Forensics, Pseudoscience and Criminal Injustice (with Radley Balko and Tucker Carrington)

Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus. Joining me today is Radley Balko, an investigative journalist and reporter at the Washington Post. He currently writes and edits The Watch, and he’s the author of 2013’s Rise of the Warrior Cop: The Militarization of America’s Police Forces, and Tucker Carrington, the Director of the George C. Cochran Innocence Project at The University of Mississippi Law School. He worked as a criminal defense lawyer [00:00:30] his entire legal career, most of it as a public defender in Washington. Welcome to Free Thoughts, Gentlemen.

Tucker C.: Thank you very much.

Radley Balko: Good to be here.

Trevor Burrus: Your new book has the interesting title of The Cadaver King and the Country Dentist: A True Story of Injustice in the American South. So we’ll start with The Cadaver King. Who is the Cadaver King?

Radley Balko: The Cadaver King is Steven Hayne, who for about 20 years did about 75% to 80% of the autopsies in the state of Mississippi.

Trevor Burrus: How many would that be?

Radley Balko: That’s [00:01:00] somewhere between 1500, and a couple years he topped 2000. And this is all by himself, from a morgue, a private morgue, while holding down two full-​time jobs and testifying in court three to five times a week. The professional guidelines say you should do no more than 250 in a year. If you do more than 325, you can’t get certified. So this is way beyond what anyone has ever done before. And so there’s just … With this guy there was just some quality issues and there’s just no possible way you can [00:01:30] do that many autopsies and do them the way that they ought to be done.
One top of that then, there were lots of other problems with the testimony that he gave in court. Basically, it was a system that was set up for someone to dominate who could appease the prosecutors, sheriffs, the elected coroners, police chiefs. And so the Cadaver King is Dr. Hayne, and he basically dominated the autopsy and death investigation system down there in Mississippi and parts of Louisiana for the better part of two decades.

Trevor Burrus: [00:02:00] And the country dentist.

Tucker C.: The country dentist is a colleague of Dr. West, excuse me, of Dr. Hayne’s, by the name of Michael West, who was a clinical dentist in Hattiesburg, Mississippi, South Mississippi, and also a coroner for Forest County, which is the county of which Hattiesburg is the county seat. And at some point in the late 80s, early 90s, he and Dr. Hayne crossed paths and became friends. And Dr. West had [00:02:30] an interest in, and some professional experience in the discipline of bite mark matching, specifically matching alleged bite marks, often on victims, with the dentition of a suspect in an assault, or generally a murder case. They started working together and essentially solving cases, difficult cases, often, as I said, homicide cases.
Over that period of time that Radley mentioned, this two decade period, roughly, Dr. West [00:03:00] not only sort of pushed that particular discipline to its outermost limits, he invented aspects of the discipline that he named after himself. But he also became an expert in other disciplines to mark matching disciplines, video enhancement, fingernail scratch matching. The list goes on. But they were colleagues. They worked together both in the morgue, and then they frequently testified together in trials in Mississippi.

Trevor Burrus: Now I’ve seen [00:03:30] my fair share of CSI, and if it’s at all accurate, then this stuff is real science. This is actual. I mean, it’s true that your teeth are unique. Right? So wouldn’t a bite mark be unique, at least in theory? It doesn’t sound totally ridiculous. Or maybe I’m wrong, maybe it’s totally ridiculous.

