The Cadaver King and the Country Dentist Read online

  In October 2007, I published an investigation of Hayne in Reason magazine, along with an accompanying essay in the Wall Street Journal. After the story ran, a local TV station confronted Hayne outside his office about the articles. He promised to sue both me and the Wall Street Journal. The reporter then asked Hayne if he was board certified in forensic pathology. He said he was. When pressed about what organization had certified him, Hayne replied that he couldn’t remember.

  In the ten years since, I’ve written dozens of stories about Hayne. I also began writing about Hayne’s sidekick, Michael West, the dentist, bite mark analyst, and—in my view—a person who should not have been allowed in a courtroom. The two men dominated the Mississippi death investigation system for twenty years. West testified in dozens of cases, Hayne in thousands. Until and unless the state engages in a thorough, top-down investigation of their work, we may never know the extent of the damage they may have done. So far, the people with the power to initiate such an investigation haven’t shown much interest.

  TUCKER CARRINGTON

  In 2007, I was hired to found and direct the Mississippi Innocence Project, based at the University of Mississippi Law School in Oxford. I packed up my family and office in Washington, DC, and moved to north Mississippi. On my first day at work, I read through some opinions handed down the week before by the Mississippi Supreme Court. I was startled by the first case I saw. Not only had the state’s expert witness given what I considered to be unfounded forensic testimony, the trial court had admitted it in a way that seemed fairly routine. The expert? Steven Hayne. The defendant was convicted, and the Mississippi Supreme Court affirmed.

  One of my first tasks as director of a new entity at the law school was to let people know we existed, and to announce our upcoming inaugural fundraiser. The event featured John Grisham—who with his family had provided some of the funding for the new venture—and fellow novelist Scott Turow. We sent a mailer to lawyers, politicians, law enforcement officials, and other prominent figures across the state. After a few days the responses started pouring in, and it was clear that my staff and I had our work cut out for us. Laurence Mellen, the district attorney for several counties in the northwest corner of the Delta, wrote back for proof of my claim—which by then was common knowledge for anyone working in the criminal justice system—that DNA evidence had exonerated more than two hundred people. Somehow that fact, combined with the establishment of the project, meant that many prosecutors across the state, who were graduates of the University of Mississippi School of Law, were “naturally concerned that the law school is impugning our integrity.” District Attorney Jim Powell wrote a letter, too. He noted that over the course of America’s 230-year history, and among its population of three hundred million, “there is a claim of only 200 wrongful convictions.” “Where is the problem?” Powell wondered. He also suggested that instead of an innocence project, the law school should start a “the guilty bastard got off scott free project.”

  To the extent that these two prosecutors’ views were indicative of others’, Mississippi’s top law enforcement officials seemed unwilling to consider the possibility that Mississippi’s justice system might occasionally convict an innocent man. Within a year they’d be proven wrong, though hardly chastened.

  Over the next decade or so, as we continued our respective work in journalism and law, Hayne’s and West’s names and deeds kept showing up. Occasionally our work on these cases would overlap, and we’d find ourselves in conversation about new revelations, old cases, and the state’s perpetual obstinacy. It finally occurred to us that only a book could give this story the full airing it deserved.

  This book is driven by the stories of Kennedy Brewer and Levon Brooks, two men in eastern Mississippi. Their trials took place in the 1990s, an era that saw soaring violent crime and, in response, increasingly strident law-and-order rhetoric from politicians, pop culture, and the media. In the fifteen years that preceded Kennedy Brewer’s arrest, violent crime in the United States increased by 80 percent. John DiIulio, the director of George H. W. Bush’s White House Faith-Based Initiatives, warned that society risked becoming infested with “super-predators”: young, amoral killers emerging from “the youngest, biggest and baddest generation any society has ever known.” In response, lawmakers lengthened prison sentences with mandatory minimums and swelled the ranks of police officers on the streets. In some urban areas governors called out the National Guard. Politicians rushed to outdo one another with ever-more-draconian crime policy. Most importantly for this story, the doctrine of habeas corpus—the mechanism by which prisoners can seek relief from unlawful detention that dates back to the Magna Carta—was rewritten in the wake of the Oklahoma City bombing, making it much more difficult for convicted prisoners to gain relief for erroneous convictions.

  Mississippi did not distinguish itself. Or it did, but not well. Governor Kirk Fordice pledged at the time to make the state “the capital of capital punishment.” The state’s largest newspaper ran regular editorials lamenting the fact that drawn-out appeals were preventing officials from executing more people more quickly. Politicians, columnists, and tough-on-crime activists pushed to expand the death penalty to include rape, child abuse, and drug dealing.

  This was the climate in which Kennedy Brewer and Levon Brooks were convicted. But the full context for this story goes back much earlier than the 1990s. Since Reconstruction, Mississippi has executed 809 people, not including extrajudicial lynchings. Of those executed under law, 642 were black. Most were hanged, though the state now kills with lethal injection, as does most of the rest of the country. Noxubee County—where Brewer and Brooks lived, were arrested, and were tried—housed its gallows in the now defunct county jail. It has since been converted into the county library. The gallows trap door is still there, as is the garrote hook—right next to the genealogy section.

