Forensics Fraud?

Experts say this video shows a doctor manufacturing evidence. So why is a man still on death row?

Radley Balko from the April 2009 issue

(Editor's Note: Reason is making several source documents from this story available for download, including trial testimony, an autopsy report, and expert affidavits. Download a PDF of the packet here. Packet is 230 pages, 21.6mb.)

The nude, lifeless body of 23-month-old Haley Oliveaux lies awkwardly across a metal autopsy table in a Mississippi morgue. A red block propped under the little girl’s shoulders elevates her chest, causing her head to tilt backward and her arms to spill off to the side. The toddler’s head hangs at an angle that causes her fine blonde hair to fall away from her face, exposing her right cheek, the right side of her forehead, and her hairline. There is light bruising around her ear and right eye, but there are no visible scrapes, cuts, or abrasions on the right side of her face. Most notably, the skin of her right cheek is smooth and unblemished. In a heavy drawl, Michael West, a dentist employed by prosecutors and coroners to conduct post-mortem examinations, announces the date and time: December 18, 1993, 9:35 p.m.

Oliveaux drowned in a bathtub that morning in West Monroe, Louisiana, while in the care of her mother’s boyfriend, Jimmie Duncan. Duncan said he was washing dishes at the time. In an unusual decision, her body was transported 120 miles east to Rankin County, Mississippi, for examination. Although the state of Louisiana had its own medical examiners, the district attorney and police chief of West Monroe wanted the autopsy to be performed by Steven Hayne, a controversial physician who was able to dominate Mississippi’s autopsy referrals, critics say, by drawing conclusions prosecutors wanted to hear. Duncan already faced charges of negligent homicide for leaving the girl alone in the tub. In Hayne’s initial examination he claimed to find bite marks that hospital doctors failed to notice. He then called for further analysis from West, his frequent collaborator.

West, a dentist from Hattiesburg, Mississippi, is a specialist in bite mark evidence. During the previous three years, he and Hayne had helped produce murder convictions in two strikingly similar cases, finding previously undetected bite marks on dead little girls and linking them back to the boyfriends of the girls’ mothers. No one knew at the time that the convicted killers—one of whom, Kennedy Brewer, lived on death row for 14 years—would be exonerated and freed in 2008 when DNA tests showed a third man was responsible for both deaths. Nor could many have known at the time that West and Hayne eventually would be discredited by their own professions, and barred from conducting new examinations in their home state.

But the Oliveaux case continues to have repercussions today because the research and testimony West and Hayne produced helped put yet another man on death row, where he remains to this day. West and Hayne would go on to testify in thousands more cases. The states where they testified most often—Louisiana, and particularly Mississippi—still haven’t fully acknowledged the extent of the damage the two men have done to their respective criminal justice systems. The decades-long legislative tilt in favor of prosecutors has made it all too easy for bad actors to do great harm.

West examined Oliveaux twice, on December 18 and 19, 1993. As was routine with Hayne and West, they shot video of the procedure. What’s not routine is that the video is seeing the light of day, after being obtained by reason. (You can view a portion of the video at reason.com/westvideo.)

For the first five minutes, West examines Oliveaux’s body, noting bruises, signs of livor mortis (the pooling of blood after death), abrasions, and contusions. During this time, West makes no mention of any scrapes or abrasions on Oliveaux’s cheek, nor are any apparent on the tape.

At 4:57, there’s a break in the video, marking the lapse between the two exams. At that point the camera returns to Oliveaux’s face. Strikingly, where just moments before the video showed no blemishes at all, there’s now a conspicuous bright red abrasion to the right of Oliveaux’s mouth.

West’s hand then enters the frame, holding a plaster dental mold taken earlier that day from Jimmie Duncan. Using the replica of Duncan’s teeth as a weapon, West repeatedly presses and jams the front bite plate directly into Oliveaux’s cheek. Over two minutes, he does this 17 times. At 6:57, he starts dragging Duncan’s mold across Oliveaux’s face, beginning near her lips, then scraping the plaster teeth down her face to her jaw. He does this for another minute. West next moves to Oliveaux’s elbow and uses the cast to impress Duncan’s dentition onto an old bruise hospital records show she suffered weeks before her death.

