Innocence Project and Mississippi Innocence Project Urge Mississippi Supreme Court to Reverse Capital Murder Conviction Based on New DNA Evidence and Improper Bite Mark Analysis

Forensic Dentist Responsible for Multiple Wrongful Convictions Now Concedes It’s Impossible to Identify Suspects Through Bite Mark Analysis


 

(Jackson, MS – September 15, 2014) – The Innocence Project and the Mississippi Innocence Project filed a motion in the Mississippi Supreme Court today urging the court to vacate the capital murder conviction and death sentence of Eddie Lee Howard, Jr., based on new DNA evidence and improper bite mark analysis. Dr. Michael West, the forensic dentist who provided the only physical evidence linking Howard to the crime and who served as an expert in four other cases where the defendants were later found to be innocent, now maintains that the identification of suspects through bite mark analysis is entirely unreliable. Similarly, the American Board of Forensic Odontology (ABFO), the certifying board for forensic dentists, now concedes that it is impossible to identify a defendant from bite mark analysis where the universe of potential suspects is unknown. Male DNA recovered from the murder weapon excludes Howard as the source, and other testing undermines West’s assertions that the victim was bitten.

 

Howard was twice convicted of the 1992 murder of Georgia Kemp, who was killed in her home. His first conviction was reversed by the Mississippi Supreme Court, which found that the trial court erred in allowing Howard to represent himself at his own death penalty trial. But in both the first and second trials, the prosecution was based on West’s testimony and statements allegedly made by Howard to law enforcement. Howard, who has struggled with severe mental health issues, never confessed to the crime, but allegedly told a detective after his arrest that “the case was solved.” Howard also claimed that five or six other individuals were involved and that law enforcement should keep investigating. When a detective, in response to Howard’s asking, said that he did not believe Howard was crazy, Howard is also alleged to have said, “I’m not crazy. . . I had a temper and that’s why this happened.”

 

“Mr. Howard’s conviction has always rested heavily on the testimony of Michael West. But we now know that bite mark analysis is severely flawed, having resulted in at least two dozen wrongful convictions or arrests since 2000,” said Chris Fabricant of the Innocence Project. “Dr. West and the ABFO acknowledge that it’s impossible to identify a suspect through the type of analysis used in this case, and we’re hopeful that the Mississippi Supreme Court will agree that it would be unjust to condemn a man to his death based on such unreliable evidence.”

 

West became involved in the case as a result of the autopsy conducted by Dr. Steven Hayne. Hayne’s initial report did not mention finding bite marks, but three days after the burial, he requested to reexamine the body, explaining, “[there] was some question that there could be injuries inflicted by teeth.” With Hayne’s assistance, West examined and photographed the body, and using his self-pioneered technique called the “West Phenomenon,” which employs special glasses and ultraviolet light, West claimed to have observed bite marks on Kemp’s neck, arm and breast. Howard had become a suspect in the case, and he voluntarily consented to having dental impression taken. Howard was missing his top four front teeth, and the dentist created a dentition that included his false teeth.

 

Despite multiple challenging factors, including the victim’s advanced age, the fact that Howard had false teeth, the inherent distortion of skin due to decomposition and the positioning of the body during his examination, West told the jury at Howard’s second trial that he had no doubt that Howard was responsible for the bite mark on Kemp’s breast. (Dr. West stated: “Do I have any doubt [Howard’s] teeth made that bite on [Kemp’s] breast? I don’t have any.”) Between Howard’s first and second trials, West had been suspended from the ABFO for using terminology that was inconsistent with its guidelines, but had been reinstated in time to testify the second time. While West refrained from using the forbidden terminology – claiming the mark “indeed and without doubt” matched a suspect’s dentition – he explained to the jury that his opinion was no less certain than it would have been had he been allowed to say it “indeed and without doubt” matched to Howard.