Radley Balko: Yeah. So bite mark matching in particular rests on two underlying premises. The first is that all of our … We all have unique dentition. Our bite, the pattern we make when we bite something is unique to us [00:04:00] and to no one else. And there’s just no science to back that up. But in fact, the science that has been done, the actually scientific research that has been done suggests that it isn’t true. The second is that human skin is capable of recording that uniqueness in a way, and preserving it in a way that’s useful, that’s useful for identifying people.
Well, the first premise isn’t even true. But if it were, human skin … The second premise is even less true. Our skin is fungible. It’s malleable. [00:04:30] It’s rubbery. Depending on how you’re bitten, whether it’s an overbite or an underbite, whether the victim is sort of pulling away so the teeth are dragging through the skin instead of into it, what happens to the body afterward. In the case that we write about in the book, one of the two cases, two main cases, the little girl who was murdered, her body was submerged in water for hours and then it was embalmed.
So Dr. West and other bite [00:05:00] mark experts claim that they can find these really minute intricate details in a bite in skin, including what West calls bunching, which is this idea that when you bite down into human skin, these tiny little crevices in the back of your teeth sort of collect skin and push it down, that somehow that can be preserved by human skin. No only can that be preserved by human skin, but he can then take an impression of your teeth and find the crevices that match to the bunching in the [00:05:30] bite mark. It’s all absurd. There’s nothing about it that suggests that you can record and match details down to that level.
The CSI thing is interesting because a lot of the people who complain about what they call the CSI effect are usually prosecutors more than defense attorneys. What prosecutors complain about is that shows like CSI condition jurors to want experts to give them sort of matter of fact conclusions. When you have an actual scientist [00:06:00] on the witness stand, they tend to speak in probabilities. They tend to kind of hedge what they say. They don’t say, “This person did it,” as Dr. West would often say, “Indeed and without a doubt.” They speak much more, with a lot more caution. And jurors don’t like that. Jurors like certainty. And so when you get somebody like Dr. West, who is willing to speak with that kind of certainty, they can do a lot of damage.

Trevor Burrus: How is the relationship? You kind of mentioned it with the prosecutor and the police. And we could talk about the Levon Brooks [00:06:30] case or the Kennedy Brewer case, the two you write about. But why are the forensic investigators, like Dr. West, or their coroners, medical examiners like Dr. Hayne, how do they get pushed toward the suspects that are identified by the cops? Because there were a bunch of suspects in these cases, but suddenly they got pushed to the ones that they were focusing on.

Tucker C.: That’s a good question, and I think it’s a difficult one to answer with a single answer because it depends on the individual facts [00:07:00] of the cases. But in many, if not most of the cases that I’ve been dealing with and that we write about in the book, the suspect, the main suspect, in one way or another, was clearly made known to either Dr. West or Dr. Hayne. There was no effort to disguise, to sort of keep Dr. West blind, or Dr. Hayne [00:07:30] blind, to who it was. You can see it in reports. They often knew who the main suspect was.
And so Dr. West frequently said, “I’ve exonerated many more people than I’ve ever included.” And if you go back and actually unpack that statement in the Levon Brooks case for example, there were a number of suspects, 12, or 13, 14, something like that. But he knew who the main suspect was, Levon Brooks. [00:08:00] And so his “exonerating” the other 12 or 13 really sort of didn’t amount to much because he knew who the main suspect was, and that was who he matched the teeth to. One case we write about in the book, which I this is illustrative, is this serial murder case in Florida, that early on in Dr. West’s career, he went over to Tallahassee. Is that right, Radley? Is that where it was?

Radley Balko: Gainesville.

Tucker C.: Gainesville, sorry. And was asked to sort of work his magic there. [00:08:30] And he ended up coming out empty handed. And in the book, I think what we say, what we believe is that the reason he came out empty handed is because that was a case where they hadn’t arrested anybody and they really didn’t have any idea who this, ended up being a serial murderer, was. So there was no way, either advertent-​ly or inadvertently, for the police to give West a name. They didn’t have anybody. And so after a week or so of investigation and his work in his forensics, he [00:09:00] had nothing to offer. But I think it stands in sort of counterpoint to these other cases where he did know the main suspect. And sure enough, ratified the police’s hunches.

Radley Balko: Yeah. I would just add, in the Levon Brooks case, one of the people that West exonerated was the person who actually committed the crime. He was one of the original suspects. But by the time he was send to West to take dental molds of his teeth, the police had already focused on Brooks, and so West was able to clear this guy. [00:09:30] And he actually probably should have cleared him anyway because the bites on the little girl weren’t actually human bit marks. They were mostly likely insect bites.

Trevor Burrus: Yeah. That’s the thing that shocks me in a lot of these cases. I’m a little surprised at how often, apparently, people bite who they’re assaulting, especially in East Mississippi. It’s a disproportionate amount of people biting.

