Two Pro Witnesses Used Junk Science to Send Innocent People to Prison

When three-year-old Courtney Smith and was raped and murdered in Mississippi in 1990, cops arrested Justin Johnson as a suspect in the heinous crimes. Two years later, Christine Jackson, also a three-year-old child in the same county, was sexually assaulted and killed in a similar manner. Johnson was a suspect in that case too, thanks in part to a documented history of sex crime. But he didn’t get charged for either of the two girls' savage deaths.

Instead, Levon Brooks—a former boyfriend of Courtney Smith’s mother, and Kennedy Brewer—who dated Christine Jackson’s mother—were arrested and convicted in the two cases despite paltry evidence against them. Prosecutors in Noxubee County, however, had the help of two professional expert witnesses: Steven Hayne, a medical examiner, and his partner, Michael West, a forensic dentist. Together, the duo used the aura of scientific inquiry—and especially allegations that the suspects' bite marks were found on the murdered children—to condemn the men (Brooks to life in prison, Brewer to death row). The so-called experts were known for crisscrossing the state, supplying valuable and even decisive testimony on call and for a price.

In their forthcoming book The Cadaver King and the Country Dentist: A True Story of Injustice in the American South, journalist Radley Balko of the Washington Post and Innocence Project lawyer and Ole Miss law professor Tucker Carrington show how the duo peddled junk science in courtrooms across the state. The book documents how law enforcement used the pair to bolster cases with flawed forensic testimony, specifically honing in on the saga of Brooks and Brewer, who were finally released in 2008 after doing decades in prison.

VICE talked to the authors by phone to find out why America's criminal justice system has a long history of relying so heavily on professional testifiers, how Brooks and Brewer finally got out, and why President Trump and Attorney General Jeff Sessions are doubling down on harsh sentences right now. Here's what they had to say. VICE: How do wrongful convictions like this (still) happen so often, and do they strike you as peculiarly American?
Tucker Carrington: The reason it happens is because there’s insufficient attention and resources applied to the criminal justice system. You have an architecture of structural racism and classism already in place and then you fail to adequately fund important posts like medical examiner in a state or a municipality. [With the] crackdown on crime [and] aggressive prosecutions both at the state level and the federal level, all those things create a perfect storm for something like this to happen. I think people are horrified by these stories of innocent folks being locked up. [But] we can’t just be horrified about it, we actually have to work to rectify it.

Radley Balko: I would say that it sort of represents America to the extent that this is not a problem that’s limited to Mississippi. We’ve seen forensic scandals all over the country. We’re seeing crime lab scandals, the product of bad incentives and an inattentive, overfed system.

What does it say about the country's criminal justice system that these people—professional expert witnesses—play such decisive roles in the first place?
Balko: I don’t think there’s anything wrong having people whose job is to be a crime lab analysis or a medical examiner. I think the problems come when they’re testifying to those areas of expertise that there’s no scientific research to support. For example, the essential tenants of bite mark evidence are that all humans are unique and we all can be identified by our bite. [Experts claim] the human skin is capable of recording bites in a way that sort of preserves that uniqueness [and] that can be used to identify people, [but] there’s zero scientific research to back up those claims. None.

The problem is it sounds cool and scientific and judges have allowed this stuff in. There’s not enough oversight [and this type of testimony isn’t] scrutinized carefully enough. And even within the fields that are sort of legitimate, like forensic pathology, there can still be a fair amount of subjectivity, particularly [since different] medical examiners interpret wounds differently. There are certainly some bad actors in Mississippi, but when you have a system that’s designed that way, if it wasn’t Hayne [and West] it would’ve been somebody else.

Carrington: When I was practicing [law] in DC I would always go down to the medical examiner’s office by the DC jail. My experience there was terrific. They were objective medical professionals. You’d set up a time to meet with them, you’d bring in the autopsy report, you’d go into their office with your investigator, and you’d have a professional conversation. They were professionals, in the objective independent sense, that they had no axe to grind to either side. I think those professionals are critical to have for everybody. Professional witnesses with incentives [are] a different ball of wax.

How much was this story about race—black men being targeted for law enforcement in the Deep South?
Carrington: Look at these trials and there isn’t anything that jumps out at you harkening back to the Jim Crow post-Reconstruction era, 20th Century lynchings, [and] overt racism. There’s African American attorneys, there’s African American law enforcement, there’s African American juror participation. But in essence at the end of the day what happened to Brooks and Brewer is no different then what happened all those years ago.