  Before getting to the Brooks and Brewer cases, though, we’ll delve into the historical context that made their stories possible. For decades, white Southerners fought integration and tried to preserve white supremacy with racial violence, most notoriously through lynching. Mississippi’s death investigation system evolved into a powerful tool to help cover up those atrocities. By most counts, the state led the country in lynchings. Over and over again, elected coroners deliberately covered up racial violence by convening a coroner’s jury of like-minded men who would inevitably conclude that obvious murders had been, in fact, accidental killings, suicides, or natural deaths. When a coroner’s jury did occasionally determine that a lynching had been a homicide, little to no effort was made to ascertain the identity of the killers or to bring them to justice.

  When lynching became less common, the system that aided and abetted it still remained. Though some states moved on from the coroner system, others, including Mississippi, allowed it to persist. As a new era of public officials assumed power, they used the system for their own ends—to rack up convictions, to manipulate the court system, or simply to make a lot of money. By the mid-1990s, it even became politically advantageous for some state officials to reinvestigate cold civil rights murders and try to bring racist perpetrators of decades-old crimes to justice. Here, too, the death investigation system proved useful. Steven Hayne testified in a few such cases. The point here is not that every official in Mississippi’s criminal justice and its death investigation systems was or is motivated by bigotry. Hayne, for example, not only assisted prosecutors in those old civil rights cases but was also married for a short time to a black detective. Nevertheless, the system in which he, Michael West, and the state’s coroners operated was built on racism, and the new victims still tended to be disproportionately poor and black, with the effects, though better concealed, just as pernicious.

  This badly flawed Mississippi death investigation system was then infused with another problem that has more recently received national attention: dubious forensics. Since the late 1980s, DNA analysis has exonerated hundreds of innocent prisoners. It has also
revealed the extent to which unsound forensic science—and improper claims about legitimate forensic disciplines—played a major role in those cases. But exonerations resulting from DNA testing provide only a limited glimpse of the problem. Just 5 to 10 percent of criminal cases involve biological evidence that can be subjected to DNA testing. In the other 90 to 95 percent of cases, DNA doesn’t exist, has degraded, or has been lost. But the same unscientific forensic disciplines used in the cases overturned by DNA testing have undoubtedly also tainted non-DNA cases, and probably at about the same rate.

  We like to think that our system of justice is unmatched in its guarantees of fairness. Our democracy is too strong, our courts too fair, our prosecutors and judges too conscientious to allow innocents to rot away in prison or be executed. Judge Learned Hand wrote as much in 1923: “Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.” That sort of resolute confidence in American justice persisted through the 1990s. For many, it still persists today. To date, the US Supreme Court has denied thirty petitions for certiorari filed by prisoners later shown to be factually innocent. Many of them were victims of faulty forensic science. The record of lower courts around the nation is worse.

  The primary antagonists in this story are Steven Hayne, the state’s former de facto medical examiner, and Michael West, a prolific forensic dentist. A third is the state of Mississippi itself—not its people, but its institutions. In a larger sense, blame also rests on the courts—both state and federal—the media, and the professional organizations that not only failed to prevent this catastrophe but did very little even after it was clear that something was terribly wrong.

  Hayne in particular has maintained that he was merely a bit player in all of this—a hardworking doctor who did what he was asked and had no control over the design of a system decades in the making. That argument plays down the active role he played in preserving the system at various points in this story, but there is at least some truth to it. Certainly no one would accuse Hayne of laziness. He testified all over the state and typically worked seven days a week, often until the wee hours of the morning. It’s also true that if Hayne and West hadn’t been the central figures in this story, the system and its misplaced incentives would have produced other figures just like them. Indeed, before Hayne’s tenure, it already had.

  Most of Hayne’s autopsy reports were uncontroversial—as was most of his court testimony. And a large majority of people his testimony helped put away were undoubtedly guilty. Moreover, anyone who did the number of autopsies Hayne did was bound to make some mistakes. A defender of Hayne might argue that it’s unfair to focus on his mistakes instead of his entire body of work.

  But that argument is both a defense of Hayne and an indictment of him. As you continue reading, it’s important to remember that this story didn’t happen by accident—it happened by design. No one forced him to take on the number of autopsies he did. The death investigation system in Mississippi is designed to allow coroners, prosecutors, and law enforcement officials to use their favored medical examiners. Hayne didn’t have to be the doctor whom Mississippi DAs and coroners favored for nearly two decades. He emerged as their favorite because of his work product. And for that, he is certainly open to scrutiny.

  Michael West is a different story. As a longtime associate of Hayne, he was aided and abetted by trial courts throughout the state that seemed more interested in ensuring the admission of his novel—and often crucial—forensic testimony in criminal prosecutions than they did in rigorously assessing the bases of his claims. For his part, West took advantage of the opportunity, and then some.

  Lawyers for Brooks and Brewer have argued that Hayne and West’s acts over this period of time were intentional. Recently, a federal appeals court opinion found that while they were mistaken, there was no evidence of an intent to fabricate evidence. It’s not our intent—and frankly it would be nearly impossible—to prove whether they acted intentionally or not. But that isn’t the point. The point is that courts allowed such unscientific testimony in the first place, regardless of intent.