Radley Balko: That’s actually in one of the earlier versions of the book, one of the chapter titles was something like, An Epidemic of-

Trevor Burrus: Biting [00:10:00] criminals.

Radley Balko: Yeah. Aggravated biting, because suddenly West appears in Mississippi and now everybody’s biting each other. It’s a miraculous sort of coincidence.

Trevor Burrus: You write in the book that the entire system that helped convict Brooks and Brewer and other untold people is part of a “structural racism built into the criminal justice system.” A lot of people, especially conservatives, balk at that, even the term structural racism because they don’t … I think it seems [00:10:30] almost too conspiratorial that there’s just a bunch of Bull Connors walking around and being like, “Let’s get those guys.” But you mean something a little bit more long standing and almost insidious in its own way.

Radley Balko: Right. I think the thing about structural, I think it’s a misunderstood term. There are a couple conservative criminologists, which there aren’t many of, wrote a law review article a while back that said that they don’t buy structural racism because it implies that everybody in the criminal justice system is racist, and that’s just not [00:11:00] believable. Well, that’s actually not what structural racism is. Structural racism is the idea that the system itself, that the architecture of the system, the structure of the system, is racist. And if you think about when a lot of our institutions were built and when they were honed and when they were refined, staring in the Jim Crow era. And they were build specific for a very specific purpose, which was, this is a very popular term now, but it was certainly true then, to uphold white supremacy. And that’s certainly the case with the death investigation system.
And so in the book, we go back into the civil rights era, the Jim Crow era, [00:11:30] and we talk about how the death investigation system was used to cover up lynchings, to sweep them under the table, how it was used to basically facilitate the inability to prosecute people for civil right assassinations. And so the context for structural racism is that you can actually have a system that is structurally racist even if none of the people in that system are personally bigoted or personally racist. It’s that architecture, that lingering architecture, that causes the [00:12:00] problem.

Tucker C.: That was one of the things that was really fascinating to me when these cases first happened, and my office came in late. We had just opened, basically. The Innocence Project in New York had done not only all the groundwork, but basically all the legal work to get these folks exonerated. And I was very interested in the cases even after the exonerations. And I won’t go into the weeds too far, but one of the things I looked into was the jury composition. And [00:12:30] the jurors were a mix of blacks and white folks. And this is a part of Mississippi, which was super isolated. It doesn’t get a lot of publicity when you talk about the civil rights era. But it was rough. It was rough on black folks down there. I remember there was, if memory serves, there was a 90 year old African American woman on, I think it was Kennedy Brewers jury. She was deceased by the time I got involved in the case. But I assume, [00:13:00] I could be wrong, but I assume that her journey to get on that jury was an extraordinary journey for an African American woman.

Trevor Burrus: Absolutely, yeah.

Tucker C.: And I can’t imagine that she was racist. I’m making some assumptions, but I think they’re safe. And likewise, there were some white folks on there, a couple of whom we know, who are not racist at all. And yet, the verdict in that case within the criminal justice [00:13:30] system was as bad, one could argue, or as we sort of sometimes say, worse even, because it was condoned by … This wasn’t a lynching that took place outside in the dead of night. All of this took place inside of a courtroom with judges, African American lawyers, African American jurors, African American law enforcement. And you end up, however, with the same sort of baseline injustice. I think that’s what Radley-

Radley Balko: And let’s talk to the … I mean, [00:14:00] the victims in this case weren’t just Levon and Kennedy. If the system had gotten the right person the first time around, we probably could’ve prevented the rape and murder of the second little girl, who was also black. The problem with the system is, it’s pliable. It’s malleable to the people who are in power. It serves them. And it serves them whether it’s a backwater racist sheriff, like a Bull Connor type. It serves them if it’s just an aggressive prosecutor who wants [00:14:30] his hunches confirmed, or just doesn’t really want to do the groundwork, or has tunnel vision. Either way. But the victims, again, tend to be low income people and tend to be disproportionately black.

