More medical examiners caught framing suspects

Manufacturing Guilt?

Experts say this exclusive video shows a dental examiner creating the bite marks that put a man on death row.

Via ReasonOnline
Radley Balko | February 19, 2009

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.

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.