Patterico's Pontifications

2/28/2009

Balko’s Article on the Jimmie Duncan Case

Filed under: Crime,General — Patterico @ 12:21 am

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.

[Extended entry]

Facts and background: evidence of anal rape and previous abuse by defendant Duncan

In order to understand the accusations made in Balko’s article, the reader should first be familiar with the basic facts. Here’s a short synopsis from the Louisiana Supreme Court decision in this case:

Jimmie Duncan, the defendant in this case, was living with his girlfriend Allison Oliveaux, who had a 23-month-old daughter, Haley, from a previous relationship. Allison worked, and Jimmie often took care of Haley. (As we’ll see later, bad things happened to her while she was in his care, even before she drowned.)

On December 18, 1993, Allison went to work, and left Haley with Jimmie. Two hours later, he was knocking on a neighbor’s door, holding Haley, lifeless and unusually cold to the touch, wrapped in a towel. Neighbor Floyd Bennett and his wife performed CPR while their son called 911; shortly thereafter, Detective Shane Harris showed up and helped try to revive Haley. Detective Harris and the Bennetts “observed small red marks on the child’s face as they attempted to revive her.” None of these appears in the video excerpt which is contained in Balko’s online article. (Floyd Bennett did not return my phone call.)

Paramedics appeared and took over CPR while Jimmie Duncan told Mrs. Bennett that he had left 23-month old Haley in the tub alone while he did dishes in the kitchen. He told Mrs. Bennett that “he heard a loud noise and returned to find Haley face down, drowned in the tub.” He repeated a similar story to Mr. Bennett later that morning.

The Bennetts found his story suspicious. The Bennetts had cleared uncooked oatmeal from Haley’s throat before CPR, even though she had breathed in enough water to drown. (Notably, Dr. Hayne found no oatmeal in her stomach. But he did find water there.)

Duncan’s stories had some inconsistencies. When he spoke to Detective Harris, he said that he checked on Haley, not because of a loud noise (as he had told the Bennetts), but because “he stopped hearing Haley make any kind of noise.” He also told Detective Harris that he had found Haley face up, not face down (as he had told the Bennetts). Other inconsistencies appeared in his later statements to other officers.

Investigating officer Chris Sasser photographed the body at the hospital and “noticed what appeared to be several bruises and then rolled the child on her side and observed extensive injuries to her anus.” None of the bruises (and obviously none of the anal injuries) appear on the video.

Police questioned Duncan at the station about the child’s anal injuries. He said that she had defecated in the tub and he had cleaned her, washing around her anus. He added that, after he found her motionless in the tub, “he jerked Haley out of the tub by grabbing her by the neck and by the buttocks.” He ran out holding her like that, he claimed, and tripped over some blankets on the way out.

Dr. Hayne performed an autopsy and determined that the cause of death was drowning. He noted several injuries, “including the severe tearing of the anus.” The other injuries are discussed more extensively below. Regarding the anal injuries, the opinion tells us:

Dr. Hayne testified in detail about the anal injuries suffered by the victim, claiming that they would have caused severe bleeding and that the lack of blood on her exterior suggested that she had been washed before being brought to the hospital. He also stated that based on the observations of the Bennetts and Dr. Charles Norwood, the emergency room physician who treated the victim, he believed that Haley was dead for at least forty-five minutes before she arrived at the hospital. Tracing back, this placed the time of death well before defendant left his apartment to seek assistance.

The opinion adds that Dr. Norwood “corroborated Dr. Hayne’s testimony about the child’s anus having been washed before she was brought to the hospital.” (As we will see below, he also observed the severe anal injuries.)

At trial, a pediatrician “testified unequivocally that the victim had been anally raped.” He “testified that this was the worst case of anal sexual abuse that he had ever seen.” A defense expert said those injuries could have occurred up to 24 hours before Haley’s death, but “conceded that the injuries would have been extremely painful and would have been evident from the victim’s demeanor immediately after being inflicted.” The opinion reflects no hint that Haley’s demeanor reflected a violent anal rape during the 24 hours before she was left by her mother in Jimmie Duncan’s custody. Draw whatever conclusion from that you think makes sense.

Although Balko mentions the anal injuries in a post on his blog, saying that he will address them in a lengthier upcoming article, these injuries aren’t mentioned at all in his article about the video.

A jailhouse informant testified that Duncan had confessed to him:

Defendant then began sobbing and made rambling statements to Cruse, telling him that “the baby was pointing at his penis and that he said something about a bottle or bobble.” Further, defendant said “[t]hat it must of been the devil in him cause the next thing he knew he blacked out again and when he came to he was trying to have sex with the baby.” Still further, defendant said that the baby was hysterical and that “all I wanted was the baby to stop.”

As with the anal injuries, Balko suggests on his blog that his upcoming article will suggest reasons to discount the informant’s testimony. However, the jailhouse informant’s testimony does not appear in his article about the video.

In addition, there is other evidence of previous abuse by defendant Duncan. Page 37 of the Louisiana Supreme Court’s opinion indicates that a former babysitter thought defendant Duncan had been abusing the victim:

The CSI [Capital Sentence Investigation] includes information regarding the details of the offense that were not brought out at trial. In preparing the CSI, the probation officer interviewed a former babysitter of the victim, Debbie Craighead. Ms. Craighead stated that she had contacted Child Protective Services on several occasions regarding her suspicion that defendant was abusing the victim. Ms. Craighead further stated that she had taken several photographs of the victim’s injuries to protect herself from liability, but she claimed a defense investigator took these pictures from her. Still further, she claimed that she had found blood in the victim’s diaper and that the victim would cower whenever defendant would try to retrieve her.

(I called Ms. Craighead’s home and was told she was at work. I later left a message on her answering machine and asked her to call me; she did not return my call.)

As it turns out, Ms. Craighead is not the only one who was suspicious. Much more evidence of possible past child abuse by Duncan can be found in this Louisiana Court of Appeal decision in a civil suit, filed by the victim’s natural father against Child Protective Services and a hospital.

The court explains that defendant Duncan was often charged with taking care of victim Haley while her mother worked. Several times, Haley was brought to a doctor or hospital with suspicious injuries. We know that in at least one of these cases, she had been in Duncan’s care:

On November 29, 1993, Duncan took Haley to her pediatrician, Dr. Bulloch, with a swollen scalp and forehead. Duncan said that while trying to reach a piggy bank placed on a chest of drawers, Haley had stepped on the open bottom drawer and the whole chest fell over; the child had landed on the floor with the chest on top of her. Dr. Bulloch immediately sent Haley to St. Francis, where CT scans showed she had fractures on three different parts of her skull and a subdural hematoma. At trial, several physicians testified that injuries this severe could not have been accidental, and were in fact more consistent with “shaken infant syndrome.”

Haley also had “numerous bruises.” Haley’s family grew suspicious of Duncan, and notified a doctor, who notified a social worker, who contacted Child Protective Services. The CPS case worker mistakenly failed to note that the child had three separate skull fractures, which resulted in the investigation mistakenly being assigned a low priority.

Police interviewed Duncan regarding the story about the chest of drawers falling on Haley. The investigating officer “noted that the bottom drawer was ‘cocked’ just as Duncan had said, and felt that this corroborated the story.” In the appellate decision, a dissenting judge disagreed strongly:

The problem here is that even after falling the chest of drawers was again upright with the drawer in the same position. This should have immediately aroused the investigator’s suspicion as to the validity of the claimed injury. The scene of the event which injured the child had obviously been staged by the perpetrator.

That same judge also observes that there had been three prior emergency room visits under suspicious circumstances:

A records request was sent forward by CPS and Mrs. Griffon on December 8, 1993, and was received on December 17, 1993. These records showed that the child had been admitted to the emergency room on three (3) previous occasions with various injuries which were suspicious in nature. This was yet another strong indicator that something was seriously wrong in this case and that further investigation would be warranted. However, this information was not relevant at the time of receipt because CPS had already closed the case as “unfounded” and all complaints were invalidated.

I put the date of December 17, 1993 in bold for a reason: Haley Oliveaux died the next morning.

