy is a gilded gem that will never be prosecuted for anything. I personally think he has some 'dirt' on someone.

|8.7.07 @ 2:49PM|#

Let's see now. DNA analysis shows the semen of two men, neither of whom is the Defendant, inside the body of a murdered three-year-old girl. The State nevertheless insists on retrying the Defendant.

Will the prosecutor argue the unindicted co-ejaculator theory to the jury?