Trevor Burrus: It seems that Mississippi’s death investigation system was particularly problematic for a very long time. I think it was until 1986, I think is the year, coroner’s still had to round up livestock, which says something about the history of that office. But [00:15:00] there weren’t many requirements for coroners. And you have a stat that in 1977, nearly half of reported deaths were attributed to unknown causes, which seems like a bad way of discovering murder. But cops might like it because it seems like your murder rate is pretty low, which it kind of goes into the feedback mechanisms there.

Radley Balko: Yeah. This is the thing. It was an antiquated system. And again, it was designed to keep the people in power happy. Now whether that means you keep your unsolved case rate low by [00:15:30] just not finding as many murders, so there are fewer murders to solve. Or if it means finding murders and getting the people that immediately sort of suspect-

Tucker C.: Closure rate.

Radley Balko: Yeah. The closure rate, right. Again, none of those outcomes are about justice. None of those outcomes are about promoting and protecting public safety. They’re about making sure that the people who hold the right offices are sort of content with the system.

Trevor Burrus: As you alluded to at the beginning, Radley, [00:16:00] the vacuum essentially that was created by the inadequate death investigation system in Mississippi was filled by Steven Hayne, seemingly. But he had a bunch of fans in the judicial, prosecutorial, and police worlds because he got their man. Is that a fair assessment?

Radley Balko: Or wouldn’t get their man. There’s a case that didn’t make the book that I talk about quite frequently it seems. But this was in Sunflower County. It’s an elderly woman who was found, [00:16:30] poor, low income, black, elderly woman was found in her home with blood all over the walls. The neighbor had seen somebody running from the house with a blooding T-​shirt. And Hayne determined that she died of a stroke. And her family sent the body to a coroner, or a medical examiner, in Alabama, who basically determined that she had been murdered. It’s about getting the right guy, but in some cases it’s about if the person isn’t deemed all that important, and prosecutor, local sheriff, police department, doesn’t want to deal with it. Sometimes the system [00:17:00] could make cases go away as well.
But we talked about this in the book. If it wasn’t Hayne, it would’ve been somebody else. The system was designed … This is the libertarian podcast. I’ll point out, this was basically a privatized system that was just a privatized system where the incentives were misaligned, deliberately so. But they were aligned in a way that the incentive was for the medical examiner to tell prosecutors and police what they wanted to hear instead of telling them what they needed to hear.

Tucker C.: Yeah. I think one other quick point [00:17:30] is that he was the only game in town. The medical examiner’s office was vacant, separate and apart from whatever the motivation may have been for prosecutors. Say if they had a homicide in their district that they needed to prosecute, Dr. Hayne was the person they needed. He was the only person that was doing the autopsies. He was the pathologist. I’ve had prosecutors say to me, “Look, I understand what you’re saying. There were these cases, but you have to understand [00:18:00] my position too, which was, I had to prosecute these cases and that was the only option I had because the state had not fulfilled its obligation to staff up the medical examiner’s office for two decades.”

Radley Balko: And again, this was about making everybody in power happy, so by not funding the office, the legislature’s happy because they can use that money for other things. They don’t have to budget for a state medical examiner, which should’ve been making $100,000, $150,000 a year, plus had a couple of assistants and a fully staffed office. [00:18:30] The legislature doesn’t have to fund that. Instead what was happening is the counties were paying for each individual autopsy, which ended up costing the state more as a whole. But because it was being done in this kind of localized way that costs were more sort of diffused across the state, it was harder to tell exactly how much the State of Mississippi was paying.

Trevor Burrus: Now, Dr. Hayne and Dr. West are doctors. They do have training, certification, I would assume. There are forensic boards [00:19:00] and there are forensic societies. Did they get certified by these associations?

Tucker C.: I’ll talk about Dr. West first. Yes, he was certified by The American Board of Forensic Odontology. In fact, he was a diplomate, so he was sort of in the upper echelon, as it were, of this organization. One of the fascinating … And he was for years. He ultimately got sanctioned and resigned from that organization. But one of the interesting things that happened in the early [00:19:30] 2000s, this is a long story that I’ll make short, is that he was retained to look into a case and to see whether or not he could match a dentition to a photograph from an actual … It was an actual bite mark from-

Trevor Burrus: That just seems absurd, matching it to a photograph. It even compounds everything you said about skin.

