Killed on a Technicality

Mississippi Attorney General Jim Hood wants to execute a man based on discredited forensic testimony from a disgraced dentist.

In 1994 Eddie Lee Howard was convicted of raping and murdering 84-year-old Georgia Kemp. Kemp was found dead in her Columbus, Mississippi, home by firefighters after a neighbor noticed smoke coming from the house. Investigators determined the fire was set intentionally.

Kemp's body was taken to controversial Mississippi medical examiner Steven Hayne, who would later lose his lucrative niche as the state's go-to guy for autopsies after years of criticism for sloppy work that rarely failed to confirm prosecutors' suspicions. Hayne concluded that Kemp died of knife wounds and said he found signs of rape, although the rape kit taken from Kemp turned up no biological evidence that the technology available at the time could test for DNA.

Three days after Kemp was buried, District Attorney Forrest Allgood, the chief prosecutor for the four counties of Mississippi's 16th District, zeroed in on Howard, who at the time was unemployed and living with a relative down the street from Kemp's house, as the culprit. Once Howard was identified as a suspect, Hayne suddenly recalled seeing marks on Kemp's body that could have been made by human teeth (Hayne's original autopsy report makes no mention of the bite marks). So Kemp's body was exhumed and given to Hattiesburg, Mississippi, dentist Michael West, a self-proclaimed expert in bite mark analysis and frequent beneficiary of Hayne's referrals. West confirmed that the marks were indeed bite impressions and that some of them could only have been made by Howard's upper teeth—a puzzling claim, since Howard's upper teeth were a mass-manufactured denture. Howard was convicted and sentenced to death in 1994. The Mississippi Supreme Court later gave Howard a new trial, ruling he was unfit to represent himself at trial. He was again convicted and again sentenced to death in 2000.

West's bite mark testimony is the only physical evidence linking Howard to the crime scene. (The other evidence against Howard includes incriminating statements he allegedly made to a police officer that were not recorded or written down and testimony from an ex-girlfriend that Howard smelled of smoke the day after Kemp's murder.) At the time of Howard's conviction, West was a star forensic witness, claiming to have perfected a method of bite mark analysis no other forensic specialist could duplicate. But since Howard's conviction, West has become the poster boy for forensic fakery.

West, who once claimed he could trace the tooth marks in a half-eaten bologna sandwich at a crime scene to a defendant while excluding everyone else on the planet, has had to resign from two professional forensics organizations due to his habit of giving testimony unsupported by science. In 2001 (as I reported last year) a defense lawyer caught West in a sting aimed at revealing him as a charlatan: West matched the dental mold of a private investigator to unrelated photos of bite marks from a crime committed eight years earlier. West even sent back a video in which he methodically went through his technique. Despite all this, the Mississippi Supreme Court upheld Howard's conviction and death sentence in 2006. With respect to West, the majority concluded, "Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here."

Since then a wave of new revelations (described in more detail below) has confirmed that Steven Hayne and Michael West are not credible expert witnesses. Last month Howard and his attorneys at the Mississippi Innocence Project cited some of that evidence in asking the Mississippi Supreme Court for a new trial. In response, Mississippi Attorney General Jim Hood does not argue that Michael West is a credible expert or that his testimony in Howard's case had any scientific foundation. Instead Hood argues that because the Mississippi Supreme Court already has upheld West's testimony in the face of criticism, Howard is procedurally barred from again citing West's quackery in a bid for a new trial.

The argument may arguably be legally correct, but Hood is not obligated to make it. Hood, whose duty is not just to win cases but to pursue justice, should have the decency to review every case in which West has ever testified. Instead, in the face of growing evidence that the criminal justice system he presides over has been corrupted by unreliable expert witnesses, Hood is essentially arguing that Eddie Lee Howard should be sent to the death chamber on a technicality.

The new evidence against Hayne and West is compelling. In 2008 Kennedy Brewer and Levon Brooks were released from the Mississippi State Penitentiary in Parchman after serving nearly 30 years between them. Both were convicted of raping and murdering young girls near Columbus, Mississippi. In both cases, District Attorney Forrest Allgood, the same man who prosecuted Howard, took the girls' bodies to Hayne. In both cases, Hayne found marks on the bodies he declared to be human bite marks, a claim other forensic experts have since disputed. In both cases, Hayne called in West, who matched the bite marks to a dental mold taken from the man Allgood thought committed the crime. Brewer and Brooks were exonerated and released when DNA evidence showed a different man, Albert Johnson, committed both crimes.

Last year I reported on the Louisiana case of Jimmie Duncan, convicted in 1998 of murdering 2-year-old Haley Oliveaux. Once again Hayne and West found bite marks on the victim's body that other doctors didn't see and supposedly traced them to the prosecutor's chief suspect. In that case, there is a video of West repeatedly jamming a dental mold of Duncan's teeth into the little girl's corpse, an act that forensic specialists told me is at best medical malpractice and probably constitutes criminal evidence tampering. Duncan is still on death row.

West used his bite mark magic to condemn Brooks in 1990, Brewer in 1992, and Duncan in 1993. He matched bite marks to Howard in 1992.

