by Radley Balko
But Bennett’s pace had begun wearing him down after just four months, and he hadn’t even yet begun regularly testifying in court, a time-consuming task that required preparation, travel, and waiting around to be called to the witness stand. Moreover, he was forced to perform his autopsies at the University of Mississippi Medical Center, a facility that wasn’t equipped for forensic pathology. He was also working with a state crime lab that was frequently backlogged, forcing him to wait on test results before delivering his reports to coroners, prosecutors, and the families of the deceased. Though it was through no fault of his own, that created more tension between him and county officials.
By June 1986, Bennett had not only pushed through the first major reform of the state’s coroner system in a century but also reduced the state’s percentage of deaths with “unknown causes” from 46 percent to just 2 percent. But he was also frustrated and burned out. He was short staffed, worked untenable hours, and wasn’t getting much support from the DPS.
At the end of September 1986, Bennett finally resigned. “I cannot shoulder the burden anymore. I’m just fried,” he told the Clarion-Ledger. One of the state’s more reform-minded coroners worried that Bennett would be impossible to replace. “It would surprise me if they find somebody to come in under the same conditions,” said Harrison County coroner Steve Delahousey. “Mississippi doesn’t have a very good track record with medical examiners.” As Bennett left, the same state officials who had warmly welcomed him a year and a half earlier took potshots at him, accusing him of jumping ship.
When the position remained vacant a month later, DPS commissioner James Roberts played down the importance of having a state medical examiner at all. “I’m not aware of any problem,” he said. “Most district attorneys and people who have the need to have autopsies are able to get them. So the system will continue to function.”
But most local officials had returned to using clinical or anatomical pathologists, not forensic pathologists. The quality of investigations had undoubtedly diminished. The system had regressed. Faye Spruill was initially encouraged at Bennett’s success in pushing through the coroner reform law in 1986. She then watched as he fought and lost the very battles she had fought and also lost. She told a reporter, “I’m really just heartsick.”
In October 1986, the Wisconsin Court of Appeals issued a strongly worded, spectacularly flawed opinion in the case of State v. Stinson. Two years earlier, Robert Lee Stinson had been convicted of raping and killing an elderly woman in Milwaukee. The only physical evidence linking him to the crime was the testimony of two bite mark specialists: Lowell Thomas Johnson and Raymond Rawson. At the time, Rawson served on the Bite Mark Standards Committee of the American Board of Forensic Odontology. He had also coauthored the organization’s original guidelines for bite mark matching.
Johnson performed the initial analysis in the case by placing a mold of the suspect’s teeth over photographs of some marks on the victim’s body. He concluded that the marks “had to have been made by teeth identical in all of these characteristics” to the teeth of Stinson. Rawson then reviewed those conclusions and confirmed that the marks matched Stinson’s teeth “to a reasonable degree of scientific certainty.” Stinson was convicted.
On appeal, Stinson challenged the admission of the bite mark evidence. The appellate court shot him down. Based on the testimony from Johnson and Rawson, the appeals court judges went on for paragraphs about how careful and meticulous the two experts had been. Ultimately, the court found the bite mark evidence against Stinson so overwhelming as to “exclude to a moral certainty every reasonable hypothesis of innocence.”
A moral certainty. Yet in 2009, twenty-three years after he was convicted, Robert Lee Stinson was exonerated by DNA testing. He had never bitten the victim. Nor did he rape and kill her. All of the evidence that screamed guilt—to a moral certainty, no less—was unfounded pseudoscience. Yet the court never made any effort to correct its mistake. As of this writing, State v. Stinson is still the controlling precedent for bite mark evidence in Wisconsin.
Bite mark analysis, along with fields like tire tread analysis, “tool mark” matching, blood spatter analysis, and even fingerprint analysis, all belong to a class of forensics called “pattern matching.” These fields are problematic because although they’re often presented to juries as scientific, they’re actually entirely subjective. Analysts essentially look at two samples, and determine, using their own judgment, whether or not they’re a “match.” These analysts aren’t subject to peer review or blind testing. There’s no way to calculate error rates. You’ll rarely find two experts who are diametrically opposed about a victim’s blood type or how many DNA markers match the defendant. That’s because those are questions of science. In pattern matching, expert witnesses regularly come to opposing conclusions. Juries are simply asked to side with the analyst they find more convincing.
Bite mark matching really grew in popularity in US courtrooms in the 1970s and 1980s, but it can be traced all the way back to the Salem witch trials. It literally began with a witch hunt. In May 1692, the Reverend George Burroughs was arrested in Salem on suspicion of witchcraft. The only physical evidence against him were several alleged bite marks found on some of the girls he was accused of corrupting with sorcery. At trial, Burroughs’s mouth was pried open so his teeth could be compared to the marks left on the bodies of the girls. Burroughs actually had a solid alibi: at the time of the alleged attacks, he was in jail. That didn’t matter much to his accusers. At the urging of the notorious witch hunter Cotton Mather, Burroughs was convicted, sentenced to death, and promptly hanged.
