Reason Magazine - Staff > Radley Balko

I, Toaster

rbalko@reason.com (Radley Balko) — Wed, 24 Jun 2009 15:00:00 EDT

(*Note: Artist Thomas Thwaites responds to this article here.)

This week, a new exhibit called "The Toaster Project" opens at the Royal College of Art in London, England. On his website, artist Thomas Thwaites explains the gist: "I'm trying to build a toaster, from scratch—beginning by mining the raw materials and ending with a product that Argos sells for only £3.99." So Thwaites has been traveling around the world to acquire iron, nickel, copper, and oil from which he planned to make refined petroleum for the appliance's plastic moldings.

Thwaites was inspired by a passage from Douglas Adams' book Mostly Harmless, in which the protagonist attempts to win over the inhabitants of another planet by wowing them with the advanced technology of Earth. But, as Adams writes in the passage quoted on Thwaites' website, "Left to his own devices he couldn’t build a toaster. He could just about make a sandwich and that was it."

The basic theme of Thwaites' Toaster Project, however, was first conceived back in 1958 in the brilliant essay "I, Pencil," written by Leonard Read, founder of the libertarian think tank Foundation for Economic Education. Read's influential essay meticulously runs through the processes required to create something as simple as an Eberhard Faber pencil, including the harvesting and processing of cedar, the mining of graphite, and the mining, processing, and application of the many minerals and chemicals that make up the pencil's eraser, ferrule (the bit of metal that holds the eraser in place), lacquer, ink, and the black nickel rings that fasten the ferrule to the pencil's wooden rod. Read also included those things that power the processing and refining plants, as well as the automobiles that transport the pencil ingredients to those factories (which are themselves made up of thousands of parts made up of millions of ingredients, also mined, processed, and assembled all over the world).

Read's conclusion, written in the first-person voice of the pencil:

I, Pencil, am a complex combination of miracles: a tree, zinc, copper, graphite, and so on. But to these miracles which manifest themselves in Nature an even more extraordinary miracle has been added: the configuration of creative human energies—millions of tiny know-hows configurating naturally and spontaneously in response to human necessity and desire and in the absence of any human master-minding!

In other words, the division of labor is what makes pencils—and, for that matter, all of the conveniences of modern life—possible. Millions of people are involved in the manufacture of a single pencil, or in Thwaites' case, a single toaster. No single human being could possibly possess the know-how to make one on his own.

Thwaites may well end up making some approximation of a modern toaster, but he'll come nowhere near his stated goal of having made one on his own. He notes on his website, for example, that he used a microwave (which of course he didn't create from scratch) to smelt the iron ore he found into steel. He used modern transportation to collect his various raw ingredients. And he fed and nourished himself through the whole process with food produced by modern agriculture and industry. No single man can make a pencil, and as Thwaites' project will demonstrate, no single man is capable of making a toaster, either.

Read's larger point was that no single person involved in the making of a pencil is in his respective business because he necessarily wants or needs a pencil. From the miners to the factory workers to the truck drivers to the smelters to the architects of the factories to the executives that run the companies that fund and organize each step of the process, each and every participant is in the game for his own self interest—to make a living, and to make a contribution that's really only a tiny part of the end result of a product, even one as insignificant as the humble pencil. Pan back until you've framed the entire world economy, and it's hard not to marvel at the wonder and miracle of capitalism's invisible hand.

But as you might have guessed, the miracle of modern capitalism is lost on Thwaites and the eco-arts websites celebrating his experiment. He sees his project as a condemnation of trade, technology, and mutually beneficial exchange, not a celebration of it (note: after the publication of this article, Thwaites objected to this characterization of his position). Thwaites writes:

The point at which it stopped being possible for us to make the things that surround us is long past...This faintly ridiculous quest to make a toaster from the 'ground up' serves as a vehicle through which questions about economics, helplessness and life as a consumer can be investigated.

It's a peculiar kind of "helplessness" that enables us to benefit from the shared labor of millions of workers and the collected knowledge of millions of people accumulated over hundreds of years by merely traveling to the nearest Wal-Mart or appliance store, or, better yet, by merely clicking the mouse on a computer a few times and having the toaster (or, for that matter, groceries, or clothing, or medicine) brought directly to our homes.

And where Read expressed awe at the way so many people worked together—motivated only by self-interest—to produce not only pencils, but millions of other products that make our lives better, Thwaites oddly sees waste:

Commercial extraction and processing of the necessary materials happens on a scale that is difficult to resolve into the humble toaster. This contrast in scale is a bit absurd—massive industrial activity devoted to making objects which enable us, the consumer, to toast bread more efficiently. However, this ridiculousness dissipates somewhat when you consider that life pre-toasters required stoking the fire when a piece of toast was desired.

Of course, the "commercial extraction and processing of the necessary materials" makes a hell of a lot more than toasters, so Thwaites' suggestion that all of this energy is simply expended on toasting bread is absurd. Minerals and metals are extracted and processed to form millions of products. As for "pre-toaster" lives, most people who lived in the age before the toaster could expect to die by about age 40 (the toaster was invented in 1893, when life expectancy in the U.S. was about 43 years).

We don't live longer today because of toasters, of course, but the advances in technology, the division of labor, and the specialized knowledge that brought us the modern toaster have also given us the advances in food preparation and storage, medical technology, and other modern marvels that are the reason we live longer, healthier, and more fulfilling lives.

Read's essay and Thwaites' experiment (the latter unintentionally) also have lessons for the current economic crisis, one explicit and one implicit.

The implicit lesson is that the accumulated knowledge it takes to make both a pencil and a toaster has been aggregating for hundreds of years through the process of trial and error. No one person woke up one morning with the knowledge of how to smelt iron ore into steel. Every successful idea is built on dozens or hundreds or thousands of failures, successes, and improvements. Capitalism and the benefits we derive from it thrive on failure. When we stop letting companies fail, we smother both innovation and the free market's rewards system.

The explicit lesson is the futility of central planning. The surest sign a Soviet-era communist country had a government office of food distrubtion was the presence of food lines—again, no one person or even group of people staffing a government agency can possibly possess all of the knowledge required to move a food item from raw materials to the packaged goods in your cabinet. If there isn't a single person on the planet who can make a pencil or toaster without the aid of millions of others motivated by their own self-interest, it seems ludicrous to think, for example, that we can save the entire U.S. economy if only we can find the right all-knowing experts to use the power of government to "more properly" allocate resources.

All of which is to say that Thwaites' frustrations at making a toaster from scratch don't illustrate the "helplessness" capitalism has created in consumers, it illustrates the way free markets have liberated us. Instead of the day-to-day struggle to stay nourished or to collect wood to fuel the fire that cooks our food so it's safe to eat, developed economies have food that is plentiful, safe, and mostly delicious. That has freed us from substistence struggles to pursue other intersests, such as culture and the arts—even, inevitably, art projects that mock and denigrate the very economic processes that made art possible in the first place.

Radley Balko is a Reason senior editor.

The Top 10 Most Absurd Time Covers of The Past 40 Years

rbalko@reason.com (Radley Balko) info@reason.com (Jeff Winkler) — Wed, 10 Jun 2009 15:15:00 EDT

From William Randolph Hearst's ginned up hysterical stories about marijuana to the "10-cent plague" comic book scare of the 1950s to The New York Times warning of "cocaine-crazed Negroes" raping white women across the Southern countryside, the media has always whipped up anxiety and increased readership via thinly sourced exposes of the next great threat to the American way of life.

And since the British sociologist Stanley Cohen defined the moral panic phenomenon in the early 1970s as hysterical overreactions to imagined threats to social order, no publication has done a better (by which we mean worse) job of scaring the crap out of post-baby boomer America than Time, the top-selling newsweekly that's dropping subscribers like the mythical meth mouth drops teeth. (Hot tip to Time: If you're looking for a cutting-edge panic to get those ad rates up again, we hear people have been freaking out about "sexting" lately.)

As a service to future historians of the long, slow death of the newsweekly, Reason offers this Top 10 list of the most horrifying, silly, irresponsible, or downright ridiculous Time cover panics from the past 40 years.

10. June 19, 1972: The Occult Revival

Why So Worried? Time warns that bizarre occult rituals involving black-draped altars, flashes of fire, and "goat-shaped images superimposed on purple pentagram[s]" are "being re-enacted all across the U.S. nowadays." The article describes "sex clubs that embellish their orgies with Satanist rituals," takes note of the Satanic followers of Charles Manson, and recounts two anecdotal news stories about a grave robbery and an alleged stabbing inspired by Lucifer.

Cue Ominous Music: "There is a danger...in taking the Devil too lightly, for in doing so man might take evil too lightly as well. Recent history has shown terrifyingly enough that the demonic lies barely beneath the surface, ready to catch men unawares with new and more horrible manifestations."

Oh, Just Settle Down: Time's warning that devil worship was sweeping the country was short on supporting evidence. While exact figures are difficult to come by, most estimates put America's satanist population in the range of 10,000-20,000 people. The 1980s saw an explosion not of Wiccans and sorcerers, but of evangelical Protestants. But that only fueled the fear of Mephistopheles, as the decade saw America overcome by scares over the role-playing game Dungeons & Dragons, Satanic messages inscribed backward on heavy metal albums, and the persistent urban legend about the satanist origins of Procter & Gamble's corporate logo. In the early 1980s, a "Satanic ritual abuse" (SRA) panic swept America and Europe, during which Christian fundamentalists and repressed memory psychiatrists claimed Satanist cults were subjecting children to animal sacrifice, scatology, sexual abuse, and murder. Dozens of questionable prosecutions followed, including the infamous 1984 McMartin preschool molestation trials, in which seven people were charged with 321 counts of child abuse based only on questionable memories psychiatrists claimed to have recovered from children who attended the school. Subsequent studies showed the SRA phenomenon to be without merit.

9. April 5, 1976: The Porno Plague

Why So Worried? Porn, Time says, is sweeping the country, leaving our deflowered Puritan sensibilities in its wake. "The First Amendment may safeguard the rights of pornographers and their audience," the magazine posits, "but surely the majority of Americans who find porn objectionable have rights as well. Must they and their children be under constant assault by the hucksters of porn?"

Cue Ominous Music: The article quotes U.C.L.A. psychiatrist Robert J. Stoller, author of Perversion: The Erotic Form of Hatred, who warns that porn "'disperses rage' that might tear society apart, but also threatens society by serving as propaganda for the unleashing of sexual hostility."

Oh, Just Settle Down: Time was right about the increase in production and availability of pornography in the 1970s, it was just wrong about the effects. Two years after this cover appeared, the number of reported rapes in the U.S. began a 30-year free-fall, a period over which pornography became increasingly easier to obtain. Today, porn is more abundant and ubiquitous than ever, while incidence of rape in the U.S. is at its lowest rate since the government started keeping statistics.

8. August 6, 1984: The Population Curse

Why So Worried? Using an upcoming U.N. conference in Mexico City as its hook, Time engages in some Paul Ehrlich-style doom-mongering about overpopulation.

Cue Ominous Music: "The consequences of a failure to bring the world's population growth under control are frightening. They could include widespread hunger and joblessness, accompanied by environmental devastation and cancerous urban growth. Politically, the outcome could be heightened global instability, violence and authoritarianism."

Oh, Just Settle Down: Since Time's 1984 cover story, the world's population has increased from 4.75 billion to 6.78 billion people. This year, the World Bank's Poverty Analysis reported, "Living standards have risen dramatically over the last decades. The proportion of the developing world's population living in extreme economic poverty...has fallen from 52 percent in 1981 to 26 percent in 2005.... Infant mortality rates in low- and middle-income countries have fallen from 87 per 1,000 live births in 1980 to 54 in 2006. Life expectancy in [low and middle-income] countries has risen from 60 to 66 between 1980 and 2006." According to the peace advocacy group Ploughshares, the number of armed conflicts across the globe has generally been in decline since the mid-1990s (PDF). As for "authoritarianism," with the fall of the Soviet empire, a far greater percentage of the global population lived under such regimes in 1984 than do today. Even the massive population in China is freer (if not actually "free") than it was in 1984.

7. September 15, 1986: Drugs: The Enemy Within

Why So Worried? This Time cover story simultaneously fans the flames of drug war hysteria while acknowledging it may not be all it's...er...cracked up to be. The article admits that a vanishingly small number of people actually die of cocaine overdoses (just 563 in 1983, out of tens of millions of users), yet still refers to the drug as a "taker of lives." After suggesting that the country might be overreacting to drug use and acknowledging the drug war causes far more problems than it helps, the article concludes, "If Americans are willing to say clearly—to their workmates and schoolmates, to their neighbors and friends, to their communities and to themselves—that drug use is not acceptable...then even all the hype and excess may in retrospect be worthwhile." No, Time, it wasn't.

Cue Ominous Music: "To a nation that espouses self-reliance, drug dependence has emerged as the dark side of the American character, the price of freedom to fail. It is as if America, so vain and self-consciously fit, has looked upon itself and suddenly seen the hideously consumptive portrait of Dorian Gray. The country, it seems, is awash with drugs. Fine white powder pours past the border patrol like sand through a sieve. On busy street corners and in urban parks, pushers murmur, 'Crack it up, crack it up,' like some kind of evil incantation, bewitching susceptible kids and threatening society's sense of order and security."

Oh, Just Settle down: Overall use of illicit drugs has largely remained constant over the years, though individual drugs go in and out of vogue. Crack in particular was singled out in the late '80s; Time called it "the most virulent" form of drug abuse, while one expert quoted in a similar Newsweek article called it "the most addictive drug known to man." As Reason's Jacob Sullum explains in his book Saying Yes, studies show that the vast majority of crack users never went on to become addicts. One 1994 survey, for example, showed that 93 percent of respondents who had admitted to trying crack weren't using the allegedly instantaneously addictive drug as much as once a month when the survey was taken. Nobel Laureate economist Milton Friedman even theorzied in the Wall Street Journal that it's actually the prohibition of cocaine that gave us drugs like crack, likening the intoxicant to the bathtub gin that soaked the black market during alcohol prohibition.

More to the point, drug scare stories like this one—and Time has run a number of them over the years (see, for example, this one about Ecstasy, also mostly overblown)—have contributed to mass public panics that gave us the nation's odious drug laws, which while producing mass collateral damage, have had little effect on the actual drug supply.

6. May 7, 1990: Dirty Words

Why So Worried? Citing gangsta rap and heavy metal lyrics, raunchy comedians, and radio shock jocks, Time worries that American pop culture has grown too vulgar. The "new crude," Time frets, is different from the old crude of people like Lenny Bruce, because the new crude has no redeeming social message. "Today's sex talk...is almost exclusively from the male-pig viewpoint," the magazine scolds, and it features ample helpings of racism, homophobia, and other bigotry.