At the 9:32 mark, West asks someone in the room to turn out the lights. A fluorescent black light flicks on. West is now employing a much-ridiculed technique he invented for identifying bite marks, which he modestly calls the “West Phenomenon.” He claims that by using a black light and yellow goggles, he can find bite marks, knife serrations, and other tears and abrasions to the skin that no other expert can see. With the lights out, West continues to jam the plaster cast into the girl’s cheek, elbow, and arm. Over the course of the 24-minute video, West pushes the cast of Duncan’s teeth into the girl’s body at least 50 times.

‘He’s Tampering With the Evidence. It’s Criminal.’ “This is the best documentation I’ve ever seen of Dr. West’s junk bite-mark comparisons,” says Michael Bowers, a deputy medical examiner for Ventura County, California, after viewing the video. A past chairman of the American Board of Forensic Odontology’s Exam and Credentialing Committee, Bowers also worked with the Innocence Project to help free Kennedy Brewer.

How did abrasions that were not apparent on December 18 suddenly appear bright red the following day? “Dr. West created them,” Bowers says. “It was intentional. He’s creating artificial abrasions in that video, and he’s tampering with the evidence. It’s criminal, regardless of what excuse he may come up with about his methods.…You never jam a plaster cast into a possible bite mark like that. It distorts the evidence. You take a photograph, or if there are indentations, you take an impression. But you don’t jam plaster teeth into them.” After watching the video, Bowers offered to submit an affidavit for Jimmie Duncan’s defense.

David Averill, a former president of the American Board of Forensic Odontology, concurred. “The video is troubling,” Averill says. “I don’t know how you can explain where those marks come from. And there’s just no justification for him to push the cast into the skin like that. That isn’t an acceptable way to perform a bite mark analysis.”

San Diego forensic pathologist Harry Bonnell, who was hired by Duncan’s post-conviction attorneys last summer, also concludes that West broke the law. Bonnell formerly served on the ethics committee of the National Association of Medical Examiners; he has worked for the Armed Forces Institute of Pathology, and he now sits on the board of trustees for the advocacy group Parents of Murdered Children. He has previously described Hayne’s work on homicide cases as “pathetic,” “near-total speculation,” and “border[ing]…on criminal negligence.”

By email, Bonnell says: “If what I am seeing on the video is accurate, someone is using the mold of Duncan’s teeth to create an apparent bite mark; this, in my mind, is criminal tampering with evidence.” In his affidavit for Duncan’s defense, Bonnell writes, “The injury to the cheek of Haley Oliveaux is not seen in hospital photos…and was generated by using a mold of Duncan’s teeth to create a bite mark.” Of the alleged mark on Oliveaux’s elbow, Bonnell writes that it “does not appear to be acute or occurring at the time of death; it appears older…and is certainly not a bite mark.”

Comments

Taktix®|3.24.09 @ 12:02PM|#

The fact that people like Hayne and West continue operation under the assumtion that they're righteous makes me lose all faith in humanity.

Really.

Lefiti|3.24.09 @ 12:04PM|#

Privatize the justice system and the prisons, and you'll see some forensic fraud, but you won't be able to do a fucking thing about it.

Taktix®|3.24.09 @ 12:11PM|#

Lefiti,

Why didn't I think of that. A private legal system would be hell on Earth! Lol! I'd like stick your insight in a jar, take it home, and gobble it all up!

Jerry|3.24.09 @ 12:12PM|#

Have you ever tried to sue a civil servant Leftiti?

|3.24.09 @ 12:23PM|#

Privatize the justice system and the prisons, and you'll see some forensic fraud, but you won't be able to do a fucking thing about it.

