Black Americans are seven times more likely to be wrongfully convicted

by Jerry Mitchell, Mississippi Center For Investigative Reporting, Mississippi Today
October 11, 2022

Eddie Lee Howard Jr. and Sherwood Brown each spent 26 years on Mississippi's death row for murders they did not commit — only to walk free last year.

They are far from alone. They are two of 23 Black Mississippians who have been exonerated in recent decades. Four other exonerees were white.

A new study by the National Registry of Exonerations shows that Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes.

Howard's lawyer, Chris Fabricant, said police picked up his client “because he was Black and because he had a record.”

Howard and Brown were the fifth and sixth exonerated Mississippians who were convicted as a result of the work of forensic odontologist Michael West of Hattiesburg, who has repeatedly testified he found bite marks on victims and then linked those marks to suspects identified by law enforcement.

Those wrongfully convicted in those cases served a combined 107 years in prison — more than half of them on death row.

In examining more than 350 DNA exonerations across the U.S., the Innocence Project found that 45% of these cases involved the misapplication of forensic science through such unreliable methods as bite marks.

“With notable exceptions, prosecutors and law enforcement are not going out of their way to convict innocent people,” said Fabricant, the author of Junk Science and the American Criminal Justice System. 

What happens instead, he said, is once authorities have a target, the prosecutor tells forensic experts something like, “Here's the guy. We really need the match to tighten this up.”

Experts in that situation are going to make the match because “our minds are programmed to match patterns,” he said. “And once you suggest a pattern, it's easy to match.”

Junk science is hardly alone in leading to wrongful convictions. Mistaken eyewitness identifications make up about 70% of DNA exonerations. And 18% of these cases involve false or misleading testimony by informants.

‘It really constituted deliberate indifference'

Kennedy Brewer and Lavon Brooks each spent more than 15 years behind bars for murders of toddler girls they never committed.

Mississippi pathologist Dr. Steven Hayne performed autopsies on the two slain 3-year-olds in Noxubee County. He saw marks on the bodies and called in his friend, West, who identified 19 marks that Brewer “indeed and without a doubt” inflicted on the body of the victim he was charged with killing. He gave almost identical testimony in Brooks' case.

The trial judge permitted West's expert testimony in Brewer's 1995 trial, despite the fact West had been the first member ever suspended by the American Board of Forensic Odontology. In 1994, an American Academy of Forensic Sciences committee suspended West, who was forced to resign in 2006.

DNA later cleared the two men and fingered the real killer, Justin Albert Johnson, who confessed that he raped and killed the two girls before throwing their bodies into ponds. Experts said what West identified as bite marks were actually insect bites.

“Michael West was so reckless with his pronouncements that non-human marks on people's skins came from innocent people's teeth that it really constituted deliberate indifference, which in many states you could be prosecuted for,” said Peter Neufeld, co-founder of the Innocence Project, which represented Brewer and Brooks.

On the day the pair were exonerated in 2008, Neufeld spoke to the Black Mississippians gathered in the courthouse in Macon. “They told us that was the first day in their lives they felt they had a presence in the courthouse, and they felt the courthouse was theirs,” he said. 

That was revelatory, he said. “Steven Hayne was part of the machine that sent poor people of color to prison without due process.”

Even after their exonerations, West insisted Brooks and Brewer had bitten the girls.

West has made his mark as a self-proclaimed expert in many fields. In courts, judges in at least 10 states have permitted him to testify as an expert in shoes, footprints, fingernail scratches, trace metals, gunshot residue, crime scene reconstruction, blood spatters, wound patterns, and “liquid splash patterns.”

He believed so strongly in his expertise that he once bragged to a lawyer that his error rate was “something less than my Savior, Jesus Christ.”

He claimed to have matched a footprint on a slain child's face to an athletic shoe found in a neighbor's apartment, according to the ABA Journal. He claimed to have matched a bruise on a slain child's abdomen to a suspect's shoe. 

He claimed to have matched the bite marks in a half-eaten bologna sandwich to the primary suspect. He also claimed to have found bite marks on bodies using ultraviolet light — something no other expert was able to replicate.

100th Black American since 1973 exonerated from a death sentence 

In Brown's triple homicide case, West wrote prosecutors: “The wound on the left wrist of Sherwood Brown is a human bitemark. It is a bitemark of great severity and is consistant [sic] with the time of the attack. The bitemark pattern is highly consistant [sic] with the dentition of Evanlie [sic] Boyd.”

The prosecution used West's conclusion as evidence against Brown as well as the testimony of a jailhouse informant who claimed Brown confessed to the murders. At trial, prosecutors told jurors the blood found on the sole of Brown's shoe came from the victims.

A jury sentenced Brown to death for the murder of 13-year-old Evangela Boyd. He also received two life sentences for the murders of her mother and grandmother. 