Cue Ominous Music: Time quotes a woman who says that after sitting through a comedy routine by Andrew "Dice" Clay, "she felt like a Jew at the 1934 Nuremberg rally."

Oh, Just Settle Down: The Time story offered no actual data that America was getting cruder, much less that it's anything to worry about. Andrew "Dice" Clay, the article's main bogeyman, was last seen getting tossed from Donald Trump's reality show for D-list celebrities. That doesn't mean American society has gone PG. But it's hard to argue that pop culture's comfort with bad language is anything to fret about. Since the Time article ran in 1990, nearly every measurable social indicator has been moving in the right direction, from youth crime to sex crime to teen pregnancy. America has largely grown more tolerant, too, even as ethnic, sexist, and homophobic jokes are widely available on iTunes, the Internet, and basic cable, most notably via Comedy Central's airing of Friars Club roasts. Time would return to the "vulgar culture" theme in 1999, with the cover story, "Are Movies and Music Killing America's Soul?" (Conclusion: Maybe!)

5. May 13, 1991: Crack Kids

Why So Worried? The children of women who took crack cocaine during their pregnancies, Time worries, have become a "biologic underclass," a generation marred by physical deformities and mental deficiencies that are "sure to put enormous strain on an educational system that is already overburdened and underachieving."

Cue Ominous Music: "Their plight inspires both pity and fear. Pity that they are the innocent victims of society's ills. Pity that the odds will be stacked against them, at home, on the playground and in school. Fear that they will grow into an unmanageable multitude of disturbed and disruptive youth. Fear that they will be a lost generation."

Oh, Just Settle Down: The crack kids myth has been extensively debunked, most recently in the January 2009 New York Times article "Crack Babies: The Epidemic That Wasn't." The Times quoted researchers who've been following the so-called crack generation of kids, and they're finding the effects to be minor and subtle, and virtually indistinguishable from other problems that kids of crack mothers might experience, such as unstable families and poor parenting. Persistent scare stories from Time and other media outlets (including The New York Times itself) made "crack babies" a nationwide moral panic, inspiring a racially fueled push for stricter drug laws. As the Times article explains, the crack baby myth itself may now be doing harm to otherwise normal kids: "[C]ocaine-exposed children are often teased or stigmatized if others are aware of their exposure. If they develop physical symptoms or behavioral problems, doctors or teachers are sometimes too quick to blame the drug exposure and miss the real cause, like illness or abuse."

4. July 3, 1995: Cyberporn: On a Screen Near You

Why So Worried? Time hangs its entire scare on a single study, “Marketing Pornography on the Information Superhighway.” That study found cyberporn was omnipresent on the Internet and led Time to produce one of its most (unintentionally) hilarious covers ever. Time even followed up four years later with the almost-as-ominous cover "Growing Up Online," which included this bed-wetting warning: "At any moment, the same kids listening to...'Baby One More Time' are just a few keystrokes away from Pandora's hard drive—from the appalling filth, unspeakable hatred and frightening prescriptions for homicidal mayhem" that plague the Internet.

Cue Ominous Music: "Perhaps because hard-core sex pictures are so widely available elsewhere, the adult BBS market seems to be driven largely by a demand for images that can't be found in the average magazine rack: pedophilia (nude photos of children), hebephilia (youths) and what the researchers call paraphilia—a grab bag of "deviant" material that includes images of bondage, sadomasochism, urination, defecation, and sex acts with a barnyard full of animals."

Oh, Just Settle Down: The “principal researcher” for the study that inspired Time's cover was actually an undergraduate, and experts began picking the study apart the moment the issue hit newsstands. Three weeks after the wee, wide-eyed web surfer cover, Time backpedalled–on page 57—explaining that real experts say “a more telling statistic is that pornographic files represent less than one-half of 1 percent of all messages posted on the Internet” and that, “it is impossible to count the number of times those files are downloaded; the network measures only how many people are presented with the opportunity to download, not how many actually do.”

In 2009, a study commissioned by 49 state attorneys general found that the scaremongering in Time's "your child and the Internet" stories and dozens like them over the years was way overblown. The creepy-but-wired pedophile who substitutes Internet chat rooms for the van and a puppy is largely a myth. Moreover, most kids who download pornography online, the study notes, aren't innocently typing otherwise-innocuous phrases into search engines. Rather they are usually older male youths actively seeking the stuff out. Nor does giving out personal information online seem to make kids any more susceptible to predation.

3. Nov 22, 1999: Pokemon!

Why So Worried? Documenting the Pokemon “controversy,” or Pokemania, this Time cover story breathlessly warns that children are printing counterfeit cards, cheating friends and classmates, and even stabbing one another over Pokemon trading disputes. Time doesn’t dwell too long on any substantive data (there isn't any) that might show what sort of sustained violence and mayhem would make Pokemon an “addiction" (Time's word). Instead, it quickly cuts to what the authors see as the real dark heart of the Pokemon phenomenon: crass capitalism! Time works up a lather over the over-saturation of cuddly consumerism, calling Pokemon a “pestilential Ponzi scheme—complete with a fold-out graphic explaining why."

Cue Ominous Music: “But there is a problem: the key principle of the Pokeocracy is acquisitiveness. The more Pokemon you have, the greater power you possess (the slogan is GOTTA CATCH 'EM ALL). And never underestimate a child's ability to master the Pokearcana required to accumulate such power: the ease with which they slip into cunning and thuggery can stun a mergers-and-acquisitions lawyer.”

Oh, Just Settle Down: It's unlikely that the kids collecting Pokemon in the late 1990s grew up to be today's AIG execs. The timeline doesn't quite work. But the fad did pass. Near the end of the U.S. craze—and at the beginning of the U.K.’s—the BBC ran a slightly tongue-in-cheek article about Pokemon that found the fad to be a good lesson in economics, teaching children the theories of speculation, supply and demand, exchange rates, and bubble bursting. But one man's good lesson in economics is apparently another's lesson in predatory cunning and capitalist thuggery.

2. March 19, 2001: The Columbine Effect

Why So Worried? Time's short, two-page story is almost incoherent. Its main peg is school shooter Charles Andrew Williams, who killed two and injured 13 at his high school in Santee, California nearly two years after the April 20, 1999 school shootings in Littleton, Colorado. The fear brought on by the “Columbine Effect,” says Time, has adults scrambling for a solution to the problem of school violence: "A reasonable person who read the papers or watched the news last week might conclude that murderous violence could happen anywhere, at any time, in any school in America."

Cue Ominous Music: "Many of us float our children off to school in a bubble, grateful to live in a wholesome town—"We are America," Santee Mayor Randy Voepel declared—and unwilling to admit that the danger could follow us no matter where we go."

Oh, Just Settle Down: Bizarrely, after running off an alarming string of school shooting anecdotes, Time acknowledges the ridiculousness of its own cover by slipping in the story’s only actual statistic: “youth violence is dropping…schools are getting safer" and "fewer than 1% of teen gun-related deaths occur in schools.” Time might also have cited the Departments of Education and Justice's annual report on school safety for the year 2000, which found that “for students aged 12 to 18, overall school crime…decreased by nearly a third to 101 school-related crimes per 1,000 students in 1998, compared to 144 crimes per 1,000 in 1992. As the report concluded, "Violent deaths at school are extremely rare.” But still scary enough to make the cover of Time. Thanks in part to scare stories like this one, dim-witted legislatures and school boards across the country enacted "zero tolerance" policies that led to kids getting arrested and suspended for drawing pictures, or for writing creative fiction about zombies.

1. June 7, 2004: Overcoming Obesity in America

Why So Worried: Time lards this pudgy special issue with more than a dozen articles on why America's bulging belly may well portend the end of us. Even America's poor, laments Time, have too much to eat. (Disclosure: Amidst dozens of pages of panic, this article's co-author Radley Balko was given 600 words to argue that what you eat is none of the government's damned business.)

Cue Ominious Music: "Campaigns against smoking and drunk driving have raised the national consciousness about these public-health issues dramatically. There's no reason to think an anti-obesity campaign can't do so as well—as long as everyone involved acknowledges that the problem is real and that solving it will be as hard as anything we've ever done."

Oh, Just Settle Down: In both the magazine and at an accompanying conference with ABC News in Williamsburg, Virginia, Time and its panel of experts reiterated the scary statistics: An estimated 400,000 people per year die of obesity. Obesity-related medical costs stand at $117 billion per year and climbing. Excess fat raises your risk of heart disease, cancer, and stroke. At the conference, keynote speaker Risa Lavizzo-Mouro of the Robert Wood Johnson Foundation implored government action even in the absence of more reliable data, exclaiming to applause, "We need to act ahead of the science!"

But the science proved hard for the panic to overcome. In 2005, a team of CDC researchers published a study finding significant flaws with the 400,000 figure. The real number, they said, was closer to 112,000. And when you add in the protective effects of being mildly overweight, the number drops to 26,000. Moreover, while Americans have been getting fatter for 25 years, we still set new life expectancy records each year, and deaths from heart disease, cancer, and stroke have all fallen dramatically over that period. This is of course mostly due to advances in medical science. But obesity isn't exactly bringing on a public health calamity, either. As for medical costs, a 2008 Dutch study suggests what would seem to be intuitive: People who live longer tend to incur more lifetime medical expenses. Meaning that if obesity does modestly shorten lifespans, it does so at a savings to taxpayer-funded programs like Medicare and Medicaid.

Radley Balko is a senior editor for Reason. Jeff Winkler was Reason's spring 2009 Burton C. Gray Memorial Intern.

Bogus Bodega Busts

rbalko@reason.com (Radley Balko) — Mon, 29 Jun 2009 12:34:00 EDT

Bodegas are convenience stores, usually owned by immigrants, that sell groceries, calling cards, and other sundries, and also sometimes cash paychecks or provide wire services for immigrants to send home remittances. In March the Philadelphia Daily News reported that a rogue narcotics officer and his squad had been terrorizing the shops.

Bodega owners have described at least a dozen shakedowns disguised as drug paraphernalia raids conducted by Officer Jeffrey Cujdik and his colleagues. In each account, Cujdik and his men storm the store with a search warrant, looking not for drugs but for the small resealable plastic bags favored by drug dealers. Under Pennsylvania law, it’s a crime to sell ordinary products if the merchant knows or should know that a customer will use them to package illegal drugs.

During the raids, Cujdik’s team reportedly disabled the shops’ security cameras and confiscated the computers that recorded video from them. The cops then ransacked the bodegas, stealing cigarettes, snacks, soft drinks, and other items. In several cases, they filed police reports that bodega owners say significantly understated the amount of cash the police seized from the stores.

These accounts were corroborated when one store, which sent its camera feeds off site, released audio and video of a raid to the Daily News. On the video, immediately after conducting the raid, the cops cut the wires to several video cameras. They can then be heard badgering the store’s owner about whether there was an off-site feed.

Cujdik is already under investigation. Last year one of his confidential informants alleged that he and Cujdik regularly conspired to lie on search warrant affidavits, claiming to have conducted controlled drug buys that never happened. Earlier this year, a woman named Lady Gonzalez said one of Cujdik’s men sexually assaulted her during a raid authorized by a falsified search warrant. Cujdik is now on desk duty, with pay, while local and federal officials investigate the allegations.

The Unrepentant D.A.

rbalko@reason.com (Radley Balko) — Mon, 29 Jun 2009 12:24:00 EDT

In 2007 the San Jose Mercury News revealed that Deputy District Attorney Jaime Stringfield of Santa Clara County, California, had introduced a fake DNA report into evidence in a sex abuse case. In February, responding to the revelation that the district attorney’s office had failed to turn over thousands of videotaped interviews with suspects, many of which contained exculpatory information, the county public defender’s office announced that it would review 1,500 sex abuse cases for possible wrongful convictions. Later that month, a state bar judge suspended Deputy District Attorney Ben Field’s law license for four years based on misconduct in four criminal cases dating back to 1995. And in March, the Mercury News reported that in hundreds of cases, officials at the county crime lab didn’t tell prosecutors or defense attorneys when their experts couldn’t agree on fingerprint matches.

In short, Santa Clara County has had more than its share of criminal justice scandals lately. The district attorney whose office has been tainted by these incidents has not exactly shown remorse or worked to correct the problems. Instead, Santa Clara County District Attorney Dolores Carr, who ran for office in 2006 on a platform of reforming the office’s “win at all costs” mentality, has adopted a combative stance.

At a February meeting of county prosecutors, Carr vowed that none of her staff would be “thrown under the bus” as a result of the scandals. Immediately after the state bar’s decision to suspend Field’s license—the harshest penalty imposed on a state attorney in 20 years—Carr announced that Field would continue working for her office while he appealed the ruling. She also vowed to help limit the ability of the state bar to punish prosecutors for misconduct.

Who's in Charge of Your Health?

rbalko@reason.com (Radley Balko) — Tue, 26 May 2009 15:00:00 EDT

This Memorial Day weekend, FBI officials are combing Southern California and parts of Northern Mexico in search of Daniel Hauser, a 13-year-old from Sleepy Eye, Minnesota who has Hodgkin's lymphoma. Authorities believe Hauser and his mother fled to the area after a Minnesota judge ordered his parents to consent to treating him with chemotherapy on May 14. Hauser's parents claim they're part of an obscure Native American religion called Nemenhah, which eschews chemo and radiation in favor of natural remedies (though there's some indication Hauser and his parents may actually be reacting to a relative's fatal reaction to chemotherapy).

Hauser's case presents some interesting and difficult ethical questions about balancing parental rights with protecting children from potentially deadly parental decisions. Hauser's doctors say that with treatment, he has an 85 percent or better chance of beating the cancer. Without it, he'll likely die.

But even as federal authorities went on a continental manhunt for Hauser this weekend, another issue concerning human rights and medicine is making headlines in Minnesota. Two days ago, Gov. Tim Pawlenty vetoed a relatively tame bill that would have allowed terminally ill people to use marijuana to alleviate pain in their final days. The bill didn't allow patients to grow their own marijuana, and didn't even allow for non-terminal cancer patients to use the drug to treat the nausea associated with chemotherapy, which, as Reason's own Jacob Sullum noted last week, is "remarkable...since this is one of the most common and best validated medical uses for the drug."

