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[benjipwns]

https://www.washingtonpost.com/news...-men-in-prison-forensic-experts-cant-be-sued/

Regular readers of The Watch will by now be familiar with the saga of Steven Hayne and Michael West, the two men who dominated Mississippi’s death investigation system for the better part of 20 years.

West testified in dozens of cases, Hayne in thousands. Both often gave testimony well outside the constraints of science.
...
This week, the U.S. Court of Appeals for the 5th Circuit ruled that because Hayne and West are protected by qualified immunity for any case in which they testified, they’re only liable to a lawsuit if the plaintiff can show that they acted recklessly. Mere negligence — even gross negligence — is not enough.

The lawsuit in question was brought by Levon Brooks and Kennedy Brewer, two men who were wrongly convicted in the 1990s, largely due to testimony from Hayne and West.

In both cases, a little girl was abducted from her home at night, sexually assaulted and murdered, and her body was thrown into a creek. The two crimes occurred just a couple of miles apart. In both cases, the authorities suspected a boyfriend of the mother. In both cases, they took the body to Hayne for autopsy. In both cases, Hayne claimed to have found bite marks that other experts have since said were not human bites at all. In both cases, Hayne then called in West, who was making a name for himself as an expert bite-mark analyst. In both cases, West claimed that the marks were in fact human bites and that the marks “indeed, and without a doubt” were a match to the authorities’ chief suspect.

In reality, the same man — Justin Albert Johnson — committed both crimes. Johnson had a history of attempted sexual assaults. On at least two other occasions he had broken into a home, at night, and attempted to attack a sleeping victim. In fact, he was initially a suspect in the first murder. Had Hayne, West and local authorities not wrongly implicated Levon Brooks in that first crime, the second little girl may never have been attacked and murdered. Instead, West actually exonerated Johnson. He compared a dental mold of Johnson’s teeth with the alleged bite marks and determined that they weren’t a match. (As it would turn out, he was right about that, but only because those marks weren’t bites at all — Johnson never bit either victim.)

Brooks was sentenced to life in prison. Brewer was sentenced to death, and at one point was given a death warrant. In 2000, Brewer was excluded as the source of the sperm found in the little girl, yet local officials insisted on keeping him in prison, citing West’s testimony. Brewer may not have raped the girl, they argued, but because West said that Brewer and only Brewer bit her, he must have participated in the attack. They speculated that he must have held her down and bit her while someone else raped her. Yet for reasons that remain unclear, they refused to run the DNA profile from the sperm through the state database. Years later, Brewer’s attorneys finally got a court order for testing. When they did, it was a match to Justin Johnson. He then confessed to both crimes.

After they were released from prison in 2007, Brewer and Brooks sued. Their lawsuits were later combined. A federal district court dismissed the suit, finding that Hayne and West had absolute immunity for the testimony in court and qualified immunity for the reports that they wrote for police and prosecutors. They appealed. The appeals court released its opinion this week.

Brooks and Brewer argued that Hayne and West were exceptionally reckless in their respective cases. For example, Hayne and West said that the bite marks were made only by the upper back teeth of the defendants, a bizarre claim that nearly defies the laws of physics. In the Brooks case, West oddly used Silly Putty to make a mold of Brooks’s teeth, which he said was the only material that could record the level of detail he needed to match Brooks’s teeth to the bite marks. In addition to the rather strange novelty of using Silly Putty, West’s explanation of why he did so also made little sense. Human skin is spongy, fungible and resilient. Even under ideal conditions, it’s a poor receptacle for recording bite marks with the level of detail that bite mark analysts claim. (Indeed, there’s no scientific research to support this claim.) But in this case, the little girl’s body had spent 24 hours submerged in water. It had been exposed to insects and animals. It had begun to decay. It had even been embalmed. Even if West were right about Silly Putty’s ability to record more intricate details than a conventional dental mold, for that extra detail to be relevant, the same level of detail would need to have been preserved in the bite marks themselves. And that is highly unlikely.

Another example: Multiple experts who have reviewed the cases have said that the girls’ injuries were clearly inflicted after death. That would mean they were unlikely to have been human bites (the same experts said that, too). Hayne could have made sure one way or another by taking biopsies of the injuries and examining them under a microscope. He didn’t. Instead, he merely stated definitively that they were inflicted before death, then brought West in to do his magic.

But the most damning evidence of recklessness is that the men — West in particular — used a method of bite-mark analysis West called “direct comparison.” The “technique” (which Hayne has also admitted to using) involves forcefully pushing a mold of the suspect’s teeth directly into the skin of the victim, on top of the alleged bite mark. As you might imagine, more-credible forensic specialists find this to be outrageous. Even within the already scientifically suspect bite-mark community, West’s methods are considered out of bounds. At best, pushing a replica of a suspect’s teeth into allege bite marks distorts the marks so that no other expert can examine them in their original state. At worst, it’s manufacturing evidence. I’ve written about two subsequent cases in which West actually recorded his examination of the victim, and in both cases, he appears to be creating the very bite marks he later attributed to the defendant. That is, the video shows no marks on the skin before West does his thing — it only appears afterward. Experts who have examined those videos have called West’s “technique” somewhere between malpractice and criminality.

