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 4 of 4)

The prosecution not only never followed up on Parker’s initial letter, they never turned it over to Duncan’s trial attorneys—yet another violation of their legal requirement to share exculpatory evidence. The letter wasn’t discovered until last year, when Duncan’s post-conviction attorneys found it in the district attorney’s case file.

Police notes taken during an interview with the informant Cruse say that he asked for “ammunity [sic] from pros.” Cruse’s own letter offering to testify also mentioned his desire for leniency with respect to a burglary charge he was facing. Neither of those documents were turned over to Duncan’s trial attorneys either. By the time of Duncan’s trial, Cruse was facing a new charge of theft. That charge was dropped a month after he testified.

Inspector Via has a history of eliciting false confessions. In 1983 a man named Barry Beach was arrested in Ouachita Parish for contributing to the delinquency of a minor. After three days of intense questioning, he confessed to Via that he had killed three women in Louisiana and one in Montana. Beach’s lawyers were later able to prove Beach couldn’t have committed the three murders in Louisiana, because wasn’t even in the state at the time. Beach still stands convicted of the fourth murder, which took place in Montana, though there are mounting questions about that one too.

Incredibly, Via then managed to elicit two more false confessions to one of those same murders.
Months after the Beach confession, Via got convicted felons Henry Lee Lucas and Ottis Toole to confess to one of the murders Beach didn’t commit. Just last year, a fourth man named Anthony Wilson was arrested for that murder after DNA tests linked him to the crime scene.

‘Just Because Dr. West Has Been Wrong a Lot…’

It is impossible to say with certainty whether or not Jimmie Duncan murdered Haley Oliveaux. He was alone with the girl when she died, and at a minimum he behaved negligently, even recklessly. There were no witnesses. It isn’t a matter of who killed Oliveaux; it’s a matter of whether she was killed at all, or if her death was an accident. There will never be a DNA test either to confirm Duncan’s conviction or clear his name, because there simply isn’t any DNA evidence to test.

What is clear is that Duncan didn’t get anything approaching a fair trial. He was convicted based on physical evidence tampered with and allegedly manufactured by Michael West plus hearsay evidence possibly fabricated by a motivated jailhouse informant. Exculpatory evidence was withheld from or bungled by the defense. Duncan’s case is teeming with egregious prosecutorial and police abuses and bad science. At the very least, he deserves a new trial and a cell far away from death row.

As for West and Hayne: Their caseloads may have been cut, but their damage is ongoing. West continued to testify in Mississippi courtrooms until at least 2000. In 2001 a defense lawyer decided to test West by sending him a cast of an accomplice’s teeth along with photographs of alleged bite marks from a homicide case that had already been solved. Sure enough, West sent back a videotaped report confidently claiming the completely unrelated dental mold and bite mark photos were a match. Even after all of this, the Mississippi Supreme Court continued to uphold West’s testimony in murder cases. In a 2003 opinion the court said, “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.” As late as 2007, prosecutors were still relying primarily on West’s testimony to keep Kennedy Brewer in prison, even though by that point DNA evidence had excluded Brewer as the rapist. (West and the prosecutor insisted Brewer must have bitten the victim while someone else raped her.) Despite the exonerations of Brewer and fellow falsely convicted Hayne/ West case Levon Brooks, Mississippi officials still refuse to conduct a thorough review of all the trials at which West has testified. The New York chapter of the Innocence Project is reviewing hundreds of such cases.

Despite years of complaints from authorities including the Mississippi state medical examiner, Hayne managed to fly mostly under the radar until the 2007 reason article and the 2008 DNA-based exonerations. After those cases, the Innocence Project mounted an aggressive public campaign against Hayne, culminating with a complaint to the Mississippi State Board of Medical Licensure seeking to revoke Hayne’s medical license. Although that complaint was rejected, Mississippi finally stopped using Hayne to perform criminal autopsies in August 2008. Still, the state agreed to allow the disgraced examiner to complete a backlog of some 600 open cases and to continue testifying in Mississippi courts if required. As with West, state officials said they had no plans to reopen or investigate any of the thousands of cases in which Hayne has testified.

The criminal justice system is not and cannot be perfect. The fact that bad evidence or fraudulent experts sometimes slip through the cracks isn’t an indication that our courts are broken. But when public officials are made aware of such problems and do nothing about them, it raises more profound questions about justice and integrity. In Steven Hayne and Michael West, the legal system has two prolific “expert” witnesses who have testified in thousands of cases, despite troubling and persistent questions about their credibility. The two are now implicated in creating and endorsing manufactured evidence in a capital murder case. How seriously officials in Louisiana and Mississippi take these allegations will go a long way toward showing whether there are more fundamental flaws in either or both states’ commitment to justice and fairness.

Radley Balko ([e-mail]) is a senior editor at reason.

Editor's Note: Click here to read trials documents, an autopsy report, and other materials. Click here to watch a portion of the video. 

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.