Radley Balko: Right.

Trevor Burrus: Now match teeth to a photograph of skin. But, continue.

Tucker C.: Well, what was interesting about it was he in fact made the match. And two things, [00:20:00] one is the dentition was from a random person. It had nothing whatsoever to do with the bite mark in the photograph.

Radley Balko: It was a sting operation, basically.

Tucker C.: Yeah. And so he was wrong. It’s about a 22 minute. He videotaped. It’s about a 22 minute videotape and it’s impressive. And he followed the then existing best practices that were set out by The American Board of Forensic Odontology. So strictly speaking, he did nothing sort of scientifically, and I’m making quotation air [00:20:30] quotes on the radio, but he followed procedures and ended up being, he couldn’t have been more wrong. That’s fascinating. It’s such a window into the unsound aspects of the discipline. People knew about this, and yet he continued. He did too, obviously. He continued to testify for years afterwards, even after making that kind of mistake.

Radley Balko: I’ll talk about Dr. Hayne. Dr. Hayne did have his medical license and was [00:21:00] properly board certified in clinical and anatomical pathology, and so that’s when you are looking at a patient, a dead patient, to see sort of what illness killed them, whether it was cancer, or disease, or a bacterial infection, or whatever. He was not ever properly certified in forensic pathology, which is basically the examining of bodies after death when there’s a crime or some sort of suspicious death due to negligence [00:21:30] or homicide. He took the exam by The American Board of Pathology in forensic pathology, which is what you would do to get properly certified in the late 80s, and failed it. But he claimed for 20 years that he didn’t really fail it so much as walked out in protest because there were questions that he found offensive. One of the questions was, he said, and he could only come up with one when asked, “What questions did you find offensive?” And he said it was this question that had asked him to rank colors in order [00:22:00] of their association with death, and he just was furious and just stormed out.
There are always problems with that story. One is, I think it cost $1500 to take the test. He had flown to Chicago to take it. The idea that you’re going to walk out over one question is sort of absurd. But The Innocence Project in New York, I believe, eventually got a copy of the test itself, and that question actually never appeared on it. What he did do, though, is over the years he would repeatedly claim in court that he was board certified in forensic pathology. And he would site two [00:22:30] organizations, one of which no longer exists. The other is … And both of them actually meet this definition or this description, which is, they are sort of certification mills. You give them a resume and a check and they send you your certification. One of them is sort of notoriously clownish, I guess is a good word for it. There was a woman who got her cat certified through this group. There was convicted murderer, [00:23:00] or attempted murderer I guess, who got himself certified from prison. There was a journalism student who got herself certified in forensic, I think it was called forensic medicine at the time.
This is a group that has thousands and thousands of members. But it was started by a guy, kind of colorful guy, Robert O’Block, who recently died, but who was a poly sci professor, who’d been fired for plagiarism [00:23:30] and then sort of started his own handwriting analysis group, which then expanded and sort of became this massive organization. But the problem is, it sounded very much like the official organization. So when Hayne would say, “I’m certified by this group,” in court for judges and jurors and prosecutors and even defense lawyers, a lot of the time they didn’t really bother to check to make sure that this is the right organization. And even when they did, even when the defense attorney did bring it up, judges usually just went ahead and said, “Oh, it’s fine, because we’ve certified him so many other times before.”

Trevor Burrus: [00:24:00] That’s the weird thing here. What are judges doing? Aren’t they supposed to keep unscientific evidence out of the court? It seems like none of this stuff would need science. These are all matching. So you mentioned fingernail and bite mark and blood splatter.

Radley Balko: It’s all subjective.

Trevor Burrus: It’s all subjective. I use the term Feng shui because it’s kind of like that. Well, this is really good Feng shui, and the next Feng Shui artist is like, “This is horrible Feng Shui.” And there’s no actual test for that. But what are judges [00:24:30] doing in this situation to determine that this is not science? It’s just a guy’s opinion about this mark on the body, or worse, but at least that.

