And it really is pretty awful.

Tina Funderburk is a forgotten woman.

The 37-year-old mother from Brooklyn, N.Y., remains in the Hinds County Detention Center, where she has spent much of the last eight years behind bars.

She remains in legal limbo – still charged with murder in the death of her 3-year-old daughter, Reina Russell, but unlikely to ever be tried.

In 2009, Hinds County Circuit Judge Tomie Green ordered Funderburk, who has been diagnosed as paranoid schizophrenic, sent to the State Hospital at Whitfield unit for those determined to be criminally insane, but after treatment, Whitfield officials returned her.

“This poor woman diagnosed as having psychosis and delusions is languishing in jail?” said Tucker Carrington, director of the Mississippi Innocence Project. “That seems needlessly cruel.”

Angela Ladner, executive director for the Mississippi Psychiatric Association, said the situation needs to be corrected. “You don’t put mentally ill people in jail,” she said. “You get them medical treatment.”

Hinds County District Attorney Robert Shuler Smith said he is open to negotiations with the defense. Until that happens, “we cannot override a court’s order,” he said.

Stanley Wesley, who has visited Funderburk in jail, said she has already served twice as much time as then-District Attorney Faye Peterson offered in a plea bargain – four years for child endangerment.

Funderburk didn’t take the deal, insisting she never killed her child, he said.

Funderburk is severely schizophrenic. At the very least, she appears to have abandoned her daughter while traveling through Mississippi, while in the middle of a schizophrenic episode.But even if she had killed the girl, it doesn’t excuse locking a severely mentally ill woman up for eight years, without treatment, without so much as a trial.

If you’re wondering, yes, Steven Hayne was involved. Based on the girl’s remains, he determined her death was a homicide. Other doctors found insufficient evidence for that conclusion.

Michael Bowers has been one one of the heroes to shed light on the bite mark matching fraud. He has personally exposed a number of quacks, and contributed to the National Academy of Sciences report that found no scientific basis for the idea that bite marks on human skin can be definitively matched to one person, to the exclusion of everyone else.

Now, two bite mark specialists whom Bowers has criticized are suing him for stating at a conference that they contributed to a wrongful conviction.

Dentists Russell Schneider, of Waukegan, and Carl Hagstrom, of Fox Lake, filed their lawsuit against Michael Bowers, a dentist in California who is a frequent and sometimes acerbic critic of his fellow forensic odontologists for work that has led to numerous wrongful convictions . . .

The two dentists allege in their lawsuit that Bowers spoke at a conference of forensic dentists in Chicago earlier this year and included a case they worked on in a list of 10 wrongful convictions caused by bite-mark evidence. That, the two allege, was wrong and subjected them to ridicule and a loss of business.

I wrote a bit about this particular case in the Reason criminal justice issue. The prosecutor in the case? None other than Lake County, Illinois Assistant State’s Attorney and DNA fabulist Mike Mermel, who was recently forced to resign for comments he made in an unflattering profile in the New York Times.

When a DNA test in 2003 showed that the semen in the underwear of a 68-year-old woman didn’t belong to Bernie Starks, a man convicted in 1986 of raping . . . her, Mermel dismissed the results because the semen came from the victim’s clothing. Had it come from the woman’s vagina, Mermel said, “I would be standing over there advocating the side that the defense has in the case.”

Three years later, defense attorneys found the rape kit and tested semen recovered from the woman’s vagina. Again, there was no match. Mermel again wouldn’t budge, this time arguing that the woman must have had sex with someone else just before the rape.

In its brief to keep Starks in prison, the state cited Schneider and Hagstrom’s testimony as evidence of Starks’ guilt, despite the DNA evidence. Here’s their attorney:

They say Schneider stood up and told Bowers that Starks’ conviction was not reversed because of any of the bite-mark evidence, but Bowers “ignored plaintiff’s statement and did not retract his assertion that the Bennie Starks conviction was premised upon faulty bite-mark testimony.”

“Whether or not he had sexual intercourse with her … has nothing to do with my clients,” said Michael Krause, one of the attorneys for the two dentists, neither of whom returned calls for comment. “My clients feel that their reputations have been harmed by Bowers’ statements. It’s actually quite simple.”

He’s at least right about that last part. Starks’ attorney explains:

“The victim was attacked by one person who sexually assaulted her. We know that wasn’t Bennie Starks, so it wasn’t Bennie Starks who bit her,” said Jed Stone, one of Starks’ attorneys. “There is no other interpretation of this evidence that makes any sense and isn’t completely fanciful.”

Based on the DNA testing, the Illinois Appellate Court overturned Starks’ conviction in 2006. Because of Mermel’s posturing, Starks has yet to get a new trial. It’s reminiscent of Forrest Allgood keeping Kennedy Brewer in prison years after DNA testing cleared him because of Michael West’s claim that bite marks on the victim were a match with Brewer’s teeth. Allgood postulated that someone else must have raped the girl while Brewer held her down and bit her.

One intriguing thing about this lawsuit: In a defamation suit, the plaintiff must prove that the alleged defamatory statements are false. Assuming it isn’t tossed before it gets that far, it would be fascinating if the lawsuit became an inquiry into the scientific validity of bite mark evidence. Something tells me that Bowers would probably welcome that. The plaintiffs probably wouldn’t.

In other bite mark news, CNN’s Anderson Cooper recently aired a report on the topic on his show. Over at the Bite Marks Evidence blog, David Averill posts this incredible video from the report, in which bite mark specialist Lowell Levine defends bite mark testimony as “important and viable.” But when asked if there’s a way it can be validated with the scientific method, he responds, “I sure can’t think of it.”