Yet in a fit of doublespeak, Pawlenty vetoed the bill while at the same time proclaiming his "empathy for the sick," to which the Marijuana Policy Project's Bruce Mirken replied, "He just thinks they belong in jail if they need medical marijuana." As reasons for his veto, Pawlenty cited (poorly argued) law enforcement opposition and his own worries about "expanded use" of marijuana.

It would at first appear that the two stories are inconsistent: The state of Minnesota is forcing Daniel Hauser into chemo because he isn't old enough to decide his own course of treatment, and because his parents' claimed moral opposition to chemotherapy is irrational. Yet at the same time, the state will forbid Hauser from smoking marijuana to offset the effects of said chemo because, despite research showing marijuana's clear benefits in that area, the state has a moral obligation to prevent people from smoking marijuana. Science should trump belief. Except when it doesn't.

But the two positions are consistent in one important way—perhaps the only way that really matters: The government, not sick people or their parents, gets to make the decision.

When it comes to medically useful drugs that also have psychoactive properties, that's par for the course. Stopping people from getting high always takes precedent over patient care, usually because it's politicians and law enforcement officials—not medical professionals—who write and enforce the laws.

The DEA's decade-long assault on opiod painkillers is perhaps the best example. Because some people get high off of drugs like OxyContin and Percocet, the DEA has determined that political appointees and drug enforcement officials—not medical professionals—will determine what courses of pain treatment are medically acceptable. Consequently, high-dose opioid therapy, a promising and once-emerging method of treating chronic pain patients, has effectively been strangled in the cradle. Doctors are too afraid of getting arrested to administer it.

And it goes beyond psychoactive drugs. Earlier this month, The New York Times ran a front page article about the excruciating battles terminally ill people and their families face to get access to potentially lifesaving drugs not yet approved by the FDA. Even when the companies developing the drugs are willing to provide access, getting a "compassionate use" exemption from the federal agency can be a nightmare. Even if patients are successful there, their efforts can be hampered by complex patent and liability laws.

Last year, the Supreme Court refused to hear the case of Abigail Alliance v. Eschenbach, thus allowing to stand a U.S. Court of Appeals for the District of Columbia decision ruling that the FDA has the power to deny potentially lifesaving drugs to terminally ill patients—even when the only remaining questions center on the drug's efficacy, not its safety. So let's say your spouse dies just months before the FDA finally gets around to approving a drug that later cures people with his or her disease. Tough luck. After all, acknowledging that freedom of association and contract allows private citizens to purchase potentially lifesaving drugs from private companies before government approval could undermine the FDA's regulatory power. And we can't have that.

In other words, policies governing how and when we give sick people access to the medication that could mitigate their pain, ameliorate the side effects of their treatment, or even save their lives, aren't based on compassion, individual rights, or even an honest assessment of science and risk. Instead, we have a patchwork of laws and enforcement policies driven by decades-old drug war hysteria, pharmaceutical paranoia, irrational aversion to risk, bureaucratic turf wars, and, of course, politics.

All of which means that you don't really have much say about what drugs you put into your body, whether you're seeking to alter your state of mind, dull excruciating pain so you can function day to day, or even to prolong (or, for that matter, to end) your life.

These decisions are far too important to let individuals make for themselves. Better that someone like Tim Pawlenty make the decision for them.

Radley Balko is a senior editor at Reason magazine.

A Forensics Charlatan Gets Caught in the Act

rbalko@reason.com (Radley Balko) — Fri, 15 May 2009 13:30:00 EDT

In 1992, a Phoenix man named Ray Krone was convicted of murdering a cocktail waitress named Kim Ancona. The crime was brutal. Ancona had been sexually assaulted, stabbed multiple times, and bitten on her breast and neck. Krone was indicted after a local dentist named John Piakis, who had received all of five days of forensic training, told police and prosecutors that Krone’s crooked teeth created the marks on Ancona’s body.

At trial, a more experienced bite-mark analyst from Las Vegas named Ray Rawson confirmed Piakis' findings: The bite marks on Ancona’s neck could only have come from Krone. Rawson included a 39-page report with his testimony. It must have been convincing, because the jury convicted Krone despite no other physical evidence linking him to the crime. He was sentenced to death.

In 1995, Krone was given a new trial after an appeals court threw out his conviction over an unrelated legal technicality. Rawson testified again. And Krone was convicted again. After the second trial, however, the judge refused to sentence Krone to death, writing, "The court is left with a residual or lingering doubt about the clear identity of the killer."

The judge’s misgivings proved prescient. Over the strenuous objections of prosecutors, who maintained that Rawson’s testimony was in itself sufficient to affirm Krone’s conviction, Krone's attorney Christopher Plourd succeeded in getting a court to force the state to turn over biological evidence from the crime for DNA testing. The testing proved Krone was innocent. It also provided a match to Kenneth Phillips, a man who arguably should have been a suspect from the start. Phillips lived less than a mile from the crime scene, was already on probation for assaulting a female neighbor, and was arrested three weeks after Ancona’s murder for sexually assaulting a seven-year-old girl. Several witnesses had described a man fitting Phillips’ height, weight, and complexion to police near the crime scene the night of the murder.

After 10 years in prison, including two spent on death row, Ray Krone was exonerated and released from prison in 2002.

But Krone’s lawyer wasn’t quite finished. In addition to his job as a criminal defense attorney, Christopher Plourd is a legal specialist in forensic science, having served on several government commissions looking at the role of DNA testing in the criminal justice system.

Plourd was livid that his client could have been convicted not once, but twice, based on obviously erroneous testimony that was presented as scientific. It seemed to confirm what Plourd and other critics of bite-mark analysis have long suspected—that there is little "science" behind the method at all. So in 2001, the lawyer decided to conduct a “proficiency test” on some unknowing and prominent bite-mark expert.

Plourd chose Mississippi dentist Michael West for his test. West had long been under fire for dubious testimony in dozens of criminal cases, including one in which he claimed to be able to match the bite marks in a half-eaten bologna sandwich found at the crime scene to the dentition of a defendant. I’ve written extensively on West over the last few years, most recently in a feature about the 1992 Louisiana murder trial and eventual conviction of Jimmie Duncan. In that case, I obtained a video showing West repeatedly jamming Duncan’s dental mold into the body of the young girl Duncan was accused of killing. Forensic specialists say that what West does in the video isn't a remotely acceptable method of analysis, and may amount to criminal evidence tampering. Duncan is on death row in Louisiana, based in part on West's analysis.

Plourd selected West because, even though the dentist was still active in the Mississippi and Louisiana courts, he had been suspended from the American Board of Forensic Odontology since the mid-1990s, and therefore might not be aware of the somewhat notorious Krone case. Plourd was right.

In October 2001, working for Plourd, a private investigator named James Rix sent West the decade-old photographs of the bite marks on Ancona’s breast. Rix told West that the photos were from the three-year-old unsolved murder of a college student in Idaho. Rix then sent West a dental mold of his own teeth, but told him that they came from the chief suspect in the case. He also sent a check for $750, West's retainer fee.

Two months later, West sent Rix a letter and accompanying 20-minute video. In the video, West meticulously explains the methodology he uses to match bite marks to dental molds. Using the photo of Ancona’s bitten breast and Rix's own dental mold, West then reaches the conclusion Plourd and Rix suspected he would: That the mold and the photos were a definite match.

"Notice as I flex the photograph across these teeth how it conforms to the outline very nicely," West explains confidently. "The odds of that happening if these weren’t the teeth that created this bite would be almost astronomical." He adds that the "matching" patterns he found between the photo and the dental mold "could only lead an odontologist to one opinion and that [is] these teeth did create that mark."

Though Plourd’s proficiency test has been noted in court briefs and law journals, this is the first time the video of West’s analysis has been published.

NOTE: The video below includes a photograph of bite marks on a post-mortem breast. Viewer discretion is advised.

Following the methodology that he has used in more than 100 other cases over the years, West confidently matches a dental mold and a photo of bite marks that have absolutely nothing to do with one another, decorating the fiction with the language of science. Though West is dead wrong, he sounds convincing, and it isn't difficult to imagine how he might prove persuasive to judges and juries.

In February, the National Academy of Sciences published a highly critical report about how forensic evidence is used and abused in the courtroom. The study was especially critical of bite-mark testimony, noting that it has contributed to a number of wrongful convictions over the years. The report concludes that there’s simply “no evidence of an existing scientific basis for identifying an individual to the exclusion of all others” using bite-mark analysis. Yet bite-mark testimony is still common, and there are still plenty of people in prison as a direct result.

It would be nice to see more "proficiency tests" like Plourd's with West, only not just from defense attorneys. More importantly, the criminal justice system needs to act swiftly when "experts" like West are shown to conduct bogus examinations.

West failed Plourd’s test in 2001. Yet as late as 2003, the Mississippi State Supreme Court still upheld West’s bite-mark testimony in a murder case. In rejecting an appeal by convicted murderer and death row inmate Eddie Lee Howard, the court wrote that “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.” And as late as 2006, Mississippi District Attorney Forrest Allgood relied on West’s bite-mark testimony to keep rape and murder convict Kennedy Brewer in prison. Though DNA evidence had shown back in 2003 that Brewer didn’t commit the rape, Allgood argued that because West matched bite marks he claimed to have found on the victim to Brewer’s teeth, Brewer must have bitten the victim while someone else raped her. (Other analysts say the marks weren't even bites.) Brewer remained in prison an additional five years, and was only released in 2008.

Plourd’s video sting ought to move public officials in Mississippi and Louisiana to thoroughly, if belatedly, investigate just how much damage this dentist has inflicted on the judicial systems of those states. There are still dozens of people in prison due in some part to "expert" tetimony that has been shown to be anything but.

Radley Balko is a senior editor at Reason magazine.

Texas Justice on Trial

rbalko@reason.com (Radley Balko) — Fri, 08 May 2009 18:00:00 EDT

The new movie American Violet is based on the real story of Regina Kelly, a woman from the small town of Hearne, Texas who was wrongly arrested during a drug sweep on a public housing complex. Residents say the sweeps happened every year. Cops toting big guns and dressed in SWAT gear would jump out of moving vans (and once even a helicopter) and proceed to weed out a large portion of the town's black population. In November 2000, Kelly was one of 26 arrested. All but one of them were black. She was innocent. (At first she thought she had been arrested for overdue parking tickets.)

Facing 15-20 years in jail for selling drugs in a school zone, Kelly was pressured by her public defender to take a plea that would have given her probation. Other women in the complex had already done so, including some that Kelly suspects are also innocent. She refused. Pleading guilty would have made her a felon, costing her to forfeit her housing and possibly lose custody of her children. So she waited for her trial.

Five months later the charges were dropped. During the first trial that resulted from the mass arrests, it came out that the police informant—whose word was basically the only evidence that the police had in many of the cases—had been lying. But by that point several people had already accepted plea aggrangements and been duly convicted.

Thus far American Violet has been warmly reviewed. But some critics have balked at the movie's ham-handedness, noting that the villains—the racist district attorney and the hapless public defender—come off as flat and cliched. They're right. Much of the movie does follow the worn template of the southern courtroom drama, right down to the fish-out-of-water Jewish lawyer from the American Civil Liberties Union who awkwardly arrives in town to save the day.

But there's no reason to blame screenwriter Bill Haney. That's how the story actually happened. Sure, it would be nice to show a district attorney who had learned from his mistakes, who vowed to temper his pursuit of future convictions by admitting that launching broad drug sweeps based only on the word of shady informants will sometimes result in the arrest of innocent people.

The problem is that if the film had shown that sort of character development, it would no longer be true to the story it's based on. Texas District Attorney John Paschall didn't change one bit. After dropping the charges against Kelly and the others who hadn't yet accepted plea bargains, he said he was still certain they were guilty—just as he does in the movie. He told the Dallas Morning News, "The only way I'd watch [American Violet], I'd have to be handcuffed, tied to a chair and you'd have to tape my eyes open."

If American Violet feels preachy and overbearing at times, it's because the truth itself is sometimes hard to believe. The new reality show Dallas DNA, which debuted last week on the cable network Investigation Discovery, is a good illustration. The show follows Dallas District Attorney Craig Watkins as he attempts to uncover and correct the wrongful convictions of his predecessors, most notably the longtime law-and-order legend Henry Wade.

Watkins, a former defense attorney, became Texas's first black district attorney after being swept into office in the anti-GOP backlash of 2006. He has since made national headlines by setting up what he calls a Conviction Integrity Unit, which consists of assistant district attorneys whose sole job is to work with groups like the Texas Innocence Project to find possible incidences of wrongful conviction.

In an interview with Reason last year, Watkins discussed how he's trying to purge his office of the poisonous culture that long pervaded its halls, a culture so corrupt that Watkins says prosecutors considered getting the innocent convicted as guilty to be a badge of honor—a testament to their power in the courtroom.

That might seem far-fetched until you consider that DNA testing has so far exonerated 18 people in Dallas, which is more than any other city in the country (and more than most states). And by Watkins own admission, he is really just getting started. His office is currently reviewing more than 100 other cases, and there are hundreds more to sort through. And these, of course, are only those cases for which DNA testing could be dispositive of someone's guilt.

Dallas' hang 'em high culture was uniquely oblivious to concepts like fairness and justice over the years, and the high number of exonerations is likely to rise. Consider this: Facing a budget shortfall in the the early 1980s, the county started sending its biological evidence to a private lab for storage. That evidence has been preserved, allowing Watkins' Conviction Integrity Unit to go back 30 years in search of wrongful convictions. In other jurisdictions, evidence from older cases has usually deteriorated, or has been destroyed.

Dallas DNA isn't fictionalized, but it's just as moving in places as American Violet. More notably, viewers unfamiliar with groups like the Innocence Project or with the spate of DNA exonerations we've seen over the last decade may well find parts of the show just as implausible as the more melodramatic portions of the movie.

After 40 years of "get tough on crime" rhetoric and policies, we can now clearly measure the impact on the country's criminal justice system. The sort of multi-jurisdictional drug task forces that led to the raids and wrongful arrests in Texas may have been phased out in that state, but they still thrive—complete with federal funding—in most other states. Watkins has made headlines precisely because he's such a rare specimen, a prosecutor who is actively seeking out and correcting wrongful convictions, instead of fighting like hell to preserve them.

In that sense, both Dallas DNA and American Violet have satisfying endings. You're left with the feeling that justice prevailed, even if it took a long time coming. For productions dealing with the inadequacies of the criminal justice system, that may be the most glaring "truth is stranger than fiction" moment of all.

Radley Balko is a senior editor at Reason magazine.

