• Great piece by my colleague Jesse Walker on lessons from Japan. The bit about how people generally react after disasters (that is, markedly better than the media would have you believe) can’t be repeated enough.
• For the first time in 16 years, Mississippi has a state medical examiner.
• Reason.tv interviews Rand Paul.
• Life expectancy in the U.S. again hits an all-time high.
• Headline of the day.
• New York City spends $75 million per year arresting people for pot possession, even though pot for personal use has been decriminalized in the city.

. . . looks at recent efforts to reform the forensics system. My argument: They’re welcome, but they fail to address the underlying problems of cognitive bias and perverse incentives.

• Another isolated incident. And this time, a particularly inept one.
• Long and stabby things.
• I’ll be writing about this in my column on Monday, but here’s another study showing problems with the use of police dogs. My favorite bit is how the tests designed to fool the handlers were twice as likely to produce false alerts as the tests designed to fool the dogs.
• Father gets a $275 ticket for not wearing a helmet at a skateboard park. It apparently doesn’t matter that he wasn’t skateboarding.
• Man convicted of murder despite no body, no physical evidence of a crime, and no proof the alleged victim is actually dead.

• An invitation to this event arrived in my email. I think I’ll pass. A colonoscopy sounds like a more pleasant way to spend an evening.
• National Research Council study says the FBI overstated the science in its case against accused anthrax killer Bruce Ivins.
• Rick Santorum talks about his “Google problem”. I like that his defenders are appealing to civility. The guy thinks there should be laws preventing gay people from having sex in their own homes, and likens homosexuality to pedophilia and bestiality.
• I don’t know much about this case, but the summary has all the red flags of yet another bogus sex abuse prosecution. It also comes with natural suspicion of any case handled by Maricopa County DA Andrew Peyton Thomas.
• Scottish Deerhound wins Best in Show at Westminster. I like these dogs. They look like Muppets.
• In Baltimore, a police officer is supposed to review red light camera citations to match the license plate with the person who is issued the ticket. Somehow, 2,000 red light tickets were recently verified with the signature of a police officer who is dead.
• Slate looks at the new Frank Gehry building in Miami.

Emily Bazelon has a long, well-reported feature in the New York Times Magazine on new doubts about the diagnosis of shaken baby syndrome.

I wrote about this issue in 2009, and my column then inspired some spirited email responses. There is a small but growing part of the medical community that is skeptical of the diagnosis, and a very adamant larger group that says there’s no legitimate debate, here—the diagnosis is sound, and the skeptics are either nuts or are guns for hire.

I’m obviously not a doctor, but it strikes me that there’s something tantalizingly easy about the shaken baby diagnosis. It is based on just three symptoms, all internal, and can be made even when there are no external signs of abuse. Some experts and prosecutors claim that the diagnosis is enough by itself to prove (a) a crime has been committed, (b) who committed it (conventionally, the diagnosis implicates the last person who was alone with the child before the death or injury), and (c) the suspect had the requisite intent (the diagnosis includes the conclusion that the injury could only be caused by intense, vigorous shaking, which prosecutors usually argue in court shows anger and intent to harm).

If doctors find the triad of symptoms, there’s really no defense, unless the suspect attempts to show that someone else was also alone with the child shortly before the symptoms began to appear. (The symptoms are bleeding at the back of the eye, bleeding in the protective area of the brain, and brain swelling.)

The emerging group of skeptics attack both the diagnosis itself and how it’s used in court. They argue the triad of symptoms can be caused by incidents or medical conditions other than shaking, and that the injury itself could occur days before the symptoms begin to appear, instead of the hours or minutes often claimed in court. If true, both of those claims would destroy the half to two-thirds of shaken baby diagnoses in which the child showed no other signs of abuse.