The 5th Circuit opinion acknowledges that bite-mark evidence has recently been “called into question,” but finds that because it was widely accepted at the time, Brewer and Brooks would have to show that West either fabricated evidence or knowingly lied in court.

It’s worth noting that this is the second time that the 5th Circuit Court of Appeals has acknowledged problems with Hayne’s credibility. The other instance was a 2014 opinion denying a post-conviction petition by James Koon. Before that decision, that same court — along with other state appeals courts and federal district courts — had repeatedly shot down challenges to the credibility of both Hayne and West. Kennedy Brewer and Levon Brooks themselves were rebuffed every single time they tried to challenge the experts’ credibility, at both the state and federal levels. In fact, the Mississippi Supreme Court decision that upheld Brooks’s petition is still the state’s controlling case law when it comes to the reliability of bite-mark evidence, despite the fact that Brooks has since been exonerated.

Only one justice dissented in that case. Later, when he was up for reelection, an out-of-state advocacy group ran TV ads accusing the justice of supporting child rapists and child murderers, citing his dissent in the Brooks case. The justice was voted off the court.

So on two occasions, the 5th Circuit has at long last acknowledged that Steven Hayne isn’t a credible expert — this time going so far as to concede that he was grossly negligent. And yet in both cases the court still denied relief to the people who were harmed by him. Both decisions were short, dismissive and showed little concern or worry for the fact that Hayne and West controlled the Mississippi death investigation system for nearly two decades, potentially tainting thousands of cases. (West testified in the range of “dozens” of cases, but regularly assisted Hayne in his autopsies.) Worse yet, this particular ruling argues that because bite-mark evidence was widely accepted by the courts in the 1990s, West can’t be held liable for deploying it to help convict two innocent men. Stripped of its legalese, that argument basically boils down to this: Because the courts failed in their duty to keep this sort of fraudulent testimony out of criminal cases, the courts must now ensure that the people harmed by that failure get no justice for their suffering.

West, last year, went kinda crazy under questioning in a separate case:
https://www.washingtonpost.com/news...estioning-for-mississippi-death-penalty-case/

In this exchange, Fabricant and an attorney from Hood’s office were arguing about a particular line of questioning. Fabricant argued that his questions were relevant to West’s opinion. That when West jumped in:

THE WITNESS: You know what’s relevant to my opinion?

MR. FABRICANT: What’s that?

THE WITNESS: I said if you know what’s relevant to my opinion, then let me go home and you answer the questions.

MR. FABRICANT: That’s what I’m trying to do right now is —

THE WITNESS: Can you read minds?

MR. FABRICANT: No, I’m trying to —

THE WITNESS: Try to think what I’m thinking now.

MR. FABRICANT: You’re thinking that this guy is a jerk and I want to get out of here.

THE WITNESS: No, no. It would take 5 years of improvement to get you to a jerk.

MR. FABRICANT: Okay. Let me ask you about the — you testified previously that —

THE WITNESS: Sociopath.

MR. FABRICANT: Okay.

THE WITNESS: Not jerk, but sociopath.

...

Q. I know that you know Vincent Di Maio, right?

A. Yes.

Q. And you testified before in the Hayne deposition that he was at one time also a believer in bite mark analysis. You made reference to his book?

A. I don’t remember.

Q. Let me see where that is.

A. Do you understand the difference between “I stand by what I testified” and “I don’t remember”?

Q. Yes.

A. Do you know the difference between those two statements?

Q. The reason — I do. I’m sorry.

A. Well, then why are you beating me to death with this? I told you if it’s in the transcript, I stand by it. If I remembered it — I don’t remember what the f**k I had for breakfast two years ago, but I do believe I ate eggs.

Q. Okay. The reason that it’s important — shall I explain it to you?

A. Yeah.

Q. Okay — is that if you just say that I can’t remember, then I can’t ask you a question about what you said.

A. Okay. Well, I don’t remember.

Q. Right.

A. You shouldn’t have waited 20-something years.

Q. Right. I didn’t have anything to do with that.

A. Then you should have got on board early.

Q. You’re right.

A. Where the hell were you when we were looking at this dead woman’s body?

Q. Right.

A. Sitting around jerking off in New York? We were trying to find the truth.

Q. Yeah, I was in high school.

A. And then go come — well, you want ought to go your ass back. I’m tired of you goddamn picking on me.

Q. Well, if we could keep going straight forward, you’ll be out of here sooner than later. So I’m going to go back to what you said before —

A. Go ahead.

Q. — and remind you —

A. Get it over with. I’m tired of this crap. I don’t care if they put him to death. I don’t care if you put a statue up to him. I’m out of this. Let me go. Y’all do whatever the hell you want to. I’m not in it anymore.

