Thursday, March 13, 2008

Brewer And Brooks: Update, Part II

By Jeff Deskovic

There is a bill, which has passed in the Mississippi State Senate, which was awaiting action from the House of Representatives, which called for a task force to study state policy regarding DNA-related issues, such as access to testing and evidence preservation. Speaking to the issue
of evidence preservation, Representative Greg Snowden said, “There are people in prison who don’t need to be there. The Innocence Project
has asked for certain legislation. I know that they are concerned that the evidence is preserved because, obviously, if you have someone after
the fact, the only way to prove their innocence is if you have the evidence, and, that’s a reasonable thing to want to do.”

Apart from that, the Innocence Project has asked that other cases be examined in which Dr. Hayne and Dr. West participated. Additionally,
the Innocence Project has also asked the state to fill the position of State Medical Examiner. They wrote the following letter to Public
Safety Commissioner Charlie Williams asking that he fill the position of State Medical Examiner, and also criticizing the work of Dr. Hayne:
“We are writing today to ask that you immediately appoint a board certified forensic pathologist to fill the long-vacant position of State
Medical Examiner and that you help secure funding for this critical position. The stakes are too high not to treat this matter with the urgency
and importance it requires. As you are aware, investigators in the Mississippi Attorney General’s office, working with the Innocence Project,
recently apprehended and arrested a man in connection with the rapes and murders of two Noxubee County girls for which two innocent
men were wrongfully convicted.

The apparent perpetrator of these crimes, Justin Albert Johnson, evaded justice for more than 15 years, while two innocent men were in prison, one on death row. We are working with state and local authorities to ensure that Kennedy Brewer and Levon Brooks are exonerated
as quickly as possible; they have already lost years of their lives for crimes they clearly did not commit.

Mr. Brewer and Mr. Brooks were convicted based on faulty and possibly fraudulent forensic science. At the center of this injustice is Stephen Hayne, a medical examiner who performed autopsies on the victims in both cases. Hayne has said that he conducts 1,500 to 1,800 autopsies annually, or roughly 80 percent of all criminal autopsies in Mississippi. His credentials and the results of his work have been solidly discredited for several years, but he is under no oversight because the State Medical Examiner position created by the State Legislature in the 1980s has sat vacant for more than a decade. We are writing today to ask that you immediately fill this position. e case of Mr. Brewer and Mr. Brooks make clear why this oversight is necessary, and the State Legislature made clear two decades ago that it believes this is an important function.

By law, the State Medical Examiner must be a board-certified forensic pathologist. The State Medical Examiner is appointed by, and serves at the pleasure of, the Commissioner of Public Safety. The State Legislature created the position in order to organize and standardize the work of medical examiners across the state and to raise the level of forensic services statewide. Two pathologists served as State Medical
Examiners in the mid-to-late- 1980s, and in 1987 Stephen Hayne was appointed Interim State Medical Examiner. Because he is not a board-certified forensic pathologist, he was set to be removed from the interim position, so he resigned. Two subsequent State Medical Examiners were appointed, until Mr. Hayne and his allies forced the last State Medical Examiner from office in the mid-1990s. is critical position has been vacant since then.

Although a full investigation of cases involving Mr. Hayne has not been conducted, it is clear that in the cases of Mr. Brewer and Mr. Brooks, Mr. Hayne ignored the applicable science and objective facts. He provided improper testimony to help convict two innocent men in capital murder cases. In each case, he wrongly described indiscriminate scratches and bruises as human bite marks. He then compounded the error by securing an incorrect confirmation from his frequent employee and colleague, Michael West. Recently, a peer-review panel of top forensic odontologists from England, Canada and the United States issued a report completely rejecting Hayne’s and West’s conclusions
in the cases of Mr. Brewer and Mr. Brooks. Moreover, Dr. Michael Baden, one of the nation’s pre-eminent forensic pathologists, also criticized the autopsy and, in particular, took issue with the testimonial assertion in both cases that even in the absence of blood in any of the
relevant tissues, the injuries were inflicted ante-mortem. Assuming for the moment that Hayne’s errors were the result of incompetence rather than intentional fraud, one would expect that any board-certi-fied forensic pathologist - a certification that Hayne lacks - would know
that presumptively, the absence of blood in the tissue is indicative of post-mortem rather than ante-mortem occurrence. In short, Stephen Hayne’s improper forensic work and testimony contributed to serious miscarriages of justice - and the mechanism created by the State Legislature to prevent such problems was rendered useless because it has been vacant for so long. We would be happy to furnish you any additional background on Mr. Hayne’s work in these cases and the urgent need for forensic oversight in this area. We ask for your urgent attention to this matter.

