by Radley Balko
later been dismissed: In 1992, West matched a bite mark on an elderly rape victim to a Mississippi man named Johnny Bourn. Bourn was arrested and imprisoned for eighteen months as a result of West’s findings, even though hair and fingerprint evidence pointed to someone else. Bourn was released when DNA testing on fingernail scrapings taken from the victim conclusively excluded him as the assailant. Mark Hansen, “Out of the Blue,” American Bar Association Journal, Feb. 1, 1996; Ross Parker Simons, affidavit, Oct. 6, 2010.
professional limitations: Brewer trial transcript, 704.
“So I made one mistake.”: Ibid., 788.
doesn’t reflect Kennedy Brewer’s reaction: Ibid., 788.
hour-long documentary on BBC: Ibid., 687; Traces of Guilt: The Verdict, BBC, Jan. 4, 1996.
“degree of scientific certainty,”: Brewer trial transcript, 722.
“an art as it is a science.”: Ibid., 722, 800.
weren’t bite marks: Ibid., 865.
“direct comparison”: Ibid., 875.
a true “pioneer.”: Ibid., 875.
“dental scientific certainty.”: Ibid., 895.
“somewhat of an art.”: Ibid., 895.
“class and individual characteristics”: Ibid., 735.
underbite, and so forth: Ibid., 735–736, 738–739, 744–745.
“random wear and tear.”: Ibid.
biting surface of a tooth: Ibid.
to show to the jury: Brewer v. State 725 So.2d 106 (Miss. 1998), footnote 4.
“to create [visible] marks.”: Declaration of David Senn, Nov. 30, 2011, Hayne v. Innocence Project, 7.
for another two years: Brewer trial transcript, 525–526; Stossel, “Junk Science.”
accessible only from the inside: Brewer trial transcript, 30–31.
she returned from the club: Ibid., 31.
on the ground underneath it: Ibid., 34.
to watch American Gladiators: Ibid., 541.
any sign of having done so: Ibid., 421, 618, 541, 577–579.
through the window itself: Ibid., 577–579.
“do that with you right now.”: Ibid., 991–992.
“Four; no more. Four,”: Ibid., 992.
retired to deliberate: Ibid., 1039. The time was 4:10 p.m.
They found Kennedy Brewer guilty: Ibid., 1041. The time was 5:45 p.m.
“atrocious and cruel.”: Ibid., 1050.
much of an opening statement: Ibid.
proficient in the sentencing phase: Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 2003, American Bar Association.
guaranteed by the Eighth Amendment: For a history and discussion of mitigation and the death penalty, see Russell Stetler, “The Mystery of Mitigation,” University of Pennsylvania Review of Law and Social Change 11 (2007–2008): 237.
not to build empathy: See Liliana Segura, “As Arkansas Prepares for Seven Back-to-Back Executions, a Victim Requests Clemency,” Intercept, April 14, 2017. (Quoting defense attorney discussing mitigation in Arkansas in the 1990s: “I can’t say we even looked for it. We had no idea what that meant.”)
Annie, as a witness: Brewer trial transcript, 1059–1062.
“Don’t, please.”: Ibid., 1062.
since her son had been locked up: Ibid.
agree that there hadn’t: Ibid.
Christine Jackson’s murder: Arraignment and guilty plea transcript, State v. Justin Albert Johnson, No. 12,385 (Noxubee Cnty. Circuit Ct. May 20, 1992).
“Yes, sir,”: Brewer trial transcript, 1056.
“you were urged to do.”: Ibid., 1083.
“we will not long exist.”: Ibid.
often invoked the Bible: For example, see Quintez Wren Hodges v. State of Mississippi, 912 So.2d 730 (Miss. 2005); Willie Jerome Manning v. State of Mississippi, 929 So.2d 885 (2006).
“fit only for destruction.”: Brewer trial transcript, 1083–1084. Allgood’s reference to the prophet Paul was prescient, though not in the way Allgood intended. Paul’s own story is one of injustice. Facing trial and possible execution for promulgating revolt in Judea by teaching Christianity, Paul had the good fortune to land in the court of Festus, Judea’s governor. Festus assured Paul that judgment would be a matter of law, not of faith. Neither Festus nor Roman consul Agrippa consented to the mob’s demands that Paul be executed.