Information Wants To Be Kindled

rbalko@reason.com (Radley Balko) — Fri, 29 May 2009 09:29:00 EDT

Sex Shop Scandal

rbalko@reason.com (Radley Balko) — Fri, 29 May 2009 09:41:00 EDT

Old Town Alexandria in Virginia is a historic neighborhood of red brick homes and townhouses, shops and restaurants, parks and cobblestone streets, and a waterfront with a view of Washington, D.C. George Washington frequented the neighborhood’s taverns, and Robert E. Lee grew up there. Unfortunately, the neighborhood’s stringent zoning rules are killing some of its charm. Small businesses often can’t afford to navigate the bureaucratic morass, which means chain franchises with deeper pockets are becoming more common.

Michael Zarlenga knows this as well as anyone. In March The Washington Post reported that Zarlenga spent two years and $350,000 drawing up plans to expand his hunting and fishing supply shop just off King Street, Old Town’s main strip. To be sure he was in compliance with the neighborhood’s strict zoning and historic preservation guidelines, Zarlenga consulted a member of the city’s Board of Architectural Review through each step in the process. But when it came time for a final board decision in 2007, Zarlenga was rejected. Among those who voted no was the board member with whom Zarlenga had been working for months. When the board suggested he start from scratch and come back with new plans, an emotional Zarlenga replied, “The simple fact is there’s no money left, OK?”

But Zarlenga got his revenge. Instead of renovating his building, he rented the space—to a sex shop. The racy store, Le Tache, now sits in the heart of Alexandria’s tourist district, just off the waterfront. Scantily clad mannequins beckon tourists into the historically preserved building, where displays featuring lingerie, vibrators, and dildos sit atop 200-year-old hardwood floors. City leaders are furious, but the shop is in full compliance with the law. Even if the city were to pass a new ordinance banning sex shops from the neighborhood, Le Tache would be grandfathered in. The shop’s owner says business is booming, even in a down economy.

Now the city is exploring ways to close down the business through obscenity laws. Though Zarlenga seems to have won the short-term battle, he dreamed of an even more delicious victory. “I was hoping for a fast-food chain,” he confessed to the Post, “because I thought that would be more annoying to the city.”

Putting MADD in Charge of America's Highways

rbalko@reason.com (Radley Balko) — Fri, 24 Apr 2009 16:30:00 EDT

Earlier this month, President Barack Obama nominated Mothers Against Drunk Driving CEO Chuck Hurley to head up the National Highway Traffic Safety Administration (NHTSA).

Hurley's pending appointment is bad news for social drinkers, motorists, and anyone interested in freedom of movement and less hassle on the roadways. Hurley is an anti-alcohol zealot, and a longtime proponent of just about any highway regulation that's sold under the guise of public safety. He's a supporter of primary seat belt laws, which allow police to pull motorists over solely for seat belt infractions. In addition to being a questionable use of law enforcement resources (people who don’t wear seat belts aren’t a threat to anyone other than themselves), primary seat belt laws have been criticized for giving police officers the pretext to engage in racial profiling, or to commit asset forfeiture abuse. Hurley has also supported the proliferation of red light cameras, despite studies showing that they're little more than revenue generators for local government, and may actually cause more accidents than they prevent.

Longtime automotive writer Eric Peters wrote recently in the Detroit Free Press that motorists have much to fear from a Hurley-led NHTSA, including a possible return to federally-mandated speed limits, a national blood alcohol count as low as .04, federally-mandated speed and red light cameras, and even the installation of GPS responders on vehicles for the possible implementation of future "pay as you go" driving taxes (Britain already keeps tabs on the whereabouts of every driver in the country).

But Hurley's record is most troubling when it comes to overly aggressive measures allegedly aimed at preventing drunken driving. MADD's top priority during Hurley's stint as CEO was to get state legislatures to pass laws mandating ignition interlock devices in the cars of all first-time DWI offenders. The device requires you to blow into a tube before starting your car, then blow again at set intervals as you’re driving (which, come to think of it, doesn't really seem all that safe). Under Hurley’s watch, MADD gave a “qualified endorsement” for bills in the New York and New Mexico legislatures that would have required the devices in all cars sold in those states. Fortunately, neither bill became law.

Hurley and MADD were also at the heart of the effort to force the states to adopt the .08 minimum blood alcohol standard back in the late 1990s, under penalty of losing federal highway funds for noncompliance. Studies show that both significant impairment and most DWI fatalities occur at much higher blood-alcohol concentrations.

Hurley has also aggressively pushed for the use of constitutionally-dubious roadblock sobriety checkpoints to enforce the new standard, even though there's convincing evidence these invasive tactics have actually made the roads more dangerous. DWI deaths began inching upward again as the roadblocks were implemented in the early 2000s. It isn't difficult to see why. Roadblocks are designed to catch motorists who aren't driving erratically enough to be caught with conventional law enforcement methods. The officers who staff them would otherwise be out on the streets, looking for actual drunks who pose an actual threat to highway safety.

With Hurley in charge, MADD’s goals will become NHTSA’s goals. That's troubling because at heart, MADD is an activist organization. The groups once-admirable goal of raising public awareness about drunk driving has over the last several years morphed into a zealous, evangelical teetotaling campaign. When a coalition of college presidents recently asked for nothing more than a new debate over the federal drinking age last year, for example, MADD called on parents to boycott the presidents' schools. MADD has supported prison sentences for parents who allow alcohol consumption at chaperoned parties for underage teens, and fought efforts to allow underage veterans to have a beer on base after returning from Iraq and Afghanistan. Even MADD's founder, Candace Lightner, has renounced the group, calling them "neo-prohibitionists."

MADD is no longer merely a group of concerned mothers raising awareness. They've become very powerful, pushing for laws based on questionable data and that involve real trade-offs between safety, privacy, and individual freedom. That's what makes the organization's close relationship with the government so troubling. Hurley isn't the first MADD exec to make the jump to NHTSA—or the other way around. MADD regularly receives funding from the federal government. Members of MADD have even been known to help man and run sobriety checkpoints. MADD also runs many of the mandatory classes DWI convicts are forced to attend (and pay for).

Hurley would take NHTSA in a much more activist direction. States could expect to see more federal mandates about how they manage their roads, and motorists could expect expensive new mandatory safety add-ons to new vehicles; more reasons for to get pulled over; and lots more red light and speed cameras. NHTSA needs a director who will balance safety with freedom, who will look at data dispassionately, and who will consider unintended consequences before ushering in sweeping new policies.

Chuck Hurley isn't that person.

Radley Balko is a senior editor at Reason magazine.

Eyewitness Testimony on Trial

rbalko@reason.com (Radley Balko) — Wed, 08 Apr 2009 16:30:00 EDT

DNA testing has been something of a mixed blessing for prosecutors. Provided the samples are handled correctly, a positive test on hair, blood, semen, or other biological evidence can conclusively put a suspect at a crime scene. But the scientific certainty of DNA testing has also exposed just how flawed other arrows in the prosecutor’s quiver really are. DNA exonerations have called into question the accuracy of ballistics analysis, bite mark evidence, hair and carpet fiber evidence, shoe print analysis, jailhouse informants, and even fingerprint identification, once the gold standard of the forensics world.

The latest form of evidence to come under scrutiny is eyewitness testimony. Psychologists have long known about the fallibility of human memory. As far back as 1971, England’s Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions. Going back even to the 1800s, famed psychologist Hermann Ebbinghaus’s memory research established the “Forgetting Curve,” which plots how human recollection fades over time, beginning within minutes of the creation of a memory.

Nevertheless, eyewitness testimony remains a vital part of the criminal justice system, and with good reason. It’s the most abundant form of evidence, and it would be nearly impossible to convict guilty people without it. The problem is that it has for far too long been used irresponsibly, without instituting proper controls to ensure that eyewitnesses aren’t prodded into false recollections, that jurors aren’t permitted to give eyewitnesses more weight than good science allows, and that jurors are made aware of the limits and fallibility of human memory.

DNA testing has thrust the shortcomings of eyewitness recollection back into the spotlight. The cases of Timothy Cole and Ronald Cotton in particular have renewed the discussion. Cole was convicted in 1986 of a rape he didn’t commit. Though the real perpetrator confessed to the crime in 1995 and maintained his confession for years after, Cole’s name wasn’t officially cleared until yesterday. Unfortunately, Cole died in prison in 1999. His family says he couldn’t get proper treatment for his asthma while incarcerated.

Cotton was convicted of raping college student Jennifer Thompson in 1984, due entirely to Thompson’s identification of him in a police lineup. Cotton was also eventually exonerated by DNA testing and—in a rare happy ending for one of these cases—he and Thompson have since reconciled and now advocate together for criminal justice reform. They've just written a book together, and were the subject of recent reports by 60 Minutes and Newsweek.

According to a study published earlier this year in the journal Law and Human Behavior, false eyewitness testimony contributed to 77 percent of the 230 wrongful convictions exposed by DNA evidence over the last decade (the number of exonerations has grown since the study was conducted). These of course are only those cases for which DNA testing was available, which are usually murder and rape cases—crimes for which, generally speaking, there is also usually other evidence available. In crimes where investigators are more likely to rely only on eyewitnesses, robberies or muggings, for example, it’s likely that the problem is even more pronounced.

Psychologists and criminologists have known about these problems with eyewitness testimony long before advances in DNA testing proved them. But it's even more troubling to consider that eyewitnesses tend to become more confident in their identifications with positive feedback.

In a 1999 study, Iowa State researchers Gary Wells and Amy Bradford showed participants grainy video footage of a real case in which a man shot and killed a security guard while robbing a convenience store. They were then given a spread of five pictures, and told that the culprit was included in the photo set. Every one of the participants claimed they could positively identify the culprit. They were all wrong. The researchers had deliberately excluded his photo from the lineup. More troubling still, when one group of participants was given positive feedback from the researchers, that group became more confident in their identifications. Half said they were now “certain” of their identification. Those participants also said they would be more willing to testify against the suspect. They were more likely to describe the security footage as “clear” than other participants and, notably, also denied that the positive feedback had any effect on their identification.

A study released this year takes Wells and Bradford’s experiment even further. Psychologists Lisa Hasel of Iowa State University and Saul Kassin of John Jay College staged a laptop theft in front of a group of students. The students were then shown a lineup of possible suspects. The lineup did not include the actual thief. The students weren’t told they had to pick someone, only to pick the suspect if they recognized him. They were then asked to rate their confidence in their selection from one to 10. Just 33 students correctly said that none of the photos was a match; 173 identified a suspect from the lineup.

The researchers then brought the students back two days later. Some of the students were told that one of the suspects had confessed. Half the students who originally (and correctly) refused to finger a suspect from the lineup changed their minds, now asserting that the person who confessed was indeed the person they saw. Of those who identified the suspect who later confessed, their confidence level in their identification increased from a six to an 8.5. It’s important to note that the students weren’t asked to rate their confidence in the suspect’s guilt, only in their ability to identify him from memory. Even though memory fades over time, the false confession made them more confident in their recollection.

All of this research should tell us that we need to institute reforms. Even subtle, unintentional feedback from police or prosecutors can lead to false identifications. Witness and photo lineups should be double-blind, where neither the officer conducting the lineup nor the witness knows which person is the suspect. Lineups should also include people that the police know are innocent. If a witness selects a known innocent, police and prosecutors will then know that particular witness’s memory isn’t reliable enough to be used as evidence.

Unfortunately, neither the spate of DNA exonerations nor the research on eyewitness identification has changed how police investigate crimes or how prosecutors try them. Though a few major police departments, most notably in Dallas, are considering some reforms, Stephen Saloom, policy director for the Innocence Project, told Nature last year that despite all of the problems with eyewitness identification, when it comes to lineups, "The majority of jurisdictions are simply sticking with what they have always done."

After a string of high-profile criminal justice scandals, the state of California assembled a blue ribbon panel of former judges and prosecutors, criminologists, and defense attorneys to recommend reforms to guard against wrongful convictions. One of the key suggestions was to change the way the state’s police agencies conduct lineups. The reform proposals were twice passed by the state legislature, but after heavy lobbying from the state’s district attorneys and police organizations, they were twice vetoed by Gov. Arnold Schwarzenegger.

Reform prospects took another hit in 2006 when an Illinois study of 700 eyewitness identifications claimed that double-blind, sequential lineups (the type recommended by reformers) produced more errors than lineups where a police officer conducting the lineup knows which person is guilty. The problem is that the study was conducted by Sheri Mecklenburg, general counsel for the superintendent of the Chicago Police Department, an agency long opposed to changing old police procedures.

Mecklenburg’s report was widely derided by psychologists and criminologists for its lack of academic rigor and biased methodology. The critics’ complaints are too numerous too recount here, but the Mecklenburg report's most egregious error was that it calculated a witness’s selection of the police suspect as a “correct” identification. Thus the report counted every Illinois DNA exoneration as a “correct” identification. That’s a considerable oversight, given that the reason the Illinois legislature commissioned the report in the first place was as a response to the state’s high-profile string of wrongful convictions.

The Mecklenburg Report’s main effect was to slow the growing momentum for reforming the way eyewitness testimony is solicited and used in courtrooms. Though it has since been largely discredited, the damage was done.

Perhaps the renewed media interest in eyewitness testimony will prompt lawmakers around the country to revisit the issue. There’s no question that witnesses are an important part of the criminal justice system. But there’s also no debating that when used improperly—as it often is—eyewitness testimony can do an incredible amount of damage.

Radley Balko is a senior editor for Reason.

Briefly Noted: News That Stays News

rbalko@reason.com (Radley Balko) — Fri, 24 Apr 2009 09:57:00 EDT

Conservation Theater

rbalko@reason.com (Radley Balko) — Wed, 29 Apr 2009 17:09:00 EDT

Newly elected Rep. Eric Massa (D-N.Y.) wanted to promote the alternative energy being developed in his district. So when it was time to be sworn in, he decided to drive a prototype fuel cell car, General Motors’ Equinox, from his home in Corning, New York, to the U.S. Capitol. The problem was that the distance between those two points is 280 miles, and the car’s range tops out at 250.

So Massa drove one fuel cell car to Harrisburg, Pennsylvania, and had an SUV tow a second fuel cell car behind him. He then switched cars and continued to the nation’s capital while the SUV towed the first car back to Corning. Once Massa arrived in Washington, D.C., in the second fuel cell car, a second SUV towed that car back to Corning.

In other words: To make a point about conservation and energy efficiency, Massa made the equivalent of three trips from Corning to D.C., two of them involving an SUV. A Massa spokesman told the Rochester Democrat and Chronicle this was all part of the plan: “This was totally designed to raise awareness of the issue. The big point was to draw attention to this technology of the future and say we need to build the infrastructure to support it.”