Au contraire, leftrolli. Because its not privatized, opportunities for legal recourse are (very) limited. If it were privatized, then anyone committing forensic fraud would face ruinous damages.

|3.24.09 @ 12:52PM|#

I second that R C Dean.

The difference between the private sector versus the public sector is one relies on voluntary exchange, whereas the other relies on a monopoly of power.

|3.24.09 @ 1:08PM|#

Anyway....

Love the great work Radley, keep it up!

I haven't read the whole thing yet... is anybody prosecuting these con-men?

I liked the part about Hayne finding bite-marks others had missed... kind of like how Night Boat always finds a canal.

Xeones|3.24.09 @ 1:13PM|#

If you have a kid and you look at that picture it will snap your heart in two.

Lowdog|3.24.09 @ 1:14PM|#

Wow, those guys aren't just sick because they're making shit up and putting people away for nothing, but they like to deface dead corpses...that's also got to be some sort of crime.

Creepy.

|3.24.09 @ 1:18PM|#

[Fraud is the ready minister of injustice.]
Edmund Burke (1729 - 1797)

[If a man defrauds you one time, he is a rascal; if he does it twice, you are a fool.]
Author Unknown

[It is possible that the scrupulously honest man may not grow rich so fast as the unscrupulous and dishonest one; but success will be of a truer kind, earned without fraud or injustice. And even though a man should for a time be unsuccessful, still he must be honest; better to lose all and save character. For character is itself a fortune.]
Samuel Smiles

Salty Dogg|3.24.09 @ 1:20PM|#

Hallo thar Judi. Wanna struggle?

|3.24.09 @ 1:23PM|#

Au contraire, leftrolli. Because its not privatized, opportunities for legal recourse are (very) limited. If it were privatized, then anyone committing forensic fraud would face ruinous damages.

Assuming it were completely privatized, you might be right. If it were privatized, it would probably be like the Postal Service was privatized -- the worst of both worlds. I see privatization of the justice system as hugely unlikely to happen to any significant degree, so debating it is just an intellectual exercise.

Pillorying Hayne and West, and invalidating any convictions based on their testimony, is an achievable and realistic step in the right direction.

Thanks, Radley, for keeping the spotlight on these two frauds.

|3.24.09 @ 1:26PM|#

Xeones, I cannot bear to view the photographs. Picturing my little one in such a state would do murder to my peace.

What baffles me is that prosecution of (potentially) innocent people continues based on unsound and pseudoscientific principles, while the real perpetrator goes free, presumably.

Radley, I am a loyal supporter of your work and I try to spread information about your work to everyone I know, including my journalism students. Unfortunately, this story is one I cannot bring myself to use in the classroom. Thank you for doing what I never, ever could.

|3.24.09 @ 1:46PM|#

Off topic:

The ads in Reason stories are not in the space they are supposed to be in, instead they are lower and covering the text. could this just be my shit work server?

SxCx|3.24.09 @ 3:27PM|#

Radley's great. His prose is blunt, like the reality of what he's covering. And you can tell he's pissed, despite the composure.

|3.24.09 @ 3:45PM|#

Sounds like Radley is clearing out his old cases, too. I can't think of any reason why this "March Sweeps" article needed to be written, when you look at (a) Radley's other work on this same subject, with its same players and (b) the current state of affairs these two are in, except that maybe there is a book in the works?!?

Sure, it's quite the prurient tale, and it's hard not to get outraged at the fake baby-rape story and its injustices, but if I were to get all steamed up about this (again), it would compromise my ire which is being used to target CURRENT injustices.

Nice continuation of your previous Hayne/West oeuvre, Radley ... um ... what is your point, again, and how exactly is it relevant to anything that's going on, right now? You hinted at some connection in the article, but nothing was revealed except "another innocent guy is still in prison" which is hardly outrageous and barely interesting, given the enormous number of innocent people unrelated to Hayne/West forensics that are also still in prison.