There is no question that West's testimony was critical to Howard's conviction. Allgood's laudatory description of West during the second trial was so hyperbolic that it verged on parody, implying that the jurors' grandchildren would read about the daring dentist in textbooks. "Whether we like to think so or not," Allgood said, "the progress of mankind has been carried forward on the backs of people like Michael West. The church threatened to burn Copernicus because he dared to say that the planets didn't revolve around the earth. So it was with Michael West." This view of West is so grotesquely at odds with his real-life quackery that Allgood's confusion of Copernicus with Galileo seems trivial by comparison.

Howard's brief also cites a 2008 National Academy of Sciences (NAS) report questioning the quality of forensic science used in America's courtrooms. The report is especially critical of the bite mark analysis performed by specialists like West. The authors found no scientific support for the notion that someone can match bite marks left on skin to one person, certainly not to the exclusion of everyone else on Earth, a claim West frequently made in court. The NAS report, which was commissioned by Congress and reviewed by a panel of scientists, suggests that courts never should have accepted bite mark analysis as evidence and calls into question convictions based on such testimony.

Hood dismisses the NAS report, arguing that "the arguments against bite-mark evidence testimony found in the report are the very ones argued by the petitioner and those that have been argued in the courts for many years." In other words, the conclusions from a panel of respected scientists who confirm the arguments that West's critics have been making for years should be viewed as irrelevant, precisely because West's critics have been making those arguments for years, and Mississippi's courts have rejected them. That the critics were right and the courts were wrong does not matter. Sadly, Hood's argument has legal merit.

It gets worse. The state's brief goes on to claim that the NAS report "itself acknowledged that bite-mark testimony is reliable." To support that assertion, the brief cites this quote from the report: "Despite the inherent weaknesses involved in bite mark comparison, it is reasonable to assume that the process can sometimes reliably exclude suspects." Yes, one can envision a scenario where, for example, a very clear bite mark showing a full set of front teeth could exclude a suspect who has no front teeth. But in Howard's case, West claimed he could trace bite marks left in the victim's skin days earlier to Howard and only Howard. The NAS report clearly states that such a feat is impossible.

One other distinction is worth noting. The NAS report was critical of all bite mark evidence. But even among bite mark analysts, West is an outcast. That is, he is a disgrace even by the standards of a discredited field. Yet Hood is ready to execute a man based largely on West's testimony.

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  • :D||

    Bite me.

    That is all.

  • ||

    Steve and Mike. Bite marks and semen stains. I'll scratch your back if you scratch mine. What else do you need to know -- GUILTY!

  • ||

    I'll take a wild guess: Howard is black.

  • Clothes wear no emporer||

    I'll take a wild guess: Michael West is white.

    How does one become a "bite mark expert," anyway?

  • ||

    You need a desperate prosecutor willing to believe any kind of bullshit in order to prop up his conviction record.

  • ||

    "I'll take a wild guess: Michael West is white."

    I don't think one needs to be white to be an egregiously incompetent part of the judicial system, but it probably helps in the interview process.

    Whereas being black pretty much guarantees you are well and truly going to get fooked, regardless of the evidence or lack thereof.

  • Federal Dog||

    "Instead Hood argues that because the Mississippi Supreme Court already has upheld West's testimony in the face of criticism, Howard is procedurally barred from again citing West's quackery in a bid for a new trial."

    In which event, counsel misunderstands the nature and purpose of collateral attack.

    The state Supreme Court held: "Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here."

    The point of going back to trial court is to develop the factual record and show that "something more" to the higher court's satisfaction.

    That court did not know about newly-discovered facts relevant to assessing the witnesses' unreliability. The point of the motion and any evidentiary hearing is to get those facts in evidence.

  • thoreau||

    Keep doing great work, Radley. The world needs people like you.

  • MrGuy||

    What ever happened to prositute that had Al Gore's semen on her dress?

  • silent v||

    In a slightly more perfect world, Radley would be known as the greatest living journalist.

    In an even more perfect world, none of this shit would be happening and Radley would only be known for his rugged good looks.

  • ||

    In an even more perfect world, none of this shit would be happening and Radley would only be known for his rugged good looks.

    And his badass superhero name.

  • Wegie||

    District Attorneys and Attorney Generals are dangerous son of a bitches. They will do anything to obtain higher office and that includes convicting innocent people.

  • Fiscal Meth||

    Attorneys General and dangerous sons of bitches.

  • Dello||

    So what is it about the fucking freaks in Mississippi that they always bite the people they kill, thus leaving an obvious trail?

    Vampirism?

  • ||

    Hood, West, and Hayne are murderers, plain ans simple. I am against the death penalty, but for these guys I might be willing to make an exception

  • Cyto||

    The years and years of planning and hard work that goes in to making sure that these men are killed, even though they must at least strongly suspect that they may be innocent is truly staggering. Yeah, on the scales of cosmic justice Hood, West, and Hayne have earned themselves a death sentence.