Q. Unfortunately, some of the case —

A. Cut him loose then.

Q. Right.

A. If I have to do time for this man to be punished for his crime, I say cut him loose. I’m tired of being punished.

Q. Right. Did you know that the only physical evidence in this case is the bite mark omparison?

A. It might be. I don’t know.

Q. And you wouldn’t want to bet a man’s life on bite mark comparison evidence, right?

A. There’s innocent people that go to jail very day and guilty guys that walk every day. I can’t solve the problem. I can’t fix the system. The whole system is broke.

Q. And you wouldn’t want to bet a man’s life on bite mark comparison?

A. I don’t bet on mans’ lives.

Q. Right. I’m saying, you wouldn’t want to?

A. I don’t bet on mans’ lives.

Q. Right. Because you say that —

A. I’m not an executioner. I’m a part. The people you’re mad at is the jury. Go after the jury.

Q. The only small point that I was trying to make is that at the second trial when you testified, you didn’t use “indeed, without a doubt,” you used what was, at that time, the approved terminology?

A. Okay.

Q. Is that fair?

A. Okay.

Q. When you say “okay,” I have trouble understanding what you mean by that.

A. Okay. I agree. Thank you, Ass-wipe.

Other stories/info about these two criminals who spent two decades as Mississippi's defacto lead forensic medical examiners including other innocence cases:
https://en.wikipedia.org/wiki/Steven_Hayne
http://www.slate.com/articles/news_and_politics/jurisprudence/2008/02/the_bitemarks_men.html

According to the National Association of Medical Examiners, a doctor should perform no more than 250 autopsies per year. Dr. Hayne has testified that he performs 1,200 to 1,800 autopsies per year. Sources I spoke with who have visited Hayne's practice say he and his assistants will frequently have multiple bodies open at once, sometimes smoking cigars and even eating sandwiches while moving from corpse to corpse.

Hayne isn't board-certified in forensic pathology, though he often testifies that he is. The only accepted certifying organization for forensic pathology is the American Board of Pathology. Hayne took that group's exam in the 1980s and failed it. Hayne's pal Dr. West is even worse. West has been subject to exposés by 60 Minutes, Time,and Newsweek. He once claimed he could definitively trace the bite marks in a half-eaten bologna sandwich left at the crime scene back to the defendant. He has compared his bite-mark virtuosity to Jesus Christ and Itzhak Perlman. And he claims to have invented a revolutionary system of identifying bite marks using yellow goggles and iridescent light that, conveniently, he says can't be photographed or duplicated.

https://www.washingtonpost.com/news...k-on-a-huge-forensics-scandal-in-mississippi/
https://www.washingtonpost.com/news...ty-of-embattled-mississippi-medical-examiner/

 

[liquidtmd]

MR. FABRICANT: You’re thinking that this guy is a jerk and I want to get out of here.

THE WITNESS: No, no. It would take 5 years of improvement to get you to a jerk.

Fucking hell to the whole story but this burn...yeah sums it up

 

[jaekeem]

qualified immunity strikes again

 

[benjipwns]

Fucking hell to the whole story but this burn...yeah sums it up

Not jerk, but sociopath.

Q: During this time, you testified previously that — in this case, actually, that you had done about 300 bite marks in cases that you, basically, you've analyzed, not that you've testified on, but that you had worked on, in 2000, about 300 bite mark cases. Does that sound accurate?

A: If that's what I testified to, that was my best recollection at the time.

Q. Okay. And then you had testified in about 30 — and you actually testified in about 30 bite mark matching cases. Does that sound accurate?

A. Yes.

Q. It seems low to me. I don't know, but that was —

A. If that's what I testified to, that's — I was just most assured of these questions 20, 25
19 years ago.

Q. Uh-huh (affirmative response). Anytime you want to remind yourself, you know, I mean, we've got the transcripts right here.

A. I don't want to remind myself.

Q. Okay. Why is that?

A. This isn't my problem. It's yours.

Q. Well, there's a man on death row in this case. You understand that, right?

A. You're telling me the State of Mississippi wants to execute this guy for killing this woman, and y'all want to cut him loose so he can kill some more. Y'all do what you want to. I'm out of it.

Q. Right. That wasn't really what I'm getting at, though.

A. You do want him out, don't you?

Q. Well, we want to make sure that we find the truth. That's what we're looking for.

A. Well, read the transcripts. There's the truth right there.

Q. Right. Well, there's more evidence today than there was then.

A. Why? Someone else is accused of this woman's murder?

Q. Let's backtrack a little bit, right. Can we do that?

A. Well, I mean, you said there was new evidence about this case.

Q. Right. Yeah, there's DNA evidence.

A. And does it exclude your evidence?

Q. Yes, it does.

A. Then take it to court.

Q. That's why we're here. This is going to be right before we're going to court.

A. I'm not an expert on DNA.

Q. Right. But it was your testimony that condemned Mr. Howard, and that's why we're here to —

A. No. It was the overall trial that condemned Mr. Howard. I was just part of it.

It's a shame his completely going nuts in this case can't really help any of the people he put behind bars by showing how unhinged and prejudiced the dude is.