This Radley Balko article claims that a medical examiner and a bite mark specialist manufactured evidence used to put a man on Death Row. Maybe that happened, and maybe it didn’t. I still have a few questions.
Balko summarizes the article at his blog:
As with most cases, Dr. Steven Hayne performed the initial examination on [victim] Oliveaux, claimed to have seen bite marks no other doctors saw, then called in West to perform his quackery bite mark analysis. West claimed to have traced the bite marks to Jimmie Duncan, the boyfriend of Oliveaux’s mother, and the man police suspected of murdering the girl. Duncan was convicted of capital murder, and has spent the last 10 years on death row.
The smoking gun video damns West and Hayne in two ways. First, as it opens, West is performing his initial examination. The video clearly shows that when the body of Haley Oliveaux was handed over to West and Hayne, her face was free of any abrasions or bite marks. Her cheek is clean.
The second portion of the video, taken the following day, then shows a striking abrasion. That abrasion could only have been inflicted by someone in Hayne’s office. The video also shows that Hayne must have been lying when he testified at trial that he found bite marks on the Oliveaux’s cheek, then called West in to do an analysis. The first portion of the video, taken after Hayne’s initial exam, shows no such bite marks.
Indeed, the minute-long video shows a dead young girl lying on a table, the right side of her face seemingly free of any obvious wounds. Then, in a portion allegedly filmed the next day, a plaster bite mold is pressed against a red abrasion on her right cheek.
At Reason, at Balko’s site, and throughout the blogosphere, the jury has rendered its verdict: Hayne and West are guilty of evidence tampering. Seemingly, everyone reading this article believes that Hayne and West took a dead little girl with no bite marks on her, lied about seeing those bite marks in order to obtain a search warrant for a dental mold of the defendant’s teeth, took that mold and manufactured bite marks on her face, and thereby framed Jimmie Duncan for murder. Some of Balko’s fans are ready to throw these doctors in prison or even execute them.
If that’s really what happened, the consequences should certainly be serious. As I’ve said before, if Dr. Steven Hayne is incompetent, I don’t want him doing autopsies. If, as Balko alleges, he has committed perjury in a death penalty case, that could arguably lead to criminal charges against Hayne as serious as attempted murder. If Hayne and West actually created the bite marks out of whole cloth, then Hayne and West are scum who are willing to lie when they think someone is guilty.
Is that what happened here? I don’t know for sure. There’s a lot more I’d like to know.
In this post, I’ll discuss some unanswered questions I have about the article. This post does not purport to be a “refutation” of Balko’s article. It simply raises some questions — questions that may be answered by Balko’s upcoming lengthier article on the Duncan case — and fleshes out some context. My questions include the following:
- How is Duncan’s innocence consistent with other evidence and facts not mentioned in the article — including evidence of recent and severe anal sexual abuse, indications of previous suspicious injuries the girl suffered while in the defendant’s care, and a babysitter’s suspicions that Duncan had been abusing the girl?
- Why did numerous witnesses other than Hayne and West describe injuries to the girl that don’t appear in the video — and do those injuries appear in the full 24-minute video?
- Will Reason provide access to the entire video, as well as other supporting documents such as court transcripts, police reports, the autopsy report, etc.?
- Did Balko contact Hayne, West, the D.A., the prosecution’s expert, or anyone else who might provide the prosecution’s explanation for what we see in the video?
- How disinterested are the experts whom Balko did contact?
Balko’s article raises several related but nevertheless analytically distinct issues, not limited to these: 1) Did West create the bite marks where none previously existed? 2) Did West perform the examination in a proper manner? 3) Is West’s opinion worth anything? 4) Is Hayne’s testimony worth anything? 5) Was the opinion of the prosecution witness tainted by West’s actions? 6) Is Duncan guilty? 7) Does Balko’s article present all sides of the controversy — and if not, to what extent does that impede our ability to evaluate the answers to the first six questions?
Although the issues are related, answering one question doesn’t automatically answer another.
As a non-expert in these areas, my tentative sense is that West likely was performing this examination in an improper manner. As you’ll read below, even the prosecution’s expert says so. But I’m not sure I know whether West created the bite marks out of nothing — and until we have access to more of the underlying evidence, I’m not willing to form a conclusive opinion on that issue.
Also, for reasons I detail at greater length below, I’m not convinced that Duncan is innocent (nor, I believe, does Balko argue that he is). There’s too much evidence that Duncan abused this child, sexually and otherwise, both on the day of the drowning and the weeks leading up to it. Read on for more discussion of these points.
Despite my past battles with Radley Balko, I recognize that, to the extent that he legitimately casts a spotlight on questionable characters in the criminal justice system, he’s doing God’s work — and we should applaud him. Keeping the system honest benefits everyone, and that includes prosecutors. But if Balko’s article and all its ugly implications are true, then the article ought to stand up to scrutiny, including (but certainly not limited to) the questions I raise in this post.
We are told that a much more comprehensive article, covering all aspects of the case, is coming out very soon. That article may answer many, most, or all of these issues I’m about to discuss.
I should add that things are about to get ugly. We’re talking about the sexual abuse and murder of a 23-month old child. Images, videos, and descriptions — both in this post and at the linked posts — are unpleasant to view and think about . . . and that’s an understatement. That’s your warning; if you can’t handle it, bail out now.