I feel like I wandered into Star Online, or something. More dead baby pictures, please! I'm not quite disgusted enough!

perilisk|3.24.09 @ 4:28PM|#

"Sounds like Radley is clearing out his old cases, too. I can't think of any reason why this "March Sweeps" article needed to be written, when you look at (a) Radley's other work on this same subject, with its same players and (b) the current state of affairs these two are in, except that maybe there is a book in the works?!?"

There's a difference between being self-deluding full of shit about the interpretation of evidence and wholesale manufacturing evidence. If anyone was ever put to death because of this guy, I hope the feds step in and make sure that he, and the prosecutors and judges that abetted him, receive the appropriate punishment for conspiracy to commit murder.

|3.24.09 @ 5:05PM|#

Yeah ... I hope so, too.

Is that why this article is being published now? To stir the swell of outrage that will get Hayne/West put on death row? Then why not make that point in the article? This is my issue with it: There's nothing new except for the dead baby pics, and that's not journalism ... that's incitement, hence the "March Sweeps" designation and speculation about a forthcoming Balko book on this subject.

Radley Balko|3.24.09 @ 5:23PM|#

James Butler: This story introduces video evidence of West manufacturing evidence in a murder case. West went on to testify in hundreds of other cases. Many of those people are still in prison. If you can't see the news value there, I can't help you.

If your beef is that this is the second version of this story to run on the website, that's because we edited one version including the video just for the web, and we edited a second version to run as the cover story in our April issue. This is the cover story, which we're also posting online, just as we do with every other cover story.

And there are no "dead baby" pictures included in this story, other than arm you see above, which is the cover illustration from our April issue. Again, we always run the cover illustration when we post the cover story online.

You're also incorrect: There is plenty of new information in the cover story that wasn't in the online version.

|3.24.09 @ 5:27PM|#

"not journalism...that's incitement"?? What are you saying, James Butler? That this article is overkill because Radley has already published articles on other injustices previously proven to have been committed by Hayne and West? That more evidence of faulty forensics by these two fakers is not worth reporting? I, for one, think it is imperative that whatever evidence is unearthed with regard to faulty testimony, autopsies, bite marks, etc. by Hayne and West must continue to be reported ad nauseum UNTIL SOMETHING IS DONE to stop the carnage produced by these two men and until all their "victims" have had an independent review of their respective cases.

|3.24.09 @ 5:49PM|#

"Off topic:"

My browser at work does that sometimes... it's an old version of IE. I can get the ads off the text by scrolling down and reloading the page. Or, the better solution, has been to get use a different browser (I use Chrome, which is quicker than anything else but a little short on functionality).

|3.24.09 @ 7:16PM|#

To James:
Go back to Patterico's forum where you belong. You have NO power here!

To salty dogg:

WTF?

To Radley: Hell yeah!

|3.24.09 @ 7:29PM|#

LOL James, dear James...

By the way, if your ASS was sitting on DEATH ROW or in prison period...and YOU were even POSSIBLY INNOCENT, you'd be singing a whole different tune baby.

You'd better hope a 'RADLEY BALKO' would be on the on THIS side of the FENCE raisin' hell, 'inciting' (as you put it) or turning cartwheels on Time's Square to get JUSTICE for YOU!

Why must I always be the VOICE of REASON? (No pun intended Radley...lol)

|3.24.09 @ 7:59PM|#

"""If it were privatized, then anyone committing forensic fraud would face ruinous damages."""

That would happen once, then government would pass a law allowing some sort of immunity to prevent the companies from being sued into oblivion.

|3.24.09 @ 8:04PM|#

Folks ... This is the second story about these two guys, with references to their actions in at least a couple of other stories/threads on this site. See the link in the article for, what, over 50 related articles on reason.com?

Radley, what is it you hope to accomplish with this dead baby story? Do you want us to cry with you? Done. Do you want us to become increasingly revolted by the actions and weird perspective of Hayne/West? Done.