One other note: It’s interesting how quickly the skeptics are dismissed as defense experts for hire. I’m sure there are no shortage of quacks offering their services to criminal defense attorneys. But regular readers of this site have seen enough horror stories by now to know that there’s nothing about testifying for the state that cleanses an expert of bias, either. If they’re outside consultants, they too are paid for their services. And if they actually work for the state as a medical examiner or in a state crime lab, the biases are built into the system.

The video embed doesn’t seem to be working. But you can watch here.

• After The Wire.
• Electronic Frontier Foundation report finds systematic lawbreaking in FBI intelligence operations.
• Fascinating interview with Pamela Geller.
• Headline of the day (Obvious Division)
• Runner-up.
• Headline of the day. (“How Generous of Them” Division)
• A good lesson from Egypt for the people who criticize Oath Keepers. I’ll have an interview with OK founder Stewart Rhodes that will go online next week.
• Clever.
• Pretty stunning frankness from the paternalist Governors Highway Safety Association: Laws are more important than deaths.
• Apple amends its policy on water-damaged iPhones.
• ProPublica and Frontline have put together a massive new report on the country’s autopsy and death investigation systems. I’ll have more on this after I wade through it all.

Documentarian Joe York’s movie about the cases of Kennedy Brewer and Levon Brooks premieres next month at the Oxford Film Festival. Here’s a trailer. Pay close attention and you’ll see a quick shot of a younger, slightly plumper Radley Balko.

Looks like it’s going to be a great film.

• One of the victims of the Tucson shootings issues death threat to a Tea Party leader. I don’t really know what to make of this. Other than that it’s sad.
• Sorry your infant daughter lived only an hour after birth. But you owe the government a $50 “death tax”.
• Mississippi’s autopsy system: still a mess.
• Fox responsible for another shooting.
• Bring back the woolly mammoth!
• Maryland man says he was pepper sprayed, arrested after trying to videotape a police officer on public property.

• Egyptian Muslims offer themselves as human shields to protect Coptic Christians from extremists during a Christmas Eve mass.
• Nashville DUI arrests are down by about 35 percent in 2010 due to funding cutbacks. Effect on drunk driving fatalities: None.
• Here’s another fun Steven Hayne case. Hayne determined a woman died of stab wounds to the face and neck even though the body he examined had no head. Note his explanation, which refers to witness testimony. It’s a good example showing why a medical examiner shouldn’t be given that kind of information before he conducts an autopsy.
• Another state legislature wants to let local cops monitor what prescription drugs you’re taking.
• Harvey Silverglate on the folly of anti-bullying laws. Naming a proposed law after a dead person is a pretty reliable indicator that it’s going to be a crappy law.

Last month, I wrote a column about the latest developments in Mississippi’s continuing medical examiner saga. In it, I noted that Steven Hayne had set out a letter (PDF) to defense attorneys announcing his availability to testify for them. I don’t know for sure how many times he has testified for the defense in the past, but the people I’ve talked to in Mississippi say it’s less than 10, and likely less than five. (He has testified for the state thousands of times.) But the new law barring him from doing official autopsies for prosecutors doesn’t bar him from testifying for defense attorneys or in civil cases.

And sure enough, the Jackson Free Press reports that Hayne is already finding business.

[O]n Dec. 9, Hinds County Circuit Judge Swan Yerger granted Assistant Public Defender Alison Kelly’s request for an independent autopsy review by Hayne. Kelly represents Darion Givens, 18, who faces murder charges in connection with the June 13 shooting death of his girlfriend, Falisha Miller, a Jim Hill High School student.

In court filings, Kelly argued that a second opinion of Miller’s autopsy is necessary to examine inconsistencies in the first autopsy, conducted by Dr. Thomas Deering. Witnesses reported hearing a gunshot, while Deering’s autopsy suggested that Miller’s shooter had used a silencer. Kelly maintains that Jasper Bell, who is charged as an accessory after the fact, was the shooter.

Kelly said this week that for Givens’ case, Hayne was the “best choice for defending [her] client in the most zealous manner.” While aware of controversy surrounding Hayne, Kelly said that she had not thoroughly investigated criticism of his work. Kelly did not seek out a forensic pathologist from the state medical examiner’s office because she wanted a second opinion on work performed by that office.