Follow-Up

rbalko@reason.com (Radley Balko) — Wed, 29 Apr 2009 08:40:00 EDT

In “Civil Liberties and Enemy Combatants” (January 2005), attorney Harvey Silverglate took a critical look at the Supreme Court’s 2004 rulings hashing out the legal rights of suspected terrorists held in the United States and at Guantanamo Bay, Cuba. Silverglate warned that the Court’s decisions would not adequately protect the right to due process. Shortly after Election Day, President Barack Obama told 60 Minutes: “I have said repeatedly that I intend to close Guantanamo, and I will follow through on that.” After his inauguration he pledged to close the base within a year, which suggests that Gitmo will be shut down before all the legal issues concerning habeas corpus, due process, and the separation of powers are fully resolved.

During the Bush administration, the most significant legal case affecting Guantanamo detainees was Boumediene v. Bush, decided in July. The Court ruled that the detainees had a constitutional right to file habeas corpus petitions in U.S. courts. That decision sent the Boumediene petitioners, six Algerians who were detained at Guantanamo after being captured in Bosnia, back to the district court. In November U.S. District Judge Richard J. Leon ordered five of them released, finding that the case against them rested “exclusively on the information contained in a classified document from an unnamed source” and that “to allow enemy combatancy to rest on so thin a reed would be inconsistent with this court’s obligation.” Leon took the unusual step of ordering the release “forthwith” and urging the government not to appeal, writing that the prisoners had already endured “seven years of waiting for our legal system to give them an answer.”

Although the Bush administration has described Guantanamo detainees as the “worst of the worst,” in February 2006 Seton Hall law professor Mark Denbeaux and defense attorney Joshua Denbeaux analyzed information supplied by the Pentagon and found that less than half the inmates were determined to have committed a hostile act against the United States or its allies. Only 8 percent were accused of being Al Qaeda fighters.

In October 2008, U.S. District Judge Richard Urbina ordered the release of 17 Chinese Uighur Muslims improperly detained as enemy combatants. Because U.S. officials believe they’ll be persecuted if they’re returned to China, Urbina ordered them released in the United States.
According to the BBC, as of December the Pentagon had cleared as many as 60 detainees to leave the base but couldn’t release them because their home countries refused to allow them to repatriate. What will happen to the remaining 242 detainees when Guantanamo is finally closed remains unclear.

Blowing the Whistle on the House of Death

rbalko@reason.com (Radley Balko) — Mon, 27 Apr 2009 12:00:00 EDT

Sandalio “Sandy” Gonzalez spent 27 of his 32 years in law enforcement with the Drug Enforcement Administration, working in Los Angeles, Mexico City, and Washington, D.C., and eventually taking charge of the agency’s operations for all of South America. In 2001, while Gonzalez was working as a high-ranking agent in Miami, there was a raid by a team of DEA and Miami–Dade County narcotics agents on a suspected major drug distributor. Several kilograms of cocaine were mysteriously missing by the time the evidence made its way back to DEA offices. Gonzalez called for an internal investigation, and was shortly thereafter transferred to El Paso, a move he describes as a demotion in retaliation for speaking out.

After a few years in El Paso, Gonzalez became the central whistle-blower in the horrifying “House of Death” case, in which agents from Immigration and Customs Enforcement (ICE) were accused of looking the other way while one of their drug informants helped torture and murder at least a dozen people in the violent border city of Ciudad Juarez, Mexico.

At the center of the House of Death case is Guillermo Ramirez Peyro, also known as “Lalo,” a federal drug informant who over the years has been paid more than $220,000 by the U.S. government, according to ICE’s own records. Trial transcripts and depositions given by ICE agents reveal that Lalo, who had worked his way into the upper echelons of Mexico’s Juarez drug cartel, was a particularly valuable asset to the U.S. government, becoming a key contact in an investigation targeting the cartel’s third in command, Heriberto Santillan-Tabares (“Santillan”).

In August 2003, according to depositions by ICE agents, Santillan and Lalo committed their first murder at an abandoned house near the Texas-Mexico border that would come to be known at the House of Death, torturing and killing a man named Fernando Reyes, a Mexican attorney and childhood friend of Santillan. The motive was unclear, though Gonzalez suspects that Reyes was dealing drugs and the killers were after his money and supply. After the slaying, Lalo briefed his handlers at ICE about what he had done.

ICE agents would later testify, in sworn affidavits for the civil trial brought by families of the House of Death victims, that officials from both ICE and the Justice Department knew about the killing in Mexico City, El Paso, and Washington, D.C., as did the office of Johnny Sutton, the San Antonio–based U.S. attorney for the Western District of Texas. But instead of shutting the Santillan investigation down, the federal government allowed it to keep going. During the ensuing months, government reports would later show, 11 more people were murdered at the House of Death, including one legal U.S. resident. According to Gonzalez, these were a mix of rip-offs, snitch killings, witness killings, and turf war deaths. Juarez cartel leaders referred to the murders as carne asadas, or (loosely) “barbecues.”

In January 2004, while being tortured at the House of Death, one man gave his captors the address of an agent assigned to the DEA office in Juarez. Federal agents would later learn the leak may have been entirely coincidental—a large stash of cocaine was found at the house next door to the agent’s residence. Nevertheless, while the gruesome murders of Mexican citizens didn’t move the U.S. government to alter its dealings with Lalo, a potential threat to a federal agent apparently did. Gonzalez, who was back in Washington at the time, heard about the possible threat, and flew to El Paso to oversee the situation. Over the next several weeks, he says, he grew outraged as he learned more and more about ICE’s handling of Lalo and Santillan. Rather than give up the operation, Gonzalez discovered, federal agents had allowed a paid informant to participate in a series of brutal murders, all but the first of which could have been prevented.

By Gonzalez’s account, when he sensed that internal investigations of the case were heading toward a whitewashing, he fired off a letter to ICE, demanding that officials there take responsibility. Gonzalez’s letter received attention from the Justice Department, landing at the desk of DEA Administrator Karen Tandy. But instead of praising his efforts to expose a deadly mishandling of a paid government informant, Tandy reprimanded him. According to Gonzalez, U.S. Attorney Sutton and Tandy both called Gonzalez “hysterical,” warned him not to talk to the media, and eventually forced him into an early retirement in 2005.

Since then, Gonzalez has been mostly frustrated in his attempts to get the executive branch, Congress, and the news media to investigate what happened in Juarez and the U.S. government’s culpability in murder. Outside of the independent website Narco News, which extensively covers drug war casualties south of the U.S.-Mexico border, few media outlets have examined the House of Death in depth.

reason spoke with Sandy Gonzalez by phone late last year.

reason: When did you first hear about the House of Death murders?

Gonzalez: In January 2004. I was in the D.C. area on business when one of my assistants called me and said that ICE had contacted our office and said that we had to evacuate all of our personnel from the Juarez office because they were in danger. I didn’t wait to get into specifics at the time. I just issued instructions to my staff to assist our Mexico City office and ICE in whatever they were doing.

That was the first inkling. When I went back to El Paso, I started looking into it. I started getting reports of what was going on and dug until I learned about the murders. I then spoke to my counterpart at ICE, and when I got the picture of what was going on, I just couldn’t believe it. It was outrageous.

reason: You then wrote a letter detailing what you knew and demanding an investigation. What was the reaction to it?

Gonzalez: This all started as a threat against some agents and their families. So even if ICE didn’t want to get into the murders, they had to at least investigate the threats to the agents. The DEA flew in a supervisor from Mexico City. He was operating out of my office in El Paso. When I finally found out what was going on with the House of Death, I wrote the letter to my counterpart at ICE. The letter basically said to him: Unless you can come up with a really good explanation, you’re responsible for this whole mess. These were murders, and we had the possibility of federal agents looking the other way, knowing the murders were taking place. Allowing an informant to take part in violent crimes is a very serious matter, so I also sent a copy to the U.S. Attorney’s Office [in San Antonio].

Their reaction was completely negative. I mean, the U.S. attorney never even contacted me to discuss the matter. Instead, he complained about me directly to the Justice Department. I got a call from the chief of operations, the No. 3 person in the DEA, who instructed me not to talk to the media and not to write any more letters. He told me that everyone was very upset. No one wanted to discuss the issues I had raised. They just wanted me to shut up.

reason: So they were upset about the letter, but not what was actually in the letter?

Gonzalez: Well, prior to the letter, everyone was upset at the way ICE was behaving in general. ICE and the U.S. Attorney’s Office had also prevented us from setting up a meeting to capture the corrupt police commander in Mexico, who was basically the head of the kidnapping squad for the cartel. So there was already tension between the DEA and ICE. But once I wrote the letter, they focused all their anger on the letter and me. I think at that point they realized that this whole mess was now a matter of record. So they went after the guy who put it on the record.

reason: You have said in other interviews that you wrote the letter because you saw signs that the investigation was looking more like a cover-up than an actual investigation.

Gonzalez: Right. There were two investigations going on. The first was the investigation into the threat against the federal agents. The [DEA agent’s] manual says you investigate threats against agents immediately. So we had guys working on that daily. This was going to Washington every day.
Apparently ICE was doing their own investigation from their end, and they were reporting to their own headquarters at the Department of Homeland Security. When the headquarters officials met in Washington, it became clear to me that what was being reported by ICE and what was being reported by DEA were very different. I said, “Bullshit. I mean, this is murder we’re talking about here, multiple murders, and something’s got to be done.”

reason: At that point, the DEA had already dropped Lalo as an informant, right?

Gonzalez: Yeah. They dropped him the previous July after he was caught at the border with an unauthorized stash of marijuana. He had a load—I can’t remember if it was 100 pounds or 100 kilos of marijuana.

reason: But ICE kept using him, not only after he’d been caught smuggling while working as an informant but after they learned that he had participated in a murder while on their payroll.

Gonzalez: Correct.

reason: Why do you think they kept using him? Did they want to get more information on the cartel, or were they using him in other cases that they didn’t want to compromise?

Gonzalez: I think it was a combination of those two things. They were also using him in some huge cigarette smuggling case. And of course he was into this cell of the Juarez cartel headed by Heriberto Santillan. As long as he was there, he could provide information. So I think an assistant U.S. attorney asked the state’s attorney in New Mexico to dismiss the marijuana smuggling case against Lalo because that case would have gone to state court and blown Lalo’s identity.

reason: Of the 12 murders at the House of Death, in how many did ICE agents have prior knowledge that a homicide was about to take place?

Gonzalez: That’s the big question. That’s why they don’t want an investigation.

reason: There’s evidence that there were at least two where they had advance knowledge, correct?

Gonzalez: Lalo gave an affidavit or a declaration to the Mexican authorities—which, by the way, also almost didn’t happen. ICE and the U.S. Attorney’s Office didn’t want him to even do that, but I guess they were feeling some pressure and gave in. I think in that declaration, Lalo admitted to taking part or being present—and it’s been a long time since I’ve read that—in five of those murders.

reason: And it was only after the threats against the DEA agents, then—not the murders of Mexican citizens—that ICE closed the investigation and stopped using him?

Gonzalez: Even after the threats, ICE didn’t drop him right away. When we heard of the threat against federal agents, we asked to make Lalo available to the Mexican authorities so that they could gather probable cause to go search the house. ICE and the U.S. Attorney’s Office still refused. They would not allow him to talk to any Mexican investigators because they didn’t want to blow his status as an informant. We lost a couple of valuable days there. Eventually the Mexican authorities accepted the declaration from ICE agents that had talked to Lalo, and they used that as probable cause to go dig up the bodies.

I think it took two weeks—maybe longer—for ICE and the U.S. Attorney’s Office to acquiesce. They were working together to obstruct the whole thing. Eventually they allowed a Mexican prosecutor to come up to Dallas to interview Lalo. The Mexican government had asked for a DEA agent to be present in that interview. ICE and the U.S. Attorney’s Office refused.

Eventually ICE was forced to make Lalo available to DEA, and when that happened, they put a caveat on the interview. They said that DEA could only ask him questions about what happened on January 14 and afterwards but not before. In other words, they could only ask him about the threats to federal agents—nothing about the murders he committed while working for ICE. I suspect that’s because they didn’t want the questions asked that would have revealed that U.S. agents knew about the murders before they took place.

reason: If ICE had handled the situation properly after they learned of the first murder, do you believe the subsequent murders could have been prevented?

Gonzalez: Oh, absolutely. I mean, after the first murder, they had all the evidence they needed. At the time that first murder took place, we already had a prosecutable drug case against Santillan. And then we had the murder on top of that.

reason: After all this, the main target of the investigation, Santillan, was only charged with drug trafficking. He pled guilty and received a 25-year sentence. U.S. Attorney Johnny Sutton dropped five murder charges against him—all related to murders committed at the House of Death. Do you think Sutton was afraid of what would come out in a trial where Lalo and Santillan were called to testify?

Gonzalez: There’s no question about that. No way they could afford to put Lalo on the stand and have him testify to all of this.

Remember, we had a prosecutable case, a drug case, on Santillan when the first murder took place. That’s the case that he pled guilty on. The murders had to be dismissed because the government’s star witness and informant, Lalo, would have had to testify that he took part in them. At that point, any defense attorney worth his salt would have gotten out of Lalo that he was reporting these murders to federal agents before they happened.

reason: The DEA administrator at the time, Karen Tandy, admitted in a deposition read into the record at your trial that she gave you the only poor performance review of your career because of your letter calling for an investigation into the murders. So you were punished. Have any of the ICE officers who handled the Lalo case been held accountable—criminally, professionally, or otherwise?

Gonzalez: I doubt it very much. I would have heard about it. See, they have never acknowledged anything. I’ve learned that this is the sure sign that the government is hiding something. It’s when they have no comment, when they won’t acknowledge that there’s even an issue. Johnny Sutton refuses to talk about it. When The Washington Times did their story, he wouldn’t talk about it. And no one is holding his feet to the fire. Not the Justice Department’s inspector general, not the Office of Special Counsel, not Congress. No one talks about it, so it goes away. If the executive branch doesn’t investigate, that’s the end of it, unless Congress steps in. (Note: Since this interview, ICE agent Raul Bencomo has been fired, in part due to his handling of Lalo.)

reason: Have you had any indication that Congress might step in? Have you talked to anyone on Capitol Hill?

Gonzalez: Back in 2005 I went and briefed the senior staff of two senators.

reason: Which ones?