“suffer the penalty of death.”: Ibid., 1088.
“mercy on your soul.”: Ibid., 1089.
just 4 people: See “Mississippi and the Death Penalty,” Mississippi Department of Corrections, www.mdoc.ms.gov/Death-Row/Pages/Mississippi-Death-Penalty.aspx.
23 over the same period: See “Executions,” Alabama Department of Corrections, www.doc.state.al.us/Executions.aspx.
166 in the 1990s alone: See “Statistics,” Texas Execution Information, www.txexecutions.org/statistics.asp.
were unconstitutionally vague: Godfrey v. Georgia, 446 U.S. 420 (1980).
the word “especially,”: Maynard v. Cartwright, 486 U.S. 356 (1988).
the Godfrey decision in 1980: Stringer v. Black, 503 U.S. 222 (1992).
finality of the gas chamber: Leatherwood v. State, 548 So.2d 389, 403-406 (Miss. 1989) (Robertson, J., concurring) (expressing the view that there was “as much chance of the Supreme Court sanctioning death as a penalty for any non-fatal rape as the proverbial snowball enjoys in the nether regions”); Minnick v. State, 551 So.2d 77, 101 (Miss. 1988) (Robertson, J., dissenting), rev’d sub nom. Minnick v. Mississippi, 498 U.S. 146 (1990); Clemons v. State, 535 So.2d 1354, 1367 (Miss. 1988) (Robertson, J. dissenting). Robertson’s dissenting opinion in Clemons took the position that the “heinous, atrocious or cruel” aggravating factor was unconstitutionally vague (1367–1368). Campaign advertising claimed that his decision meant that “a defendant who ‘shot an unarmed pizza delivery boy in cold-blood’ had not committed a crime serious enough to warrant the death penalty.” Stephen B. Bright, “Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges from Office for Unpopular Decisions?” New York University Law Review 308 (1997): 72.
Robertson as a friend to criminals: See Stephen B. Bright and Patrick J. Keenan, “Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases,” Boston University Law Review 75 (1995): 759.
“executions to the county seat.”: Adam Nossiter, “Making Hard Time Harder, States Cut Jail TV and Sports,” New York Times, Sept. 17, 1994.
“capital of capital punishment.”: Ibid.
“zebras in Mississippi.”: Ibid.
already punishable by death: Mac Gordon, “Execution Goes Back on Agenda,” Clarion-Ledger (Jackson, MS), Aug. 13, 1994.
bipartisan support: Ibid.; Margaret Downing, “Big Game Hunter Stalks Trophy Prey Back in Home Jungle,” Clarion-Ledger (Jackson, MS), Aug. 7, 1994; Emily Wagster, “Who’s Responsible for Crime? Depends on Whom You Ask,” Clarion-Ledger (Jackson, MS), Oct. 29, 1995.
killing her newborn daughter: Jill Farrell King, “Teenage Mother Faces Trial in Infant Daughter’s Death,” Clarion-Ledger (Jackson, MS), April 2, 1997; Joseph Ammerman, “Investigation Continues as Newborn Baby Is Buried,” Clarion-Ledger (Jackson, MS), Dec. 25, 1996.
“penalty to be carried out.”: “Death Penalty Must Be Swift and Certain If It Is to Remain a Deterrent to Crime,” Enterprise-Journal (McComb, MS), reprinted in Clarion-Ledger (Jackson, MS), Sept. 3, 1994.
“carried out quickly,”: “Death Penalty: Appeal Time Should Be Shortened,” Clarion-Ledger (Jackson, MS), Oct. 12, 1995.
“to shorten the process.”: Ibid.
crimes punishable by death: “Punishment Has Not Been Given to Those Sitting on Mississippi’s Death Row,” Clarion-Ledger, (Jackson, MS), Jan. 27, 1996; Mac Gordon, “Governor Outlines His ’96 Agenda,” Clarion-Ledger (Jackson, MS), Jan. 17, 1996.