 

Aside from the nonsensical and inconsistent statements made by Howard, the only other evidence against Howard was the testimony of a former girlfriend of Howard’s who testified for the State at the second trial that Howard would sometimes bite her on her breasts and neck when they were having sex and that she had seen Howard the day after the murder and he smelled “like burnt clothes or something, you know, wood, like smoke.” She was interviewed by law enforcement a few days after the murder, however, and gave a written statement that included none of this information. Howard’s lawyers never confronted her or law enforcement about the inconsistency. Even though the Mississippi Supreme Court had intimated in its decision striking Howard’s first conviction that the defense should have called a competent expert to dispute West’s testimony, Howard’s lawyer didn’t call a single witness in his defense. He was convicted and sentenced to death.

 

In 2010, the Mississippi Supreme Court granted Howard the right to conduct DNA testing on crime scene evidence, which included several swab sticks, most likely from the rape kits, as well as external, vaginal and oral/anal swabs; a butcher knife suspected to be the murder weapon; a random box of matches, knee-high nylons; a pair of house slippers; a nightgown belonging to the victim; the telephone severed telephone cord; and the sheets from the victim’s bed. The analysts were unable to find male DNA on any of the evidence except the knife, which contained a small amount of male DNA on the blade that did not belong to Howard.

 

“Unfortunately the sample was too small for the DNA to be put in the CODIS database to potentially identify the real perpetrator, but it was able to definitively exclude Mr. Howard,” said Vanessa Potkin, Senior Staff Attorney with the Innocence Project, which is affiliated with Cardozo School of Law. “The DNA testing also undermines Dr. West’s testimony that the victim was bitten. The DNA lab analyzed the night shirt the victim wore when she was murdered. Significantly, no male DNA was found in the areas where West claimed she was bitten.”

 

On February 11, 2012, West was asked about bite mark analysis during a sworn deposition in an unrelated civil case, and he testified that he no longer believes bite mark comparison to be a scientifically valid discipline, stating, “I no longer believe in bite mark analysis. I don’t think it should be used in court. I think you should use DNA, throw bite marks out.” West’s change of heart is consistent with the conclusions reached by the National Academy of Sciences (NAS) in its 2009 report Strengthening Forensic Science in the United States: A Path Forward, which found that bite mark analysis lacks scientific validity. Significantly, NAS found that there is “no science” establishing how to quantify the probability of a “match” between a suspect’s dentition and a bite mark and “no evidence of an existing scientific basis for identifying an individual to the exclusion of all others.”

 

“It’s especially troubling that three years after the Attorney General promised to investigate the many cases where Dr. West provided testimony that could have contributed to wrongful convictions, not only is the state pursuing a death sentence for Mr. Howard despite West’s own admissions that his analysis is flawed, but it has also done nothing to follow through on its ethical obligations and promises to review the other cases,” said Tucker Carrington, Executive Director of the Mississippi Innocence Project.

 

According to the brief filed by Howard’s legal team, since 2000 at least 24 innocent people have been either wrongly arrested or convicted of crimes based, at least in part, on bite mark analysis. West was the expert who gave testimony in the trials that led to the wrongful convictions of both Kennedy Brewer, who wrongly served time on Mississippi’s death row for a murder and rape he didn’t commit, and Levon Brooks, who was wrongly sentenced to life for a rape and murder. West also failed a blind proficiency test, wrongly opining that the test administrator’s teeth made the bite mark at issue in a death penalty case in Arizona.

 

In the wake of the many wrongful convictions that have been attributed to faulty bite mark analysis, the American Board of Forensic Odontology recently conceded that is impossible to use bite mark analysis to identifying someone in cases like Howard’s where the universe of potential suspects is unknown.

 

In the legal papers, Howard’s lawyers argue that, given the new revelations regarding bite mark analysis as well as the new DNA evidence excluding Howard as the source of DNA recovered on the knife used in the murder, Howard’s conviction should be overturned.

 


A copy of the legal papers filed today is available here

. Howard is represented by Tucker Carrington and Will McIntosh of the Mississippi Innocence Project, as well as Vanessa Potkin, Senior Staff Attorney, and Chris Fabricant, Director of Strategic Litigation, of the Innocence Project.

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