Two months later, the governor of Massachusetts called for an end to witchcraft trials. He issued a proclamation that prohibited the use of “spectral and intangible evidence” in the colony’s criminal trials. Two decades later, Burroughs was posthumously declared innocent, and the colony of Massachusetts compensated his children for their father’s wrongful execution. So went the first recorded use of bite marks in a criminal trial.
The most consequential bite mark case in US history occurred in 1974, when a California judge convicted Walter Edgar Marx of voluntary manslaughter based largely on alleged bite marks on the victim’s nose. The marks were identified only when the victim’s body had been exhumed, more than six weeks after she had been autopsied, embalmed, and buried. After a truly macabre series of experiments that involved a plaster cast of the victim’s nose, a frankfurter, and an analyst biting a detective’s nose for comparison, three dentists testified for the prosecution. All claimed they could match impressions on the victim’s corpse to Marx’s teeth. In a ruling that has since become enormously influential, a California appeals court upheld the conviction. Going forward, the Marx ruling will be read as a “global warrant” for courts’ acceptance of bite mark identification testimony.
The Marx ruling was essentially an end run around the Frye test, the prevailing standard at the time for determining the validity of scientific evidence. The judges in Marx actually conceded that there was no scientific research to support bite mark matching. That should have been the end of the analysis. The evidence should have been tossed, and the conviction overturned.
Instead, the judges’ reasoning took a bizarre turn. Because there was no science to analyze, the court decided a Frye test wasn’t necessary. Instead, they simply invented their own test for evidence that wasn’t scientific but was imbued with what you might call a scientific gloss. They noted that the trial judge had ruled that the bite mark expertise seemed sound—and that was good enough for them. In essence, Marx introduced a new standard for the admission of forensic evidence: the eyeball test.
Three years later, another California appeals court cited Marx in upholding bite mark evidence in a separate case. Strangely, that court explicitly referenced the “superior trustworthiness of the scientific bitemark approach” described in Marx, despite the fact that the Marx opinion specifically acknowledged a lack of scientific research in sup
port of the practice. There would be no going back. There was now an established record of precedent. There would soon also be an established record of wrongful convictions. In the thirteen years following the Marx ruling, sixteen court opinions from twelve states either relied on the decision or adopted its “eyeball test.” All but three of those rulings noted the “scientific” nature of bite mark analysis, despite the fact that—again—the Marx decision itself explicitly acknowledged that scientific research validating the field didn’t exist.
It was like an extended exercise in jurisprudential “telephone,” the childhood game in which a phrase is gradually corrupted as each kid whispers it to the next. In 1978, the Arizona Supreme Court became the first state high court to hold that bite mark evidence of this sort is an admissible forensic discipline. By 1988 the West Virginia Supreme Court noted in an opinion that bite mark matching had been so “generally accepted” in American courtrooms as sound science that a Frye analysis was no longer even necessary.
There still wasn’t a shred of scientific evidence to back any of it up. Instead, courts were upholding bite mark evidence based on little more than previous rulings from other courts—stretching all the way back to Marx. In some instances, state appellate courts adopted the “eyeball test.” In others, the courts erroneously claimed that Marx had already validated the science of bite mark matching, thus relieving them from engaging in any analysis themselves. It’s been one big judicial echo chamber.
“Most of the time when doing one of these analyses, the only thing a judge will ask is, ‘Have other courts allowed this?’” says Arizona State University law professor and evidence expert Michael Saks. “If the answer is yes, then they’ll figure out a way to let it in. Or they’ll decide that if the government is paying a person to do this analysis, it must be legitimate. That’s a far cry from an analysis of its scientific merit. But it doesn’t seem to matter.”
By 1987, twenty-three state appellate courts had accepted bite mark analysis, without a single dissenting opinion. By 2004, courts in thirty-seven US jurisdictions had accepted it. As of this writing in 2017, no court in America has yet upheld a challenge to the scientific validity of bite mark evidence. And yet the field has been denounced by every panel of scientists that has attempted to assess its scientific validity. Perhaps more pertinent: twenty-five people arrested or convicted primarily based on bite mark matching have been exonerated. Two of them were nearly executed.
The late 1980s brought a spike in violent crime, along with a drumbeat of demagoguery from politicians. With more crime came more fear of crime. Cops and prosecutors sought new tools to help them put violent offenders behind bars. Politicians and much of the public itself were eager to give them those tools. DNA testing wasn’t yet common, and the more targeted and sophisticated DNA testing we know today was still years away. The country was blissfully unaware of the coming wave of exonerations. The scientific community had yet to take much of an interest in forensics. And most Americans still believed that the criminal justice system was either infallible or pretty darned close.
Given these conditions, and given the courts’ reluctance to provide any real oversight of the use of expert testimony, a forensic specialist willing to bend his or her analysis to confirm the suspicions of cops and prosecutors could do very well—financially and professionally. And many did. The exonerations wrought by DNA testing have now exposed too many crime lab scandals to count.
But a truly enterprising showman, one with some charisma and some bravado, might push the boundaries. He might go beyond fudging test results or tweaking lab reports. He might invent new disciplines from whole cloth, concoct new methods of analysis, and claim expertise and powers of observation that only he possesses—all of which he could offer up to help law enforcement officials solve crimes and win convictions. Such a showman could do quite well for himself.