It’s telling that Levine would be considered one of the country’s most respected bite mark witnesses. He too nearly helped convict an innocent man. From a 2004 article on bite mark testimony in the Chicago Tribune:

. . . a team of Massachusetts State Police officers turned to Levine in hopes of solving the gruesome murder of Irene Kennedy.

The 75-year-old grandmother had been beaten and stabbed two dozen times while on a morning stroll with her husband in a park outside Boston. The killer, who attacked Kennedy when she and her husband briefly took separate paths, left a bite mark on her breast.

The investigators drove from Boston to Levine’s office. Explaining the circumstances of the murder, they asked him to compare photos of the bite mark on Kennedy’s body with a copy of a mold made from the teeth of a suspect, Edmund Burke . . .

. . . in a sworn deposition taken in the lawsuit, Levine testified that after studying the materials in his office, he told the waiting officers he could not exclude Burke but would need additional information for a more definite opinion.

Three days later, Levine went to Boston to examine more evidence, asking police to provide him with enhanced photos of the bite wound. They did, and that, Levine said, was enough.

In his deposition, Levine said he concluded “to a reasonable scientific certainty” that Burke had left the bite on Kennedy’s breast.

Police searched Burke’s home, and arrested and jailed him. The county prosecutors called the bite mark the “most compelling evidence” in the case.

Less than six weeks later, though, officials had to admit they were wrong. DNA taken from saliva recovered on the bite mark was analyzed. A genetic profile was obtained, and prosecutors said it was not Burke’s. He was set free.

Levine insisted in the January 2003 deposition that he had been correct when he linked the bite mark to Burke, although he also hedged a bit, saying he had never made a definitive “match.”

Under questioning by a lawyer for Burke, who sued the police and Levine after he was cleared, Levine stood by his bite-mark analysis.

“Do you think he bit her breasts?” attorney Robert Sinsheimer, who represents Burke, asked Levine in the deposition.

“I think with a high degree of probability he did,” Levine said. He offered possible explanations for why the DNA did not match Burke, including that police who had handled the crime scene contaminated the DNA.

He also noted that another prominent forensic odontologist, Dr. Ira Titunik of New York, had examined the evidence and concurred in his opinion. Titunik confirmed that he had informally examined the evidence and agreed with Levine.

But then Levine’s analysis took another hit. In June 2003, some five months after Levine testified under oath and held fast to his bite-mark analysis, police announced they had made another arrest in Irene Kennedy’s murder.

The genetic profile derived from the bite mark, the police said, had been entered into a database. It hit on a convicted murderer.

I haven’t yet seen the entire CNN story. I hope they at least mentioned the Burke case before introducing Levine as an expert.

The New York Times takes up the case of Megan Winfrey, convicted of murder at age 16 due primarily to a scent lineup conducted by the miracle dogs of Fort Bend County, Texas Dep. Keith Pikett.

Pikett has been used in thousands of cases all over the country. The problem? There’s no scientific evidence that his lineups are any better than guesswork. Winfrey was accused of committing the murder along with her father and brother. There was no physical evidence linking any of them to the crime. Her father was convicted, then had his conviction overturned by the Texas Court of Criminal Appeals, which found that “scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.” Her brother’s attorneys put on a credible attack on scent lineups, and was acquitted after 13 minutes of jury deliberations. The prosecutor, of course, is trying to keep Winfrey in prison.

Pikett is currently facing a class-action suit from several people wrongly identified by his dogs. As late as 2009, prosecutors were attempting to retry exonerated convict Anthony Graves based on Pikett’s dogs. In that case, Pikett claimed his dogs had picked up Graves’ sent on 17-year-old evidence recovered from a burned-down crime scene. Graves, who served time on death row, was released last year.

I explained in a Reason column earlier this year why the dogs aren’t the problem in these cases—their handlers are.

In my “rogue’s gallery” of bad prosecutors for the criminal justice issue of Reason, I included Mike Mermel, an Assistant State’s Attorney in Lake County, Illinois. Mermel has taken prosecutorial tunnel vision to new depths, by concocting bizarre theories to explain why the guy he convicted is still guilty of rape and murder, despite the presence of another man’s semen in the victim. On Sunday, Mermel and the Lake County State’s Attorney’s Office were profiled in the New York Times Magazine. It’s really an amazing article, for a number of reasons.

Some highlights:

The first time I contacted him and said that I was from The New York Times, Mermel immediately announced that he was conservative. He agreed to speak with me on the phone, and later in the lobby of the state’s attorney’s office, but he refused requests for subsequent interviews and sought to retract all statements from our previous conversation.

Defense lawyers described Mermel’s office to me, with a photo of Charlton Heston and a book by Ann Coulter on display. “The first time I was in his office, he played me a videotape of Rush Limbaugh,” Stone said. “It was a diatribe on Bill Clinton.”

While some of Mermel’s tactics have drawn the ire of defense lawyers, others give him grudging respect for his skill in the courtroom. “He’s a very effective trial lawyer,” Stone said. “But his view of the world is very narrow.” In the case of Juan Rivera, Lake County prosecutors have been able to convince juries, not once but three times, that he was the murderer, despite DNA evidence in the last trial that powerfully suggested otherwise. (Mermel was the lead lawyer on the third trial and assisted in the second.)

“We don’t fold our tents and run,” Mermel told me when we spoke this spring. “We don’t quaver because somebody holds up three letters: DNA.”

When I asked him specifically about the Rivera case, Mermel said that sometimes post-conviction evidence is irrelevant. “The example I like to give people is next time you go to a motel room, bring a plastic bag, because the dirtiest thing in that room is the remote control. Everybody has sex and then rolls over and goes, ‘I wonder what’s on?’ ” he said. “O.K., so you can find DNA in the form of sperm from 10 different people in that room from that remote control or even on a person who has touched it. And that woman gets murdered in that room tonight, and you are going to have a lot of DNA. Is it all going to be forensically significant?”