Here is how Balko describes Haley’s previous visits to the hospital:

On November 29 of that year, she was again admitted to the hospital, this time after allegedly pulling a chest of drawers down on top of herself while climbing to reach for a piggy bank. She suffered multiple skull fractures in the incident and, notably, some bruising on her left elbow. An investigation by the West Monroe Police Department and Ouachita Parish Child Protective Services found no evidence of abuse and no reason to doubt the piggy bank story.

Note that Balko does not tell readers that the piggy bank incident happened while Haley was in Duncan’s care, or that doctors testified at a civil trial that her injuries were consistent with “shaken baby syndrome.”

Note also that Balko touts the investigation by Child Protective Services — but doesn’t tell readers that CPS officials had failed to note her multiple skull fractures, misclassified the level of seriousness of the complaint, failed to contact the babysitter who had photographed her injuries and blood in her diaper, and closed the case before receiving the results of a records request showing three other ER admissions with suspicious injuries. This pathetic excuse for an investigation established nothing.

The decision in the civil case provides more information about the injuries to Haley’s rectum and anus:

After she was pronounced dead, doctors noticed that her anus and rectum were abnormally distended. Dr. Norwood, director of the emergency room, testified [in the civil trial] that she had multiple tears and scars, some fresh and some older, suggesting that she had been sexually abused over a period of time. The coroner, Dr. Hayne, confirmed the presence of injuries but did not feel that any were “old.”

None of this is mentioned in Balko’s article, which does not mention the extensive anal and rectal injuries. Balko says only that prosecutors had cited “other evidence” besides bite marks in charging Duncan with murder. Readers are told that prosecutors accused Duncan of raping Haley — but not that there is physical evidence to support the claim that she was raped.

Witnesses other than Hayne and West who saw injuries not seen in the video excerpt

Balko makes much of the fact that the video’s initial shot of Haley does not show the bite marks. But, as we have seen from the above factual summary, several witnesses saw other injuries to Haley that also aren’t depicted on the video. For example:

Both Detective Harris and the Bennetts described Haley’s body as unusually cold to touch, purplish in color, and lacking a pulse; they also observed small red marks on the child’s face as they attempted to revive her.

Similarly, at the hospital, Detective Chris Sasser “noticed what appeared to be several bruises” — in addition to the “extensive injuries to her anus” that he, Dr. Norwood, and Dr. Hayne all observed.

Dr. Hayne noted several injuries, including:

(1) contusion of the frenulum; (2) lacerations of the rectum and anus; (3) multiple contusions and abrasions, acute, of the head and neck; (4) multiple contusions and abrasions, acute, of the right and left upper and lower extremities; (5) acute contusion of the abdomen; (6) acute hemorrhage of the base of the tongue; and (7) acute hemorrhage of the right and left strap muscles (sternocleidomastoid muscles).

In the first shot of Haley in the video excerpt in Balko’s article, with minor possible exceptions, we do not see any of the injuries seen by the Bennetts, Detective Harris, Detective Sasser, Dr. Norwood, or Dr. Hayne.

I see no red marks on the victim’s face (seen by the Bennetts and Detective Harris), no clear evidence of multiple bruises (seen by Detective Sasser), and no contusions or abrasions on her neck, her abdomen, or her arm (seen by Dr. Hayne). (Obviously, the severe anal injuries seen by multiple witnesses are also not shown, nor should they be.) A very slight reddish-purple area on the lower right part of the victim’s neck may evidence the “acute hemorrhage” of the right sternocleidomastoid muscle observed by Dr. Hayne; it’s hard to tell for sure. There also might be a couple of small bruises on her chest — or are those shadows? In the brief shot we are shown in the video excerpt provided, there is no way to be certain.

Why don’t we see any of these injuries, which were noted at the time by so many different witnesses from different walks of life? There are several possible explanations — perhaps more than I have thought of.

All these witnesses could all be lying. But that seems unlikely. They come from different walks of life and observed different injuries at different times. If there had been some bizarre conspiracy, when did it come together — and why didn’t they all discuss the same injuries?

It could be that the injuries described are all on the left side of the body, which is not depicted in the brief excerpt shown at Reason.com. This too seems like an odd explanation. Access to trial transcripts and the full video might shed light on this.

The red marks observed by witnesses around the eyes could be petechial hemorrhaging — generally rare in cases of drowning, but more common when children have drowned. If so, that could explain why they are not visible in the video — but it doesn’t explain the seeming absence of bruising or contusions in the video, however.

Or — assuming that the video is authentic and has not been tampered with — there could be an issue with lighting or camera angles. (I can’t be the only person who has taken video in which skin tones are washed out.) Viewing the entire video might help viewers determine the extent to which lighting and camera angles prevent injuries from being seen.

Access to entire video and supporting evidence

It’s important to remember that, as useful as the video excerpt may be, it contains only about 21 seconds of footage from a 24-minute video. We haven’t seen the whole video.

I have seen in other contexts how snippets of video can be misleading. I’m not saying that Balko’s description is misleading; I suspect it’s not, for a host of reasons. But given the seriousness of the charges in Balko’s article, and the odd discrepancies between the video and other evidence in the case described above, I think the public would benefit from the ability to see the whole video — together with whatever other evidence Balko relied upon for his article.

I’d also like to know whether the clip underwent any transformations before it was posted on the internet, starting from the moment the video was created, and going through the moment it is played back as an Internet clip. What resolutions, codecs, and compression were used, if any? Was there any loss of data and fidelity? I’m especially interested in this given the fact that numerous witnesses described wounds not visible on the video. It’s my non-expert view (and I’m interesting in hearing from experts) that skin tones can suffer during video compression because the compression software sometimes blends or averages skin tones from adjacent patches of skin.

I asked Matt Welch, Reason’s Editor in Chief, whether the magazine plans to make the full video available. (Incidentally, I respect Matt; the fact that he is Balko’s editor gives me more confidence in the article than I would normally have.) Matt indicated that Balko wishes to put up the whole video — a clear indication that Balko is not hiding the evidence for nefarious purposes — but that he (Matt) made the call not to, for a “variety of reasons.”

One specific reason Matt offered was that “it involves the exposed genitalia of a dead two-year-old girl.” I suggested that the genitalia could be blacked or blurred out.

Matt also said, without giving specifics, that “there are plenty of other objections that no blocking-out could satisfy.” This makes some sense to me; the idea of posting a lengthy video of the autopsy of a 23-month-old girl on the Internet is disturbing on several levels. At the same time, for the reasons I have discussed, I think it’s critical to evaluating the case. I asked Matt if I could see the video if I promised not to display it on the site. (I think he’s considering that.) I also asked Matt for an official quote regarding whether any of the source evidence would be made available. Here’s what he e-mailed me on February 20:

This is the cover story of our April issue of the magazine, which goes to subscribers late next week (in an article that is longer, and details much stuff that isn’t in the online piece). When we publish that story online, which we’ll do earlier than our usual print-to-online schedule, we will very likely simultaneously publish a cache of court documents, including the autopsy, affidavits from medical examiners, some filings, and other stuff. Please note that this likely is unprecedented in Reason history, and above and beyond what one usually expects from an opinion magazine. (As has been Radley’s reporting on criminal justice issues in general.) We understand that it’s very difficult for people to accept that “experts” acting in bad faith can do enormous harm to the criminal justice system; further, we have an institutional commitment to transparency, and a faith that reasonable people, when faced with atrocious injustice, will appreciate and act on as much information as they can get.

We will not be posting the complete 24-minute video, for reasons I’ve already detailed. We are holding out the possibility of sharing it on a private basis with interested parties, though as yet there are no concrete plans to do so.

Stories like these take a lot out of what is at the end a very small staff with limited resources. Within those constraints, we will nonetheless show much of our math in as timely a fashion as we consider possible.

Fair enough. I think the jury is still out until we have a chance to see a) the longer piece that deals with the other evidence in the case, and b) whatever source documents and materials the magazine chooses to make available.

Making more source material available might explain one other puzzling detail: we’re told in the article that the trial judge looked at the video and found it not to be exculpatory. Reading the article, this seems stunning. But how did the judge explain his reasoning, if he did? The answer is buried in some transcript or written order — most likely a transcript. I’d love to see that. I think I would learn something by seeing that — just as I learned quite a few things reading the two appellate decisions discussed above. This is another reason I’d like to see the source documents.

