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The Immunity of Charlatans – Update for July 7, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


In the annals of whack-job prosecution “experts,” Steven Hayne and Michael West are royalty. The pair, who have dominated Mississippi’s death investigation system for the better part of 20 years, have put dozens of people in prison for life or on death row with testimony that falls well outside the constraints of science.

biteme170710Hayne once claimed that a murder victim’s bullet wounds were “consistent with” a theory that two people were holding the gun when it was fired. West has claimed to be able to trace bruises on a victim’s abdomen to the specific shoe that inflicted the injuries, to match fingernail scrapes to the specific fingernails that made them, and in one case, claimed that the knife wounds in a murder victim could only have been caused by one specific knife and that marks on the defendant’s hands that could only have been caused by gripping the handle of that same knife.

Scott Greenfield succinctly explained bite-mark forensics in his Simple Justice blog: “Just to be absolutely clear, bite marks identification evidence is complete, total junk science. It doesn’t work, which is how Hayne and West became the leading “experts” in bite mark evidence.”

Among the dozens of unfortunates locked up by the fake science peddled by Hayne and West were Kennedy Brewer and Levon Brooks. After the two were exonerated of murders that had gotten one of them sentenced to life and the other put on death row – based on nonsensical bite mark testimony from Hayne and West – they sued the “experts” under 42 USC § 1983. Last week, 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 Circuit held

Plaintiffs have made a compelling showing that Defendants were negligent in their forensic analysis, but negligence alone will not defeat qualified immunity. Viewed in the most favorable light, Plaintiffs’ evidence is not suggestive of an intent to fabricate. The disagreement voiced by Plaintiffs’ experts is evidence that Defendants were mistaken in their conclusions or methodologies, but no more. Likewise, the evidence of the “extraordinary frequency” with which Defendants found bite mark evidence certainly undermines the reliability of the forensic odontology techniques they employed — and perhaps the field in general — but does not lead to an inference of intentional fabrication.

charlatan170710It is significant that Hayne and West aggressively marketed their abilities to find forensic evidence that would convict, and were thus the darlings of prosecutors all over Mississippi. In fact, Hayne could almost claim as his trademark the phrase “indeed, and without a doubt.” Juries loved it: no wishy-washy equivocating from this “expert.” Hayne’s and West’s findings were clear, their opinions stark and powerful.

Unfortunately for the defendants against whom they testified, Hayne’s and West’s findings were dubious and their opinions wrong. But that was not enough for the 5th Circuit. “The allegation of a previously false bite mark by Dr. West — whether created intentionally or accidentally — gives pause,” the Court said. “Yet the inference Plaintiffs ask us to draw from that evidence is one generally not permitted under the federal rules. The same is true of the evidence regarding Defendants’ professional histories—propensity evidence will not sustain an inference that the Defendants intentionally fabricated evidence here.”

In other words, just because these “experts” cheated in prior cases before does not mean you can use that to suggest to the jury that they’re cheating now. That seems to be a twist on F.R.Ev. 404 that collides with due process. But then, the whole notion of a pair of medical mountebanks like these two stealing the lives of innocent defendants to line their pockets with expert fees pretty much shocks the conscience.

Brewer v. Hayne, Case No. 16-60116 (5th Cir., June 27, 2017)

– Thomas L. Root