Decades after controversial bite mark testimony by then-forensic dentist Michael West helped send many defendants to death row, courts in the state are still wrestling with what action to take in the cases of those convicted.
Bite mark forensic dentistry has been discredited over the years, and even West has testified that DNA evidence should be used instead of bite mark evidence.
Last month, the Mississippi Supreme Court ordered a new trial for a former death row inmate convicted in part because of West's testimony and the court is awaiting a ruling by a circuit judge in another case in which West testified.
Over the years, several men, including Kennedy Brewer and Levon Brooks,convicted at trials in which West's testimony or opinion was used have been declared wrongly convicted and released from prison after serving lengthy sentences.
No one knows for certain how many post-conviction cases there are involving the testimony of West, said Tucker Carrington, director of Mississippi Innocence Project at the University of Mississippi in Oxford.
Carrington said West also testified in cases in Arkansas, Louisiana and Ohio.
Westlaw, the online legal research service, shows 17 results in Mississippi where West's bite mark evidence was questioned. However, some of the results involved the same defendants.
The Innocence Project is representing Sherwood Brown, 49, whose capital murder conviction and death sentence were thrown out and a new trial ordered by the state high court.
Brown was convicted and sentenced to death in 1995 in DeSoto County for the 1993 hacking deaths of Betty Boyd, 82, and her daughter-in-law, Verline Boyd, 49. He also was convicted and sentenced to death in the killing of Verline's daughter, Evangelo Charmain Boyd, 13. The teen was also sexually assaulted.
In 2012, the state high court ruled Brown could try to prove he didn't commit the crimes through biological evidence if any existed. The court said if DNA evidence existed, the lower court judge could order DNA testing.
The main evidence the state used against Brown were two partial bloody shoe prints found in the home where the three were murdered. When Brown was arrested, a pair of his Fila sneakers was confiscated. The sneakers was sent to the FBI for analysis and the FBI found traces of blood on the front portion of the left sneaker's sole. The prosecution alleged Brown had left the partial bloody shoe prints at the crime scene.
Also, the prosecution used West, then a Hattiesburg forensic odontologist, who determined during the investigation that a large cut on Brown's wrist was a bite mark from Evangela Boyd. West was unavailable to testify at Brown's trial because he was testifying at another high profile trial — that of Kennedy Brewer in Lowndes County. Another odontologist testified at Brown's trial based on the earlier analysis by West that the cut was a bite mark left by Boyd, according to court records.
DNA testing of Evangela's saliva sample taken during her autopsy concluded Brown's DNA wasn't in her saliva sample. Also, DNA testing of the blood on the shoe determined it was male blood and didn't correspond to any of the blood in the bloody shoe print from the crime scene that was tested. All the victims were female.
In last month's opinion, Justice Josiah Coleman wrote that "Having considered all pertinent materials, including the motion and attached exhibits, the state's response, Brown's rebuttal, and the record filed and opinion issued in Brown's direct appeal, the court finds the motion is well-taken and should be granted."
Coleman wrote the case should be reversed and the case remanded to DeSoto County Circuit Court for a new trial.
"The relief afforded herein is extraordinary and extremely rare in the context of a petition for leave to pursue post-conviction collateral relief, and we limit the relief we today grant to the facts of the above-styled case," Coleman noted.
Another case is death row inmate Eddie Lee Howard Jr., 64. The state Supreme Court recently asked for an update on the status of Howard's post-conviction appeal in Circuit Court.
The Mississippi Innocence Project is also representing Howard in the appeal. The Innocence Project argues Howard deserves a new trial, that DNA evidence excludes Howard in the 1992 rape and stabbing death of an 84-year-old woman in Columbus.
It was West's testimony that bite marks on the 84-year-old woman's body after it was exhumed matched Howard's teeth.
Special Assistant Attorney General Jason Davis argued in court papers that Howard wasn't innocent.
He said Howard now comes to the court once again challenging the reliability of the bite mark testimony of West, under the guise of newly discovered evidence based upon the deposition transcript in which West is questioned regarding bite mark evidence.
"While Dr. West states therein, that he no longer offers testimony regarding bite mark evidence, deferring to DNA testing instead, he expressly rejects any suggestion that his prior testimony in cases in which he gave such testimony was incorrect," Davis wrote.
Davis said the deposition transcript doesn't constitute evidence that if at the initial trial, would have caused a different result in the conviction or sentence.
Carrington said it will be after Jan. 1, when written court briefs are filed in the case.
In 2009, the National Academy of Sciences issued a report, concluding there was no basis in science for forensic odontologists to conclude someone is "the biter," excluding all other suspects. Four years later, the American Board of Forensic Odontology changed its guidelines to bar such testimony.
Source: The Clarion Ledger, Jimmie E. Gates, November 10, 2017
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