Where is the prosecution’s explanation?

Another question that occurred to me as I read the article was: what does the prosecution have to say about all this? What do Dr. Hayne and Dr. West have to say about all this?

We don’t know; we aren’t told. Indeed, there is no indication that Balko tried to talk to them.

If he didn’t, I think he should have tried.

Let me be clear: while I think Balko should have tried to present all sides, that doesn’t mean he has to accept all sides’ explanations as true or even plausible. As a Deputy D.A., I know that there are always two sides to every story — but that doesn’t mean both sides are right. Still, I would have preferred to see Balko give all sides a chance to air their point of view. Then, if their explanation conflicted with the known facts, he would be within his rights to let ’em have it.

Indeed, I see no evidence that he made any attempt to contact Hayne, West, the D.A. on the case, the prosecution’s expert, or anyone else who might provide the prosecution’s explanation for what we see in the video.

Prosecution expert: Dr. Neal Riesner

I know that Balko didn’t contact the prosecution’s expert who testified at trial. I know this because the expert told me so himself.

Balko says that the prosecution expert who testified at Jimmie Duncan’s trial was a “Dr. Neal Reisner.” Balko’s article doesn’t say whether Balko contacted Dr. “Reisner” for his reaction to the video. Dr. “Reisner” is actually Dr. Neal Riesner. You can read about him here. (I should note that Balko’s spelling error is a common mistake; the doctor’s name is also misspelled in the title at the link in the preceding sentence, as well as in several places in the Louisiana Supreme Court opinion.) Among other things, the link tells us:

Dr. Riesner is one of the original pioneers in the field of forensic odontology. He is a Diplomate of the American Board of Forensic Odontology and has served as a member of that institution’s Board of Directors and Committee on Civil Litigation.

I contacted Dr. Riesner, who confirmed that Balko had not contacted him. Dr. Riesner had not seen the video before I brought it to his attention. He told me that he had based his opinion on pictures.

Dr. Riesner said that the methodology used by Dr. West in the video was “not a proper procedure.” You can take impressions and pictures, but you don’t take a bite mold and press it into skin like that.

Dr. Riesner told me that he still has pictures of the bite marks on Haley’s body. The photos were appropriately done with a forensic photography scale, and the bite marks were redder in his pictures than in the video. He said “the color in the video was poor.” He said he didn’t see several other injuries in the video that he knows were present on Haley Oliveaux’s body. He wished that he could send me the pictures, but he was concerned about privacy issues, as he did not have a release from the family.

At the same time, he said, the video did not change his opinion regarding the bite marks. He told me that he could not render an expert opinion as to whether the bite marks had been made after death, but he had never heard of a body getting a postmortem abrasion as red as the one depicted in his pictures. He showed the pictures to a colleague with considerable experience who also said he had never heard of such a thing. He did not believe that Dr. West’s actions as depicted in the video, or actions like that, could have created the bite marks that he saw in his pictures.

Dr. Riesner told me that his opinion at trial had been corroborated by another distinguished forensic odontologist named Dr. Arthur Goldman. Dr. Riesner’s recollection was that Dr. Goldman had also testified in the trial. Dr. Goldman was a charter member, diplomate emeritus, and past president of the American Board of Forensic Odontology. (Two defense experts were also past presidents of the organization: Dr. Averill, about whom more below, and Dr. Souviron, who testified for the defense at trial.) Dr. Goldman was also the president of the American Academy of Forensic Scientists. Dr. Goldman passed away since the time of the trial.

How disinterested are the experts that Balko contacted?

Balko showed the video to three experts. One, Harry Bonnell, already works for the defense, and has been a critic of Hayne’s in the past. (He was also accused by the executive director of the Medical Board of California of “gross negligence, repeated negligent acts, and incompetence,” although the accusation was dismissed.)

The second, Michael Bowers, has been critical of Dr. West in the past, and (although Balko does not tell readers this) is a skeptic of bite-mark analysis, period — regardless of who the expert is.

Bowers’s stated opinion strikes me as fairly presumptuous — a flaw possibly motivated by prior animus towards West:

When asked how abrasions on Oliveaux’s cheek not present when the video begins could later appear, Bowers answered, “Because Dr. West created them. It was intentional. He’s creating artificial abrasions in that video, and he’s tampering with the evidence. It’s criminal, regardless of what excuse he may come up with about his methods.”

Assuming that West created the abrasions, how in the world would Bowers know that it was “intentional”? And if West intended to tamper with evidence and create bite marks that hadn’t been there previously, why would he videotape the process and document his intentional tampering with evidence?

The final expert cited by Balko, David Averill, may be the only expert with no pre-conceived notions. I found no evidence that Dr. Averill has worked for the defense in this case; nor could I find any indication that he has a pre-existing quarrel with bite-mark analysis in general, or with Dr. West or Dr. Hayne. He is the only one of the three experts about which this can be said. He’s also the only one who doesn’t claim that the video depicts evidence tampering.

Will a postmortem abrasion look like the one depicted in the video?

Even before Dr. Riesner raised the issue, I wondered: how did this abrasion come to be on Haley Oliveaux’s cheek? After all, the flow of blood obviously ceases with death. If the abrasion was caused after her death, would it be expected to look reddish-brown? I have no idea what the answer to this question is, but I don’t see it specifically addressed in Balko’s article.

I did locate a text called “Forensic Pathology” by Dominick J. Di Maio which says at page 92:

Antemortem abrasions have a reddish-brown appearance (Figure 4.1) and heal without scarring. Abrasions produced after death are yellow and translucent with a parchment-like appearance.

The abrasion in the video of Dr. West with Haley Oliveaux shows an abrasion that, to me, appears to be reddish-brown:

What’s more, according to Dr. Riesner, the marks were redder in his pictures than they appear in the video.

I’m not a doctor and I have no medical expertise. Google seaches by a layman are not a substitute for expert opinions rendered by experts. Bloggers enter dangerous territory when they play “expert” at topics they know little about, and I have no intention of falling into that trap. Perhaps readers have expertise in this area that I lack.

I wrote Dr. Averill — the one expert consulted by Balko who has no obvious pre-existing bias — and asked him if he could explain to me how a postmortem abrasion inflicted by Dr. West (or someone else in Dr. Hayne’s office) would appear reddish-brown in the video. He responded: “Di Maio is a forensic pathologist, you need to ask your question to one of the forensic pathologists that were quoted in the Balko story.” I didn’t ask them the question; I’d rather see the question answered by an expert not already aligned with the defense. Perhaps someone reading this has relevant expertise, or knows someone who does.

Here is some contrary evidence that could support the implications of Balko’s article: an excerpt from another book on forensic pathology that shows how a post-mortem abrasion can simulate an antemortem abrasion. Read the text describing images 5.2 and 5.3. This text describes the color of a postmortem abrasion as “yellow-brown” and shows how the coloration can redden with time. In addition, the photo at 5.2 appears fairly similar in color to the color of the abrasion on Haley’s face as depicted in the video, suggesting that that abrasion could well be postmortem — except that, according to Dr. Riesner, the color as depicted in the video is not accurate.

Duncan’s guilt or innocence

It’s important to keep in mind that Balko doesn’t argue Duncan is innocent — just that, in Balko’s view, he didn’t get a fair tral. There is plenty to indicate Duncan’s guilt.

Haley was in Duncan’s sole care, he was alone in the house with her when she died, and she had clear signs of recent violent sexual abuse. Jimmie Duncan’s own expert pathologist, Dr. Robert Kirschner, “concluded that the victim had died as a result of an assault.” Balko doesn’t mention that fact, but it’s tough to reconcile with an innocent drowning in a tub. So is Haley’s past history of suspicious injuries while in Duncan’s care, including several skull fractures consistent with shaken baby syndrome.

Conclusion

I think I have raised some legitimate issues that deserve to be explored before we rush headlong into the belief that Duncan is innocent — or that two men conspired to put a man on Death Row. All that may have happened — but there are reasons to question whether it did. I have a problem instantly concluding that the case is closed simply because of what I see in Balko’s article. Especially when so many unanswered questions present themselves.

