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

(Page 2 of 4)

Richard Souviron, a bite mark examiner in Miami and a founding member of the American Board of Forensic Odontology, testified for Duncan’s defense at trial. Inexplicably, Duncan’s trial attorneys, who had access to the video, never showed it to him. After viewing the video last year, Souviron filed a new affidavit that describes “Dr. West, violently and repeatedly, forcing a mold of Jimmie Duncan’s teeth into Ms. Oliveaux’s right cheek.” In doing so, Souviron continues, “Dr. West creates a mark that was not previously present. Dr. West’s behavior and methods are absolutely not supported by any scientific standards or protocol.” Souviron adds that the abrasions could not have been created by Jimmie Duncan but rather “were created by the flagrant misconduct of Dr. Michael West.”

Yet the video was never shown at trial. And the allegedly manufactured bite marks proved to be a critical piece of evidence in Duncan’s 1998 conviction on charges of rape and murder. He has been on death row for 10 years, awaiting lethal injection, in part because of evidence that several prominent forensic specialists say was fabricated.

‘The Manifestations of a Bite Mark’

Haley Oliveaux did not have a happy young life. Her mother was divorced. Her father was in prison. In November 1993, she was twice taken to the hospital after suffering seizures. On November 29, she was again admitted to the hospital, this time after allegedly pulling a chest of drawers down on top of herself while climbing to reach for a piggy bank. She suffered multiple skull fractures in the incident and, notably, some bruising on her left elbow. An investigation by the West Monroe Police Department and Ouachita Parish Child Protective Services found no evidence of abuse and no reason to doubt the piggy bank story.

Three weeks later, on December 18, Allison Oliveaux, Haley’s mother, went to work at 8:45 a.m., leaving her daughter in Duncan’s care. According to Duncan, he gave Haley a bath later that morning and left her in the bathtub while he washed some dishes. Around 10:30 a.m., Duncan said, he returned to the bathroom to find her motionless in the tub. Duncan said he rushed Haley to the house next door. Neighbor Floyd Bennett tried to administer CPR while his son called 911. The ambulance crew described Duncan as hysterical and weeping. Haley was taken to the hospital and pronounced dead shortly thereafter. After admitting to the police that he’d left Haley alone in the tub, Duncan was arrested and charged with negligent homicide. Ouachita Parish law enforcement officials then contracted the autopsy to Hayne.

For the better part of two decades, Steven Hayne and Michael West have served as expert forensic witnesses for the state of Mississippi and occasionally in Louisiana. Both have come under intense scrutiny for questionable professional practices and dubious testimony—West off and on for 15 years, Hayne mostly in the last two. reason published an investigative article about Hayne in November 2007, describing his impossible workload (by his own account, he conducts 1,200 to 1,800 autopsies per year), his relationship with West, and his reputation as a rubber stamp for prosecutors and plaintiffs’ attorneys.

Hayne isn’t even board certified in forensic pathology. He took the American Board of Pathology’s certification exam in the 1980s, failed it, and never attempted to take it again. In August 2008, after two convicts who had been rung up based on Hayne’s testimony were exonerated and new questions about his testimony in other cases began to surface, Mississippi officials finally removed Hayne from the state’s list of medical examiners approved to perform criminal autopsies, mostly (though, as we’ll see, not totally) ending his career. (For a complete list of reason’s Hayne-related articles, go to reason.com/hayne.)

By 2008 West, too, had been largely discredited. His colleagues ridiculed the “West Phenomenon” and his bizarre claims defending the method. West once bragged he could positively trace a half-eaten bologna sandwich found at a crime scene back to the defendant. He compared his proficiency with Itzhak Perlman’s, his error rate with Jesus Christ’s. As early as 1994, an ethics committee of the American Academy of Forensic Sciences unanimously recommended that West be expelled from the organization. West resigned instead. His work was later criticized in national publications such as Newsweek, the ABA Journal, and National Law Journal.

According to trial testimony, Haley Oliveaux was one of Hayne’s first autopsies for Ouachita Parish. Among those who traveled the 120 miles to observe his work were the West Monroe police chief, a police detective and captain, and two assistant district attorneys. Although it isn’t particularly uncommon for prosecutors or police to witness an autopsy, it is unusual for them to travel two hours and cross state lines to do so. The practice of a forensics expert speaking with police and prosecutors before conducting an autopsy is strongly discouraged by professional organizations such as the National Association of Medical Examiners, because it can bias the examiner’s conclusions. At Duncan’s trial five years later, one of his attorneys likened the Oliveaux autopsy to a job tryout. If that was the case, Hayne apparently passed. By 1998 the bulk of Ouachita Parish’s criminal autopsies, 30 to 40 a year, were outsourced to Hayne.

After his preliminary autopsy the evening of December 18, 1993, Hayne claimed to have found “the manifestations of a bite mark.” He notified Ouachita Parish authorities, who then obtained a warrant to make a mold of Duncan’s teeth. Later that night, West conducted the preliminary examination seen in the first five minutes of the video. The next day, armed with the cast of Duncan’s teeth, West worked over the dead girl’s corpse.

Because the videotape was never admitted into evidence, it isn’t clear who besides West was in the room when it was made. Hayne testified that he helped West take photographs of the bite marks, which suggests he might have been present, but there’s no way of knowing which if any of the two days’ of footage was observed by the busy medical examiner. What is clear, is that Hayne testified under oath to finding bite marks.

After the autopsy and examination by Hayne and West, the Ouachita Parish District Attorney’s Office raised Duncan’s charge to capital murder. Citing the alleged bite marks, among other evidence, prosecutors accused Duncan of raping Haley in the bathtub, forcing her head underwater, biting her, and drowning her.

‘Abrasions Cannot Appear, Then Disappear, and Then Reappear’

West himself never testified at Duncan’s trial. It was during the years between his examination of Oliveaux in 1993 and Duncan’s trial in 1998 that the dentist’s methods started coming under fire. By 1998 Duncan’s prosecutors recognized the baggage West carried and dropped him from the case. Instead, the prosecution turned to another forensic odontologist, Lowell Levine, who turned them down. Later, Levine explained in a deposition that he refused the job because he had been involved in a prior “problem case” with West (one that led to another conviction followed by an exoneration) and he didn’t “really need to get involved in this again.”

The prosecution then turned to Neal Riesner, a dental examiner from Scarsdale, New York. Relying on the photographs West took after the examination recorded in the video, Riesner testified that the marks on Oliveaux’s cheek were indeed bite marks, and that “to a reasonable degree of medical certainty,” he could determine that they were Duncan’s. He also testified that the marks on the ear and elbow were “consistent” with Duncan’s dentition.

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.