“In the state of Mississippi, Dr. Hayne is the only (forensic pathologist) that I know of, other than these people that the state is bringing into Mississippi to do their pathology work,” Kelly said. “I’m limited. I can’t use their pathologists to do my cross-examination of their reports.”

Hayne also recently testified for the defense in a case in Louisiana.

As I noted in the column, perversely, it would actually be good strategy for a defense attorney to hire Hayne. The sheer number of times he has already testified for prosecutors likely make him seem credible to a jury unfamiliar with his history. And in Mississippi in particular, there’s a good chance the prosecutor a defense attorney is opposing has used Hayne in prior cases, meaning he isn’t likely to delve into Hayne’s lack of certification, his impossible workload, or the dubious testimony he has given over the years.

I know that a lot of defense attorneys read this site. I’d be interested in hearing your opinions on the ethical issues in play here.  Defense attorneys in Mississippi and Louisiana by now know, or  at least should know, about his credibility problems. But using him may well also benefit their clients.

My column this week is a round-up of the latest developments in the ever-strange saga of Steven Hayne and the Mississippi death investigations system.

A Texas appeals court has ordered a halt to a district court’s inquiry into whether Cameron Todd Willingham, executed in 2004 for setting a 1992 fire that killed his three daughters, was innocent. The stay was sought by Navarro County District Attorney R. Lowell Thompson. It’s merely the latest attempt by Texas officials (Thompson’s office prosecuted Willingham), including Texas Gov. Rick Perry, to stave off any formal inquiry into Willingham’s execution. Arson specialists now say Willingham was convicted based on flawed and outdated science, and there’s little forensic evidence to support the theory that the fire was set intentionally.

Meanwhile, Texas District Attorney Lynn Switzer told the U.S. Supreme Court this week that the state should be able to execute Hank Skinner without first turning over crime scene evidence for DNA testing that Skinner says will prove his innocence. The Court has already ruled that there’s no constitutional right to DNA testing in such cases. Skinner is arguing that the state is obligated to turn over the evidence under federal civil rights law. (I previously wrote about Skinner’s case here and here.)

The striking thing about both cases is that Texas government officials are staking out a position of ignorance. That is, they don’t want to know if either man is innocent. That’s not how they’d phrase it, of course. But in the Willingham case they’re thwarting efforts merely to investigate the possibility that the Wilingham might have been innocent. In the Skinner case they’re fighting a DNA test—which Skinner’s attorneys have offered to pay for themselves—that if prosecutors are correct would undeniably establish Skinner’s guilt. But there’s a chance it could implicate someone else, or complicate their case against Skinner. So they’d rather not test.

Of course in both cases they know that a finding of innocence would further undermine support for the death penalty (which is now under fire even from establishment conservatives). So it’s better just not to know.

Perry, Thompson, Switzer, and their cohorts should consider the possibility that their callous indifference in the face of considerable doubt about both men’s convictions—and that even after the Willingham fiasco they’re still fighting to execute Skinner without being absolutely sure of his guilt—only confirms suspicions that we have a flawed system stacked with perverse incentives, all of which not only encourages the pursuit of convictions at the expense of justice, but then pressures state actors to double down rather than admit to the possibility that they made mistakes.

Put another way, in fighting to keep us all in the dark about Skinner and Willingham’s actual guilt, these staunch capital punishment supporters are providing data points for the strongest arguments against the death penalty.

….over at Hit & Run.

At least that’s what the A.P. is reporting.

I haven’t yet heard who got the job.

• Amateur photographer harassed for taking photos of small town water tower.
• Virginia Postrel on the locavore dilemma.
• On forensics and biometrics: “”A lot of things possible on a TV series just don’t work that way in real life.”
• The Jerks Who Want to Tell You How to Raise Your Kids Because Your Kids are Obviously Too Stupid to Think for Themselves Campaign for a Commercial-Free Childhood.
• Feds want to force Facebook, Twitter, YouTube, etc. to enable them to spy on you. Then again, most of what’s written on those sites is completely illiterate.
• Owner of Segway company dies after riding Segway over a cliff.