What’s worse is it happened within the criminal justice system with its blessing, both at the trial level and [when] the appeals court [affirmed] the conviction. [It] doesn’t look as bad as a lynching from the turn of the century, but by the same token the difference between what happened in the lynching and what happened to Levon and Kennedy, at some level is just a question of semantics.

Balko: [The criminal justice system in Mississippi] was designed during the Jim Crow era for a very specific purpose, which was to aid law enforcement in whatever law enforcement needed to do during the Civil Rights [Movement]. That meant covering up the killings of Civil Rights activists, before that [it was] covering up lynching. [The case is] about how that legacy still kind of remains with us today. I think it’s a system that serves people in power. You can’t talk about a system that serves [the] powerful at the extent of the powerless without talking about race.

What do you make of the culpability of Sheriff Ernest Eicholberger, the man who helped lead the investigation into Courtney Smith’s disappearance and murder here?
Balko: The first thing he did was basically arrest every young black male in the area who had access to the little girl. Now, part of that is [it's a] black area of Mississippi and every male who had access to the girl happened to be black. [But this] was a mass violation of constitutional Rights and not a particularly an effective way to go about an investigation. He also had every reason to think that Justin Johnson, who actually committed the crime, was a suspect. He’d already been convicted or at least accused of breaking into a woman’s house and attempting to rape her. His car was seen in the area, but instead the sheriff fixated on Levon Brooks.

In his interview with Courtney Smith’s sister, she’d mentioned seeing a quarter in this man’s ear, which—who knows what she was talking about. The sheriff took that as meaning the kidnapper was wearing an earring and Levon Brooks was the only man in the area who wore an earring. That’s why they fixated on him early. The people who did the mental health test evaluation said, "Tthis does not seem like the kind of guy who’d do this." They found none of the red flags that you would normally see, whereas Johnson had a lot of those red flags. It was a case of tunnel vision. Then you’ve got these sort of yes men in West and Hayne who come and give this scientific-sounding veneer to hunches that law enforcement have.

You guys have been on this case for a while, either writing about it or playing a legal role. Can you talk about finally seeing Levon and Kennedy exonerated?
Carrington: It was pretty extraordinary. The Innocence Project of New York is responsible for their exoneration. They spent years working on the two cases—in particular a staff attorney up there named Vanessa Potkin. I was there because my office was helping to represent Levon. I don’t want to overstate what it was like, but I think at some level it was historic. It was the first time Mississippi had this type of exoneration, certainly at this level, with publicity of a death case and a life in prison case where the true perpetrator had been identified. It took place in a very isolated part of the state. I know that one of the prosecutors who was involved in the case brought his daughter—she was maybe 12 or 13—to the hearing, because he told me nothing like this had ever happened.

Did the two freed men go to the actual killer's sentencing?
Balko: Levon told me that it was kind of a poignant moment and that Kennedy originally wanted the death penalty. Levon talked Kennedy out of that by just saying, “Look at everything we went through.” This guy was clearly sick and untreated. I asked Kennedy about that and he didn’t quite remember it. Levon passed away a couple of weeks ago. I’m sad that he didn’t get to see the book.

Carrington: I think at some level it was probably anti-climactic and [didn’t have] a profound effect on them. They had discussions of whether they should participate in the sentencing hearing, what they should say, and what their feelings were about it, but when all was said and done the prosecutor dropped the death penalty.

Despite so many disturbing pieces of journalism and high-profile exonerations, Trump and Sessions are still all about old-school, tough-on-crime rhetoric and sentencing policies. How do you make sense of that, having been so close to such an ugly episode?
Balko: I don’t Sessions or Trump particularly care about people who are victimized by the system. They either know what’s going on and are indifferent to it, or they don’t care enough to actually know. It has to be one of two things. I don’t know which one is worse. Just the fact that Sessions disbanded the forensic sciences commission that was supposed to be looking into these bad, dubious or various forensics [cases] and then basically said they were going to handle it all internally—the idea that the FBI is going to handle assessing the quality of forensics internally is impossible. [Sessions and Trump] don’t have a serious stake yet in proving or seriously administrating the country’s criminal justice system, and that’s a shame.

Learn more about the duo's book, out February 27, here. Sign up for our newsletter to get the best of VICE delivered to your inbox daily.

Follow Seth Ferranti on Twitter.