Nevertheless, I think this article raises important issues, and I look forward to what’s coming.

UPDATE: For anyone interested in what Hayne and West have to say, their response is set forth in this recent newspaper article about the video.

UPDATE x2: Thanks to WLS, JRM, and others who will go unnamed, for their helpful comments.

UPDATE x3: I have another possible explanation for the appearance of the abrasion: it may have appeared due to Haley’s skin drying in the morgue refrigerator overnight. This theory is based on information from the web site of a pathologist who says abrasions sometimes appear after death under those circumstances. More on that theory here.

120 Responses to “Balko’s Article on the Jimmie Duncan Case”

  1. Seriously, I should have bailed on this. I hope the truth is found out. I don’t know what to make of this. I doubt I will sleep for a while. This is about as disturbing as it gets.

    Joe (17aeff)

  2. Joe,

    You chided me several days ago for not having posted about Balko’s article. Regardless of what you think of my post, hopefully you at least now see that I was busy working on it.

    Patterico (cc3b34)

  3. I should note that a couple of people commented on drafts. JRM said it would be OK to mention that he was one of them. He located one of the medical texts. I don’t want to speak for him, but he’s very down on Dr. West.

    I’ll check with others to see if they want to be acknowledged.

    Patterico (cc3b34)

  4. *snickers at Pat’s retort, and then remembers what the post was about, and hates himself for the snicker*

    As it stands, I’m not convinced the marks shown in the second image could be antemortem injuries that become more-clear as time progressed. They are VERY pronounced, and are in total absence in the first image. The lips, however, appear exceedingly rough in the second image. The first is from too great a distance and in profile, so I can’t tell what they look like in that one for sure, but they certainly don’t appear to be in the same poor condition.

    As for “not sleeping”, I won’t be sleeping for a while yet, but only due to sleeping a lot today. The crime-scene classes I took a ways back showed, frankly, far more horrible things – things I’m not even going to describe in vague detail – and we had a couple of cases detailed to us that were worse.

    I’m very suspicious of the ME in this case, however, but not all that suspicious as to the guilt of the man convicted. I’m inclined to think there was monkey business involved in the autopsy, but the rest of the evidence… It sounds like they were looking for that one last physical link to serve as a nail in the coffin.

    The problem starts when you take time to consider the following: If they invented/created this evidence, how the hell are we supposed to know what OTHER evidence discovered at autopsy is also manufactured? This one piece causes massive credibility problems for the ME, and I could be persuaded to discount the remaining evidence based on that.

    Scott Jacobs (90ff96)

  5. I think I’ll put in a call to the ME in one of the nearby counties. I think the one where my mom lives is a friend of a friend, so I’ll see if I can ask a few questions.

    Scott Jacobs (90ff96)

  6. One generally wants to see all the evidence before drawing a conclusion. You raise some interesting questions (and present some disturbing photos – poor child). Hopefully the follow-on article will present a more complete picture (though I do have my doubts).

    Bill M (2a5594)

  7. Balko should make the trip to Hattiesburg, Misissippi and talk to people who know West personally. He would find little skepticism among those who have actually talked to the man. Since I am one of that number, count me as one of those who think the train was running wide open at the Duncan trial.

    Extrano (c6af20)

  8. I only have 3 questions …

    1) Why are you defending an incompetent ME?
    2) Why are you defending a child raping murderer?
    3) Why would a ME film himself manufacturing evidence?

    😉

    JD (9e1dca)

  9. Excellent work, Patterico. I would also like to see the entire record because I believe the totality of the evidence is the only way to render judgment in a case. But right now I am not in the least bit persuaded that the defendant is innocent. Dr. West or no Dr. West.

    nk (502275)

  10. PAtterico

    I believe this was a cheap a$$ special on the BBC – the same special also said that another person shot MLK and RKF and how GWB executed 3 innocent men

    It plays over here ocassionally when they are not trying to indoctrinate us with things like the

    BEST OF CHRIS MATTHEWS – wish I were kidding

    The title of that BEST of this guy that also is ANOTHER problem for another thread

    EricPWJohnson (10dad9)

  11. Pat: I think that was a different “Joe” who chided you. I was only vaguely aware of this underlying story until I saw this article last night.

    That much said, you did a very good and professional job with the issues. My comments at #1 were about the subject matter–which is tough to deal with. You addressing these issues obviously shows a lot of time and commitment on your part. And the points you raise with the Balko article are very legitimate and well raised.

    Joe (17aeff)

  12. The truth definitely matters. A ME manufacturing evidence is a horror becuase that could result in convictions of innocent persons. Evidence of an incompetent ME autopsy (let alone manufacturing evidence) could also likely result in an appeal. Even if the other evidence is rock solid, that could lead to a reversal and release a monster and lead to deaths of other children in the future. This is serious stuff that needs to be looked at very carefully.

    Joe (17aeff)

  13. I was aware of the Cory Maye story (previously via Instapundit not Reason). So I took notice of the Balko/Reason article on Cory Maye.

    As some of you know, Maye, a black man, was convicted of shooting a white policy officer (and killing him) during a no knock raid. Turns out the warrant for the raid mistakenly included Maye’s home. Maye claims he had no idea was was breaking in and thought he was defending his daughter. Haynes was also the forensic expert for the Prosecution in the Maye case:

    Hayne’s testimony was critical in securing Maye’s conviction. Hayne said he could tell from the damage to Jones’ body the trajectory the bullet took as it entered the officer. Based on that trajectory, he speculated that Maye was standing when he shot Jones, not lying on the floor, as Maye testified. Hayne’s testimony seriously damaged Maye’s credibility with the jury.

    But according to a post-trial review by an actual, board-certified forensics expert whom Maye’s new legal team hired, it would be impossible to project the bullet’s trajectory based on the tissue damage in Jones’ corpse, because Jones might have been crouching, rolling, or prone when he was hit. Furthermore, the hole created in the bedroom door frame by one of the three bullets Maye fired that night clearly slants upward, from about shoulder height. The prosecution ignored a bullet hole in a fixed object that was consistent with Maye’s account of the raid and instead pushed Hayne’s testimony about the supposed trajectory of a bullet that struck a moving object.

    Hayne did not answer my requests for an interview.

    That was a case where a likely innocent man faced death row due to an unethical prosecution expert and an incompetent criminal defense attorney. I think Mississippi is not seeking the death penalty for Maye, but he is still in prison. That is why this medical examiner needs to be looked at long and hard.

    Joe (17aeff)

  14. Patterico, you have truly done a classical yeoman’s job on looking at honest questions regarding this unbelievable crime.

    I have no idea whether the evidence (bite marks) were manufactured by Haynes et al or not, nor does anyone else save the alleged perpetrators. Having said that, it is also notable that criminal actions and conspiracies and the debunking of said conspiracies and actions is rife on the internet and too many people take this stuff as “truth” set in stone. One reads this and says “hell yeah” and sends the link to someone of like mind who also sends to someone ad infinitum ad nauseum.

    The internet is a valuable tool for getting out information that the MSM distorts or doesn’t report, but it is also a tool for tools if you get my meaning. Just look at all the crap posted by left leaning blogs and sites about the war in Iraq, Bush’s evil actions, Hillary’s … et cetera and et cetera.

    We need to be much more careful about who we claim did this or that, and much more skeptical about the intent of the blogger/poster.

    Again, thanks for raising some very real questions and for doing your part to put a halt to uncritical acceptance of “internet evidence.”

    GM Roper (85dcd7)

  15. I’m not buying Welch’s explanation for why he can’t make certain pertinent snippets of the video available to the public. He posted some of the autopsy already, so why can’t he show the snippet that would show the cheek just before the mold is pressed to it the first time?

    j curtis (597296)

  16. Why would someone tape themselves manufacturing evidence?

    Techie (6b5d8d)

  17. I bailed

    Not a Yank (bcb34b)

  18. I have a couple of comments. First, I have been a surgeon since 1967 (When I began my surgery residency) and have spent a lot of time with autopsies. Non-forensic autopsies have virtually disappeared and I have spent considerable effort to insure that medical students still get to participate in them. Also, I have been an expert witness in both criminal and civil cases for 35 years. And I ran a trauma center for seven years.