You spent the a large bit of this article painfully describing the baby's condition at various points in her short life. Why? (For pictures of the dead baby that I referred to use the link to the video you provided, Radley.)

It all strikes me as "new book a-comin'" and/or sweeps week type writing. Sure, the reporting began with journalism but you have drifted off into Sun/Star/TMZ land.

Lorraine - Something HAS been done, and things related to this criminal activity are STILL being done. Read the article to learn about just a couple of those things. That's part of my beef ... what is it that Radley thinks WE should be doing, besides reading his fine writing and weeping ... AGAIN?

Lori - Ouch. Now pay attention.

|3.24.09 @ 8:45PM|#

No, sorry, not nearly enough has been done about Hayne and West. Hayne is still testifying all the time as as expert in Mississippi courts, lying and embellishing and swooning jurors who think a so-called expert has a corner on the truth market. Hayne is also still performing autopsies for the state of Louisiana which is a horror in itself. The point is people like Hayne and West should be exposed whenever, and that means each and every time, their work is suspect which in my opinion is now in every single case on which they've ever worked. Maybe if James was actually working on a case that involved a Haynes autopsy and his client was in prison he couldn't help but be incited? I know it's hard to believe, but I did actually read the article, and I never once forgot where I was and thought I was at TMZ.

|3.24.09 @ 9:07PM|#

So you noted that Hayne/West are not now going about their everyday nastiness, Lorraine? That things have changed over the past several months? James IS incited about this and has been for a couple of years, now. James sent Radley a note when the story about Hayne getting yanked broke, last August, because James' media alert system that is tuned to changes in this story signaled something NEW. Woohoo. Radley probably got many of those on that day, because he has written extensively and well on these horrors and helped many of us become aware of this particular pair of assholes. But do we need more lurid details to come down on one side or the other of the Hayne/West issue? No, we do not. James is literally made sick by it.

James' question stands. Why this, and why now? Just because there is a new hardcore video?

(Oh, yeah ... power to the Internet and its instant reclassification of a well-intentioned video posting. I hope nobody still loves that little girl because that film is bound to become a classic among the unbefinglievably depraved set. Now James is getting all queasy, again. Oh, look, a TMZ van ...)

|3.30.09 @ 4:30PM|#

James Butler- not everyone (including me) has read about the Hayne/West duo before.

What is wrong with you?

|3.30.09 @ 7:20PM|#

It disgusts me to see that video placed online for no better reason than to generate some sort of response from Reason's readers. There was no need for it, as long as the appropriate people in the legal system know of it and have access to it. The article by itself would have been plenty for Reason readers to absorb and comment on, adding to the collection. Posting the video is irresponsible and astoundingly immoral at best.

|3.31.09 @ 3:55PM|#

These two disgusting criminals profit by regularly depriving people (many if not most of whom are entirely innocent of crimes that are even similar to the ones they're accused of) of their freedom under blatantly false pretenses. They've gotten lots of benefit, lots of money and more power, by lying to take away the freedom of hundreds people who have a right to their freedom. That makes them sort of like slave traders.

And while these two are outside of jail and any of their victims still inside, any and all light that's shined on their crimes is a good thing. I just don't know how any reasonable person can think Balko is grandstanding at all here. This piece here by itself has just justified the small donation that I made to Reason. There will be a little more justice in the world because of his work.

|3.31.09 @ 4:40PM|#

I'm a fan of Radley's work, and his many exposés on Hayne/West are, indeed, valuable.

Tell me why the video needed to be posted online?

Tell me how any of us would feel if our baby daughter's autopsy video was posted online?

It doesn't matter that the video illustrates criminal behavior by Hayne/West. It would be enough to make the video available to any law enforcement agencies who give a crap, and even better to deliver it into the hands of persons who could act on what it contains.

It's like posting a rape video because people could point their fingers and say, "Those are the guys who did it!"

Or posting a snuff film that identified the killers.

Even TMZ wouldn't have posted that video. It's a disgrace that Reason chose to do so.