Did 'Bite Mark' Expert Fabricate Evidence?
Two African-American Men Separately Convicted of Child Murders Are Freed From Prison
By CHRIS FRANCESCANI & MARCUS BARAM
ABC News Law & Justice Unit
Feb. 20, 2008—
Capital murder charges against Brewer were dismissed by a Mississippi judge last Friday, and Brooks' conviction has been vacated. He was released on bond, pending a dismissal hearing in March.
Lawyers for the wrongly convicted men are infuriated. They are calling for the criminal prosecution of West, the forensic dentist.
West "deliberately fabricated evidence and conclusions which were not supported by the evidence, the data or the rules of science but & because they were consistent with the prosecutor's theory,'' said Peter Neufeld, co-director of the Innocence Project, a nonprofit legal organization that examines questionable convictions and has won the exoneration of more than 200 inmates.
"If you fabricate evidence in a capital murder case, where you know that if the person's convicted they are going to be executed -- as far as I'm concerned that's the crime of attempted murder.''
"He's a criminal," Neufeld said of West.
The two cases were investigated by the same Noxubee County, Mississippi detective and prosecuted by the same attorney, and the same medical examiner and forensic dentist appeared in each case.
This is the first time that Neufeld or his colleagues at the Innocence Project have ever called for the criminal prosecution of a scientist, Neufeld said.
"These are not cases of sloppy forensic science,'' Neufeld said on Monday. "This is intentional misconduct. It's fabricated evidence to send people to death row.''
West did not respond to repeated inquiries Monday, but he told Mississippi's Clarion Ledger newspaper which first reported the story that he stands by his testimony in both cases.
He had testified that Brewer bit Jackson 19 times, using only his upper two teeth a conclusion that fellow forensic dentists told ABC News is extremely tenuous. West identified the wounds as human bite marks, and said they matched Brewer, according to court documents and scientists who reviewed the case.
"Five of those matches I give my highest level of match or comparison -- which is reasonable medical certainty,'' West testified in the Brewer trial, according to court transcripts of the case. "Of the remaining fourteen I have several that are what I refer to as highly consistent, consistent and probable."
Under cross-examination, West confirms that in a report to the deputy county medical examiner, he wrote that the 19 bite marks "were indeed and without a doubt inflicted by Mr. Kennedy Brewer."
Even after DNA tests failed to tie either of two samples found on the young victim to Brewer, West stood by his findings in an interview with CBS's Steve Kroft.
"I never testified that Mr. Brewer raped or sodomized anyone. I testified that Mr. Brewer bit [victim Christine Jackson],'' West said in 2002.
"So [Brewer] bit her, and two other people raped and sodomized her?" he was asked.
"That's a possibility,'' West replied, according to transcripts of the interview.
But West's medical peers challenge that claim. Iain Pretty, one of England's leading forensic odontologists, called it "patently ridiculous."
Pretty and three leading experts from Canada and the U.S. peer-reviewed the Brewer case for the defense.
In the Brewer case, West "was saying, 'Look, it's [Brewer], definitely, no doubt, no room for error,'' said Pretty, who reviewed West's work on the Brewer case as part of the peer review panel put together by the Innocence Project.
"There was no scientific evidence, no ballistics, no DNA that would have would have resulted in a match of that certainty. I mean, DNA is a well-regarded forensic tool, but even with DNA, [experts] will say there's a one in fifty million chance it's someone else. But [West was] not even throwing 50 million at you he's saying it's definite. And the evidence itself really wasn't sufficient to draw that conclusion.
"We didn't even think they were bite marks,'' Pretty said of himself and his colleagues, who reached unanimous conclusions, according to court documents.
The field of forensic odontology is relatively new and has been met with controversy since its inception in the American Academy of Forensic Sciences in the early 1970s. There is no widely accepted way to measure the reliability of bite marks, no database with which to compare samples, and none of the kind of extensive peer review and research that has come to characterize more scientifically accepted forensic tools like DNA.
"To a jury, science sounds like science, unfortunately, and when you look at someone like Dr. West you see the kind of problems that arise from that notion,'' Neufeld said.
Colleagues who have reviewed his work and law enforcement officials who have worked with him say West has a reputation for testifying with unbridled confidence in his own conclusions, sometimes despite conflicting scientific evidence.
"I'm sure West would still claim they are bite marks,'' noted Noxubee County prosecutor Forrest Allgood, of the dismissal of the Brewer case.
Forensic odontology has been criticized from within and outside of the profession.
"I think bite marks probably ought to be the poster child for bad forensic science,'' David Faigman, a University of California professor told the Boston Globe in an in-depth 2004 investigation of the field by reporters Flynn McRoberts and Steve Mills.
Dr. Michael Bowers, who served on the credentialing committee of the American Board of Forensic Odontology, told the Globe that bite-mark identifications are "flawed and based on wishful thinking, as far as being conclusive scientifically."