    I’ve seen bite marks (usually on living victims) and you can’t produce real bite marks on a dead body with a plaster impression. Of course, someone can call something a bite mark that isn’t. Second, I don’t see how you can create a post-mortem bruise or abrasion that looks real. I haven’t tried it but skin after death is white and slippage can occur fairly early depending on temperature.

    Dr Watson met Sherlock Holmes as he was trying to demonstrate whether bruises could be produced after death. They can’t. You can see in the photo the livor mortis that occurs after death. That’s one way you can tell if a body has been moved after death, but you know this Patrick.

    There is no way that anal rape in a 23 month old can be faked and it was seen immediately after death. I’ve also seen anal rape.

    Immersing a body in cold water can alter the estimation of time of death if it is for long enough. Liver temperature is the usual way it is estimated.

    The issues in the other case about trajectory of gunshots sounds like a less experienced prosecutor. I was once the defense expert in a shooting and the attorney asked me if I could place the shooter in the room and the position of the victim. The answer is that you can place the gun barrel and victim in a line. It’s conceivable that the shooter could, for example, be under the bed shooting up but the prosecutor then has the job of placing the shooter. All the expert can do is say if it is plausible.

    Mike K (2cf494)

  19. I am not an expert on criminal forensics. I especially appreciate Mike K’s comments above. But I know if a medical examiner is compromised, it can result in guilty people being let go and innocent people being convicted. That is the question Reason is raising. And this medical examiner may have been acting in “good faith” (at least subjectively) and still screwed up. I do not know enough about either case to definitively say yes or no. But the questions raised are legitimate and need to be reviewed carefully. I appreciate how Patterico did so in response to the Balko/Reason article.

    Joe (17aeff)

  20. Joe (#19) writes (@10:09 a.m.):

    But I know if a medical examiner is compromised, it can result in guilty people being let go and innocent people being convicted. That is the question Reason is raising.
    Surely we can all agree that that’s an appropriate and important question to ask.

    I don’t think I can agree that Mr. Balko, though, in particular, is asking so much as arguing. (I’m not going to impute his motivations to everyone at Reason.) To the contrary, I think he’s either avoiding asking some important questions, or if he’s asked them, he’s avoiding telling us the answers he got. I think Mr. Balko has lost his objectivity and become an advocate, and I simply don’t trust him to be objective.

    That’s not to say his work is worthless, or even that he’s necessarily wrong. I’m an advocate; I spent three years of law school and took a bar exam to have the privilege of being an advocate specifically in the courtroom. What Mr. Balko appears to me to be doing is no different from what Duncan’s defense lawyers are ethically obligated to do. But they do so as acknowledged advocates, and none of us has any illusion that they’re impartial, neutral, disinterested, or balanced — much less that they’re crusading investigative journalists interested solely in finding and then communicating the objective truth. My personal opinion is that Mr. Balko no longer qualifies as a crusading investigative journalist interested solely in finding and then communicating the objective truth, either.

    I’m not an expert videographer. But almost anyone who’s viewed video that’s been transmitted over the internet — and to a lesser extent, over satellite or cable — is familiar with the fact that compressing the digital data in order to permit it to be transmitted within an acceptable amount of bandwidth for any of those formats necessarily compromises the fidelity of the result. I’ve seen web videos which “prove” that particular swimsuit models have large blotchy patches of skin on their long, tanned thighs of a uniform and awful orange color. Then I’ve seen high-resolution (never compressed) photos of those same swimsuit models whose pixels haven’t been manipulated, and lo and behold, those photos show normal human skin of a surpassing number and variety of colored pixels! Until Mr. Balko — and his publisher — can detail the exact provenance of the film upon which they rely as their supposed proof (who shot it, on what, with what lighting, and what’s been done with those images at every single step between then and their display as part of Mr. Balko’s online article), I’m simply not willing to join them in drawing conclusions of a gigantic criminal conspiracy to subvert justice. If a prosecutor tried to use an internet video of the uncertain quality that Mr. Balko relies upon to convict someone, I wouldn’t accept that either. That’s because right now, I’m not being an advocate for either Jimmy Duncan or the prosecutors and witnesses involved in his conviction. And with due respect, it appears to me that day-job prosecutor Patterico here is being more of a hard-nosed investigative journalist, skeptical of interested parties’ motives and asking questions designed to test everyone’s theories of the truth, than so-called investigative journalist Balko.

    Beldar (e9e949)

  21. Eeep. My block-quote close tag was missing a back-slant.

    Beldar (e9e949)

  22. #18 Mike K:

    They can’t. You can see in the photo the livor mortis that occurs after death.

    Mike K has a great deal of more relevant experience than I do here~but I do have some, having handled thousands of dead when I was younger.

    To anecdotally buttress Mike’s ‘They can’t,’ I remarked to our local forensic pathologist that I thought I had “scuffed” up the victim of a plane crash that she was to autopsy. (He had come in on the weekend, and was unusually heavy.) Her reply to me was not to worry about it, as she wasn’t worried about being able to differentiate post mortem insult from ante mortem.

    Having said that, I would also note that the color tone of the image is terrible for attempting to identify any unusual lividity. Post mortem pallor often presents as a yellowish cast, making it extremely difficult to identify any unusual markings in an image like the one above. However, I do find the evident bruising (described in the post above as “sternocleidomastoid muscles”) quite pronounced in the image and certainly consistent with “shaken baby”.

    All in all, the child died a gruesome death after an all too short and pain filled life. I find the possibility of the perpetrator receiving a reduced sentence because of the possibility of malfeasance on the part of the examiner repugnant, and will be interested in hearing about the follow up from Balko.

    EW1(SG) (e27928)

  23. Second, I don’t see how you can create a post-mortem bruise or abrasion that looks real. I haven’t tried it but skin after death is white and slippage can occur fairly early depending on temperature.

    Comment by Mike K — 2/28/2009 @ 9:55 am

    Hmmm, I wonder if the redness on the cheek is some kind of forensic dye that would make the bite indentations more apparent during comparison with the dental mold.

    j curtis (c628eb)

  24. And as always, Beldar is much better able to put voice to my skepticisms of Balko than I am.

    EW1(SG) (e27928)

  25. I’ve seen web videos which “prove” that particular swimsuit models have large blotchy patches of skin on their long, tanned thighs of a uniform and awful orange color. Then I’ve seen high-resolution (never compressed) photos of those same swimsuit models whose pixels haven’t been manipulated, and lo and behold, those photos show normal human skin of a surpassing number and variety of colored pixels!

    😀

    Scott Jacobs (90ff96)

  26. And my snark-tag went away. Drat.

    Scott Jacobs (90ff96)

  27. Patterico, great post. For the record, I’m the one that chided you for not posting this. I will not post her as Joe #37 to avoid confusion. Now that I’ve seen what you put together I think it was well worth the wait. Also I think it’s clear that you went to great lengths to make sure yuor word choice did not attack Balko in this post in any way.

    I’m really eager to see the full piece in reason and compare the two.

    Also, I’m not sure, but I think Balko said in one of this posts that he thinks Duncan is guilty. Might check if I get really bored.

    wrt to JD’s question 2 in comment number 8: I think even the guilty deserve a fair trial. And I’m scared of anyone in the legal process that feels otherwise.

    Joe #31 (c0e4f8)

  28. Beldar–I agree 100% that is an important and critical question in legal justice system. Defense lawyers have a duty to zealously get their clients the best defense possible (within the law) but prosecutors have a duty to do justice. It is a very different standard. It is not like two litigants in a civil trial.

    Prosecutors should always question and challenge their experts closely because a short term win that later results in the conviction of some monster being overturned due to a sloppy expert who will say whatever you want or results in an innocent person being convicted is a disaster.