Gonzalez: [Sen. Charles] Grassley [R-Iowa] and [Sen. Patrick] Leahy [D-Vt.]. I think what happened is one of the members of Leahy’s staff was a Justice Department officer who was on loan on a detail to the senator’s staff. I think she knew Johnny Sutton. She worked out of the Executive Office of U.S. Attorneys. She knew Sutton personally, and throughout the whole interview she was antagonistic.

reason: You eventually won a lawsuit and a settlement from the federal government. Explain the basis for your suit.

Gonzalez: While I was in Miami, one of the agents that worked for me ran into a situation where an informant told him that there’d been 10 more kilos than the [DEA and Miami-Dade Police epartment] agents reported as being seized. So there were 10 kilos of cocaine missing after a raid. It turned out that the informant had brought this to the attention of the DEA at the time, but was ignored. So when he brought it to our attention, we reported it. Both the DEA and the U.S. Attorney’s Office didn’t want this thing looked into. But I sort of insisted.

So they started messing with the agent who had reported the discrepancy. They started with the usual stuff; they accused him of being chummy with the informant. They were both Cubans, so they started attacking the agent who initially reported the drugs missing in a racial way. So I basically just put my foot down and just called it like I saw it. That’s when they transferred me [to El Paso, in April 2001].

reason: Was there ever an investigation into the missing cocaine?

Gonzalez: No one was held accountable. They went through the motions, but basically everyone was exonerated. It would have involved assistant U.S. attorneys, you know, prosecutors, lawyers, and stuff like that. They weren’t about to do that.

reason: Assistant U.S. attorneys were involved in the missing cocaine?

Gonzalez: Well, in the cover-up.

reason: What exactly did the jury determine in the case that you brought in response to the transfer?

Gonzalez: They determined that my transfer to El Paso was retaliatory.

reason: So the lawsuit didn’t have anything to do with the House of Death case?

Gonzalez: I amended the lawsuit to include their retaliation for my letter in the House of Death case too. My assertion was that this was an ongoing pattern of discrimination and retaliation against whistle-blowing that began in Miami and continued in El Paso. Believe it or not, the government tried to use the letter against me in the case. The jury didn’t buy it.

reason: What were the terms of the settlement?

Gonzalez: The jury ruled in my favor and awarded me $85,000. The government then appealed the jury’s verdict, at which point I filed a notice of cross appeal. We felt that one of the earlier judge’s decisions was incorrect and hurt our case. The judge was pro-government the whole time; he initially threw out my case, and we had to appeal to get it back. Anyway, when we cross-appealed, they offered to settle for $385,000. But the jury that heard all of the evidence ruled in my favor. The settlement came during the appeal. And of course, the government didn’t admit to doing anything wrong.

reason: Homeland Security is now trying to deport Lalo back to Mexico [on immigration charges], where he’ll almost certainly be murdered.

Gonzalez: There’s no doubt in my mind that they’re trying to deport him because they know he’ll be killed. It gets rid of the main witness against the government should someone ever look into this.

I don’t know the official reason they’re trying to deport him. I would guess that it’s because he’s an illegal alien, or something like that.

I’m sort of amazed that the mainstream media has not followed this case with the zeal that they followed the Scooter Libby case, because in this case, the government is actually trying to get somebody killed. I mean, I’m not standing up for the guy. He’s a dirtbag. But he is a human being. He is also a witness to this whole thing.

reason: He has asked that if he is deported, it be to someplace other than Mexico. The government is arguing against that too.

Gonzalez: I wasn’t aware of that, but it wouldn’t surprise me. Once he’s out of the picture, there’s no way this case can be revived, because all the other witnesses are government agents. (Note: At the time of publication, Lalo was scheduled to appear March 9 in the U.S. Court of Appeals for the Eighth Circuit to appeal his deportation.)

reason: Tell me about the Joint Assessment Team Report.

Gonzalez: The Joint Assessment Team was a way for the DEA and ICE to get together and get the story straight, because both agencies were reporting to Washington and their reports weren’t jibing. So they came up with this idea of sending two guys from ICE and two guys from DEA to go in and interview everybody, and then hopefully come to a conclusion about what happened. They interviewed over 40 people, including me, and issued a classified report. But when I asked for a copy during discovery [in the employment lawsuit], they would only release the portion that was their interview with me. They said the rest of the report was “national security.”

So I was the agent in charge of that whole area, and they never showed me the results of the report. The only thing I can conclude from that is that what they found out was not pretty, and they weren’t about to tell me that I was right. They also never showed it to the regional DEA director in Mexico City, who had also signed onto my letter to ICE about Lalo.

reason: So you don’t know of any ongoing investigations into this? It’s pretty much done unless Congress gets involved?

Gonzalez: Correct. I wrote a letter to the inspector general, and they kissed me off. I went to the Office of Special Counsel. They kissed me off. The only thing I could do was file an appeal with the Merit Systems Protection Board about my negative evaluation. It wasn’t about the case itself, but we reached a settlement on that. The government agreed to take out the negative portion of the evaluation, because otherwise we were going to have a hearing and the whole thing was going to come out in public. They didn’t want that to happen.

reason: You’ve said that while corruption is a problem, the bigger problem is that federal prosecutors don’t hold corrupt agents accountable.

Gonzalez: Yes. Prosecutors have way too much discretion. Let’s go back to the missing cocaine case in Miami. The problem there is that the prosecutor’s office was involved in the cover-up. So no one was about to go after their own people. Same thing in Juarez or El Paso.

The prosecutor’s office is involved; the U.S. attorney is involved. So it gets covered up. If there had been no involvement of the prosecutor’s office in the misconduct, they might have gone after some of the agents. But Sutton’s people were in the thick of things.

reason: How closely was Sutton’s office working with ICE and Lalo?

Gonzalez: In that civil case by the families of the victims that was dismissed, ICE personnel and at least one prosecutor in the U.S. Attorney’s Office, if not more, admitted that they had been informed of the first murder. They passed the buck up to San Antonio and to Washington. They testified that they had told their bosses and their bosses approved the continued use of the informant, even though he had helped commit a murder while working for them. That’s all on the record.

reason: Have the higher-ups at DEA or ICE been questioned about the case, about why they allowed it to continue?

Gonzalez: No. Who’s going to question them? No one made the decision to investigate the initial misconduct, so everyone’s off the hook.

The key person here is the United States attorney. He’s independent from Washington in the sense that if he decides to conduct an investigation, it gets done. I guess conceivably he could get enough pressure from the DOJ to step on it, but by then so many people would know about it, it would turn into a major scandal. But if the U.S. attorney wanted this looked into, it would have happened.

reason: You’re now retired after a career in the federal government. What have you taken away from all of this?

Gonzalez: I think the American people would be justified in believing that their own government may be as corrupt as any of the countries our government criticizes for corruption.

reason: Are there any policy changes that could, if not prevent this kind of abuse from happening, at least ensure that people are held accountable when it does?

Gonzalez: Under the present system, I doubt it. The way the system is set up discourages accountability. Maybe if you had an inspector general who reports only to the legislative branch, who is totally independent from the executive branch.

If Congress were to take its oversight role seriously, that might work. Right now, the executive branch is all-powerful. They have all the discretion in the world to investigate or not investigate an allegation against their own people.

In Criminal Cases, Should Science Only Serve the State?

rbalko@reason.com (Radley Balko) — Wed, 25 Mar 2009 15:00:00 EDT

Last month, the National Academy of Sciences (NAS) released a wide-ranging report expressing alarm at the way forensic science is used in the courtroom. Among the many problems the report addressed was the tendency of many states to see state-employed forensic experts not as independent scientists, but as part of the prosecution's "team."

The problem with that sort of arrangement is obvious: It introduces pressure—subtle or overt—on scientists to produce results that please police and prosecutors. The NAS report recommends that state-employed forensic experts be neutral. Today, far too many crime labs and medical examiners report to the attorney general of their states. Others report directly to the prosecutors in their jurisdictions. Ideally, government medical examiners would not only be independent of the state's law enforcement agencies, they would be free to testify against any state claims unsupported by scientific evidence.

But that isn't the case in most of the country. In fact, it's almost universally accepted—among both prosecutors and medical examiners—that a government medical examiner should never testify against the district attorney who serves in the same jurisdiction, even if the medical examiner strongly disagrees with the prosecutor's conclusions. Lately, that already dubious notion seems to be expanding. Many law enforcement officials believe that government forensic experts should be barred from testifying for the defense in any case, even in other jurisdictions.

Earlier this month, the Minneapolis Star-Tribune reported that Minnesota District Attorney James Backstrom rebuked his county's medical examiner, Dr. Lindsey Thomas, because members of her staff had testified for defense attorneys in other counties, calling into question the conclusions of those counties' medical examiners. In one email to Thomas (you can read all of the emails here), Backstrom called the practice "a conflict of interest," and complained that the "added credibility attached to someone who is currently a coroner/medical examiner in another community who testifies as a defense expert makes any prosecution more difficult." In Backstrom's view, the actions of Thomas' staff were no different than if he were to testify that he disagreed with another prosecutor's strategy or conclusions. Backstrom ended one email by threatening to block Thomas's reappointment as the county's medical examiner if the practice continued.

Backstrom not only exhibited a fundamental ignorance of the purpose of forensic science in the courtroom, he also tellingly revealed a striking philosophical difference between the fields of science and law enforcement. Law enforcement officers—be they police officers or prosecutors—assume a sort of fraternity that precludes them from criticizing one another. Cops almost never testify against other cops—even when a fellow officer has broken the law—and prosecutors rarely criticize other prosecutors. Scientists, on the other hand, are not only willing to criticizing other scientists, but the process of peer review—a fundamental component of the scientific method—actually depends on such criticism. Backstrom's efforts to undermine peer review are alarming, particularly given that his efforts are aimed at the courtroom, where so much is frequently at stake.

Sadly, Backstrom's view is all too common. Last week, the local Fox affiliate in Atlanta ran two investigative pieces critical of Georgia's chief state medical examiner, Dr. Kris Sperry. The station's big scoop was that Sperry—who has an impeccable reputation among his peers—was regularly testifying for criminal defendants in other jurisdictions. The report quoted a sheriff and former county coroner in Harrison County, Mississippi, both still angry at Sperry for contradicting the state medical examiner's testimony in a murder case. The piece included quotes from both Mississippi officials stating that a medical examiner who gets a government paycheck should never contradict another government medical examiner in court. One Tennessee official said the practice was akin to a police officer testifying against another police officer.

Again, this is nonsense. We need more doctors willing to hold their rogue colleagues accountable, not less. For the last three years, I've been reporting on the severe inadequacies of Mississippi's criminal autopsy system. In particular, I've reported on Dr. Steven Hayne, who over the last 20 years has done 80 to 90 percent of the state's autopsies, carrying an impossible workload of some 1,500 to 1,800 autopsies per year (by his own account), despite the fact that he isn't board-certified in forensic pathology. Hayne's colleagues have known for years that he's little more than a rubber stamp for prosecutors. He has inflicted incalculable damage on the state's criminal justice system.

Kris Sperry, along with several current and former state medical examiners in Alabama, is one of the few doctors who has been trying to hold Hayne accountable. Over the years, Sperry has written letters to professional organizations asking for Hayne to be investigated. Yes, he has also testified against Hayne and other disreputable Mississippi medical examiners in court. He ought to be lauded for that, not condemned.

The other problem here, as the NAS study points out, is that there is currently a critical shortage of board-certified medical examiners. If every forensic pathologist with a government job or contract were barred from ever testifying for criminal defendants, there wouldn't be many doctors left to testify. The few who were left couldn't possibly testify in every case where they're needed—and in those cases they do take, they could easily be impeached by prosecutors as guns-for-hire.

But then, maybe that's the point.

You'd think that a forensic expert who tells the jury that he testifies for both defense attorneys and prosecutors would carry more weight on those occasions when he testifies for the state. That would show a doctor who testimony follows the science. But for prosecutors like Backstrom, the primary concern is not embarrassing his fellow district attorneys, and ensuring that credible doctors with state credentials don't screw up another prosecutor's case—even if that case is based on faulty science.

It takes an odd definition of justice to believe that state-paid scientists should only use their expertise to help win prosecutions. Unfortunately, that view seems to be the prevailing one.

Radley Balko is a senior editor at Reason magazine.

Why Did Obama Wimp Out on DNA Testing for Convicts?

rbalko@reason.com (Radley Balko) — Thu, 12 Mar 2009 15:00:00 EDT

...

Does the Constitution Grant a Right to DNA Testing That Could Prove Innocence?

rbalko@reason.com (Radley Balko) — Mon, 02 Mar 2009 18:45:00 EST

Does the U.S. Constitution permit an innocent person to be imprisoned or executed? Seems like a question with an obvious answer.

Here’s another question: If a convict can establish irrefutable proof of his innocence with a simple DNA test, does he have a constitutional right to that test, even if he has exhausted his legal appeals?

The answer to both questions isn’t at all clear, and may depend on how the Supreme Court rules in the case of District Attorney's Office v. Osborne, which it heard today. Surprisingly, 32 states, the city of New York, and the Obama administration are urging the Court to answer "no."

The defendant in the case is William Osborne, who in 1993 was convicted of a brutal kidnapping, rape, and assault in Alaska. DNA testing on semen found in a condom at the crime scene didn't exclude Osborne, but it did include as many as 16 percent of all black men. More sophisticated testing not available at the time of Osborne’s trial would today conclusively determine whether he actually committed the crime. Even the state of Alaska concedes that a negative test would confirm that Osborne is innocent. The test would cost all of $1,000, a fee that would be paid not by the state, but by Osborne’s own legal team at the Innocence Project.

Yet the state of Alaska refuses to hand the sample over for testing, and has fought all the way to the Supreme Court to keep it from Osborne’s lawyers. The state claims that Osborne’s trial produced more than sufficient proof that he committed the crime, and that this is all they need to feel confident in his guilt. Establishing a constitutional right to DNA testing in cases like Osborne’s, the state says, would be wasteful and unnecessary, and undermine the certainty and finality that lends integrity to the criminal justice system. Ken Rosenstein, the state’s lead attorney on the case, told the Anchorage Daily News, "If there was other doubtful evidence that supported his...possible innocence...things might be different. But it's merely a wish and a prayer at this point."

That may well be true. Osborne is hardly a sympathetic character. He was paroled in 2007 for the conviction at issue before the Court. But six months later, he was back in prison after accepting a plea bargain on charges related to a robbery and home invasion. When the Anchorage Daily News pressed to affirm his innocence even in the case now before the Court, he evaded the question.

