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Faulty Forensic 'Experts' Sending the Innocent to Jail

At the end of August, there will be a hearing in Mississippi in the murder trial of 33-year-old Kennedy Brewer.

Brewer stands accused of the 1991 murder of Christine Jackson, the 3-year-old daughter of his then-girlfriend.

Brewer was initially convicted of raping and strangling Jackson to death in 1995. He was sentenced to death, and has spent the last 12 years on death row.

Brewer was convicted largely due to the testimony of Dr. Michael West. West, a dentist in Forest County, Miss., is a self-described forensic odontologist, or bite mark analyst. He has testified in dozens of cases over the years, almost always for the prosecution. West testified at Brewer's trial that he found 19 bite marks on Jackson's body which matched Brewer's teeth.

West claims he could make the identification because of a chip in one of Brewer's top teeth, and because his upper teeth are sharper than his lower teeth. A defense expert countered that the marks were actually insect bites — the result of Jackson's body being outside for two days before it was found.

The jury found Dr. West more credible. Forensic odontology is an imprecise field, and often draws scrutiny from other forensics experts. There's a troublingly long list of cases in which someone convicted on the word of a bite mark expert was later exonerated with improved DNA testing. In 1999, one forensic odontologist tested his colleagues with a sample crime scene bite mark during a conference workshop. Six of 10 wrongly traced the bite mark to an innocent person.

But even in an already imprecise field, Dr. West has taken forensic odontology to bizarre, megalomaniacal depths. West claims to have invented a system he modestly calls "The West Phenomenon," in which he dons a pair of yellow goggles and, with the aid of a blue laser, says he can identify bite marks, scratches, and other marks on a corpse that no one else can see—not even other forensics experts.

Conveniently, he claims his unique method can't be photographed or reproduced, which he says makes his opinions unimpeachable by other experts.

Using the "West Phenomenon," West once claimed to have found bite marks on a decomposed woman's breast that previous pathologists had missed. In another case, he claimed to have positively traced a half-eaten sandwich at the crime scene to the defendant. The defendant was convicted, but the case was later tossed out when West admitted to accidentally disposing of the sandwich after studying it. Because no one could replicate his methods, West said, the sandwich was no longer necessary.

He has allegedly found bite marks on bodies that had been submerged in swamps for weeks, and on others that had been buried for well over a year.

West has also been influential in preventing the state of Mississippi from adding some much-needed oversight to its forensic experts. In the mid-1990s, he served as the elected coroner for Forest County, Miss. At the time, the state medical examiner in Mississippi, a doctor named Emily Ward, was trying to institute some standards in the way autopsies were conducted in the state, including requiring minimal training and continuing education for the state's coroners.

West, with the help District Attorney Forest Allgood—the man who prosecuted Kennedy Brewer, and who has relied on West's testimony to secure convictions for years—led a revolt against Ward that ended with her resignation. The position of state medical examiner in Mississippi has remained vacant ever since.

West has received his share of media scrutiny, including exposés in "Newsweek" and on "60 Minutes." A 1994 article in the National Law Journal reported that when one defense attorney asked West on the stand about his error rate, he replied that it's "something less than my savior, Jesus Christ."

He has compared his virtuosity in bite mark analysis to the musical talent of Itzhak Perlman. In his "60 Minutes" interview, he boasted of a phrase he uses at trial that he considers his trademark: "Indeed, and without a doubt." It expresses a level of certainty that other forensic experts say simply isn't compatible with sound scientific analysis.

Defense attorney John Holdridge, now with the American Civil Liberties Union, told the National Law Journal, "I know of five other convictions he was involved in, all of which were death penalty cases." After the media exposés and persistent work of Holdridge, West resigned from two professional organizations, and was suspended for a year from another.

Despite all of this, Mississippi's State Supreme Court affirmed Kennedy Brewer's conviction in 1997 in an opinion that validated Dr. Michael West and his status as a bite mark expert, even while acknowledging his one-year suspension from the American Board of Forensic Odontologists (still in effect at the time of the Brewer trial), and that his testimony was thrown out in the bologna sandwich case.

Nevertheless, the court determined, Dr. West possessed the "knowledge, skill, experience, training and education necessary to qualify as an expert in forensic odontology."

In 2002, Brewer's lawyers were able to get the state to test the DNA of the semen found inside Christine Jackson's body. At the time of his original trial, the sample was too small for testing, and Brewer's lawyers had to fight to keep it from being destroyed. DNA technology unavailable during the trial found traces of semen in the little girl belonging to two men, but neither of them was Kennedy Brewer. His attorneys are now looking into a similar murder of another little girl at about the same time and in the same area that Christine Jackson was killed.

Based on this new evidence, Brewer was awarded a new trial, but prosecutors still refused to exonerate him or release him from prison. Instead, they're going to try him again. Dr. West has said he stands by his analysis, which prosecutors say suggests Brewer was still in some way involved in Jackson's death (when reached at his private dental practice, West said he was "not interested" in an interview for this article).

District Attorney Allgood told the Chicago Tribune in 2004 that he would "absolutely" use Dr. West again in the new trial.

The case has since been reassigned to a special prosecutor named Ben Creekmore. Creekmore has since taken the death penalty off the table, but has indicated he will still use Dr. West's testimony in Brewer's new trial (there are other problems with Dr. West's examination of Jackson, including a video never shown to the original jury that the trial court judge noted showed West and his assistants acting "rather callous" during the examination, blaring "inappropriate" music during the procedure, and "carrying on conversations" unrelated to the examination).

The Kennedy Brewer case highlights a serious flaw in our adversarial criminal justice system — the use of expert testimony in complicated, advanced scientific fields. A charlatan like Dr. West, who has little respect from his peers, can with charisma and personality convince a jury to take his word over that of an expert far more careful and deliberate in his analysis. In some cases, indigent defendants can't afford to hire their own experts at all, leaving a state's expert like West as the only testimony on the available forensic evidence.

Forensic scandals have been troublingly common of late, with phony experts and fake results recently uncovered in Virginia, Maryland, Kansas, Illinois, and Texas, to name just a few. Courts need to take a more active role in weeding out the Michael Wests of the world before they ever take the witness stand.

But professional organizations also need to be more vigilant about policing their own. Dr. West's peers should more vocally have questioned his methods long before he was permitted to testify more than 70 times in courts across the country. One would think they'd step up their standards to protect the integrity and reputation of their respective fields. But these continuing scandals suggest another, far more important reason: to prevent bad science from sending innocent people to prison.

Radley Balko is a senior editor with Reason magazine. He publishes the weblog, TheAgitator.com.

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