“ours continues to grow.”: Joseph Ammerman, “Fordice Wants to Speed Executions,” Clarion-Ledger (Jackson, MS), June 12, 1997.
�
��sword of justice do its work.”: “Death Penalty: Mississippi Should Make It Work,” Clarion-Ledger (Jackson, MS), Feb. 22, 1998.
“need for the death penalty.”: “DNA Evidence: Brewer Deserves His Day in Court,” Clarion-Ledger (Jackson, MS), July 8, 2001.
autopsy totals topped 1,500: Dr. Steven T. Hayne, autopsy data.
his work in private cases: Deposition of Cecil McCrory, Hayne v. Innocence Project (April 24, 2012), 33–34.
conduct arson investigations: Ibid., 35–36.
and wrongful deaths: Deposition of Dr. Steven Hayne, Hayne v. Innocence Project, 2011 WL 198128, No. 3:09-CV-218-KS-LRA (S.D. Miss. April 26, 2012), 23–25.
“missed a beat without”: Thyrie Bland, “Some Say 2-Year Vacancy Proof Medical Examiner Unnecessary,” Clarion-Ledger (Jackson, MS), June 28, 1997.
“we don’t have one.”: Ibid.
“whenever I need him.”: Ibid.
“working absolutely fine,”: “One Job Not Worth Filling,” Hattiesburg (MS) American, Sept. 6, 1997.
“Not one.”: Ibid.
a salary of $69,000: Ibid.
West argued, but nothing more: Butch John, “Applicants for Medical Examiner Job Tough to Find,” Clarion-Ledger (Jackson, MS), March 22, 1999.
“happened in the past.”: Ibid.
exhumed and reexamined: See depositions of Dr. Steven Hayne, Daniel Storts v. Graco Children’s Products Inc., No. 95C 1007H (U.S. District Ct. Northern District of Oklahoma, 1996); deposition of Steven Hayne, Edward Dillon et al. v. Richard Rushing et al., No. 94-0040 (Lincoln Cnty. Circuit Ct. April 8, 1998), 20–30.
“medical knowledge.”: Deposition of Dr. Steven Hayne, Daniel Storts v. Graco Children’s Products Inc., 6–7.
“during the original autopsies.”: See Radley Balko, “CSI: Mississippi,” Reason, Oct. 8, 2007.
His price: $37,000: Edward Dillon et al. v. Richard Rushing et al., 25.
“unsolved into police convictions.”: John Stossel, “Junk Science: What You Know That May Not Be So Scientific—Theories That May Be Wrong,” ABC News, Aug. 28, 1997.
“directed straight from God.”: Ibid.
went on to kill again: Radley Balko, “Solving Kathy Mabry’s Murder,” Huffington Post, Jan. 17, 2013.
“expert in forensic odontology.”: Brewer v. State of Mississippi, 725 So.2d 106.
“not his qualifications.”: Ibid.
“and the trial itself.”: Brooks v. State of Mississippi, no. 98-KA-322, brief for the appellee (March 5, 1999), 17.
“inadmissible in the present case.”: Ibid.
raising them in his appeal: Brooks v. State of Mississippi, 748 So.2d 736 (Miss. 1999).
reliable as fingerprints or DNA: Ibid.
he was “elated.”: Gina Holland, “State Supreme Court Rules Bite Mark Evidence Admissible,” Clarion-Ledger (Jackson, MS), Oct. 8, 1999.
“validity of bite marks.”: Ibid., (McCrae, J., dissenting).
list of transgressions: Brooks v. State of Mississippi, 748 So.2d 736 (McRae, J., dissenting).
CHAPTER 12: PRAYERS FOR RELIEF
Hayne hired him as an assistant: Dr. Michael West, curriculum vitae, March 30, 2006; Steven Hayne v. the Innocence Project, 2011 WL 198128, No 3:09-CV-218-KS-LRA (S.D. Miss. March 13, 2012), 157.