But the facts of Osborne’s case are in many ways irrelevant—or at least they should be. That Osborne may be a shady character shouldn't allow other states to deny irrefutable DNA testing post-conviction simply because state officials believe that the convictions are rock-solid. Courts and prosecutors have been plenty wrong in the past about even seemingly slam-dunk cases.

Consider the case of Bruce Godschalk, a Pennsylvania man convicted of raping two women in 1986. Godschalk was arrested after his sister thought he resembled a composite sketch of the rape suspect and turned him in to the police. After a long interrogation, Godschalk eventually confessed. In the audio recording of his confession, he recounted 20 details of the rapes that prosecutors said were never released to the public. He was also identified by one of the victims, and a jailhouse informant later claimed Godschalk confessed to him in the cell they shared.

That would seem to be a pretty open and shut case. And indeed, a Pennsylvania court rejected Godschalk’s initial attempt to obtain post-conviction DNA testing on the semen found in the victims, citing the overwhelming evidence of his guilt—including his confession.

Fortunately, a state appeals court relented, and granted Godschalk’s request for testing. Two separate labs later determined that though the same man raped both women, Bruce Godschalk was not that man. As for the details of the crime that he relayed during the confession, that information was actually introduced by his interrogators through suggestive questioning. The jailhouse informant was obviously lying.

One study of DNA exonerations published last year in the Columbia Law Review found 32 cases in which a defendant confessed to a crime for which he was later exonerated. In 16 exoneration cases, an appeals court made reference to the “overwhelming” evidence of the defendant’s guilt in rejecting his appeal.

This isn’t the first time the Supreme Court has entertained the argument that the Constitution prevents the incarceration or execution of the innocent. In the 1993 case Herrera v. Collins, a divided Court denied relief to a Texas man convicted of killing two police officers who claimed new evidence (an affidavit from someone claiming another man confessed to the crimes) conclusively proved his innocence. In the majority opinion, Chief Justice William Rehnquist held that a claim of actual innocence based on evidence discovered after a conviction would need to be “extraordinarily high” to merit a new trial, given the burden such claims would put on the criminal justice system. Herrera’s affidavits, Rehnquist wrote, didn’t meet that standard. In a concurring opinion, Justice Sandra Day O’Connor pointed to the strong evidence of Herrera’s guilt, finding his claim of actual innocence lacking but adding that if someone could prove actual innocence, the Constitution would of course forbid their execution.

Strikingly, in a dissent joined by Justice Clarence Thomas, Justice Antonin Scalia disagreed. Scalia wrote that “there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” In other words, the Constitution guarantees only a fair trial and access to an appeal. It doesn't necessarily forbid the execution or incarceration of an innocent person. Once you've exhausted your appeals, Scalia argued, you've exhausted your right to be heard in the courts, even if new evidence could establish your innocence.

The Osborne case, however, is substantially different from Herrera’s in a very important way: This isn’t a matter of an eyewitness recanting his testimony, or a new alibi witness coming forward. Osborne is asking for a test not available at the time of his original trial that will establish beyond all doubt whether he’s innocent or guilty. Surprisingly, the Obama administration's amicus brief (which to be fair, may have been drawn up during the Bush administration) seems to borrow from Scalia's dissent in Herrera. "There is no tradition in this country of granting convicted criminals post-conviction access to the prosecution’s evidence locker, whether for DNA testing, fingerprint analysis, or other purposes," the brief argues. "And constitutional rights do not spring into existence simply because science has advanced."

Currently, Alaska is one of six states that provide no statutory right to post-conviction DNA testing. But while many others have such a right in theory, the laws are written narrowly enough to exclude the vast majority of defendants (many states limit such access to death penalty cases, for example). Some 232 people have been exonerated by DNA testing since 1989. Seventeen had been sentenced to death. In a fifth of those cases, prosecutors fought against allowing the defendant access to evidence for DNA testing.

Every exoneration means not only that an innocent person did time for a crime he didn’t commit, but also that the person who actually committed the crime was allowed to go free. One amicus brief filed on Osborne’s behalf by several former prosecutors (including former U.S. Attorney General Janet Reno) points to several cases in which prosecutors vigorously fought DNA testing for years. When the tests were finally done, they not only cleared the defendant, but when checked against DNA databases they were able to identify the actual culprit. In some cases, the actual culprit escaped justice, because in the time the prosecutors spent blocking the test in the courts, the crime’s statute of limitations had expired. In other cases, the actual culprit passed away. Many times the real culprits went on to commit more crimes.

The anti-Osborne position puts a premium on finality and closure. The landmark case Brady v. Maryland (1963), established that the state is obligated to turn over any exculpatory evidence to defense attorneys before the start of a trial, on the premise that our criminal justice system values uncovering the truth over merely winning convictions. The state of Alaska and its supporters are arguing in Osborne that once a defendant has exhausted his appeals, those values switch, making the protection of a conviction more important than achieving actual justice.

Radley Balko is a senior editor at Reason magazine.

Super Sperm

rbalko@reason.com (Radley Balko) — Mon, 30 Mar 2009 12:31:00 EDT

Six years ago, Michael Mermel, chief of the criminal division for the Lake County, Illinois, State’s Attorney’s Office, dismissed DNA tests exonerating Bernie Starks, a man convicted of raping a 68-year-old woman. Starks had been in prison since 1986. The DNA came from semen in the victim’s underwear. Had it come from the woman’s vagina, Mermel argued at the time, “I would be standing over there advocating the side that the defense has in the case.”

Actually, he wouldn’t. Three years later, crime lab workers found a missing rape kit from the case, which included a vaginal swab containing semen. A DNA test on the ejaculate again excluded Starks. Mermel, whose odd attitudes toward DNA evidence was chronicled in a December exposé by Steve Mills of the Chicago Tribune, again refused to concede. This time, he argued that the woman must have had consensual sex with another man around the same time as the rape.

When it comes to the people he prosecutes, Mermel seems to have more faith in his hunches than he does in science. In 2005, when DNA testing on a rape and murder victim excluded another one of Mermel’s suspects, he refused to concede that he might have charged the wrong person. He argued that the more likely explanation was that the 11-yearold victim had been sexually active at the time of the rape.

Mermel’s greatest hit might be the case of Jerry Hobbs, who was accused of killing his 8-year-old daughter and her 9-year-old friend in 2005. When Hobbs’ attorneys revealed in court that DNA tests showed the semen found in the mouth, rectum, and vagina of Hobbs’ daughter didn’t belong to Hobbs, Mermel postulated that the semen must have found its way into the girl’s body while she was playing in a patch of woods where teenagers were known to have sex. The girl was found fully clothed.

Forensics Fraud?

rbalko@reason.com (Radley Balko) — Tue, 24 Mar 2009 12:00:00 EDT

(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.”

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.

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.

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 (rbalko@reason.com) 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.

Briefly Noted: The Totalitarian Architect

rbalko@reason.com (Radley Balko) — Mon, 30 Mar 2009 12:06:00 EDT

How to Bring Real Science Into the Courtroom

rbalko@reason.com (Radley Balko) — Fri, 20 Feb 2009 15:00:00 EST

A forthcoming study from the National Academy of Sciences on the poor quality of forensic science in America’s courtrooms is expected to send shockwaves through the criminal justice system. According to The New York Times:

People who have seen it say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting. The report says such analyses are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.

Law enforcement organizations have tried to derail the report nearly every step of the way, and with good reason. Police and prosecutors have been relying on bad science to get convictions for decades. It’s only recently, as the onset of DNA testing has begun uncovering a disturbing spate of wrongful convictions, that some of the criminal justice system’s cottage industry pseudo-sciences like "bite mark analysis" have been exposed for the quackery they are.

The power of DNA to exonerate the condemned has us quickly learning that our courts have for years been corrupted by charlatans and snake-oil salesmen, such as Mississippi’s dubious “bite mark expert” Dr. Michael West and impossibly industrious medical examiner Dr. Steven Hayne; Oklahoma City’s Dr. Joyce Gilchrist; or Maryland’s Joseph Kopera, to name just a few.

The report’s critique of forensic evidence is much needed, but the proposed solution doesn’t sound promising. According to The New York Times, the report "concludes that Congress should create a federal agency to guarantee the independence of the field, which has been dominated by law enforcement agencies."

The problems with the forensics system aren’t going to be resolved by creating a new federal bureaucracy. Lack of federal oversight isn’t the problem. According to the Times article, the NAS report is particularly critical of the FBI crime lab, long considered the gold standard in forensics, and whose technicians often advise state crime labs on best practices.

The problem with criminal forensics is the government monopoly on courtroom science in criminal trials. In too many states, forensic evidence is sent only to state-owned or state-operated crime labs. There’s no competition, no peer review, and in some cases, crime lab workers either report to or can be pressured by prosecutors when test results don’t confirm preexisting theories about how a crime may have occurred. This sort of bias can creep in unintentionally, or it can be more overt. But studies show it’s always there. The only way to compensate for it is to bring competitors into the game, other labs who gain by revealing another lab’s mistakes. Every other area of science is steered by the peer review process. It’s really unconscionable that criminal forensics—where there’s so much at stake—has existed and evolved so long without it.

It wouldn’t be a bad idea to set up some sort of task force within the Department of Justice devoted to investigating and prosecuting cases of outright forensic fraud. If prosecutors are conspiring with or pressuring experts to deny criminal defendants a fair trial, that would be a due process violation and under the Fourteenth Amendment, the federal government would be permitted, or even obligated, to step in. Certainly a state like Mississippi, for example, has neglected its duty to ensure that its citizens accused of violent crimes are given a fair trial.

But if we’re really serious about making a true science out of forensics, we need to fundamentally alter the way forensic evidence is generated for use in the courtroom. Roger Koppl, an economist and forensic expert at Fairleigh-Dickinson University has come up with some excellent suggestions (disclosure: Koppl outlined these suggestions in a report (pdf) for the Reason Foundation, which publishes Reason. Koppl and I have also co-written two articles on this issue). Among them:

• Defendants should be given access to their own forensic experts. For every prosecution expert, defendants should be issued a voucher to hire their own expert.

• Forensic evidence (autopsies, fingerprints, blood samples, and so on) should at least periodically be sent to more than one lab for testing. Even sending just every third or fourth sample to an independent lab would go a long way toward keeping state labs honest (state labs wouldn’t know when other labs would be doing the same testing).

• Forensic experts should refrain from talking with police and prosecutors before conducting their tests. Studies show that exposure to theories about how a crime may have been committed beforehand can bias an expert’s results, even unintentionally. States should hire evidence handlers to shepherd evidence between law enforcement and crime labs without conveying any contextual information about where or how the evidence was obtained.

• State forensic experts should not serve in the same state bureaucracy as police or prosecutors. Ideally, they should report to criminal court judges. Barring that, they should be independent, and not in any way be considered part of the prosecution’s “team.”

• States should conduct periodic statistical reviews of crime lab results, to see if any labs or individual lab technicians are producing statistically unlikely results.

These ideas sound radical, but in truth they amount to little more than applying basic scientific principles like peer review, blind testing, and repetition to the evidence and opinions currently presented in criminal cases as science, but isn’t subjected to the sort of scrutiny and review other sciences are. Forensic science is in bad need of reform, but it needs to be the right kind of reform. What we don’t need is another layer of government bureaucracy that imposes a series of negotiated, compromised-for standards and practices, then fails to properly enforce them

Radley Balko is a senior editor at Reason magazine. This article originally appeared at FoxNews.com.

Manufacturing Guilt?

rbalko@reason.com (Radley Balko) — Thu, 19 Feb 2009 12:00:00 EST

Editor's Note: The following article contains graphic and disturbing photographs and video excerpts of an examination conducted on the body of a 23-month-old girl. The images are the basis of claims that forensic experts fabricated evidence in a case that put a man on death row, where he awaits exoneration or execution.

For most of the last 20 years, doctors Steven Hayne and Michael West have served as expert forensic witnesses for the state of Mississippi. Until 2008, Hayne served as the de facto state medical examiner, dominating a criminal autopsy market in which prosecutors contract out examinations to favored private doctors. West, a dentist, served one term as the elected coroner in Forest County, Mississippi in the 1990s and partly through his work with Hayne became a popular bite-mark examiner among prosecutors. Both men have come under intense scrutiny for questionable working procedures and dubious testimony—West off and on for 15 years, Hayne mostly in the last two. Reason has been following Hayne's deteriorating career since an October 2006 article that detailed his role in putting a possibly innocent man named Cory Maye on death row (see an archive of our Hayne-related reporting at: www.reason.com/hayne).

Last year, two men that Hayne and West helped convict of murder in the early 1990s, Levon Brooks and Kennedy Brewer, were exonerated and freed from prison through DNA testing after serving more than 30 years combined behind bars. Both men had been accused of raping and murdering the daughters of their respective girlfriends. In what has come to be a pattern with the two doctors, in each case Hayne claimed to have found in an initial autopsy what other examiners missed: bite marks on the victim's body. He then called in West, a forensic odontologist (dental examiner), who definitively matched bite marks to the defendants. Partly because of the testimony from Hayne and West, Brooks was sentenced to life in prison, and Brewer to death (he spent 14 years on death row). DNA testing in 2008 determined that the semen found on both girls belonged to a third man, 51-year-old Albert Johnson. As Brooks and Brewer were freed, Johnson confessed to both crimes.

The Brooks and Brewer cases form their own forensics riddle: How could West and Hayne have definitively linked previously undetected bite marks on the victims to two men who didn't commit the murders?

Reason recently obtained shocking video from another Hayne and West collaboration that may shed light on the question. In 1993, the two conducted an examination on a 23-month-old girl named Haley Oliveaux of West Monroe, Louisiana, who had drowned in her bathtub. The video shows bite marks mysteriously appearing on the toddler's face during the time she was in the custody of Hayne and West. It then shows West repeatedly and methodically pressing and scraping a dental mold of a man's teeth on the dead girl's skin. Forensic scientists who have viewed the footage say the video reveals not only medical malpractice, but criminal evidence tampering.

How Jimmie Duncan Landed on Death Row

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 of that year, 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 went to work at 8:45 a.m., leaving Haley in Jimmie 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. At around 10:30 a.m., Duncan said, he returned to the bathroom to find her lying motionless in the tub. Duncan said he rushed Haley to the house next door, where neighbor Floyd Bennett tried to administer CPR while his son called an ambulance. 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, Jimmie Duncan was arrested and charged with negligent homicide, or criminal inaction leading to another person's death.