    Joe (17aeff)

  29. I am not Joe #26.

    Joe (17aeff)

  30. Sorry to the Joes for the confusion.

    Patterico (2df6b4)

  31. One of you two Joes is going to start going by “Joseph”, or I’m renaming one of y’all “Sally”…

    :)

    Scott Jacobs (90ff96)

  32. Hmmm, I wonder if the redness on the cheek is some kind of forensic dye that would make the bite indentations more apparent during comparison with the dental mold.

    Doubt it. If it were, Hayne and West would have said so in the newspaper article linked in the update.

    Patterico (ef9bc5)

  33. I also note nothing from Steve Verdon. Not surprising really, admitting you were wrong and your previous attacks were in error is not something most people can do.

    Scott Jacobs (90ff96)

  34. When all is said and done, there is less here than meets the eye.

    The “smoking gun” video is very much not conclusive in regards to anything except some dubious forensic technique.

    SPQR (72771e)

  35. I have always been baffled by the weight which is given to the evidence of a smoking nun. Granted, the lady’s vocation makes her less likely to deliberately lie but her powers of observation and recollection are no greater than any other person’s. As a matter of fact, she might have missed a crucial detail while striking a light for her cigarette, and the need for a cigarette, itself, may mean that she was upset by the incident which also would affect observation and recollection and even create a bias.

    I know that people have been convicted on just the evidence of a smoking nun but I think totality of the evidence is the only rule.

    nk (502275)

  36. nk:

    Never mind!

    Patterico (cc3b34)

  37. Sometime I’ll tell you about a gang shooting in a schoolyard where the defendant’s only defense was that out of 60 or so eyewitnesses the prosecution called only three.

    nk (502275)

  38. P.S. I was post-conviction, pro bono, and my advice to the parents who asked for it was “That’s a bad kid”.

    nk (502275)

  39. NK: use a pun, go to jail.

    Xrlq (62cad4)

  40. Other than livor mortis, I can’t think of a red mark I’ve seen on a body at autopsy. Pre-mortem bruises can be seen but are purple. I am not a pathologist so may be missing something but I can’t explain the difference in the two photos although technique and lighting may have something to do with it. A carbon monoxide death victim will be cherry red but I’m referring to marks. Post-mortem skin is quite leathery and I can’t see a dental mold doing anything except a small dent.

    Last year, when I took my students to the morgue, on the next table was a lady who had been lying in a field for quite a while. She was bright green. We had a few shaky medical students. I’ve seen red in areas adjacent to wounds but the blood was obviously in the skin ante-mortem.

    Mike K (2cf494)

  41. Great effort for a guy who isn’t getting paid, Patterico. I’ll be interested to see what else Reason has to offer. I’ll also be disturbed, I’m sure, but I’ll be interested.

    That poor baby.

    Pablo (99243e)

  42. After examining the video, world-renowned pathologist Dr. Michael Baden of New York City said what he saw on the girl’s cheeks “are typical marks when you take the tape off. They’re not bite marks.”

    In my utterly non-expert, but all too familiar with intubated little girls opinion, that rings true and correlates with the marks on Haley’s cheek.

    Also, Hayne and West are a mess.

    Pablo (99243e)

  43. The newspaper article is confusing the hell out of me. They claim to have the entire autopsy video but they report that there was nothing on the cheek the first day and that the video cuts to the second day and the marks are there. But then they have this renowned pathologist Dr. Michael Baden look at it and he says the marks are typical marks when you take the tape off. Wouldn’t the author have noted that there was tape on the cheek during the first day examination instead of saying there was nothing on the cheek? How could the author and the pathologist be reporting such different observations after viewing the same video?

    j curtis (4e7457)

  44. The newspaper article is confusing the hell out of me. They claim to have the entire autopsy video but they report that there was nothing on the cheek the first day and that the video cuts to the second day and the marks are there. But then they have this renowned pathologist Dr. Michael Baden look at it and he says the marks are typical marks when you take the tape off. Wouldn’t the author have noted that there was tape on the cheek during the first day examination instead of saying there was nothing on the cheek? How could the author and the pathologist be reporting such different observations after viewing the same video?

    Indeed. What you see in the video, according to Matt Welch, is 1) a view of the girl on the day she died, and 2) then the first moments of the bite mark exam the following day.

    Obviously in 1) the tape is already off her face.

    Patterico (cc3b34)

  45. Okay. I just found a comment by Balko that addresses this question:

    I’m also not sure about the explanation offered in the article that the removal of medical tape might have caused the mark on the cheek. Even if true, that explanation would still mean Hayne and West misidentified the mark as a bite mark, and you’d still have the matter of West’s violation of Haley Oliveaux’s corpse with the dental mold. But the problem with the tape theory is that in the first five minutes of the video, the tape has already been removed from Oliveaux’s face, and there are no visible marks on her cheek.

    Balko seems to be admitting that there was a mark visible prior to the dental mold being used. He might have a suspicion that that mark was placed there by West also, but it still wasn’t information made available to us in the videos.

    We are left with the impression that all marks on the cheek were made by West using the dental mold. I was certainly mislead.

    We need to see those initial wounds before we can even begin to judge how much damage was done by the dental mold.

    j curtis (137da5)

  46. It occurs to me that I heard of a care once where a bruise mark (hand on the chest of a someone who drowned in the bathtub) did not become apparent until that area was treated. By what method it was treated I can not recall.

    I want to say it was embalming, but I could easily be mistaken.

    Scott Jacobs (90ff96)

  47. Balko seems to be admitting that there was a mark visible prior to the dental mold being used. He might have a suspicion that that mark was placed there by West also, but it still wasn’t information made available to us in the videos.

    We are left with the impression that all marks on the cheek were made by West using the dental mold. I was certainly mislead.

    As I already explained, Matt Welch says that in the footage from the day after the girl’s murder, the abrasion is already there. You may feel misled because the article a) alleges West caused the marks and b) claims the video proves it — ergo, you may have jumped to a conclusion. But Balko’s description of the relevant footage is actually consistent with what Welch told me:

    At the start of the videotaped examination from December 18, 1993, her right cheek appears free of any noticeable marks. Yet after the tape cuts to December 19, 1993, the cheek shows prominent signs of abrasions, which are then exacerbated by West’s handiwork.

    See? After the cut, the marks are already there. He claims they are “exacerbated” by West’s use of the mold, but there is no visual proof of that and I don’t know whether this is just an assumption on Balko’s part.

    Patterico (cc3b34)

  48. And it it quite difficult to exacerbate something that is not there to begin with…

    Scott Jacobs (90ff96)

  49. Well written and thoughtful. The sensationalism of the story lends itself to partial truths and presentation of only that part of the evidence that supports ones bias. West was wrong in his methodology and opinion. However, there is much more evidence in the case that can not and should not be ignored.
    Much of forensic science is valid and necessary to present for both sides of the case. It’s not the science that is the problem, it’s the opinions of some scientists that extrapolate beyond what they should for notoriety.

    ken cohrn (1f7367)

  50. Very nice piece Patterico.

    Where are the chattering Balkobots?

    daleyrocks (5d22c0)

  51. A worthwhile series of questions, and while I’m a chattering Balkobot, I’m also a chattering Pattericobot.

    Fully agreed that Reason downplayed other relevant evidence, but still inclined to think that the “methodology” portrayed by Balko, if accurate, is worth a new trial.

    Patrick (0471e8)

  52. I’m am Mr. Duncan’s lawyer. This case is currently on appeal. You are not the prosecutor, the judge or a forensic expert. You have noted contacting several people who are potential witnesses in the case and who will be called as witnesses later on in an evidentiary hearing. As a lawyer you should no that you have no business talking to witnesses when you are not a party to this case. Cease immediately or I will file an ethics complaint with your state bar. As far as the comments you are making regarding the civil case you have distorted the facts. The hopital and CPS were found not liable for missing evidence of any past sexual abuse and several doctors testifed that the head injuries were consistent as being accidential. Dr. Hayne himself testifed that there was no evidence of past sexual abuse. The child’s 3 previous hospitizations that you refer to were a history of seizures caused by reactions to medications,She had these problems long before Mr. Duncan even knew her. You are a memeber of the general public you have no right to be demanding that this child’s autopsy or medical records be turned over to you. Again you are neither the DA or the JUdge in this case.