Tucker C.: That’s a good question too. And I think my answer would be, there’s a host of things that judges are and aren’t doing. One, just to go back to the certification. Certification, in my view, is sort of the bare minimum. You need to be certified, presumably by some governing board. But whether it’s a certification [00:25:00] mill, or whether it’s even a legitimate sort of gold standard, only means so much. You have something you can put on your wall. What you’re testifying to and the basis for that is the critical question, not whether you’re certified. There’s plenty of terrific positions out there. Some are far better than others. They may have gone to the same school. So ultimately, it comes down to sort of: What is the expert saying and what is the basis [00:25:30] for that, the bases for that?
So my first answer is, sometimes the certifications seem to be the entrée or not for the testimony. If you’re certified, you can testify. The other thing is that, and we discussed this at some length in the book, but I think it’s really interesting. Judges tend often to look at precedent. So rather than engaging in a sort of granular [00:26:00] observation of what this particular expert plans to say and the bases for it, which by the way, is often the job of the advocates, the prosecutor and the defense attorney, to sort of educate the court about this material. The court will just look at the discipline, bite mark for instance, and say, “I don’t know why we’re having this argument. The State of California has admitted bite mark evidence since the late 1970s. And there are 25 other jurisdictions around [00:26:30] the country that have admitted it. Therefore, we’re just wasting our time here. This is admissible.” Which, some level, I think for laypeople, sounds correct. Why are we wasting our judicial resources and et cetera arguing over something that’s been argued in a bunch of jurisdictions before? And they’ve come to this same conclusion.
Well, it’s not a waste of time because, again, it depends on who the expert is and what the expert is saying. And just because West Virginia or California may have [00:27:00] admitted a certain expert to say a certain thing doesn’t necessarily follow that the State of Mississippi, for example, in this district should allow Dr. West to testify to whatever he’s testifying to. But nonetheless, judges feel safe because they have this precedent that they can rely on. That’s another issue.

Trevor Burrus: I think you used the term judicial echo chamber in the book. When did it start? Was a bite mark, is there a sort of point zero? You talk about Salem witch trials in the book. But in terms of modern bite mark analysis, [00:27:30] is there a point zero and then everything just … You can follow it like a game of telephone all the way back to it.

Radley Balko: Yeah. So Tucker mentioned this California case. And ironically, it’s called Marx, M-A-R-X. And that case is kind of the jumping off point. And you see the interesting thing about that case is that the California appeals court in that case actually ruled that it wasn’t scientific, that bite mark analysis wasn’t a scientific discipline. But they said it just seemed right. It’s just common sense. I [00:28:00] think Tucker, in a Law Review article, called it the eyeball test. And so that set the precedent. And then what’s crazy though is, you look at these subsequent appeals court decisions all over the country, and they refer back to Marx. And a good percentage of them refer back to Marx as having established these scientific legitimacy of bite mark evidence. And it didn’t. It did the opposite. It said there was no science here. And so judges have just done a really bad job at this.
And you know what, that’s not at all surprising because judges aren’t trained to do scientific analysis. [00:28:30] They’re trained to do legal analysis. And they’re doing legal analysis exactly how you expect them to, which is by looking at precedent and looking at the controlling case law. That’s how you do a legal analysis. The idea that judges are bad at scientific analysis shouldn’t surprise us any more than the judges are probably bad at coming up with a game plan for an NFL game, for an NFL team. We’re asking them to do something that’s well outside their job description and they’re doing predictably poorly at it. The problem is that the consequences are pretty [00:29:00] dire.

Tucker C.: Let me just add one thing. If you do legal research, if you’re a law clerk in the judge’s chambers, and the judge says, “Hey. Is bite mark testimony admissible?” So you get on West Law or Lexus as the clerk and you look up: Is bite mark testimony admissible? A host of cases will come up. If the judge says, “Give me the jurisdictions,” and if you went to Mississippi, Levon Brooks and Kennedy Brewer’s cases will come up and they both still to this day stand for the proposition that [00:29:30] bite mark testimony is admissible. There’s nothing in the affirmances. They were prior to the exonerations. There’s nothing in the affirmances which say that later, in 2008, Brooks and Brewer were exonerated. They never bit anybody. They weren’t involved. In fact, no one was bitten. And so you would think that those cases were good precedential value. They’re not. They should be highlighted as the exact opposite.