His theory for why there was sperm that did not come from Juan Rivera inside 11-year-old Holly Staker on the day she was murdered is, to his mind, simple and straightforward. She and her twin sister, Heather, were sexually active, Mermel argues, and Holly must have had sex with someone else before Rivera came along and raped (but didn’t ejaculate) and murdered her. There was scant evidence to support this sexual-activity theory, but Mermel dismissed that objection. “Nobody is going to admit to having sex with an 11-year-old girl, even if the statute of limitations has run out,” he told me. “But there was a lot of evidence that came to our office that these two girls were sexually active.”

Actually, there wasn’t. But this is Mermel’s M.O. From my own piece on Mermel:

When a DNA test in 2003 showed that the semen in the underwear of a 68-year-old woman didn’t belong to Bernie Starks, a man convicted in 1986 of raping and murdering her, Mermel dismissed the results because the semen came from the victim’s clothing. Had it come from the woman’s vagina, Mermel said, “I would be standing over there advocating the side that the defense has in the case.”

Three years later, defense attorneys found the rape kit and tested semen recovered from the woman’s vagina. Again, there was no match. Mermel again wouldn’t budge, this time arguing that the woman must have had sex with someone else just before the rape.

Mermel’s biggest blunder was Jerry Hobbs, who was arrested in 2005 on charges of raping and stabbing to death his 8-year-old daughter and her 9-year-old friend. Hobbs confessed to the killings, but only after 16 straight hours of questioning that began after he’d spent the previous night looking for the girls….

When Hobbs’ attorneys revealed in court in 2008 that DNA tests showed the semen found in the mouth, rectum, and vagina of Hobbs’ daughter didn’t belong to Hobbs, Mermel postulated that the foreign semen must have found its way into the girl’s body while she was playing in a patch of woods where teenagers were known to have sex. The girl had been found fully clothed.

Let’s get back to the Times piece. Meet the cop who extracted the confession from the latest person Mermel  insists is guilty, despite DNA evidence.

When Lou Tessmann retired from the Waukegan police in 2005, the Illinois House of Representatives passed a resolution praising his two decades of service. The resolution noted that Tessmann, a former Marine, is “well known for his interrogation techniques on suspects of crimes.”

Since then, Tessmann has traveled the country offering seminars to police officers on how to investigate homicides and interrogate potential suspects. “Mr. Tessmann has obtained over 80 homicide confessions during his career with only three instances where he was unable to obtain a confession from a homicide suspect” — a 96 percent success rate — according to the Web site of his employer, Wicklander-Zulawski & Associates.

It was Tessmann who was sent in to interrogate Rivera around 11:30 a.m. on Oct. 30, along with Sgt. Michael Maley of the Illinois State Police. In the hour or two before the interview began, Rivera was hitting his head against a glass window and was then on the floor with his wrists and ankles cuffed behind him. Tessmann, however, described Rivera as “very comfortable, very relaxed” during the interview.

Though Tessmann arrived at the police station roughly seven hours before the interview, he testified that he wasn’t aware of Rivera’s previous confession. (One of his colleagues testified that he gave Tessmann the statement that morning.) He said that Rivera willingly recounted the crime, which then cleared up many of the issues that prosecutors considered problematic.

How convenient. Also convenient: The interrogation wasn’t recorded. Now watch how Mermel uses Tessmann in the courtroom:

In his closing argument in the third trial, Mermel told jurors that the case basically came down to whom they believed: the police or the DNA evidence? “Is there anything in the makeup of any of those men that would lead you to believe that they were the kind of people who had dedicated their lives to this profession, yet just decided to just frame this poor innocent Juan Rivera because they were tired of investigating and wanted to go home?” he said.

What the jury didn’t know was that Mermel had already successfully argued against the admissibility of any evidence that might cast doubt on Tessmann’s credibility. For instance, Tessmann said in a 1990 deposition and in an official biography that he earned an English degree from the University of Wisconsin. But the school’s 13 four-year colleges have no record of him ever attending. (In fact, he graduated from Northeastern Illinois University.) In 1989, Tessmann and four other police officers were sued for allegedly breaking into the wrong home during a police raid and injuring a woman who was seven months pregnant. The woman’s lawyer accused the police of writing reports to cover up their conduct and charged that Tessmann “took the lead in creative drama.”

According to documents provided by defense lawyers, a judgment was entered against Tessmann and the other officers for $48,500 in that case, and two years later, another judgment of $71,500 was entered against Tessmann in a case brought against him by a man who was wrongfully arrested for robbery.

A decade later, in 2001, a woman named Colleen Blue was charged with murder after she confessed to killing her newborn. Tessmann, then a commander, said to a reporter for The Chicago Daily Herald, “She told us she had six kids already and just did not want to deal with another one.” He added: “She said she gave birth to the baby when she was all alone, put him in the bag and walked off. She told us she could hear the baby crying until she got close enough to the street that the passing cars drowned out the sound.”

Charges against Blue were dropped when DNA testing revealed it wasn’t her baby.

Incredible, isn’t it? Mermel tells the jury that if they acquit because of the DNA evidence, they’ll be insulting the sterling reputation of this honorable cop . . . just after he has successfully argued to prevent the jury from hearing about the cop’s shady past.