My crime column this week looks at the case of Eddie Lee Howard, who is on death row in Mississippi. Howard is trying to get a new trial.  He was convicted mostly because of  testimony from disgraced bite mark expert Michael West. The office of Mississippi Attorney General Jim Hood is arguing that Howard is procedurally barred from raising West as an issue. That argument may or may not have legal merit, but it’s a pretty sleazy argument to make.

My crime column this week looks at the latest forensics scandal, a report from two former FBI agents that says North Carolina’s state crime lab withheld or mischaracterized evidence in at least 230 cases, including three murder cases that resulted in execution.

Over the weekend someone sent me this (not nearly comprehensive) list of forensic scandals. It includes a few I hadn’t heard about. Including this one:

In one case, Dr. Campbell claimed to identify to a medical certainty the body of Melody Cutlip; the real Melody Cutlip was later found alive and well in Florida.

Dr. Campbell has also testified beyond the limits of acceptable science in his field, stating in court that bite marks matched to a reasonable degree of medical or dental certainty.

Bio: Dr. Campbell is an active member of the American Academy of Forensic Sciences and also a past president.

As you might have guessed, Dr. Campbell is a bite mark specialist. In fact, he’s considered one of the country’s best.

It’s worth noting that Campbell also testified in favor of wrongly convicted Ray Krone, whose exoneration led to defense attorney Christopher Plourd’s “competency test” on Michael West.

There have been some developments in the Mississippi case of Eddie Lee Howard, which I first wrote about here. I’ll have more on those developments in an upcoming column. But in the meantime Ican’t resist sharing a short passage from the Mississippi Innocence Project’s pleading in Howard’s case that relates to Mississippi District Attorney Forrest Allgood.

First some context. Allgood, remember, is the DA who wrongly convicted Kennedy Brewer and Levon Brooks. He’s also the DA who put Steven Hayne on the stand in the Tyler Edmonds case to deliver his infamous “I can tell by the bullet wounds that there were two hands on the gun” theory. The key to Eddie Lee Howard’s case, just as in the cases of Brewer and Brooks (and Jimmie Duncan), was bite mark testimony from our favorite forensic odontologist, Michael West.

Michael West is the man who claims to have invented  a method of bite mark analysis that only he can conduct, and that can’t be duplicated by anyone else. He’s the man who claimed he could trace the teeth marks in a half-eaten bologna sandwich found at a crime scene to the defendant, to the exclusion of everyone else on the planet. He’s the man who, in a sting orchestrated by a defense attorney, not only claimed that a dental mold made from the teeth of the defense attorney’s private investigator was a definite match to photos of bite marks on a corpse from a case ten years prior, but also claimed the odds that anyone else made those bite marks were “astronomical,” and sent back a 20-minute video in which he explained, step by step, how he was able to match the dental mold to the completely unrelated bite marks.

(I could go on.)

So here’s what Forrest Allgood told the jury about Michael West’s genius during Eddie Lee Howard’s murder trial:

“[W]hether we like to think so or not, the progress of mankind has been carried forward on the backs of people like Michael West. . . The church threatened to burn Copernicus because he dared to say that the planets didn’t revolve around the earth. So it was with Michael West.”

And so it was.

I believe Allgood meant to invoke Galileo, not Copernicus. But otherwise, bravo, Mr. Prosecutor. One day children all over the world will read in their textbooks about this humble dentist from Hattiesburg, Mississippi, and how the wicked fate of history cursed him to be unappreciated in his own time.

Last year I wrote a column about a minority but growing chorus of forensic specialists who are questioning the way Shaken Baby Syndrome is diagnosed and used in the courtroom. New Scientist reports this week that one of those critics has been temporarily barred from testifying in U.K. courts.

