This week, the U.S. Court of Appeals for 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.

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The lawsuit in question was brought by Levon Brooks and Kennedy Brewer, two men who were wrongly convicted in the 1990s, largely due to testimony from Hayne and West. In both cases, a little girl was abducted from her home at night, sexually assaulted and murdered, and her body was thrown into a creek. The two crimes occurred just a couple of miles apart. In both cases, the authorities suspected a boyfriend of the mother. In both cases, they took the body to Hayne for autopsy. In both cases, Hayne claimed to have found bite marks that other experts have since said were not human bites at all. In both cases, Hayne then called in West, who was making a name for himself as an expert bite-mark analyst. In both cases, West claimed that the marks were in fact human bites and that the marks “indeed, and without a doubt” were a match to the authorities’ chief suspect.

In reality, the same man — Justin Albert Johnson — committed both crimes. Johnson had a history of attempted sexual assaults. On at least two other occasions he had broken into a home, at night, and attempted to attack a sleeping victim. In fact, he was initially a suspect in the first murder. Had Hayne, West and local authorities not wrongly implicated Levon Brooks in that first crime, the second little girl may never have been attacked and murdered. Instead, West actually exonerated Johnson. He compared a dental mold of Johnson’s teeth with the alleged bite marks and determined that they weren’t a match. (As it would turn out, he was right about that, but only because those marks weren’t bites at all — Johnson never bit either victim.)

Brooks was sentenced to life in prison. Brewer was sentenced to death, and at one point was given a death warrant. In 2000, Brewer was excluded as the source of the sperm found in the little girl, yet local officials insisted on keeping him in prison, citing West’s testimony. Brewer may not have raped the girl, they argued, but because West said that Brewer and only Brewer bit her, he must have participated in the attack. They speculated that he must have held her down and bit her while someone else raped her. Yet for reasons that remain unclear, they refused to run the DNA profile from the sperm through the state database. Years later, Brewer’s attorneys finally got a court order for testing. When they did, it was a match to Justin Johnson. He then confessed to both crimes.

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After they were released from prison in 2007, Brewer and Brooks sued. Their lawsuits were later combined. A federal district court dismissed the suit, finding that Hayne and West had absolute immunity for the testimony in court and qualified immunity for the reports that they wrote for police and prosecutors. They appealed. The appeals court released its opinion this week.

In most cases, qualified immunity is afforded to state employees, most typically police officers. Neither Hayne nor West were state employees at the time. They were in private practice and worked on a contractual, case-by-case basis. On a very basic level, affording immunity to expert witnesses — even those who aren’t state employees — makes some sense. In an adversarial system, you want experts to be able to testify without fear of being sued. Experts can and will sometimes be wrong. There’s an argument to be made that we have to allow them that possibility.

But there’s a difference between getting a test wrong or even wrongly implicating someone due to cognitive bias and what Hayne and West were doing. They were openly and aggressively marketing themselves to prosecutors as having developed cutting-edge technology that could “clinch” convictions. They claimed to have the means to find marks, bites and bruises on victims that other forensic analysts couldn’t, and that they could then trace them back to suspects.

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Expert witnesses are enormously persuasive with juries. As I’ve argued here before, juries love certainty. They want witnesses who will tell them what happened. The problem is that real scientists don’t speak in certainties. They speak in probabilities. Consequently, a charlatan willing to use phrases like Michael West’s trademark “indeed, and without a doubt” tend to be more persuasive with juries than a scientific, conscientious witness who testifies about nuance and probability. It makes witnesses such as Hayne and West exceptionally dangerous.

Brooks and Brewer argued that Hayne and West were exceptionally reckless in their respective cases. For example, Hayne and West said that the bite marks were made only by the upper back teeth of the defendants, a bizarre claim that nearly defies the laws of physics. In the Brooks case, West oddly used Silly Putty to make a mold of Brooks’s teeth, which he said was the only material that could record the level of detail he needed to match Brooks’s teeth to the bite marks. In addition to the rather strange novelty of using Silly Putty, West’s explanation of why he did so also made little sense. Human skin is spongy, fungible and resilient. Even under ideal conditions, it’s a poor receptacle for recording bite marks with the level of detail that bite mark analysts claim. (Indeed, there’s no scientific research to support this claim.) But in this case, the little girl’s body had spent 24 hours submerged in water. It had been exposed to insects and animals. It had begun to decay. It had even been embalmed. Even if West were right about Silly Putty’s ability to record more intricate details than a conventional dental mold, for that extra detail to be relevant, the same level of detail would need to have been preserved in the bite marks themselves. And that is highly unlikely.