A couple more choice quotes from Mermel:

• Mermel opposed a new trial for a man convicted of killing an unidentified woman. When her identity became known years later, it turned out that her former husband once admitted that he killed her. Mermel dismissed statements from the husband, who is mentally disturbed, as the rants of a “one-armed Cuban feces-covered masturbator.”…
• …Mermel said he still suspected that Hobbs was the killer and that the sperm was not related to the crime. One plausible scenario, he says, is that Torrez masturbated while visiting Krystal’s brother, and then Laura got it on her hands and unknowingly transferred it elsewhere. “They have popcorn-movie night, and the little girl is in the same bed where this guy did it,” Mermel said by way of explanation….“How do we get colds? We touch our mouths, we touch our nose. What does a woman do after she urinates?” We were in the lobby of the prosecutor’s office, and Mermel answered his own question by standing and pulling his hand between his legs, as if wiping himself. “Front to back, O.K.?”….

But this quote Mermel gave the Chicago Tribune last year is probably the only one that matters:

“The taxpayers don’t pay us for intellectual curiosity. They pay us to get convictions.”

That really says it all, doesn’t it?

Mermel isn’t alone, of course. The article lists other cases in which prosecutors have come up with alternate explanations for the presence of DNA. (Don’t forget Colorado DA Carrol Chambers, who attempted to explain away the DNA found in an 8-year-old victim’s underwear by pointing out how slutty children tend to dress these days.) The article notes that the problem is common enough that defense lawyers have come up with a term for the strategy: the unindicted co-ejaculator.

Competition for the 2011 Worst Prosecutor of the Year award looks to be fierce.

Emily Bazelon has the terrible story of another shaken baby case in which the woman convicted—the grandmother—is likely innocent. The Supreme Court says it doesn’t matter, thanks to the Anti-terrorism and Effective Death Penalty Act, which put restrictions on habeas appeals.

The majority’s brief and unsigned opinion concedes that “doubts about whether Smith is in fact guilty are understandable.” But according to six justices, it’s not the 9th Circuit’s job to do anything about that.

Justice Ruth Bader Ginsburg dissented, with Stephen Breyer and Sonia Sotomayor. Ginsburg gives all the reasons to doubt the medical testimony against Smith. She does a great service by laying out the growing skepticism among a minority of doctors about the validity of diagnosing shaken-baby syndrome without any evidence at all of external injury. “What is now known about the SBS hypotheses seems to me worthy of considerable weight in the discretionary decision whether to take up this tragic case,” Ginsburg writes.

The piece includes a decision by Judge Richard Posner about another shaken baby case involving a coerced and false confession.

• Mississippi Attorney General Jim Hood easily wins reelection.
• In better news, anti-immigration zealot Russel Pearce is recalled from the Arizona Senate.
• From the Department of Surprising Headlines.
• Man gets life without parole for possession of child porn. It’s likely that the guy would have received a lighter sentence if he had actually molested a child.
• Unfortunate headline of the day.
• Interesting Slate discussion about which modern pop culture fixtures will become classics.
• In Tennessee, where all other forms of gambling are banned because the state doesn’t believe people can control themselves, the legislature is considering allowing credit card purchases of lottery tickets.

So I’ve written a couple times about how Mississippi Attorney General Jim Hood has claimed that his office is “investigating” the forensic bite mark fraud Michael West. I also pointed out that that it’s odd that Hood would claim he’s conducting this investigation just as his election opponent began criticizing him about West and Steven Hayne, that Hood has never mentioned such an investigation before, and that when I asked his office for even the most basic of details about the alleged investigation, they refused to provide me with any information.

Tonight I spoke on a panel in Oxford, Mississippi, about the Kennedy Brewer and Levon Brooks cases, just after a screening of Mississippi Innocence, a documentary about the two men and what they endured. (It’s a wonderful film, by the way. And if you’re human, it will make you weep.) Just before the movie started, I got a call from Tucker Carrington, director of the Mississippi Innocence Project. Carrington was down state for a hearing in the Leigh Stubbs case, a case in which Hood’s office is (once again) defending a conviction won primarily due to West’s testimony. (But it’s okay! Because Hood is investigating West!)

Carrington and his organization are representing Stubbs. So this afternoon, they asked the judge to order the state to turn over all material related to Hood’s alleged investigation of West, citing his statement to a local TV station a couple of weeks ago. According to Carrington, an assistant district attorney from Hood’s office then stood up and told the judge that he was the one who was overseeing the West investigation. So what materials would he be handing over? What has this meticulous investigation turned up?  The ADA said that so far, well more than a decade after West has been exposed as a fraud, nearly eight years after Hood first took office, three-and-a-half years after Kennedy Brewer and Levon Brooks were exonerated after both were wrongly convicted of murder almost exclusively because of Steven Hayne and Michael West, 10 years after West was again revealed as a fraud in a sting conducted by a defense attorney—after all of that,  the guy overseeing the West investigation has so far . . . wait for it!  . . . done a Westlaw search on Michael West’s name.

That’s it. That’s the extent of the “investigation.” If you aren’t a lawyer, a Westlaw search is basically the legal-world equivalent of a Google search.

Let’s put this more bluntly: Jim Hood is full of shit. Meanwhile, the Mississippi press’s interest in the AG’s race and all of these issues apparently boils down to who bought dinner for whom at a steakhouse.Two years ago.

If, like me, you’ve ever wondered how the hell this scandal percolated for the better part of two decades, affected thousands of cases, sent innocent people to prison, allowed guilty people to remain free to commit more crimes, and no one gave a damn . . . well, I guess there’s your answer.

Mississippi Attorney General Jim Hood gave an interview to the Jackson Free Press last week. Most of it is the nauseating fluff you usually hear from politicians. Hood also wants to take a more active role in “policing the Internet,” whatever that means. He also wants to make it a felony to witness a felony and not report it. And he wants to do lots of things for the children. And orphans and widows. The man is nothing if not bold.