But DNA tests eventually done told a different story: the bloody footprints in and around the murder scene contained only female DNA and the blood spot on Brown's shoe contained only male DNA. No evidence, including hair and DNA, connected Brown to the crime scene or the body. None of his fingerprints was found at the scene.

On Aug. 24, 2021, a circuit judge freed Brown at the request of the district attorney, who said his office lacked the evidence to prosecute. Brown was the 100^th Black American since 1973 to be exonerated from a wrongful conviction and death sentence.

As for Howard, he was convicted of the 1992 rape and stabbing death of 84-year-old Georgia Kemp of Columbus. She had been beaten and stabbed to death, and the trauma to her body suggested she had been sexually assaulted. A rape kit found no semen.

Six days later, authorities charged Howard, a sex offender just released from prison, with the crime. 

The judge allowed Howard to represent himself at trial, even though he suffered from mental illness, and the Mississippi Supreme Court ordered a new trial.

At the second trial, his former girlfriend testified that he sometimes bit her during sex.

The only evidence that linked Howard to the crime? West's testimony that he found three bite marks on the victim's body that matched Howard's teeth.

But West didn't stop there. He even claimed he could tell from the bite marks that Kemp was “fighting for her life” when she was bitten.

In his closing statement, then-District Attorney Forrest Allgood praised West as a visionary.

“The progress of mankind has been carried forward on the backs of people like Michael West,” he said. “The church threatened to burn Copernicus (actually Galileo) because he dared to say that the planets didn't revolve around the earth. So it was with Michael West.”

The jury convicted Howard, and once again, an innocent man was sentenced to death.

In a 2016 hearing, Howard's attorneys showed that none of his DNA had been found at the crime scene or on the murder weapon. (Another man's DNA was found there.) There was also no DNA on the claimed bite marks or on the victim's clothing, body or bed sheets.

Three forensic odontologists found the three bite marks West claimed to have found aren't visible in autopsy photographs, “nor were the alleged bite marks visible by the naked eye or noted in the autopsy report.”

After winning a new trial, Howard saw all his charges thrown out on Jan. 8, 2021, after the district attorney concluded there wasn't enough evidence to prosecute.

In 2009, Brewer sued Hayne and West for $18 million, but a federal judge dismissed the lawsuit, saying qualified immunity protected the pair. The 5^th U.S. Circuit Court of Appeals upheld the decision in 2017.

For his wrongful conviction, Brewer received $500,000 from the state of Mississippi.

Tucker Carrington, co-author of a book about Hayne and West, The Cadaver King and the Country Dentist, said he believes there are other innocent people behind bars because of the pair's testimony.

“After Brooks and Brewer were exonerated, we tried to identify as many cases as we could,” he said.

In addition to Brown and Howard, “we found a host of other cases that were problematic,” he said. “They were cases where I thought the facts were egregious involving Hayne or West or both, but we were unable to win, because the cases had lingered too long or the merits weren't sufficient to prevail.”

Jimmie Duncan remains on Louisiana's death row for the 1993 death of 3-year-old Haley Oliveaux. West claims he found bite marks on the child's cheek, but a video shows no marks on her cheek until after West jammed a mold of teeth into the child's cheek.

In 2009, the National Academy of Sciences reported that “imprecise or exaggerated expert testimony has sometimes contributed to the admission or erroneous or misleading evidence.”

The report concluded there was no basis in science for forensic odontologists to conclude someone is “the biter,” excluding all other suspects. The American Board of Forensic Odontology changed its guidelines to bar such testimony.

In 2011, West admitted the very methods he used to put so many behind bars were invalid. “I no longer believe in bite-mark analysis,” he said. “I don't think it should be used in court. I think you should use DNA. Throw bite marks out.”

As for Hayne, there have been six Mississippians exonerated from prison related to his testimony.

In 2018, Jeffrey Havard was removed from death row after Hayne reversed himself, saying shaken baby syndrome wasn't the cause of death as he originally ruled. 

At Havard's original trial, Hayne went along with the district attorney's suggestion that there had been a sexual assault, but Hayne reversed himself on that issue, too, saying he didn't believe such an assault took place.

Despite those reversals, Havard remains behind bars. Hayne has since died.

Under the Law of Moses, false witnesses received the same punishment as those guilty of the crimes.

While that principle doesn't appear in American jurisprudence, a police officer in California can be convicted of a felony for making a false statement in a report.

Mississippi has no such law.

Email Jerry.Mitchell@MississippiCIR.org. 

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This story was produced in partnership with the Community Foundation for Mississippi's local news collaborative, which is independently funded in part by Microsoft Corp. The collaborative includes Mississippi Today, MCIR, the Clarion Ledger, the Jackson Advocate, Jackson State University and Mississippi Public Broadcasting.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.