    Let's just hope we can take that tool out of the government's toolkit before too long. Can we start calling them the "Mississippi Three?" All great criminal gangs need a nickname.

  • Cyto||

    Make that "Mississippi Four". I forgot to include Allgood.

  • Boss Tweed||

    In the end, the only good that may come from Hood, West, Hayne, and Allgood is to completely discredit bite-mark analysis and other pseudo sciences used by unscrupulous prosecutors to convict the innocent.

  • Rrabbit||

    Yes, they should be charged with murder. Plus a bunch of related crimes, such as obstruction, perverting the course of justice, perjury, and so on. Should be sufficient to lock them up a few hundred years.

    However, it is not just them. There also are, for example, those governors who simply reject all appeals without any case by case evaluation, because they want to be "tough on crime".

    In my book, that is murder as well.

  • ||

    If the voters would look at more than just "number of convictions" when electing Attorneys General, we wouldn't have this problem. The voting public, on average, are a bunch of authoritarian fuckwads.

  • TallDave||

    I'm against the death penalty, but those straps still gave me wood.

  • Rogue Medic||

    "Despite the inherent weaknesses involved in bite mark comparison, it is reasonable to assume that the process can sometimes reliably exclude suspects."

    That does not mean that bite mark evidence is even remotely capable of identifying any particular guilty person.

    This is similar to evidence in a case that someone is excluded because he weighs more than 250 pounds, but that does nothing to identify which of the people weighing less than 250 pounds is guilty of the crime.

    A four-year-old child could understand this report. Run out and find me a four-year-old child. These four Stooges can't make head or tail out of it. With apologies to Groucho Marx and to the Three Stooges.

  • IceTrey||

    What I find most disturbing is how many real killers are out there, maybe still killing, because of these guys (prosecutors included)?

  • ||

    But the local citizens FEEL safe.

  • ||

    Shhh. This will always be about sending a message. Your so-called "justice" is ephemeral at best.

  • Kaganspawn||

    For his stubborn and tireless pursuit of this story and his unwavering commitment to the cause of those wrongly accused, Mr. Balko is as laudable as West, Hayne and Allgood are despicable.

  • ||

    Regardless of the legal smokescreen that's been erected to protect prosecutors from anything they do, Hood is trying to murder an innocent person. If only the law applied equally to prosecutors there wouldn't be such outrageous behavior by prosecutors.

    Anybody remember the Iowa prosecutors argument to the USSC that "nobody" has a right NOT to be framed by the prosecution?

  • ||

    If there's something that disturbs me to the core of my soul it's supposed people on the side of law protecting the public going renegade and killing innocent people to enhance their image to an imperfect world.

    Evil fuckers.

  • Amakudari||

    And perhaps the worst thing is that I think they really, really believe they're doing God's work.

    If only there were a place where we could send those incorrigible souls who terrorize the general population.

  • Pam||

    there is, it's the 7th tier of hell.

  • ||

    This is the kind of thing that could drive even a law-and-order type like myself to revolt. If procedure demands that a probably-innocent person be punished (whether we're talking about life imprisonment or death), fuck procedure.

    It remains to be seen if the courts accept Hood's latest argument, though.

  • ||

    Personally, I would support a law punishing blatant prosecutorial abuse and evidence tampering or perjury in favor of the prosecution with the same punishment that the defendant was sentenced to.

    Forrest Allgood, Jim Hood, Michael West, and Stephen Hayne would make quite a death row lineup.

  • ||

    Another erason never to set foot in the US of A.

  • ||

    These are the things that give the death penalty a bad name.

  • Ptolemy||

    Let's focus on what's important in this article.

    Copernicus suggested that Earth (along with the rest of the planets) revolved around the sun decades before Galileo was around.

    Your reference to Galileo is so grotesquely at odds with history that the rest of your article seems trivial by comparison.

  • Careful Reader||

    Did you even read the next sentence? The Galileo reference was a quote and Mr. Balko immediately took the speaker to task for it. Think before you type.

  • ||

    The speaker made reference to Copernicus. The article's author brought up Galileo in an attempt to discredit the speaker. At no time was Galieleo relevant to the speaker's comments.

    Think, read, or perhaps even study history before you type.

  • ||

    You might want to check a history book. It was in fact Galileo, not Copernicus, who was tried and threatened by the Church. Mr. Balko, and the commenter "Careful Reader" were quite correct. Before lecturing others on the value of thinking or studying history, it might be worthwhile to follow that advice yourself.

  • ||

    You might want to reread the article. The speaker noted that the church threatened to burn Copernicus for his views. Although Copernicus was never threatened with burning by the church....neither was Galileo; he was merely sentenced to house arrest and told to make a public renunctiation of his views. If you believe otherwise, I seriously challenge you to find a credible reference that says otherwise.

    So, as I've stated previously, the author's mention of galileo is unnecesary because Galileo was irrelevant to the speaker's comments. The speaker making an incorrect statement about Compernicus has nothing to do with Galileo.

  • ||

    C'mon guys! He was guilty of SOMETHING.

    Soon, he'll be bumpin' uglies with his 72 virgins or some damn thang.

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