“one thing, Dr. Michael West.”: Transcript of record, State v. Howard, 92-400-CR1 (Lowndes Cnty. Circuit Ct. May 22, 2000) (hereinafter “Howard trial transcript”), 619–620.
“profession as the standard.”: Ibid., 620.
“So it was with Michael West.”: Ibid.
“he’s a leader in his field.”: Ibid., 621.
“three year old child.”: Ibid., 641.
sentenced him to die: Ibid., 621, 697; sources for Eddie Lee Howard narrative: Howard trial transcript; “Teenager Acquitted of Killing Sister,” Associated Press, Nov. 4, 1993; “Bleach Burns Called Deliberate,” Associated Press, Nov. 3, 1993; “Memorandum of Authorities in Support of Answer to the Petition for Writ of Habeas Corpus,” Eddie Lee Howard Jr. v. State of Mississippi, No. 3:07-CV-10-P (Jan. 20, 2010).
acronyms to attorneys: Elizabeth MacDonald, “The Making of an Expert Witness: It’s Definitely in the Credentials,” Wall Street Journal, Feb. 8, 1999.
difference between them: State of Mississippi v. David Parvin, No. CR09-135 (Monroe Cnty. Circuit Ct. June 13, 2011), 195–196; Declaration of J. C. Upshaw Downs, M.D., Dec. 1, 2011, Hayne v. Innocence Project, 6–7.
“a problem with that.”: Radley Balko, “CSI: Mississippi,” Reason, Oct. 8, 2007; Joseph Prahlow, interview by Radley Balko.
from the American Board of Pathology: See letter from Dawn Young to Kris Sperry, Dec. 26, 1994. (“Further, when I asked the plaintiff’s attorney about this, he indicated that he was convinced that Dr. Hayne possessed the same qualifications and certifications as Dr. McCormick.”)
in dozens of medical fields: Letter from John D. McLellan Jr., United States Department of Labor, to Dr. Michael Rask, Dec. 18, 1984; Ken Terry, “Visit Vegas! Get Your Boards While You’re There,” Medical Economics, Feb. 13, 1995; Jerry Mitchell, “Pathologist’s Credibility on Line,” Clarion-Ledger (Jackson, MS), Nov. 6, 2012; deposition of Dr. Steven Hayne, Hayne v. Innocence Project, 2011 WL 198128, No. 3:09-CV-218-KS-LRA (S.D. Miss. April 26, 2012), 211–213; letter from Nick Rebel to Jim Lappan, Mississippi Office of Capital Defense Counsel, May 18, 2010; letter from Barbara Schneidman, assoc. vice president of the American Board of Medical Specialties, to Emily W. Ward, assistant professor of pathology (June 18, 1996); “AFMA,” American Academy of Neurological and Orthopedic Surgery, http://aanos.org/certification/afma; AFMA address found at www.directoryofassociations.com/view.asp?di=%7B7D260A02-1D0D-4367-B8AB-427FFCB26984%7D; Mark Hansen, “Expertise to Go,” American Bar Association Journal (Feb. 2000).
“radiofrequency surgery.”: Terry, “Visit Vegas! Get Your Boards While You’re There.”
shortly before he died: Ibid.
in 1991 for plagiarism: Hansen, “Expertise to Go,” 44; MacDonald, “The Making of an Expert Witness”; Joseph T. Wells, “The Similarities End with the Initials,” Fraud (Sept./Oct. 2012); Leah Bartos, “No Forensic Background? No Problem,” ProPublica, April 17, 2012, www.propublica.org/article/no-forensic-background-no-problem; Aaron Nesbitt, “CSI: Mississippi,” letters, Reason, June 2008; Melody Petersen, “A Résumé Distinguished by What It Didn’t Mention,” New York Times, Sept. 6, 2001.
retaliation for whistle-blowing: Hansen, “Expertise to Go.”
about O’Block’s credibility: Wells, “The Similarities End with the Initials.”
1-800-4AExpert: Hansen, “Expertise to Go,” 44; MacDonald, “The Making of an Expert Witness.”