Bowers co-wrote a controversial study in 2002 that concluded that on average, forensic odontologists falsely identify biters two out of every three times.
On an Island All By Himself
Dr. John M. Williams, president of the American Society of Forensic Odontologists, seemed to indicate in an interview Monday that the society, from which West has resigned, wants to distance itself from the controversial odontologist.
"He's on an island all by himself,'' Williams said. "People can go through the process and pass the board exam and be certified, but what they do after that is really an ethical issue. "Are you going to be a true scientist or are you going to be a hired gun?"
Lawyers for Brewer and Brooks are calling on the state of Mississippi to review 20 cases in which West provided testimony, and are seeking investigations into prosecutor Allgood, his investigators, and controversial state pathologist Stephen Hayne.
But Allgood insisted to ABC News in a lengthy telephone interview that he'd done the best he could with the evidence he had. He pointed out that neither Brewer nor Brooks was convicted solely on the testimony of West with whom he said he severed ties years ago.
"What's my take on Michael West?'' Allgood asked rhetorically. "I'm never going to use him again. I told him, 'I can't afford to use you in court. You've got too much baggage.' "
Kennedy Brewer was the boyfriend of victim Christine Jackson's mother. He was in the home the night the child disappeared. Allgood said he was a primary suspect because Jackson's mother told police she woke and all the doors and windows in the home were locked, but Christine was gone.
"The police come, examine the outside of the house, and there's no sign of forced entry, no footprints by the bedroom window, and if I remember correctly, there were cobwebs on the windowsills, a deputy testified,'' Allgood said. "In other words, the child somehow got out of the house."
Allgood apparently did not remember the court testimony correctly, according to Neufeld.
"That's ridiculous,'' the Innocence Project attorney said late Tuesday night. "Separate and apart from Johnson confessing that he reached in to the broken window [in the Jackson home], lifted it, and bent over and picked up the child, the child's mother testified that when she came home at midnight she knocked on the same window to wake up brewer to get him to open the door. Also," Neufeld said, "two young men who came to visit earlier in the evening, testified at trial that they walked up to the window and knocked on it to get brewer's attention."
"The reason the window is so important,'' Neufeld continued, "is because on the night in question, it had a big hole in it such that anyone could reach in and unlock it and then lift it."
Allgood, the prosecutor, acknowledged to ABC News that he had not read the case file in some time - the case was transferred to a district attorney in a neighboring county after Allgood hired a lawyer who once represented Brewer.
Still, Allgood countered that police suspicion of Brewer was elevated when he did not appear to them to be sufficiently concerned about the child's disappearance.
"Brewer becomes a suspect because he's not interested in looking for the child,'' Allgood said. "The sheriff goes out there and takes him, in essence, takes him in to protect him. The neighborhood is getting angry because he's indifferent to the child's whereabouts."
But again, other witnesses testified that Brewer looked frantically for the child for hours with a team of neighbors. Allgood said that even after Brewer's DNA was shown not to be a match to DNA from the Jackson rape kit, he still believed Brewer was somehow involved in the abduction and murder. That prompted Allgood to announce he'd retry the capital murder case against Brewer, a first in Mississippi prosecutorial history.
"I honestly believed [Brewer] was involved because I couldn't [otherwise] get that girl out of that locked house," Allgood said.
But during the same investigation, another man, Justin Albert Johnson, 51, a local man with a known history of sexual abuse, was questioned and volunteered his DNA, according to lawyers involved in the case. That DNA was not tested until Innocence Project lawyers acquired and tested it and informed the state Attorney General's office that it, in fact, matched the DNA from semen in the Jackson rape kit.
In the Courtney Smith murder case, Allgood said, Brooks was identified by a young witness.
"On the Brooks case, a six-year-old sister of Courtney Smith is awakened in the middle of the night and treated to the sight of the suspect picking up her sister Courtney and walking out the door.'' Allgood said the sister later identified the man by his street name, Tytee. Prosecutors took that to mean Brooks, who Allgood said went by that name. Like Brewer, Brooks had previously dated the victim's mother.
Allgood said that when Smith's body was found, "there are marks on her."
"The pathologist [medical examiner Stephen Hayne] says, 'gee, these might be bite marks. West says these match the marks of Levon Brooks. You've got the identification [by the sister] and the identification of the bite marks. A grand jury indicts, a jury convicts, and the district court affirms the conviction."
Allgood said that during the trials of Brewer and Brooks in the early 1990s, West's reputation was intact.
"At the time he was sitting on top of the world,'' Allgood said. "He was lecturing in China. He was lecturing in England."
"Nobody wants to put the wrong guy in jail,'' Allgood concluded, though adding that he still believes that Brewer "had a hand'' in Jackson's abduction.
But Neufeld doesn't buy Allgood's arguments.
"What kind of morons, in a small, rural county, see two 3-year old girls abducted, raped and murdered, who wouldn't think, 'maybe the same guy did both of these crimes?'''
ABC News' Rana Senol contributed to this report.