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 3 of 4)

Despite West’s disintegrating reputation and the fact that the bite mark evidence was derived from his work, Louisiana Fourth Judicial District Judge Charles Joiner ruled in 1995 that the video contained “no exculpatory evidence favorable to the defendant”—a finding hotly disputed by all the forensic specialists consulted for this article—and that therefore prosecutors didn’t need to hand it over. The state maintained at first that “the defense is somehow hoping to drag Dr. West into this case in order to create ancillary issues for the jury,” but by 1996 prosecutors relented and gave defense attorneys the video. But Duncan’s attorneys never showed the video to their own dental examiner. This point would become crucial, since the bite marks were the only physical evidence used to elevate Duncan from a negligent guardian to a lethal child rapist.

According to Duncan’s post-conviction attorneys, no witness accounts taken before West’s examination of Oliveaux mention any sort of marks on her cheek. Hospital photos taken shortly after her death also show no marks. (They do, somewhat confusingly, show her intubation tube held in place by a piece of red tape attached to her cheek—but no abrasions.) Statements from hospital doctors, social workers, police officers, and Duncan’s next-door neighbors taken before December 19—i.e., before Hayne and West declared that they had found bite marks—also make no mention of any cheek wounds. According to Duncan’s current attorneys, many of these early statements were never turned over to his trial attorneys.

It is only in interviews and police statements taken after West’s examination of Haley Oliveaux that witnesses began to remember seeing “red marks” on her cheek, raising the possibility that these memories were suggested, intentionally or otherwise, by prosecutors or police investigators.

In early interviews with police and social workers, for example, neighbor Floyd Bennett made no mention of any marks or abrasions on Oliveaux’s face, despite performing CPR on the child. At Duncan’s trial five years later, however, Bennett recalled seeing red marks on the girl’s cheek. Initial statements taken from an investigator with the Ouachita Parish Coroner’s Office, a state social worker, and hospital doctors document several of Haley Oliveaux’s injuries, but none mentions the marks West claims to have found on her cheek. According to a brief prepared by Duncan’s current attorneys, one police officer specifically testified at a preliminary hearing that he saw no marks on Oliveaux’s face, then changed his testimony five years later at Duncan’s trial.

Perhaps more damning, in a December 18 letter to the Ouachita Parish Coroner’s Office recording his initial observations, West himself made no mention of the cheek abrasions. It wasn’t until the entry stamped the next day that he brought them up. Bonnell elaborated on this discrepancy in his affidavit for Duncan’s defense. “The injuries on the child’s face are abrasions, which form almost immediately,” he wrote. “Therefore the fact that the marks are not present in the hospital photographs and in the beginning of the West Video makes it medically impossible that Jimmie Duncan could have inflicted [them].…Abrasions cannot appear, then disappear, and then reappear at the morgue.”

The bite marks were the only physical evidence directly suggesting that Duncan abused Oliveaux. Duncan agreed to provide urine and blood samples for a rape kit, but doctors found no biological evidence from Duncan inside the girl. Searches of Duncan’s clothes also turned up no evidence of physical or sexual abuse. No blood, no hair, no tissue.

The most disturbing of the injuries found on Haley Oliveaux the night she died were some lacerations to the outside of her rectum. Those, together with the bite marks, undoubtedly weighed heavily on the jury. As the prosecution showed blown-up photos of Oliveaux’s lacerated rectum, Hayne testified that the injuries were “consistent with” penetration by a penis, though he couldn’t rule out penetration by another object. Another state witness, Edward Gustavson, a pediatrician with no forensic pathology certification, stated more definitively that the lacerations could only have been caused by a penis, along with the trauma from an assailant’s pelvis grinding against Oliveaux.

Bonnell says both are wrong. “Dr. Gustavson’s explanation…is ludicrous, and probably based on fantasy, definitely not scientific or medical fact,” he writes. Bonnell adds that penetration from a penis or similar-sized object would have resulted in significant anal tearing and perforation, neither of which were found. Duncan’s attorneys speculate that the injuries were caused by a hard stool, an explanation Bonnell finds plausible.

Bonnell says he can’t conclusively rule out that the injuries were caused by sexual abuse. The problem, he says, is that it would be impossible for him to reach a definitive conclusion about what caused the rectal injuries without examining the microscopic slides of the anal tissue. Those slides, made by Hayne, are now nowhere to be found.

In response to a 2008 court order to produce the slides, Hayne first said he didn’t have them, because he had sent them to the Mississippi State Crime Lab in Jackson. But the crime lab told Duncan’s lawyers it has never possessed the evidence. Even if Hayne somehow managed to lose the slides (an egregious mistake, given their importance), he should have a written record of what they showed. According to Duncan’s post-conviction attorneys, Hayne hasn’t produced any of that documentation either.

Duncan had no prior allegations or charges of sexual abuse. On the first day of the trial in 1998, Duncan’s attorneys learned through outside sources that a convicted sex offender lived in Duncan’s neighborhood and was suspected of molesting a child who lived next door. So even if Oliveaux’s anal injuries were caused by sexual abuse, the only piece of physical evidence linking Duncan specifically to an assault on the girl is the bite marks. Which, according to every outside forensic expert who has viewed the video, were created by Michael West.

‘I Was to Say That Jimmie Had Confessed to Biting the Child’

The other major piece of evidence against Duncan was testimony from a jailhouse informant who claimed that Duncan confessed to his crime while behind bars. Michael Cruse testified that he shared a jail cell with Duncan for one day in late December 1993. (Cruse also claimed another inmate in the same cell confessed a felony to him, according to the letter he wrote to prosecutors.) Duncan’s current attorneys have since obtained an affidavit from Michael Lucas, another inmate in the cell that day, who says that not only did Duncan not confess, he repeatedly asserted his innocence, despite Cruse’s constant attempts to elicit a confession.

Since then, two other inmates have reported being asked by Ouachita Parish law enforcement officials to lie about hearing Duncan confess. One of them, Charles Parker, who had worked as an informant for the FBI, wrote a letter of complaint to the district attorney’s office about the incident. In a later interview with Duncan’s post-conviction attorneys, he described how an investigator named Jay Via approached him and fed him information about Duncan’s case. “He gave me details of the crime, saying that the child was less than two years [old] and that she had been anally raped,” Parker said “He told me that when I came forward I was to say that Jimmie had confessed to biting the child while he was raping her.”

Parker said that in exchange for his testimony, Via promised “he would talk to the DA and would get my sentence reduced.” Parker said he refused, because he thought Duncan was being railroaded. Via then allegedly threatened him with repercussions.

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.