$200,000 per year: Hansen, “Expertise to Go,” 44.
on an ethics test: Ibid., 50.
even that could be waived: Ibid.
name of her cat: Bartos, “No Forensic Background? No Problem,” citing Steve K. D. Eichel, “Credentialing: It May Not Be the Cat’s Meow,” 2011, www.dreichel.com/Articles/Dr_Zoe.htm; Steven K. Dubrow Eichel, “Credentialing: It May Not Be the Cat’s Meow,” Freedom of Mind Resource Center, 2002, at http://old.freedomofmind.com/Info/articles/credentialing.php.
about whom it certifies: When Radley Balko made inquiries with the group about Hayne’s accreditation, he was a told that the requested information was confidential.
any of her professional references: Bartos, “No Forensic Background? No Problem.” (Note: In a posted rebuttal to the article, ACFEI argued that by joining the group, attending two conferences, enrolling in an online course, and reading enough of the materials to pass the test, she was much more qualified for her certification than she claimed. The group also argued that the purpose of its certifications is not to qualify someone as an expert witness, although plenty use the group for that purpose, and its website certainly makes that claim for a number of certifications. See https://static.propublica.org/assets/docs/ACFEI.ProPublica OfficialStmt.pdf.
told Bartos in her 2012 ProPublica
report: Ibid.
“or is just a diploma mill.”: Ibid.
corresponding impact to the head: See U.S. Shaken-Baby Syndrome Database, Medill School of Law, Northwestern University, www.medilljusticeproject.org/database; Jerry Mitchell, “High Court Tosses ‘Shaken Baby’ Conviction,” Clarion-Ledger (Jackson, MS), Dec. 18, 2014; see also Jerry Mitchell, “Miss. Court Rejects ‘Shaken Baby’ Conviction,” Clarion-Ledger (Jackson, MS), Dec. 16, 2014; Clyde Haberman, “Shaken Baby Syndrome: A Diagnosis That Divides the Medical World,” New York Times, Sept. 13, 2015.
exceptionally violent shaking: Haberman, “Shaken Baby Syndrome.”
convictions have been overturned: Ibid.
there are no accidents: André de Gruy, interview by Radley Balko; Robert Evans, interview by Radley Balko.
eleven such convictions in the state: Jerry Mitchell, “High Court Tosses ‘Shaken Baby’ Conviction”; see also Mitchell, “Miss. Court Rejects ‘Shaken Baby’ Conviction.”
involved in many of them: See for example, “Baby Sitter Charged in Infant’s Death,” Yazoo Herald (Yazoo City, MS), Jan. 31, 1998; “Manslaughter Plea,” Clarion-Ledger (Jackson, MS), Oct. 4, 2000.
“leaving her employment.”: Devin Bennett v. State of Mississippi, 933 So.2d 930 (Miss. 2006).
“think Devin is innocent.”: Sources for Devin Bennett narrative: Devin Bennett v. State of Mississippi, No. 2006-DR-01516-SCT (Miss. 2008); trial transcript, State of Mississippi v. Devin Bennett; Sylvain Metz, “Jury Hear Tape of Accused Dad,” Clarion-Ledger (Jackson, MS), Feb. 26, 2003; “Death Row Inmate Ends His Hunger Strike After 19 Days,” Clarion-Ledger (Jackson, MS), Aug. 24, 2012; Emily Ward, interview by Radley Balko; letter from Devin Bennett to Radley Balko.
died shortly thereafter: Jeffrey Keith Havard v. State of Mississippi, 928 So.2d 771 (Miss. 2006); see also James R. Lauridson Report, May 10, 2007.
for sexual abuse: Jeffrey Keith Havard v. State of Mississippi, 988 So.2d 322 (Miss. 2008).
Shaken Baby Syndrome: Havard v. State of Mississippi, 928 So.2d 771; see Chloe Britt, autopsy report, Feb. 22. 2002.
when Dr. Hayne was available: Havard v. State of Mississippi, 928 So.2d 771; trial transcript, State of Mississippi v. Jeffrey Keith Havard, Case No. 0141 (Adams Cnty. Circuit Ct. June 18, 2002), 44–45 (hereinafter “Havard trial transcript”).