But here’s the fun part:

Last year, you spoke out against a bill that would require a pathologist in Mississippi to hold an American Board of Pathology certification saying it threatened cases involving Steve Hayne. Can you explain your position?

There has been a misconception, and (JFP managing editor) Ronni Mott did this. … She didn’t listen to what I had told her as well as that other guy who writes for the paper (freelancer and then-Reason magazine columnist Radley Balko). Dr. (Michael) West is someone we have investigated, and I don’t support him in any matter. It’s not that I have supported Steven Hayne in any matter. What I have said are the facts: When I was a DA, he testified against me in criminal cases. I always found him to do a good job. By saying that, they assume I am just supporting him all the way, which is absolutely not true.

I don’t know what Hood means when he ways that he doesn’t support West “in any matter,” but his office most certainly continues to defend convictions won based on West’s testimony. In at least two cases, Eddie Lee Howard and Leigh Stubbs, Hood’s office argued that the defendant was procedurally barred from asking for a new trial because of West, because they’d already challenged his testimony and had been denied. If Hood truly believes West isn’t a credible witness, why is he asking that people convicted due to West’s testimony be kept in prison (or in Howard’s case, on death row) on a technicality?

Hood has also previously mentioned some sort of investigation into West, but his office wouldn’t give me any specifics on what was being investigated, or who was doing the investigating. He has also yet to recommend a single conviction be overturned because it was tainted by West’s testimony. West’s lack of credibility has been common knowledge in the Mississippi legal community for well over a decade. What’s taking so long?

As for Hayne, Hood has also previously made the claim that Hayne often testified for the defense back when Hood was a prosecutor, thus I guess establishing Hayne’s impartiality. I’ve yet to find a single example of this. It may have happened, but it certainly wasn’t common, and was dwarfed by the thousands of times Hayne testified for the state. The last time Hood made this claim, I asked his office for a list of cases where Hayne testified for the defense, against Hood when Hood was a prosecutor.  Hood’s office did not respond to my request.

More from Hood:

As far as the legislation goes, what I was saying was if Dr. Hayne has done all these examinations, and say it was several years before—and you know it takes two or three years sometimes before a case goes to trial—then when he goes to take the witness stand, and the statute passes, they are going to be hammering him with the law. And trying to keep him on and qualified in a murder case that occurred before we passed the law will be difficult. … The second thing about a pathologist is that very seldom do they make or break a case. All they say is the manner of death and cause of death, and that’s about it.

The first part of this graph is clearly incorrect. The law passed, and Hayne is still testifying in those old cases. Thing is, the scenario Hood fears should be happening in Mississippi—and a hell of a lot more. Mississippi should be reviewing every case in which Hayne or West has ever testified. But it isn’t. And the law in question wouldn’t have done anything of the sort. It only made sure someone like Hayne couldn’t do autopsies for the state going forward. Hood is either really dumb, or he knew this, and spread misinformation anyway. Neither scenario speaks particularly well of him.

The last statement in the graph above is also plainly false. It may be the case that the testimony from a competent medical examiner doesn’t usually make or break a case, but Hayne often gave testimony that turned a case, and in a number of cases, that testimony was later found lacking by more credible medical examiners. There are currently three men on death row (two in Mississippi, one in Louisiana) who are there because of critical testimony from Hayne (and in the Louisiana case, also because of West). And Kennedy Brewer and Levon Brooks, both exonerated, would never have been convicted were it not for Hayne’s propensity to find bite marks no other doctor had seen, and for West’s “talent” to then match them to the state’s favored suspect. The state had no other evidence.

Last week, Steven Hayne testified for the defense in a Mississippi murder trial. If you’ll remember, now that he’s no longer permitted to do official state autopsies for prosecutors, Hayne has been shopping his services to the defense bar. This particular case was in Lowndes County, served by District Attorney Forrest Allgood, a third of the longtime Hayne/West/Allgood triumverate of injustice.

The defendant in this case was acquitted, thanks in large part to Hayne’s testimony. Nut graph:

The defense’s case was strengthened by the testimony of forensic pathologist Dr. Steven Hayne, who concluded, based on the original autopsy report and Sharp’s testimony, that the first bullets fired hit Cole in the front of his body, while the two entrance wounds to his back were among the last to occur….

During rebuttal, prosecutor Rhonda Hayes-Ellis recalled forensic pathologist, Dr. Adele Lewis, who performed the autopsy on Cole’s body. Lewis said Wednesday that there was no way to determine which shot was fired first because of the multiple variables involved — the position of the person shooting the gun and how the gun was angled.

Lewis stuck to that finding Friday.

“There’s an infinite number of scenarios in which you can pose the shooter,” Lewis said. “An honest and competent pathologist would not be able to tell you which order the shots were fired and the position of the person. It’s not scientifically possible.”

It’ll be interesting to see how much tolerance Mississippi judges, coroners, and prosecutors have for Hayne now that he’s working against them.

I’m also interested in what defense attorneys think about this. Is it ethical to use Hayne if you know he’s a fraud and an opinion for hire, even though Mississippi courts are still willing to certify him as an expert witness?

. . . talking about Michael West and the Leigh Stubbs case on The Alyona Show.

My article on the latest Michael West video is now up.

On the Bitemarks.org blog, forensic specialists David Averill and Mike Bowers have posted the video recording of Michael West’s “analysis” in the Leigh Stubbs case. In the video, West is examining Kim Williams, the woman Stubbs was convicted of assaulting. Watch closely at around the 50-second mark, as a bite mark mysteriously appears out of nowhere on Williams’ hip.