Another example: Multiple experts who have reviewed the cases have said that the girls’ injuries were clearly inflicted after death. That would mean they were unlikely to have been human bites (the same experts said that, too). Hayne could have made sure one way or another by taking biopsies of the injuries and examining them under a microscope. He didn’t. Instead, he merely stated definitively that they were inflicted before death, then brought West in to do his magic.

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But the most damning evidence of recklessness is that the men — West in particular — used a method of bite-mark analysis West called “direct comparison.” The “technique” (which Hayne has also admitted to using) involves forcefully pushing a mold of the suspect’s teeth directly into the skin of the victim, on top of the alleged bite mark. As you might imagine, more-credible forensic specialists find this to be outrageous. Even within the already scientifically suspect bite-mark community, West’s methods are considered out of bounds. At best, pushing a replica of a suspect’s teeth into allege bite marks distorts the marks so that no other expert can examine them in their original state. At worst, it’s manufacturing evidence. I’ve written about two subsequent cases in which West actually recorded his examination of the victim, and in both cases, he appears to be creating the very bite marks he later attributed to the defendant. That is, the video shows no marks on the skin before West does his thing — it only appears afterward. Experts who have examined those videos have called West’s “technique” somewhere between malpractice and criminality.

There’s a video of West’s exam in the Brewer case as well, although it hasn’t been released to the public. Experts who have seen it, however, say that West appears to have created the bite marks in that video, too.

Even if you believe that expert witnesses should have qualified immunity, that particular form of immunity goes only so far. It would not protect a witness if a defendant could show that he or she knowingly lied on the witness stand, for example. And it certainly wouldn’t protect a witness who fabricated evidence.

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The 5th Circuit opinion acknowledges that bite-mark evidence has recently been “called into question,” but finds that because it was widely accepted at the time, Brewer and Brooks would have to show that West either fabricated evidence or knowingly lied in court.

One quick digression here: The fact that the court acknowledges that bite-mark evidence has today been “called into question” is significant, but the distinction between now and the 1990s is dubious. The truth is, the courts are no more enlightened about the topic now than they were then. Plenty of people questioned the validity of bite-mark evidence back then, too. There has never been an inkling of scientific research to support its foundational assumptions. Which is to say, there was never any reason for the courts to accept it in the first place. Since then, there has been more scientific research on the subject. All of it has shown that there’s no scientific basis for the field to exist. And yet still, as of this writing, there isn’t a single court in the United States that has upheld a challenge to bite-mark evidence. Not one.

But for the purposes of this post, let’s move on. Even among those who believe that bite-mark evidence is scientifically valid, what West did in these two cases (and many others) is beyond the pale. David Senn, an avid defender of bite-mark analysis, has submitted affidavits highly critical of West’s work in other cases. But again, that still wasn’t enough. Brooks and Brewer had to go beyond mere negligence and show that West engaged in either recklessness or deceit in this specific case. Here’s how the court characterizes their attempt to do that:

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Plaintiffs argue that deliberate falsehoods “can be, and usually must be, proved from circumstantial evidence.” Plaintiffs direct us to the following circumstantial evidence, which they contend creates a question for trial as to whether Defendants intentionally created false or scientifically inaccurate bite mark evidence: (1) other expert opinions that have concluded that there was “no scientific basis” for determining the contusions on the bodies were bite marks and that “Dr. West knew or should have known that they were not bite marks”; (2) other expert opinions that determined that finding nineteen bite marks made only with the upper teeth “is unreasonable and unprecedented”; (3) a previous case where an expert for the defense testified that he believed that there was no bite mark present until Dr. West, in an effort to match a mold of the accused’s teeth to the supposed mark, pressed the mold into the flesh; (4) the “extraordinary frequency” with which Defendants found bite mark evidence—over one hundred times and in every so-called “rape overkill” case; (5) Defendants’ failure to produce any other experts who agreed with their conclusions; and (6) the allegedly “checkered” professional histories of Defendants. Finally, while Plaintiffs argue that they are not required to provide a motive, they contend that a reasonable jury could find that Defendants were incentivized to fabricate evidence by the inherent pressures forensic analysts face from the State.