But after the autopsy and examination by Hayne and West, prosecutors raised the charges. Citing the bite-mark analysis, along with other evidence, prosecutors charged Duncan with capital murder, alleging that he raped Haley Oliveaux in the bathtub, forced her head underwater, bit her, and drowned her. Five years later, even though the only physical evidence directly linking him to the girl was the bite-mark analysis, Jimmie Duncan was tried, convicted, and sentenced to death. He has been on death row in Louisiana for 10 years.

Louisiana had its own medical examiners at the time who were closer to the scene of the crime. Nonetheless, Haley Oliveaux's body was taken from Glenwood Regional Medical Center in West Monroe, Louisiana, 120 miles east to Jackson, Mississippi, so it could be autopsied by Hayne. At the time, Hayne, who has never been certified in forensic pathology, was performing the majority of autopsies in Mississippi, some 1,200-1,500 per year. That's an output other forensic pathologists describe as impossible (he was also holding down two hospital jobs and testifying regularly in court).

Despite his heavy workload in Mississippi, Hayne, with West by his side, began looking for business in Louisiana, too. In October 1993, the Baton Rouge Advocate reported that officials in Ouachita Parish (where West Monroe is located) were considering sending criminal autopsies to Hayne, despite concerns expressed by other medical examiners about the quality of his work. Oliveaux was one of Hayne's first autopsies for Ouachita Parish, according to testimony from Duncan's trial. Among those who traveled 120 miles to observe the examination were the West Monroe police chief, a police detective and captain, plus two assistant district attorneys. Though it isn't particularly unusual for a district attorney or police officer to witness an autopsy, it is unusual for them to travel two hours and cross state lines to do so. The National Association of Medical Examiners discourages doctors from speaking to law enforcement officials before conducting exams because because doing so can bias a doctor's conclusions. At Duncan's trial five years later, one of his attorneys likened the Oliveaux autopsy to a job evaluation. If it was, Hayne passed. By that time Hayne was performing the bulk of Ouachita Parish's criminal autopsies, 30 to 40 per year.

Hayne testified that during an initial examination of Oliveaux's body, he was able to find bite marks that at the time no other medical professional had noticed—just as he'd done in the Brewer and Brooks cases before. And just as it happened in the Brewer and Brooks cases, Hayne's discovery of potential bite marks gave local authorities probable cause to obtain a plaster dental mold of the defendant's teeth, in this case Jimmie Duncan. Hayne then called in West to perform his unique brand of "analysis." West concluded that the marks were made by human teeth belonging to the man police and prosecutors suspected of killing the child.

The Video

Hayne and West videotaped many of their autopsies and forensic examinations over the years. For whatever reason, the video of West's examination of Haley Oliveaux was preserved, and Duncan's post-conviction attorneys found it in the district attorney's file last year. They were shocked at what they saw. The full video is 24 minutes long. The brief excerpts that follow show Oliveaux's face on successive days. At the start of the videotaped examination from December 18, 1993, her right cheek appears free of any noticeable marks. Yet after the tape cuts to December 19, 1993, the cheek shows prominent signs of abrasions, which are then exacerbated by West's handiwork.

Warning: These video excerpts, approximately 30 seconds long, contain disturbing images.

Click above to watch excerpts of Haley Oliveaux's postmortem examination.

The full 24-minute video opens with Michael West's initial examination of Haley Oliveaux's body on the night of December 18, 1993. He notes several injuries, but at no time does he mention the presence of possible bite marks on Oliveaux’s right cheek. The video itself shows no sign of bite marks, scrapes, or abrasions on the cheek.

At the 4:55 mark, there's a cut in the original video, representing the break between West's initial exam on December 18, and a follow-up bite-mark analysis on December 19. After the break, West stands over Oliveaux's body, which now contains a striking red abrasion on her right cheek—an abrasion that wasn't there before. West then takes the plaster cast of Jimmie Duncan's teeth and pushes it into the scrape on Oliveaux's jaw. Over the next few minutes he jams, drags, and scrapes the dental mold across Oliveaux’s cheek 17 times. For the entire 24-minute video, West uses Duncan's teeth mold on Oliveaux's skin more than 50 times.

Expert Opinion on the Video

Reason first asked Michael Bowers to comment on the video. Bowers, a practicing dentist, is a deputy medical examiner for Ventura County, California and a past chairman of the American Board of Forensic Odontology’s Exam and Credentialing Committee. He worked with the Innocence Project to help free Kennedy Brewer.

"This is the best documentation I've ever seen of Dr. West's junk bite-mark comparisons," Bowers said in a phone interview last month.

When asked how abrasions on Oliveaux's cheek not present when the video begins could later appear, Bowers answered, "Because Dr. West created them. 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." Bowers added, "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 viewing the video, Bowers submitted an affidavit for Jimmie Duncan's defense.

Reason also showed the video to David Averill, a dentist and a former president of the American Board of Forensic Odontology. "The video is troubling. 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," Averill said. "That isn't an acceptable way to perform a bite mark analysis."

Duncan's post-conviction attorneys hired San Diego forensic pathologist Harry Bonnell to review Hayne and West's testimony in the case. Bonnell, who has been highly critical of Hayne in the past, sits on the board of trustees for Parents of Murdered Children, Inc., a victim advocacy group. He has worked for the Armed Forces Institute of Pathology and formerly served on the ethics committee of the National Association of Medical Examiners. By email, Bonnell told Reason, "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 Jimmie Duncan's defense, Bonnell elaborated:

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 bitemark. The injuries on the child’s face are abrasions, which form almost immediately, unlike bruises, therefore the fact that the marks are not present in hospital photos and in the beginning of the West Video makes it medically impossible that Jimmie Duncan could have inflicted any of these injuries. Nor is it possible that witnesses could have seen these marks in the emergency room, as abrasions cannot appear, then disappear, and then reappear at the morgue...stating that the bites (which they are not) were inflicted within 30 minutes of death is rubbish, and supported by no scientific fact or literature.

The above image of Haley Oliveaux comes from the start of the autopsy video of Haley Oliveaux on December 18, 1993. The image below comes from December 19, 1993, when the video of the examination continued.

The Tainted Dr. West

West himself never testified at Jimmie Duncan's trial. Between his examination of Oliveaux in 1993 and Duncan's trial in 1998, the bite-mark analyst came under fire for his working methods and credulity-stretching testimony. In 1994, an ethics committee from the American Academy of Forensic Sciences unanimously recommended that West be expelled from the organization. West resigned instead. His work was criticized in such national media outlets as Newsweek, the ABA Journal, and National Law Journal. By 1998, Duncan's prosecutors recognized the baggage West carried and dropped him from the case. Still, West continued to both work with Hayne and testify in Mississippi until well into the 2000s.

Duncan's prosecutors then turned to Dr. Neal Reisner, a forensic odontolgist from Scarsdale, New York. Relying only on photos West took after the examination depicted in the video, Reisner 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 came from Jimmie Duncan.

The video above was never shown at Jimmie Duncan's trial. It wasn't even shown to the expert witnesses from either side. Trial Judge Charles Joiner did view the tape, and inexplicably concluded that it contained "no exculpatory evidence favorable to the defendant," a conclusion that the forensics specialists Reason spoke with strongly dispute.

Prosecutors initially refused to turn the video over to Duncan's attorneys. In one brief filed during pre-trial motions in 1995, they noted the controversy surrounding West, and argued that "the defense is somehow hoping to drag Dr. West into this case in order to create ancillary issues for the jury." A year later, they relented and finally turned over the tape. For whatever reason, Duncan's trial attorneys never used the video; they never even showed it to their own expert, forensic odontologist Richard Souviron. (Duncan's trial attorneys declined to speak with Reason, because his case is still active.)

Souviron recently had the opportunity to view the video for the first time. In a new affidavit submitted to Duncan's post-conviction attorneys, Souviron describes the video as showing "Dr. West, violently and repeatedly, forcing a mold of Jimmie Duncan's teeth into Ms. Oliveaux's right cheek. In doing so, 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 added in the affidavit that hospital photographs show that "none of the marks were present when Ms. Oliveaux was at the hospital," and that the abrasions that Reisner testified about for the prosecution "were created by the flagrant misconduct of Dr. Michael West."

The Hayne-West Legacy

West was still testifying in Mississippi courtrooms until at least the year 2000, long after he'd resigned from the American Academy of Forensic Sciences. As late as 2007, prosecutors were still relying primarily on West's testimony to keep Kennedy Brewer in prison. And despite the Brooks and Brewer exonerations, the state has refused to conduct a review of the hundreds of cases in which West has testified.

Tucker Carrington, director of the Mississippi chapter of the Innocence Project, argues that West's influence may run even deeper. "You also have to consider all the cases where someone may have falsely confessed, or accepted plea bargain for a crime they didn't commit after being presented with West's findings. Those cases aren't going to show up in legal searches," he says. "West was also widely used by the state's social services agencies. His testimony has helped the state take who knows how many children away from their parents."

The story with Hayne is even grimmer. In August of last year, Mississippi announced that it finally would no longer include Hayne on its list of medical examiners cleared to perform criminal autopsies. The move effectively ended Hayne's reign as Mississippi's de facto medical examiner.

But as with West, Mississippi officials still refuse to acknowledge that there was ever a significant problem with Hayne, and have no intention of investigating just how much damage he may have done to the state's criminal justice system. Given that Hayne performed approximately 80 percent to 90 percent of the state's autopsies for close to 20 years, the number of cases in which he has testified is likely in the tens of thousands. Worse yet, even in terminating Hayne, the state agreed to allow him to complete a backlog of approximately 600 autopsies. As of this article's posting, he's still testifying in Mississippi courts.

Radley Balko is a senior editor at Reason magazine.

What Michael Phelps Should Have Said

rbalko@reason.com (Radley Balko) — Mon, 02 Feb 2009 15:10:00 EST

Dear America,

I take it back. I don’t apologize.

Because you know what? It’s none of your goddamned business. I work my ass off 10 months a year. It’s that hard work that gave you all those gooey feelings of patriotism last summer. If during my brief window of down time I want to relax, enjoy myself, and partake of a substance that’s a hell of a lot less bad for me than alcohol, tobacco, or, frankly, most of the prescription drugs most of you are taking, well, you can spare me the lecture.

I put myself through hell. I make my body do things nature never really intended us to endure. All world-class athletes do. We do it because you love to watch us push ourselves as far as we can possibly go. Some of us get hurt. Sometimes permanently. You’re watching the Super Bowl tonight. You’re watching 300 pound men smash each while running at full speed, in full pads. You know what the average life expectancy of an NFL player is? Fifty-five. That’s about 20 years shorter than your average non-NFL player. Yet you watch. And cheer. And you jump up spill your beer when a linebacker lays out a wide receiver on a crossing route across the middle. The harder he gets hit, the louder and more enthusiastically you scream.

Yet you all get bent out of shape when Ricky Williams, or I, or Josh Howard smoke a little dope to relax. Why? Because the idiots you’ve elected to make your laws have, without a shred of evidence, beat it into your head that smoking marijuana is something akin to drinking antifreeze, and done only by dirty hippies and sex offenders.

You’ll have to pardon my cynicism. But I call bullshit. You don’t give a damn about my health. You just get a voyeuristic thrill from watching an elite athlete fall from grace–all the better if you get to exercise a little moral righteousness in the process. And it’s hypocritical righteousness at that, given that 40 percent of you have tried pot at least once in your lives.

Here’s a crazy thought: If I can smoke a little dope and go on to win 14 Olympic gold medals, maybe pot smokers aren’t doomed to lives of couch surfing and video games, as our moronic government would have us believe. In fact, the list of successful pot smokers includes not just world class athletes like me, Howard, Williams, and others, it includes Nobel Prize winners, Pulitzer Prize winners, the last three U.S. presidents, several Supreme Court justices, and luminaries and success stories from all sectors of business and the arts, sciences, and humanities.

So go ahead. Ban me from the next Olympics. Yank my endorsement deals. Stick your collective noses in the air and get all indignant on me. While you’re at it, keep arresting cancer and AIDS patients who dare to smoke the stuff because it deadens their pain, or enables them to eat. Keep sending in goon squads to kick down doors and shoot little old ladies, maim innocent toddlers, handcuff elderly post-polio patients to their beds at gunpoint, and slaughter the family pet.

Tell you what. I’ll make you a deal. I’ll apologize for smoking pot when every politician who ever did drugs and then voted to uphold or strengthen the drug laws marches his ass off to the nearest federal prison to serve out the sentence he wants to impose on everyone else for committing the same crimes he committed. I’ll apologize when the sons, daughters, and nephews of powerful politicians who get caught possessing or dealing drugs in the frat house or prep school get the same treatment as the no-name, probably black kid caught on the corner or the front stoop doing the same thing.

Until then, I for one will have none of it. I smoked pot. I liked it. I’ll probably do it again. I refuse to apologize for it, because by apologizing I help perpetuate this stupid lie, this idea that what someone puts into his own body on his own time is any of the government’s damned business. Or any of yours. I’m not going to bend over and allow myself to be propaganda for this wasteful, ridiculous, immoral war.

Go ahead and tear me down if you like. But let’s see you rationalize in your next lame ONDCP commercial how the greatest motherfucking swimmer the world has ever seen...is also a proud pot smoker.

Yours,

Michael Phelps

Vanity Lair

rbalko@reason.com (Radley Balko) — Fri, 27 Feb 2009 11:10:00 EST

In the early 1990s, Congress got the idea that America needed an underground facility where tourists could escape D.C.’s sticky Augusts and biting Februaries while lining up to tour the Capitol. Estimated cost: $70 million.

In the 15 years since, the project has morphed into a sprawling, $621 million, three-story, ostentatious shrine to “the legislative process.” In other words, Congress built a tribute to itself. The new building, which opened in December (three years late and $300 million over the revised budget), includes a TV studio (with make-up room) for members to record messages to their constituents, a 450-seat dining area, two orientation theaters, an auditorium, and an exhibition hall.

The building’s grand opening attracted lots of press and featured speeches by congressional leaders and VIPs. But one element was conspicuously missing: tourists and taxpayers. That’s because they weren’t invited: The event was closed to the public. Which was probably a good thing, because Senate Majority Leader Harry Reid (D-Nev.) apparently wasn’t content with bilking taxpayers for the vanity project; he insulted them too. “My staff tells me not to say this, but I’m going to say it anyway,” he said, according to Politico. “In the summer because of the heat and high humidity, you could literally smell the tourists coming into the Capitol. It may be descriptive, but it’s true.”

Grandiose, self-congratulatory, larded with wasteful add-ons, and contemptuous of taxpayers—actually, the center is the perfect tribute to Congress.