The grave consequences illustrated by the cases of Mr. Brewer and Mr. Brooks call for the prompt appointment and full funding of a quali-
fied State Medical Examiner, which falls directly under your authority,” wrote Peter J. Neufeld, co-director of The Innocence Project, and W.
Tucker Carrington, director of the Mississippi Innocence Project. Dr. Hayne, responding to the letter, stated that his work has been regularly reviewed and upheld as valid, and that, “I am board-certi-fied, and my work has been reviewed by impartial reviewers.” He pointed out the Armed Forces Institute of Pathology reviewed his work on more than 50 jailhouse hangings in the early 1990s and concluded, just as he did, that each was a suicide.

“When you don’t have facts, you have a tendency to engage in character assassination,” Hayne said. In light of many DNA Exonerations
around the nation, including that of Brewer and Brooks, many defense attorney’s and prosecutors said that it was time to take a hard
look at forensic techniques. In Florida, Wilton Dedge served 17 years for rape based upon an expert testifying that hairs found on the victim
were his. When DNA analysis was performed on the hairs, it revealed that they did not belong to him. Speaking to the issue of how
many of the junk sciences came to be adopted and used, Barry Scheck and Peter Neufeld said that they “started because some officer had a
case he had to solve, and they had to come up with some new angle on it; so, they invented a technique. And those techniques, whether they’re bite marks, or hair or fiber, never went through the kind of robust research that DNA was subjected to.”

Congress has asked the National Academy of Sciences to study the validity of current forensic techniques. The report, due out this summer,
could wind up exposing many more ‘sciences’ as junk that have potentially wrongfully convicted many thousands of people. It is a crime that the collusion between Hayne, West, local police, and prosecutors was allowed to go on for so long. A common thread in many wrongful conviction cases is that often institutional corruption, fraud, and rule-breaking are found to have been rampant, affecting not
only the immediate wrongful conviction case, but also potentially impacting upon many other cases, which could turn out to be wrongful
conviction cases as well. There are frequently people who come forward and are quoted as saying that it was known that these things were going on. But the question is, why is it that only after an exoneration do people come forward and speak about patterns and
practices. It’s almost as in sports, people jump on the bandwagon of a team as soon as they start winning?

Why must people in the know, particularly in law enforcement, wait for an exoneration? Why not aid justice and attempt to bring about
the exoneration? Better yet, why not try to stop such things as they are happening? Similarly, why do lawmakers have to wait before passing legislation to prevent wrongful convictions? Once armed with information, the inequalities of the criminal justice system become apparent, as does the way in which innocents can fall through the cracks in the system. Why must there be a delay? How about people in positions of trust, responsibility, and power doing the right thing for once, because it is right, and not because of publicity or the changing political tides?

Legislative changes are needed in every state, including New York, which has had 23 DNA exonerations, and numerous other non-
DNA wrongful conviction exposures, such as Marty Tankleff and Anthony DiSimone, while enacting zero reforms. Prosecutorial misconduct, police misconduct, scientific fraud, junk science, must all come to be seen as abhorrent, unacceptable, and even, when the facts call for it, criminal. We must all insist that legislative reforms be enacted by lawmakers. We must call upon hon-est police officers, prosecutors who play be the rules, experts who do their job honestly and in good faith, people in any capacity connected to the criminal justice system; to have a zero tolerance for these types of deadly serious practices. We must expose them at every turn; in effect, ‘taking back honest law enforcement’ by exposing those rogue personnel that would ignore proper procedure, abuse public trust, erode public confidence, because these often result in the sending of innocent people to prison. Whether intentional, as is often the case, or unintentional, we must put a stop to them. More than the acts of Drs. Hayne and West, it would be a crime if all of us around the country did not do all that we could to take lessons from the Brewer and Brooks cases.

Latest Developments

In the last few weeks, the Mississippi House of Representatives has introduced DNA legislation. House Bill 289 calls for DNA tests to be
done for convicted murderers to use in appealing their death sentences. House Bill 391 provides for DNA testing for people charged with capital murder. The House unanimously passed the bills last Tuesday and sent them to the Senate.

While granting those classes of prisoners access to DNA testing is certainly an improvement on the general state of affairs in Mississippi
and very likely will result in the saving of lives, it does not address the need for the wrongfully-convicted prisoners who are not charged with
capital crimes.

Everybody should have the right to demonstrate innocence. Additional measures should be put in place to help uncover innocence in those cases where no DNA is available, particularly in light of the fact that DNA is only available in 10% of all serious felony cases. Uncovering information hidden by police and prosecutors, uncovering new evidence, and eyewitness identification recantation, are all means by which innocence can be shown through non-biological methods. It seems especially necessary in Mississippi, where Hayne and West were allowed to run wild to ensure convictions, aided and abetted by prosecutors and police.

The State Senate, meanwhile, has passed its own bill aimed at spawning improvements in preserving and testing biological evidence for
DNA. Senate Bill 2619 calls for a task force to conduct a study and make recommendations.

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