Averill and Bowers write:

West then proceeds to tamper with the evidence by actually imbedding a stone cast of Leigh Stubbs teeth into the comatose victims hip resulting in a fabricated bitemark on the skin of the victim.

The jamming of the cast isn’t in the video, it’s actually from West’s court testimony.  He admits he does this. He claims it’s part of his method. And of course we already have video depicting that method. In the Jimmie Duncan case, West uses the same “technique” on the corpse of a child. In this case, he did it, without consent, on a woman who was comatose. (West, who is a dentist, also performed a vaginal examination on Williams while she was unconscious.)

Averill and Bowers have also posted the security video West claims to have “enhanced” using consumer software. As I reported last month, from the video below, West testified that . . .

. . . he was able to determine that the figures entering and leaving the frame in the video were wearing different clothing (one wearing shorts, the other wearing blue jeans) and were two different women, thus incriminating both Stubbs and Vance. Where the FBI could only determine that someone had removed an object — possibly a bag or suitcase — from the toolbox in the truck bed, West claimed repeatedly that he could make out hair, legs, and blue jeans, leading him to conclude that the object was clearly a body. “She takes a body out of this toolbox,” West conclusively told the jury. “That’s what I see.”

West also claimed he could actually read the body language of one figure in the footage, that she appeared “anxious,” and was exhibiting the sort of adrenaline-fueled “fight or flight” response one shows after committing a crime.

See for yourself:

I’ll have more in an upcoming piece for Huffington Post.

• From Germany, a story made for Pixar.
• Via Fark, your (unintentional) headline of the day.
• MSNBC and Fox have signed these two to become full-time commentators.
• Anyone looking for work?
• Dallas looks ripe for the next crime lab scandal.
• Columbia, Missouri police (along with the DEA) raid a man’s home because of “synthetic marijuana.” Less than 24 hours earlier, state law took effect making  the substance illegal.
• Another vague law named after a crime victim.

. . . that’s the topic of my latest piece for Huffington Post.

On Monday, I noted that in response to some heat he’s taken over the Leigh Stubbs case, Mississippi Attorney General Jim Hood told a local TV station that his office is looking into 20 cases involving disgraced forensic specialist Michael West.

That was encouraging. But it also seemed strange, given that Hood’s office has consistently defended convictions won on West’s testimony, including in the Stubbs case. It also doesn’t jibe with Hood’s steadfast defense of Steven Hayne over the last few years (whom Hood often used when he was a DA). So yesterday I emailed Hood’s press office a request to speak with whoever is overseeing the West investigation. Or at least for a list of the cases they’re looking into. Or really for any additional information on the investigation.

Here was their reply:

We cannot release any of the information you are requesting at this time.

Hood hasn’t been particularly shy in the past about seeking publicity in the past, including putting out press releases about active criminal investigations. These West cases are at minimum several years old, and I’m pretty sure all of them are in post-conviction. If he is indeed looking into some of them them, I’m not sure what advantage there is to being secretive about it. Particularly if he’s going to announce the existence of the alleged investigation to a TV station in the first place.

I’ll have more on this in a follow-up piece for Huffington Post.

Good to see this case get some local coverage. Video includes grainy footage from the security camera that Michael West magically enhanced.

Mississippi Attorney General Jim Hood’s defense of Stubbs’ prosecution in this video is so vague, it’s pretty much impossible to address. There was no evidence presented at trial other than West’s bite mark and “video enhancement” testimony that Leigh Stubbs assaulted Kim Williams. (Well, other than the weird prosecution theory that homosexuals are especially prone to biting one another.) I’m told that Hood also took a couple questions about the case last week, and referred to Stubbs’ “dope” convictions in the case as the other evidence of her guilt. So maybe that’s what he’s referring to in this video.

Problem is, not only does that have nothing to do with the alleged assault, there’s also no evidence Stubbs had much of a role in the theft of dope from Williams’ boyfriend. She passed a drug test shortly after her arrest. And witness accounts from the night in question also indicate that Stubbs was sober. There was evidence that Stubbs knew Vance and Williams had stolen the drugs and were ingesting them. And she obviously didn’t report them. But that isn’t the sort of crime for which one gets a 44-year prison sentence, particularly for a first offense.

At the end of this report, the anchor says Hood says his office is looking into at least 20 cases in which West has testified. That’s the first time I’ve heard of any Mississippi state official investigating old West/Hayne cases. So that’s encouraging. But I’ll withhold praise for Hood until/unless he can come up with a single case in which he determines that West’s testimony should invalidate a prosecution. So far, his office has either defended West’s testimony, or argued that defendants whose cases are in post-conviction status are procedurally barred from challenging West’s credibility. As for Hayne, Hood has not only steadfastly defended him, Hood led the fight to overturn Hayne’s termination so he could resume doing autopsies for Mississippi prosecutors.

My HuffPost article on the Stubbs case here.

Back in 2007, the Grits for Breakfast blog noted that Williamson County, Texas, District Attorney John Bradley gave some curious advice on a discussion board to another prosecutor. The other prosecutor was asking about how to construct a plea agreement in a way that would forfeit any future right to DNA testing. Bradley responded, “Innocence, though, has proven to trump most anything.” How unfortunate! He then added:

A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest. Harris County regularly seeks such agreements.

Destroying evidence is an odd way to seek justice, especially given how many “slam dunk” cases and convictions based on false confessions have later been overturned after DNA testing.

I bring this up for a couple reasons. First, because Bradley is the DA involved in the pending DNA exoneration case I linked to this morning. And he’s accused of some pretty serious misconduct. From the article:

New DNA results, combined with evidence that was improperly withheld by Williamson County prosecutors for more than two decades, indicates that an Austin-area man has spent 24 years in jail for a murder he did not commit, a court filing alleged Wednesday.