The court then concludes that Brooks and Brewer didn’t quite get there.

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. The allegation of a previously false bite mark by Dr. West—whether created intentionally or accidentally—gives pause. 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.

Note the sentence that ends with “gives pause.” There’s a footnote to it. It reads:

Rule 404 does not allow a party to introduce evidence of a person’s character or character trait in order to show conformance with that character or character trait on a given occasion. FED. R. EVID. 404. Rule 404(b)(2) includes an exception to the propensity evidence ban to demonstrate knowledge or lack of mistake, but the inference that Dr. West committed the bad act in this case because he committed a bad act in the past is not permitted.

I find this rule problematic. Certainly West’s behavior in past cases ought to be suggestive of his behavior in this one, just as Hayne’s willingness to testify about his “two hands on the gun” theory ought to cast suspicion on the testimony he gives in other cases that’s less outrageous — or perhaps even well within the bounds of science — but still disputed by another medical examiner.

Yet even here this point should have been moot, because in one of these cases — the Brewer case — West is also alleged to have manufactured a bite mark. Here’s an excerpt from an affidavit submitted by bite-mark analyst Senn:

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Dr. West placed Kennedy Brewer’s dental models directly onto Christine Jackson’s body multiple times – with sufficient force to create marks visible, as can be seen in the videotaped examination that I reviewed . . . The method of directly placing a suspect’s dental models onto the skin and repeatedly moving those models in direct contact with skin is unacceptable methodology. In fact, this action actually generates patterned injuries to the skin. Unfortunately, that affidavit came from Steven Hayne’s lawsuit against the Innocence Project of New York, not from one of these cases. From what I can tell from the pleadings in this case, it doesn’t appear that Brewer’s attorneys argued the point. They argued that West had manufactured evidence in other cases, but for some reason failed to specifically argue that he did so in either of these. They argue only that he was reckless. That isn’t the court’s fault. They can’t consider a point that wasn’t argued. But it’s really unfortunate. That still doesn’t get the court off the hook. The argued behavior of Hayne and West in this case was more than enough to get past qualified immunity. (Note that the court didn’t even need to find that the men acted recklessly — only that there’s enough evidence here that a jury could reasonably find that they did.)

It’s worth noting that this is the second time that the 5th Circuit Court of Appeals has acknowledged problems with Hayne’s credibility. The other instance was a 2014 opinion denying a post-conviction petition by James Koon. Before that decision, that same court — along with other state appeals courts and federal district courts — had repeatedly shot down challenges to the credibility of both Hayne and West. Kennedy Brewer and Levon Brooks themselves were rebuffed every single time they tried to challenge the experts’ credibility, at both the state and federal levels. In fact, the Mississippi Supreme Court decision that upheld Brooks’s petition is still the state’s controlling case law when it comes to the reliability of bite-mark evidence, despite the fact that Brooks has since been exonerated. (Interesting aside: Only one justice dissented in that case. Later, when he was up for reelection, an out-of-state advocacy group ran TV ads accusing the justice of supporting child rapists and child murderers, citing his dissent in the Brooks case. The justice was voted off the court.)

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So on two occasions, the 5th Circuit has at long last acknowledged that Steven Hayne isn’t a credible expert — this time going so far as to concede that he was grossly negligent. And yet in both cases the court still denied relief to the people who were harmed by him. Both decisions were short, dismissive and showed little concern or worry for the fact that Hayne and West controlled the Mississippi death investigation system for nearly two decades, potentially tainting thousands of cases. (West testified in the range of “dozens” of cases, but regularly assisted Hayne in his autopsies.) Worse yet, this particular ruling argues that because bite-mark evidence was widely accepted by the courts in the 1990s, West can’t be held liable for deploying it to help convict two innocent men. Stripped of its legalese, that argument basically boils down to this: Because the courts failed in their duty to keep this sort of fraudulent testimony out of criminal cases, the courts must now ensure that the people harmed by that failure get no justice for their suffering. It’s an opprobrious insult to any concept of justice.