In Mississippi, one man would do all of those things. He’d charm police officers and prosecutors with bawdy wit and back-slapping charm, then win them over by providing the scientific-ish evidence that confirmed their suspicions and clinched convictions. He’d also pollute the criminal justice system, help convict innocent people, and help guilty people go free.
His name is Michael West.
Meanwhile, three primary interests drove the evolution of Mississippi’s death investigation system in the 1970s and 1980s. First and foremost was the state legislature, a body unwilling to appropriate a budget to build proper facilities and hire the forensic pathologists and support staff needed to run a modern-day state medical examiner’s office. It was a body also beset with cronyism; still tainted with old-school chauvinisms like misogyny and mistrust of outsiders, as Spruill and Bennett found out; and populated by lawmakers with a stubborn aversion to change.
Second were the coroners, defenders of a dinosaur institution, fiercely protective of the office, and still powerful enough as a group to beat back any proposed reforms that threatened their authority. Some at least recognized a few of the problems with the system and sought to upgrade the office itself. But no matter how well intended those measures, they served only to perpetuate the status quo.
Finally, there was law enforcement—the state’s police officials and prosecutors. Though some law enforcement leaders recognized early on that a real medical examiner system might provide a more accurate read on the crime rate, some also realized that doing so might expose a shocking number of unsolved murders. But for the most part, until the late 1980s the law enforcement community in Mississippi was one of the most reliable lobbies for real, substantive reform. That would soon change.
Faye Spruill and Thomas Bennett were doctors. They tried to create a death investigation system grounded in professional standards and medical science, regardless of how the results of such a system might affect those three main interest groups. When they encountered resistance, they adapted and tried to operate within the state’s political landscape. But in the end, their fight was the same fight the medical community had been having with the justice system for decades. Change required some political acuity. Sheriff, district attorney, coroner, and legislator are all elected positions. By running for one of those positions, a candidate has already shown an interest in politics; by winning, he or she has already shown a knack for it. Doctors aren’t normally political animals, and the profession is generally incompatible with the character traits that make for successful politicians.
But what if a doctor came along who actually had some political acumen? A doctor who could simultaneously please the coroners by making them feel needed and legitimate, law enforcement by helping them get convictions, and state legislators by taking the entire problem—and the problem of funding it—off their plates could very quickly accumulate power, influence, and money. Such a doctor would need to be comfortable with a massive workload—a workload professional medical organizations say would be impossible to maintain without sacrificing quality and professionalism. But so long as all the people in power were satisfied, no one who mattered would complain. He would need to seem authoritative and persuasive to juries. And he’d need to be persuasive even when giving scientifically dubious testimony, or testimony well outside his area of expertise.
Just before his resignation, Thomas Bennett told the Clarion-Ledger that the political challenges and strain on his family posed by his workload were just too much to bear. “I wanted to stay here so badly,” he said. But the state had asked far too much of him. “You’re not going to get some clown to come in here and do the load I’ve been doing,” he said.
With that, the stage was set for Steven Hayne.
6
RISE OF A FIEFDOM
It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have.
—James Baldwin, No Name in the Street
Among the witnesses whom Parke Morris has deposed over the years, Steven Hayne sticks in his memory more than most. In October 2007, the Memphis-based attorney was rep
resenting the estate of a man who had died of dehydration in a nursing home. The family had hired Hayne to do the autopsy before retaining Morris. The opposing attorneys and Morris had just questioned Hayne in a deposition.
“I’m a Civil War buff,” Morris says. “So as I was in his office talking to him, I noticed that Hayne had a shelf full of Civil War books. I pulled a book off the shelf at random. I can’t remember what we had been talking about, but he told me to turn to a particular page, because there was a quote there that was relevant to our conversation. I turned to the page, and I’ll be damned. There it was. The guy had a photographic memory.”
Morris says it was immediately obvious that Hayne was not only smart, but he seemed to enjoy demonstrating just how smart he was. Others have noticed this, too. In a 2013 article about Hayne, New York Times reporter Campbell Robertson wryly observed that when he tried to interview Hayne about the controversy surrounding his work, their conversation “ranged from the fall of the Roman republic to the folly of the Vietnam War.”
“Brilliant guy. No question,” Morris says. “And then I realized: that’s what makes him so dangerous.”
Morris had deposed Hayne earlier that day. He found Hayne’s answers surprising—and more than a little disturbing. When someone dies of dehydration, Morris says, lab tests should show elevated levels of certain chemicals, such as sodium. “This patient’s lab results were off the charts. I’ve investigated more than 2,500 nursing home deaths before and since, and I’ve still never seen anything like it.”
But despite those test results, Hayne insisted instead that the patient had died of amitriptyline poisoning. Amitryptiline is commonly used as an antidepressant and antipsychotic, but it can be toxic in large doses. Lab tests did show elevated levels of the drug in the deceased patient, but Morris says other tests conclusively showed that the high levels were due to a process called postmortem redistribution—after death, drugs can settle and become concentrated in certain areas of the body. That can skew lab results.