Michael Morton, now 57, was convicted in the brutal beating death of his wife, Christine Morton, and sentenced to life in prison in 1987.

But a recent court-ordered DNA test, conducted on a blood-stained bandanna over the objections of Williamson County District Attorney John Bradley, points instead to an unnamed California felon as the killer, according to court briefs filed by the Innocence Project of New York.

The court filing urged a Williamson County district judge to remove Bradley from the case, saying he cannot be trusted to oversee a reinvestigation of the killing because he has shown “unprofessional” animosity toward Michael Morton and his lawyers.

What’s more, the motion alleges, Bradley worked to keep a key piece of evidence hidden from Morton’s lawyers — a transcript of a police interview that shows the Mortons’ 3-year-old son witnessed his mother’s murder and said the attacker was not his father.

The second reason I bring this up takes us back to Texas Gov. Rick Perry. If you’ll remember, just before the Texas Forensic Science Commission was set to open up an investigation into the Cameron Todd Willingham case, Perry abruptly replaced three of the commissioners with nominees who were more friendly to prosecutors, all of whom opposed reopening the case.

One of the replacements Perry nominated was . . . you guessed it . . . Williamson County, Texas, District Attorney John Bradley.

(Thanks to reader Kevin Spencer and commenter “thefncrow” for the leads.)

•  Jose Guerena family to file $20 million lawsuit.
• “Kids for Cash” judge gets 28 years in prison.
• The philosophy of Louis C.K.
• Writer watches every Coen brothers movie.
• Crappy Crime Lab of the Week Award: Houston! Houston is a repeat winner of this award.
• Bad idea of the week: Anti-discrimination laws for the unemployed.
• Wait, shouldn’t all those cold medicine laws have us winning the war on meth?
• Soldier kills himself while facing ninth deployment to a war zone.

Leigh Stubbs’ brother-in-law left a few comments at Huffington Post that are worth reposting here:

I am Leigh Stubbs brother in law and I appreciate the author and the Huffington Post for featuring Leigh and the Innocence Project of Mississippi.

I would like to share a few comments about this article. Leigh was a college student when she approached her Mother and Father about her addiction. She sought help and completed the program at Caty Hill and she has been drug free since then. She was portrayed as a lesbian by Prosecutor Lampton to insight prejudice in the Lincoln County Mississipp­i Jury. Her sexuality is her business and not mine or Prosecutor Lamptons! The Circuit Judge Mike Smith served more as a prosecutor than a judge, telling Leigh’s father that he would sentence her to the maximum on every count BEFORE THE TRIAL BEGAN . . .

Leigh has spent the last 10 years teaching inmates in the GED program and working on various work details at Central Mississipp­i Correction­al Facility. She remains upbeat and looks forward to the day that she is home. Several people have commented about her smiling in her prisoner identification photo, Leigh smiled so her mother would enjoy her photo! . . .

It is hard to believe that Leigh’s been in prison for over 10 years. Only last month did the Mississippi Supreme Court recognize the merit in the Petition filed by the Mississippi Innocence Project on Leigh’s behalf. Thank you to former Supreme Court Justices Oliver Diaz and Chuck McRae, who showed moral courage in their dissent…saying the trial result would have been different had the judge not allowed West to testify as an expert in fields he was clearly not and expert in. We respect these men without reservatio­n and their words have sustained our families during difficult times, as have the prayers and support of our friends old and new.

A few items on the Leigh Stubbs case that didn’t make it into my article yesterday:

First, the state’s reply to the Mississippi Innocence Project’s post-conviction petition does argue a couple other reasons why West’s testimony shouldn’t be cause for a new trial other than the procedural issues. They’re both pretty lacking.

The first is that the state included the name of an FBI agent associated with the agency’s analysis of the videotape on the list of potential witnesses it gave to the defense. This, the state argues, was sufficient to fulfill its Brady requirement to disclose potentially exculpatory evidence. Providing the actual FBI report wasn’t necessary. If Stubbs’ attorney didn’t contact that agent and press him enough to learn about the report, that’s not the state’s fault.

There was no explanation as to why the FBI agent was included on the list. And if the attorney did know about the repot but didn’t follow up or bring it up when cross examining West, you’d think Stubbs would have a pretty darned good claim for ineffective assistance of counsel. Of course, the state argues against that, too.

Another of the state’s arguments is that West explained in his testimony that the images in the surveillance tape were “difficult to see” and that the purpose of his testimony was merely to “allow people to look at the video and come to their own conclusions.” The state writes, “In other words, he was trying to assist the jury,” instead of conclusively telling them what’s in the video.

Problem is, that line is lost in West’s BS about his NASA-like enhancement software, which is then followed by pages and pages of him explicitly telling the jury exactly what is in the video. Hayne and West do this often. They include a line or two of mild qualification in their testimony, then go on ad nauseum with baseless opinions and conclusions. It’s the latter that sticks with the jury. It’s the former that Mississippi appeals courts consistently cling to in refusing to throw out their testimony.

One other item of note. I mentioned in the article that Dunn Lampton was the U.S. Attorney who twice indicted then-sitting Mississippi Supreme Court Justice Oliver Diaz. (Diaz was acquitted in both trials. He’s also now suing Lampton.) That experience altered the way Diaz viewed the criminal justice system. He became a strong defender of the rights of the accused, and a vocal opponent of the death penalty. It was Diaz who wrote the strongest opinion denouncing Hayne in the Tyler Edmunds case, and who in that opinion and others attacked Hayne and West, writing on a couple occasions that Hayne should be barred from testifying in Mississippi courtrooms. (In fact, if it weren’t for Diaz, Edmonds would likely still be in prison.)