The pathologist in question, Marta Cohen of Sheffield Children’s Hospital, learned of the restrictions following a private hearing on 22 July before the General Medical Council, the body that investigates complaints against doctors in the UK.

“The decision is appalling,” says John Plunkett of the Regina Medical Center in Hastings, Minnesota, who has shown that short falls can cause the trademark symptoms said to be exclusive to child abuse.

The fear of similar outcomes means that British-based pathologists who dispute SBS are unwilling to take on cases of alleged child abuse. “It means that no one will take any head injury cases,” said one, who asked not to be named. “If you disagree with the prosecution, you risk being called before theGMC.”

The verdict appears under Cohen’s registration details on the GMC website, stating that: “She must not give evidence as an expert witness in cases where there is alleged non-accidental head injury to an infant or child.” It also makes clear that the restrictions are temporary precautions while the complaints against her are further investigated by theGMC.

It is not clear who complained to the GMC, but the motivation appears to come from criticisms circulated to prosecution services by a judge, Justice Eleanor King, following cases last year in which Cohen gave evidence. King’s criticisms included accusing Cohen of developing a “scientific prejudice”, of being “disingenuous” in her citing of research and unwilling to defer to prosecution expert witnesses.

The GMC will not explore the validity of the competing scientific theories about SBS, and will simply investigate Cohen’s “fitness to practice”. The GMC’s ruling comes at a time when evidence is mounting that innocent events such as the birth process itself, choking, short tumbles and breathing difficulties can cause the classic symptoms (BMJ, vol 2, p 430).

Given what we know about the history of forensic science and the tendency of specialists to overstate its certainty, the decision to bar an SBS critic from testifying is troubling. Even if the ban on Cohen is lifted, it sends a pretty clear message to SBS skeptics. Testify for the accused, and you’re risking an investigation.

I first wrote about Bruce Levy’s bizarre arrest last March. Levy headed up the Nashville firm that took over all of Mississippi’s autopsies after the state effectively fired Steven Hayne in 2008. Last spring, the night before the Mississippi legislature was to vote on a bill that stopped an attempt by some Mississippi counties to rehire Hayne, Levy was arrested in a pot sting conducted by Mississippi police.

This week, Levy was indicted by a grand jury. He faces up to 10 years in prison.

Like the Roger Wiener case, this story just doesn’t smell right. The allegation is that Levy purchased a big box of pot and had it FedExed to the hotel he was staying at while he was doing some autopsies in Jackson. I guess that would make some sense if Levy were a (not particularly bright) casual pot smoker and needed a fix. But the police also allege that in addition to the FedEx box, Levy had pot stashed all over his room. If he was stealing drugs off the bodies he autopsied and selling them (as suggested in the linked article), why would he buy another big package of pot while he was staying in Jackson? And why in the world would a doctor who owns his own autopsy firm be engaged in low level pot distribution in the first place?

I should say that at this point I have zero evidence that this was a set-up. And it’s worth noting that the policy agency that conducted the sting reports to the Mississippi Department of Public Safety, which is currently headed up by Steve Simpson. Simpson is the one who basically fired Hayne, who made the contract with Levy’s firm, and he actively opposed the bill to bring Hayne back that the legislature was scheduled to vote on the day after Levy’s arrest. So it’s entirely possible that Levy was just a really dumb, really careless (but quite successful) doctor who for whatever reason also dealt marijuana on the side. But the timing of his arrest is incredibly coincidental, and the other details we know so far are . . . . really, really strange.

As I’ve covered this Hayne stuff it has occurred to me that HBO could make a pretty wicked dark comedy series about the autopsy/medical examiner business the south. Not only would they not need to change anything from what actually goes on to make the show more interesting, they’d probably need to leave some real-life events out to make it more believable.

I have a piece up at Slate using the Hank Skinner case to argue that in rape and murder cases, investigators should err on the side of conducting DNA tests on all biological material collected at the crime scene.