  A few administrative notes: For the last decade or so, each of us has worked not only on but within this story. As the narrative progressed, both of us eventually became a part of it. For clarity and ease of reading, we have avoided the first person in these passages and instead noted our involvement in the endnotes. And because we both have written so extensively about these cases and issues, portions of the book have been adapted from prior publications.

  This book also relies heavily on interviews and thousands of pages of source documents—court transcripts, letters, memos, case reports, dozens of books, and newspaper and magazine articles. Between us, we’ve interviewed over two hundred people. Because of the litigious nature of some of the figures involved, not all of our sources wanted to be identified by name. We’ve tried to rely on named sources when we can, but that isn’t always possible. Because of Tucker Carrington’s work as a lawyer, he is or was legal counsel in several cases mentioned in this book, including those of Brooks and Brewer. When we discuss a case in which he or his office was involved, we’ve disclosed that, either in the text or in the endnotes. We should also mention that without the hard work over the years by a host of lawyers, many of these issues would never have come to light and freedom for the wrongfully convicted, including Brooks and Brewer, would not have come to pass. Of the many who deserve mention, foremost among them are Vanessa Potkin and Peter Neufeld of the Innocence Project. Potkin in particular spent years working on the Brooks and Brewer cases. Without her, they would not have been able to reclaim their lives; without her we would not have the same book.

  Finally, while this book is a work of journalism, we obviously have strong opinions about what happened in Mississippi and what needs to happen now. Our opinions and analyses (and at times our outrage) appear throughout the book. We hope that expressing our views will not only contextualize the narrative for the reader but also help bring about badly needed reform.

  Kennedy Brewer and Levon Brooks were felled by seriously flawed forensics, an anachronistic medicolegal system built on structural racism, and a criminal justice system dependent on both. They were failed by the bar, the media, the state appeals courts, the federal courts, the medical profession, and the field of forensics. But they aren’t the only ones. As of this writing, countless people convicted with testimony from Steven Hayne and Michael West still sit in Mississippi prisons. An untold number of murder victims and their families haven’t yet received justice because the wrong person was convicted while the culprit remained free, or a homicide was misclassified as a natural death, an accident, or a suicide. While West testified in a range of cases that could safely be called “dozens,” Hayne testified in thousands—around 80 percent of Mississippi’s homicide cases over the better part of two decades. So far, Mississippi officials have only addressed this calamity one case at a time. Others, in particular federal courts, have skirted the issue by invoking procedural bars to avoid entangling themselves in the facts. The result is a staunch refusal to conduct a systematic review of the thousands of cases potentially affected. Doing so would expose the ugly scaffolding that has propped up the system for decades. It would reveal the deep cracks that run to the very foundations of the state’s courthouses.

  But that’s exactly what needs to happen.

  1

  THE MURDER OF COURTNEY SMITH

  Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.

  —Justice Sandra Day O’Connor

  SATURDAY, SEPTEMBER 15, 1990

  Levon Brooks was dressed and nearly ready when the two McCoy brothers pulled up and honked outside his trailer in Macon, Mississippi. Brooks checked his modest afro in the mirror one last time. He pondered his new muttonchops—he was still t
rying to decide if he’d actually keep them—and then paused to put a small gold earring in his left ear. In a place like Noxubee County, where “dressed up” could mean putting on freshly laundered camouflage, Brooks was something of a fashion maven.

  Impatient with their friend’s primping, the McCoys honked a second time. They were anxious to get to their job. All three men worked at the Santa Barbara Club, a popular nightspot a few miles down the road. It was a great gig for young, single men like them. It paid well, particularly for rural Mississippi, and they got to meet women while they worked. Brooks loved his job. It was tailor-made for his personality. Those who knew Brooks at the time described him as charming, effervescent, and optimistic. Women found him sweet, playful, and easy on the eyes. He’d had a lot of girlfriends—and plenty of ex-girlfriends—and somehow managed to remain on good terms with nearly all of them.

  Brooks spent much of his spare time hunting and fishing in Noxubee County’s pine forests, hardwood coverts, and isolated ponds. His time outdoors kept him lean and toned. Though thirty-two years old, at six foot one and 180 pounds, he weighed the same as he did in high school.

  Brooks had been working at the Santa Barbara since before it opened for business. During the day, he worked as a custodian at the elementary and middle schools in Macon. He had to give up his weekend nights to work at the club, but it wasn’t much of a sacrifice. He was getting paid to have fun. The hours were long, but the job was never boring, and it gave him free access to the biggest party in town.

  The Santa Barbara sat a few miles off of Highway 45, about twenty minutes from Macon. The early ’90s were the club’s heyday. Old school blues musicians—such as Willie King from nearby Prairie Point—still played at the older, more established juke joints like Bettie’s Place, a shingle-sided shack farther out in the country. But what the Santa Barbara lacked in authenticity, it made up for in accessibility, size, and a regular enough schedule that it advertised on local radio. On weekend nights, two or three hundred people would pack themselves between the building’s aluminum sides.