The unfortunate coda: Diaz then lost his bid for reelection in 2009, in part because of Lampton’s indictments, and in part because a series of TV ads bought by a Virginia-based law-and-order activist group that denounced Diaz for his opinions in three cases. As I wrote at the time, two of the ad’s claims were misleading at best. The third was the case of Jeffrey Havard, a man currently on death row in Mississippi thanks primarily to Hayne’s testimony. His testimony in that case has since been criticized by more reputable forensic pathologists, but Havard is still on death row.

• Virginia bar disciplines prosecutor for misconduct. More of this, please.
• Those calorie count mandates aren’t working out so well.
• New report from the Institute for Justice: “How Cities Can Create Economic Opportunity by Knocking Down Protectionist Barriers to Street Vending.”
• Because they can.
• Yet another state forensics lab is under fire, this time in Connecticut.
• Man sent to jail because he can’t afford to pay fishing fine.

My latest piece for Huffington Post looks at the case of Leigh Stubbs, a Mississippi woman serving a 44-year prison sentence thanks primarily to testimony from our old friend Michael West.

West performed his typical bite mark voodoo in this case, but he also donned the title of “video enhancement expert,” claiming he was able to use some fancy computer equipment to “enhance!” security camera footage well beyond its resolution. He also gave his expert seal of approval to some, um, interesting opinions about homosexuals and crime. There’s also some nifty misbehavior by former U.S. Attorney Dunn Lampton, back when he was a Mississippi DA.

At the website for the Columbus (Mississippi) Dispatch, a commenter recounted portions of my recent Reason piece on bad prosecutors to make the case against reelecting District Attorney Forrest Allgood. Allgood responded with a lengthy letter of his own.

Allgood’s letter purports to include a bunch of documentation I don’t have, and that the newspaper didn’t print. But after running Allgood’s letter by my sources, I stand by my reporting. He is right that I did not contact his office for comment before that most recent article was published. Perhaps I should have. But that article a summary of my previous reporting. And I’ve contacted his office numerous times in the past requesting comment. He has never returned my calls.

But Tyler Edmonds, one of the victims of Allgood’s prosecutorial overreach, did respond to Allgood’s letter. Edmonds’ thorough rebuttal does a great job exposing Allgood’s slipperiness.

In any case, Allgood was reelected once again last week, and by a nearly two-to-one margin. (Interestingly, he did lose his home county.) In the end, the guy who has seen two people he convicted of murder later exonerated by DNA evidence, and two more later acquitted after appeals courts threw out the convictions due to prosecutorial misconduct and the use of faulty forensic testimony, the guy who once compared disgraced “bite mark expert” Michael West to Galileo  . . . will get another term.

• Alexandria, Virginia, gets serious about preserving chain-link fences.
• Geek humor.
• Missouri state doctors get paid while sleeping.
• Shocker: Government price controls on cancer drugs create shortages.
• Gotta love the “arrest first, ask questions later” response from the casino owner. If you could figure out the algorythm of where states ship winning scratch-off lottery tickets using publicly available information, why should that be against the law?
• Your latest TSA outrage.
• Horrifying headline of the day.
• Putting the science in forensic science.
• Cory Maye, via Facebook: “Had my first day at work today. Helped put in a transmission and fixed air conditioner system in a van. Tomorrow, gonna rebuild another transmission for a car and give tune ups and fix power stering on a grand-am.”

So remember how Indiana was launching a big investigation into errors at the state crime lab? Remember how hundreds of convictions could have been called into question?

Turns out it would be cheaper to just pretend the whole thing never happened.

A half-finished audit of drug and alcohol test results from the state’s toxicology lab already has found serious problems that raise the possibility of wrongful convictions.

But just how bad the situation is might never be known.

The Indianapolis Star learned Tuesday that the state has abruptly halted the independent audit. It was one of the first recommendations offered by a new three-person board appointed by Gov. Mitch Daniels.

Linda Chezem, chairwoman of the advisory board overseeing the state Department of Toxicology’s move from Indiana University to a stand-alone state agency, said it’s prudent to review the audit. She cited the cost — more than $250,000 — and the need to make sure the state is “spending money to get the best information we can.”

Chezem said she has “no idea” how long it will take to review the audit. And it’s uncertain whether the state will restart the audit . . .

IU hired Colorado-based auditor Forensic Consultants Inc. to examine the paper records for every positive test result from 2007 to 2009. Auditors found errors in 10 percent of marijuana cases and 32 percent of cocaine cases. They were working on the substance involved in the most cases — alcohol — when informed by email to “place a hold” on the audit.

“What they have done,” said prominent Indianapolis defense attorney J.J. Paul, “is open Pandora’s box, and now they want to close it just as they get to the greatest number of cases that affect the greatest number of people.”

Chezem, a former judge, questioned the value of a comprehensive, paper-only audit of results without retesting samples.

“The question is, ‘What does this mean?’ ” she said of the audit results. “We’re asking other experts to work with us on this. . . . Until you have a retest result that’s false-positive, I don’t know if anyone has been denied civil liberties.”

Of course, it would be much more expensive (and probably impossible) to go back and retest every individual sample. You do the general audit to get a grip on the extent of the problem, which you then use to figure out which batches of individual samples need to be retested. Without the audit, you’re left only with the impractical option of going back and testing every sample over the period in question (which is never going to happen), or leaving it up to individual defendants to take it upon themselves to go to court, at their own expense, to request that their case be reopened.

This reeks of sweeping the problem under the rug. Gov. Daniels can still override the panel’s recommendation and continue the audit. I hope he does.