• Off-duty Baltimore cop kills a man who grabbed his girlfriend’s butt. Pretty sure if a non-cop had done this he’d have been in jail while the police department sorted out what happened.
• Same prop newspaper shows up in multiple TV shows, movies.
• A visit to Georgia’s Stalin Museum.
• Eliot Spitzer: Abraham Lincoln would be ashamed of you for not wanting to pay more in taxes. The sneering condescension in that piece will raise your blood pressure about 10 points. Seems to be something about being born into money that makes people especially prone to lecture the rest of us about “shared sacrifice.”
• Missouri cops harass guy with history of recording Missouri cops.
• Nebraska crime scene investigator who manufactured evidence sentenced to “up to four years” in prison.

The Crime and Federalism blog reports on the case of Carlos Alfredo Simon-Timmerman, a New Yorker who was stopped in Puerto Rico last year on his way back from a vacation in Venezuela. Simon-Timmerman was stopped by U.S. Customs agents, who found a pornographic video in his bag entitled Little Lupe the Innocent; Don’t Be Fooled By Her Baby Face. The movie featured Lupe Fuentes, a porn actress who, as the movie title suggests, is  a 23-year-old with a more youthful appearance.

Fuentes is currently under contract with a U.S. porn production company, and has made movies for other U.S. companies in the past. Those companies are required by federal law to keep records showing that all participants in their adult films are of legal age.  That means Assistant U.S. Attorney Jenifer Yois Hernandez-Vega could have verified Fuentes’ age with as little effort as a Google search and a phone call. (Hell, she probably could have just consulted one of the porn experts at the Securities and Exchange Commission.)

Instead, the prosecutor pushed ahead with child pornography charges against Simon-Timmerman, even after the man’s attorney was able to show that Fuentes had appeared in movies produced in the U.S., as well as other documentation that Fuentes was of legal age at the time the movie was made.

Hernandez-Vega still didn’t buy it. Her evidence that Fuentes was a minor was apparently so strong that she not only apparently felt she didn’t need to take 15 minutes to look up the proof of Fuentes’ age on file with the federal government, she could also dismiss the evidence produced by Simon-Timmerman’s attorney that his client hadn’t broken any law—all while keeping Simon-Timmerman locked up for months.

And what was that evidence? “Expert” testimony. At trial, Hernandez-Vega called Alek Pacheco, A U.S. Customs agent and self-described expert in child pornography who concluded (presumably after viewing the video several times) that Fuentes was “13 or 14″ years of age.

The state also called a Dr. Pedro R. Jaunarena who, according to court documents (PDF) filed by Hernandez-Vega…

…will explain from viewing the images in question the bodily features he considers in making his determination, such as the face of the minor, the breast area, the genital area to include the existence or non-existence of pubic hair, the height of the minor, among other factors to be considered to establish the approximate age range of the minor depicted and to establish that the relevant images depict minors under the age of eighteen.

Simon-Timmerman’s attorney was even able to get Fuentes to confirm her age over the phone. That still wasn’t enough for the prosecutor.

Finally…

Little Lupe herself would have to fly to Puerto Rico, show her passport to the prosecutor, and testify under oath that she was really, really not 13 years old.

“My fans mean everything to me, ” Fuentes told Asylum via her publicist. “It was important to me to make the trip to Puerto Rico to show support to someone who did no wrong.”

That was last month. After Fuentes’ appearance, Simon-Timmerman was finally released, and the charges against him were dropped. It took the graciousness of a porn star to keep Simon-Timmerman from going to prison.

If this case follows other clear-cut prosecutorial abuse cases, Hernandez-Vega will suffer little if any penalty or sanction for her stunning incompetence, which caused the arrest and months-long incarceration of an innocent man. And Jaunarena and Pacheco will continue testifying as experts in federal courtrooms, despite the fact that their expertise in this case was off by by about five years.

(Thanks to Jonathan Pratt for the tip.)