    Kathy Kelly (ccb2f1)

  53. You have noted contacting several people who are potential witnesses in the case and who will be called as witnesses later on in an evidentiary hearing.

    So they haven’t been called as witnesses, not have you served them with papers notifying them that they will be called as witnesses, right?

    So they aren’t witnesses yet…

    So, basically, sod off. He is acting in this regard as a private citizen, not a lawyer.

    You are a memeber of the general public you have no right to be demanding that this child’s autopsy or medical records be turned over to you.

    A) You wanna file ethics complaints against me as well, lady? I mean, I wanna see the documents too… And if he’s a “member of the general public”, why would you threaten him with an ethics complaint? Do you like making threats?

    How’s that working for your client, eh?

    B) Then again, he hasn’t actually demanded those records, merely said that he’d like to see them. I mean, I’d like for you to shut the hell up, but I’m hardly demanding it.

    Scott Jacobs (90ff96)

  54. #52’s post has just got to be a parody,Even a memeber of the general public can no that. But if it really is an attorney I’m am thinking God save the bar!

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  55. Maybe she’s bucking to give her client an “Inefficient council” defense?

    Scott Jacobs (90ff96)

  56. Ms. Kelly,

    I am a Deputy D.A. in a different state from where this case is taking place, and I think it’s pretty clear that 1) I know I am not the D.A. or the judge on the case, and that 2) my post was written in my personal capacity, just as the disclaimer on the sidebar states.

    I think you need to re-read the post. You accuse me of “contacting several people” who are witnesses. As far as I am aware I have spoken with one person, Neal Riesner, who might be a witness, and he is not a percipient witness to the crime. I know of no ethical rule I have broken in speaking to Dr. Riesner. Please tell me specifically which rule you think I’m violating and why — and please make sure that you are accurately representing what I’ve done.

    Understand, however, that I don’t intend to cease exercising my First Amendment right to speak about matters of legitimate public concern because some lawyer who is mispresenting the content of my post threatens a bogus complaint to my State Bar.

    Patterico (cc3b34)

  57. Dear Ms. Kelly,

    The right to a public trial under the Sixth Amendment is a two-way street. There’s a Supreme Court case about it. Look it up.

    And, BTW, your client’s guilt was final when sentence was imposed. Nothing’s pending unless you get the appellate court to remand. Please look that up, too.

    I like your zealousness but I question your competence. You’re going to get your ass kicked by the Court’s staff attorneys, I’m afraid, if this is your level of representation.

    nk (502275)

  58. As far as the comments you are making regarding the civil case you have distorted the facts. The hopital and CPS were found not liable for missing evidence of any past sexual abuse

    I didn’t say they were.

    and several doctors testifed that the head injuries were consistent as being accidential.

    I didn’t say they didn’t. I accurately quoted the opinion, which said that several doctors testified that certain injuries — observed after an accident during which Haley was in your client’s care — were consistent with “shaken infant syndrome.” There is no misrepresentation there at all.

    Dr. Hayne himself testifed that there was no evidence of past sexual abuse.

    I referred to that in the post.

    And I linked the opinion so that anyone can read it for themselves.

    Patterico (cc3b34)

  59. Ms. Kelly,

    How did you learn about my post, if you don’t mind my asking?

    Patterico (cc3b34)

  60. I don’t know that.

    Patterico (cc3b34)

  61. Listen, I don’t want to start unnecessary arguments. But neither am I going be intimidated into silence on topics I have a right to speak about.

    Patterico (cc3b34)

  62. Sir, I have no problem with you raising questions or speaking out. What I do have a probelm with is you contacting witnesses who testifed previously and who will be asked to testify in Mr. Duncan’s upcoming evidentiary hearing. As a DA you should understand that. Mr. Duncan filed petition addreses most of your questions and has four volumes of medical records and expert reports. Some of the questions that you have will only be able to be determined when both sides experts and witnesses testify. They will be addressed but that is for a later day. You can get a copy of anything you want at the courthouse it is now a public record.

    Kathy Kelly (ccb2f1)

  63. What I do have a probelm with is you contacting witnesses who testifed previously and who will be asked to testify in Mr. Duncan’s upcoming evidentiary hearing. As a DA you should understand that.

    I’m not in the office that tried the case or even in the same state. I told the ONE witness with whom I’ve spoken that I was contacting him in my personal capacity and not in any way as a member of my office. I also have a disclaimer to that effect on the sidebar of this blog permanently.

    Moreover, I was not aware that he was going to be called as a witness in any upcoming hearing, nor did he tell me that. Not that I see any problem with speaking with him even if I *had* known that.

    Again, if you think I am violating some ethical rule, I ask you to specify what it is. I don’t appreciate threats to contact the State Bar, and I especially don’t appreciate it when the person issuing the threats seems unwilling to specify what rule I have violated. That failure makes your threat sound like an attempt to intimidate instead of a legitimate warning.

    Meanwhile, I note that 1) you haven’t answered my question about how you learned about my post, and 2) you should see my latest post, which actually posts an e-mail from a pathologist tentatively SUPPORTING your client’s position.

    Patterico (cc3b34)

  64. Mr. Duncan filed petition addreses most of your questions and has four volumes of medical records and expert reports. Some of the questions that you have will only be able to be determined when both sides experts and witnesses testify. They will be addressed but that is for a later day. You can get a copy of anything you want at the courthouse it is now a public record.

    I don’t live in the area and can’t access that material, but I’d be more than happy to receive by e-mail anything you have. My e-mail address is on the sidebar.

    Patterico (cc3b34)

  65. I’m not discussing this publicly. If you want to discuss the ethical problems I think are involved feel free to contact me through my e-mail or you csn call me. As far as how I found your website I know how to use google.

    Kathy Kelly (ccb2f1)

  66. Shorter Kathy: I have nothing.

    Scott Jacobs (90ff96)

  67. I’m not discussing this publicly.

    You already have. If you won’t defend your publicly made claim in public, that tells me all I need to know.

    Patterico (cc3b34)

  68. “As a lawyer you should no that you have no business talking to witnesses when you are not a party to this case. Cease immediately or I will file an ethics complaint with your state bar.

    This is hilarious. But its not the first time I’ve seen attorneys inventing rules that don’t exist.

    SPQR (26be8b)

  69. #70 SPQR:

    But its not the first time I’ve seen attorneys inventing rules that don’t exist.

    Eh, attorneys aren’t the only ones that do it.

    Not that I understand the propensity for it, in any case.

    EW1(SG) (e27928)

  70. EW1(SG), yeah but it annoys those of us in the business as much as those out of it.

    SPQR (26be8b)

  71. Ms. Kelly….
    I suppose that law school doesn’t emphasize the use of proper spelling and syntax these days?
    Someone needs an editor.

    AD - RtR/OS (0ac8fd)

  72. So….why did this lawyer contact Patterico via the website instead of a private e-mail? If the person actually is the lawyer in question, I mean.

    Eric Blair (a79349)

  73. Patterico: if I were you I’d give Kathy Kelly 7 days to clearly articulate the supposed ethical violation involved or publicly withdraw it. If she does neither, file an ethics complaint against her for making the threat.

    Xrlq (62cad4)

  74. Fine, the rules that I am referring to do deal with a lawyer being prohibited from encouraging witnesses in pending matters to speak publicly.
    You seem to think you don’t have to follow those rules if you say you are acting in a private capacity and not as an attorney. I think you do.

    Kathy Kelly (ccb2f1)

  75. #76 Kathy Kelly:

    … deal with a lawyer being prohibited from encouraging witnesses in pending matters to speak publicly.

    And this happened, when, exactly?

    EW1(SG) (e27928)

  76. Could you be more specific? If you’re threatening a State Bar action you must have a particular rule or rules in mind. Specifically, which one(s)?

    Patterico (cc3b34)

  77. My guess is that she’s no lawyer. And, specifically, not Jimmie Duncan’s lawyer. A fan, maybe. Animals on death row get those. If she is, in fact, Jimmie Duncan’s lawyer then I have done Radley an injustice. He is right that the State of Louisiana screws indingent defendants.

    nk (502275)

  78. For example, Rule 5-120 relates to lawyers involved in the investigation or litigation of a matter. And, as you already pointed out, I’m not the D.A. on this case.