Radley Balko: In fact, in at least three states, I think it may be four now, [00:30:00] the controlling case law for whether or not bite mark evidence is admissible was a case where an appeals court upheld a conviction in the process of ruling that bite mark evidence is admissible. And that person was later exonerated by DNA testing, completely exonerated, found to be innocent. And yet it’s still the controlling case law when we look at whether or not bite mark evidence should be admitted in future cases.

Trevor Burrus: It seems that there’s an epidemic. I will use the word epidemic and you can tell me I’m right, [00:30:30] of forensic malfeasance that kind of across the country. And some people have been pointing this out, seemingly about 2009 you started having National Academy of Sciences saying, “This is not science.” And then President Obama had a report and said, “It’s not science.” And we’re talking about the matching stuff, not the DNA so much, but the matching subjective stuff. Is this having any effect? Is the growing awareness, at least for people like us and people who do these convictions, that this is not science? And so many bad convictions are caused [00:31:00] by this. Is it having an effect on courts?

Radley Balko: Not to the extent that you would think it would. DNA evidence has exposed a lot of these fields for being sort of a lot more subjective and error prone than a lot of people thought they were. And the courts have still been really reluctant to address that. And again, this is because courts, our system values precedent and it values sort of the past and it values the finality [00:31:30] of verdicts to protect the integrity of the system, or at least the appearance of the integrity of the system.

Trevor Burrus: That might be a better way of putting it.

Radley Balko: Right. But you talk about an epidemic of forensic malfeasance. There is a lot of malfeasance in the form of bad actors. There’s Annie Dookhan in Massachusetts, who was faking drug test results and tens of thousands of cases were overturned. There’s West and Hayne, who at some point, I don’t think even they believed [00:32:00] their own testimony. There are lots of examples of forensic analysts who were clearly faking it, who were clearly frauds. But there’s also just a lot of examples of just bias creeping in the system. And part of the problem is that we’ve just done a really poor job of structuring these systems in a way that incentivizes just outcomes.
Roger Koppl, the political scientist, did a study a few years ago that was jaw dropping. It should’ve been a national scandal. [00:32:30] He found that in, I can’t even remember how many states, but I think it’s a dozen or more, the crime labs are paid per conviction. So if you’re a crime lab analyst and your analysis basically exonerates the suspect, you don’t get any money. Your lab doesn’t get any money. If you, on the other hand, find that evidence that ends up with a conviction, the suspect is then charged a crime lab fee that goes back to the lab. I mean, that is not a system that puts a value on a just [00:33:00] outcomes as opposed to a particular outcome, which is a guilty verdict.
Other crime labs report to prosecutors, or they report to the state police. In North Carolina several years ago, the newspaper reported the handbook for the lab talked about referring to defense witnesses as horrors and talking about how you can please prosecutors. And prosecutors did their year end reviews and decided whether they got raises and promotions. There was this security video that the paper found of these two blood spatter analysts. Blood [00:33:30] spatter is another very questionable field.

Trevor Burrus: Wait. Dexter’s not true?

Radley Balko: The two analysts though, they continued to do the experiment over and over again until they get the result that the prosecutor wants, at which point they high five one another one the video. So I don’t think you need people who are deliberately sort of faking results to get to where we are right now. I think it’s a system that we’ve just put the incentives in the wrong place and we value the wrong principles.

Tucker C.: [00:34:00] I think one thing that’s interesting that I’ve seen this phenomenon is in Mississippi, you would be hard pressed to get bite mark evidence into a trial court in Mississippi now. I think the story about Dr. West, there’s been enough cases where prosecutors, defense attorneys, and judges wouldn’t let that happen. That said, I’m on a list serve of defenders and I see this frequently. Someone will say, “The prosecution has a blood spatter expert.” And then the reflexive question [00:34:30] asked is, “Does anyone know of a good blood spatter expert for me?”

Trevor Burrus: Which endorses the entire thing.

Tucker C.: Exactly, where the question really should be, if anyone’s been reading the reports that you mentioned, should be, I wonder if blood spatter is like bite marks. Is this stuff all it’s cracked up to be? Maybe what I need is not a blood spatter expert, but someone who can come in and explain why blood spatter is not a sound forensic science to begin with. To your question, [00:35:00] yes, it has made some difference in certain cases where we know that the discipline is nonsense. On the other hand, there’s still this sort of default reflexive attitude, reaction by folks, which, well blood spatter’s come in for the last 25 years, 30 years, 40 years, whatever. I’ve had blood spatter cases. There’s no way I’m going to convince this judge that this stuff is nonsense now. What’s this judge going to say? I was wrong for all these years. I need my own expert.

Radley Balko: I will say this too. [00:35:30] If you’re a defense attorney, sometimes you’re in a hell of a predicament here because if you … Let’s say it’s a bite mark case. If you hire your own bite mark expert who then testifies in court, I’ve seen the opinions later when you try to challenge the legitimacy of bite marks in your appeal or your post conviction petition. Appeals court will say, “Hey, you put your own expert. You bought into it. You can’t challenge the legitimacy of it now.” I think you should be able to. But I’ve seen opinions where they’ve told them they can’t. And so you’re in this [00:36:00] difficult choice where it’s like: Do I do the sort of right thing and the rational thing and the enlightened thing?

Tucker C.: And actually, the professionally ethical thing, arguably.

Radley Balko: Yeah, which is to go after this just as a legitimate field of forensics in the first place. Or do I just hire my own expert and hope that my expert is more charismatic and persuasive than Dr. West? I wanted to get back to you. You said how the courts are handling this. In some areas of forensics, like shaken baby syndrome, the courts have started [00:36:30] looking at old convictions, even without DNA. But I think in the vast majority, particularly in the pattern matching fields, these more subjective areas of forensics, the courts just have not responded to the scientific community at all. And in fact, to this day every time someone has challenged bite mark evidence in court, they’ve lost. So not a single court in the country has said that bite mark evidence is illegitimate at this point.

Trevor Burrus: Where are Dr. Hayne and Dr. West now?

Tucker C.: Dr. Hayne, they’re both still in Mississippi. Dr. Hayne [00:37:00] is not longer performing autopsies for the State of Mississippi, which he did on a contractual basis for a couple decades. But he does work privately. And a few years ago, not too long after the state didn’t re-​up his contract, he started doing private autopsy, excuse me, private testifying and autopsy work and testifies not infrequently for defense attorneys in criminal cases now.
Dr. West, last time I [00:37:30] checked, last time I was with him in a deposition, is a still practicing clinical dentist, but he practices in a prison. He’s a prison clinical dentist in South Mississippi. And as far as I know, has not testified to bite mark matching. Says he wouldn’t, by the way. He no longer believes in it. He hasn’t testified for some years.

Radley Balko: Will say though that the State of Mississippi is still defending convictions won certainly on West’s testimony, but in several cases they’re still defending … Excuse me. Hayne’s testimony. [00:38:00] But in several cases also WEst’s testimony.

Trevor Burrus: Which I think underscores the point you made about the inputs into the system and the incidents involved that they just keep defending what they did in the past.

Radley Balko: Yeah. And we say this in the book. It would be a huge thing for a Mississippi judge, particularly somebody who’s been in Mississippi all his professional life, to say, “You know what, Dr. Hayne isn’t credible a witness, and we need to face up to this.” In some cases, the judge may have been a former prosecutor who used Hayne, so he would be calling his own prior career into [00:38:30] question. But also, it would just be calling into question the integrity of the very system that this person has worked in their entire life and presumably believes it. And that’s a lot. I hope one of them does it at some point. And I think when a judge does it, that judge will be a hero. But it’s a hell of a lot to ask of a judge. I think we definitely need to admit to that.

Trevor Burrus: Thanks for listening. Free Thoughts is produced by [00:39:00] Tess Terrible. If you enjoyed Free Thoughts, please rate and review us on iTunes. To learn more, visit us on the web at www​.lib​er​tar​i​an​ism​.org.