    You must mean another rule or set of rules. Which one(s)?

    Patterico (cc3b34)

  79. Ms. Kelly, I am now going to formally demand that you retract your comment that I have violated ethical rules, or provide a specific rule that you allege I have violated.

    Patterico (cc3b34)

  80. Oddly, I can’t find a Kathy (or Kathryn, or Kathleen) Kelley practicing law in MS. I must be using Google wrong…

    Scott Jacobs (90ff96)

  81. Or Kelly. Can’t find either…

    Scott Jacobs (90ff96)

  82. Louisiana. Capital Post Conviction Project of Louisiana. I think it’s her, and I’m waiting for an explanation of the specific rule she says I have violated.

    Patterico (cc3b34)

  83. There a Kathleen Kelley in Chicago. Possibly doing this pro bono?

    steve miller (4bda12)

  84. Hers is plainly a ludicrous position. It means that no attorney could do any reporting on any current matter.

    SPQR (26be8b)

  85. I’d bet significant money she doesn’t try to specify a rule — because if she tries to look one up ,she’ll see it doesn’t apply.

    Patterico (cc3b34)

  86. Her IP might be a clue to where she’s posting from. Not absolute, of course.

    steve miller (4bda12)

  87. Mr. Duncan has a pending appeal. You mention in your article calling two witnesses from the criminal trial and one from the civil case. Apparently only one spoke with you. I’m don’t want to file anything against you on who you have already called. I am asking you to stop or I would consider filing a complaint. I’m busy working on another case and I’m not going to keep addressing this.

    Kathy Kelly (ccb2f1)

  88. Good bet, Patterico. But then, I cheated. 😉

    SPQR (26be8b)

  89. Patterico – I just want you to no that you csn count on me to be at any bar that Kitty Kelly ethically reports you too. And if you need help with your grammer or grandpa, or your sintax (as ciggies are getting expensive), no that Ill cover the tab.

    Apogee (f4320c)

  90. I am asking you to stop or I would consider filing a complaint.

    And I’m asking you to provide a specific rule you think I have violated, or would violate again if I did the same thing I have already done.

    You threatened to file a complaint with my State Bar. Did you make this threat without doing the research and having a specific rule in mind? It’s becoming quite clear to all the observers here that you did — otherwise it would be child’s play for you to tell which rule you’re talking about.

    Apparently, Ms. Kelly, you think you can just come on here and issue a threat like that and assume that I will take it lightly. I assure you that is not the case. Therefore I am telling you that you need to retract what you said, since you clearly can’t back it up.

    Patterico (cc3b34)

  91. Is that David Petranos Esp and MKDP ?

    JD (0d1f38)

  92. I think she was trusting that you would NOT take it lightly, and the mere threat, however ridiculous, would cause you such terror that you would flee like a Frenchman.

    Scott Jacobs (90ff96)

  93. No. As I said, I think it’s her.

    Patterico (cc3b34)

  94. She’s uncomfortable at the idea that someone can get her witnesses to expand on their conclusions where she can’t control it.

    Unfortunately, that’s what is called freedom of speech.

    SPQR (26be8b)

  95. Wasn’t it Shakespeare who wrote “all the world’s a courtroom, and all the people in it restricted by gag orders”?

    Apogee (f4320c)

  96. #91 Comment by Apogee — 3/1/2009 @ 4:41 pm

    Man, that was mean!

    Funny as hell, but mean!

    EW1(SG) (e27928)

  97. Radley, if you are following this, please accept my apology. You were right. The State of Louisiana does screw indingent defendants with wastes of a law school seat masquerading as lawyers.

    nk (502275)

  98. Ms. Kelly,
    You could have e-mailed Patterico (email prominently featured on the blog) and only made an fool of yourself in private.

    Thanks for the entertainment, though.

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  99. Because, Bradley, its all about the entertainment. 😉

    SPQR (26be8b)

  100. Her IP might be a clue to where she’s posting from. Not absolute, of course.

    New Orleans. I told you, I think it’s her.

    Patterico (cc3b34)

  101. A Kathy Kelly works there.

    Patterico (cc3b34)

  102. And CPCPL represents Duncan.

    Patterico (cc3b34)

  103. EW1(SG) – Attorneys intimidate mentally, not physically. The failure to utilize simple tools to correct errors that would be marked on a sixth grade term paper considerably lessens the impact of that intimidation.

    Besides, Connery said it best: “I’m not mean, I’m Scottish.”

    I’m not Scottish, but I hate BS.

    Apogee (f4320c)

  104. Radley, if you are following this, please accept my apology. You were right. The State of Louisiana does screw indingent defendants with wastes of a law school seat masquerading as lawyers.

    Defense: “Your Honor, I move for a mistrial.

    Judge: “On what grounds?”

    Denfense: “Ineffective council due to my being an idiot.”

    Scott Jacobs (90ff96)

  105. #104 Apogee:

    I’m not Scottish, but I hate BS.

    Concur. It’s difficult to take somebody seriously when a short interaction causes one to question her bony feedays.

    EW1(SG) (e27928)

  106. This lady is such a dork. Patterico posted a very fair article which only helps her client, already convicted and condemned, by shining the light of public scrutiny on his case. Does she really want him gone and forgotten? Just some pages in a court file and a few minutes on a court reporter’s transcript?

    nk (502275)

  107. Q: Doctor, before you performed the autopsy, did you check for a pulse?
    A: No.
    Q: Did you check for blood pressure?
    A: No.
    Q: Did you check for breathing?
    A: No.
    Q: So, then it is possible that the patient was alive when you began the autopsy?
    A: No.
    Q: How can you be so sure, Doctor?
    A: Because his brain was sitting on my desk in a jar.
    Q: But could the patient have still been alive nevertheless?
    A: It is possible that he could have been alive and practising law somewhere.

    SPQR (26be8b)

  108. nk – Does she really want him gone and forgotten?

    It is the big easy.

    Apogee (f4320c)

  109. Comment by SPQR — 3/1/2009 @ 5:58 pm

    I love those…

    Scott Jacobs (90ff96)

  110. Its a classic Scott. For years, my wife and my refrain when we encounter a particularly dim member of the local bar is to say “Aha! Practising law here.”

    SPQR (26be8b)

  111. […] Deputy District Attorney and dedicated blogger Patrick Frey was skeptical, and engaged in his own extremely thorough and extensive analysis, which reveals his skills both as an attorney and as an investigative journalist [warning: it also […]

    Kathy Kelly of the Capital Post-Conviction Project of Louisiana Acts Like An Ass By Threatening Blogger Paterico About His Journalism On Her Client Jimmie Duncan | Popehat (895595)

  112. I find it impossible to believe the poster writing as Kathy Kelly is the actual attorney. Is it at all possible that someone who has passed the bar could actually write so poorly? If so, that law school needs to be closed. I teach freshman undergrads and I’ve not witnessed such a poorly written item at that level. If this is the actual lawyer and not someone in the office writing in her name to give it some weight, the dude has no hope. Also, I saw on ESPN that Maurice Clarett has a blog so convicts apparently have access to computers. Could Jimmie Duncan be the culprit and signing his lawyer’s name?

    rrr (509670)

  113. Kelly needs to invoke the Fifth Amendment (maybe someone can tell her what it is) and Duncan needs to get new counsel – preferably a lawyer who is not illiterate.

    Jane (154b94)

  114. I’m a lawyer licensed in Louisiana and who practiced in a city other than New Orleans for years. In my area, for conduct like hers we used the phrase “New Orleans lawyer”, which is synonymous for “a-hole”.

    La428 (4e0dda)

  115. […] up on my lengthy post yesterday raising some questions about Radley Balko’s article “Manufacturing […]

    Patterico’s Pontifications » Did Haley Oliveaux’s Abrasion Appear Because Her Skin Had Dried Overnight? (e4ab32)

  116. […] told her: “I don’t intend to cease exercising my First Amendment right to speak about matters of […]

    Patterico’s Pontifications » Balko Response Fallout: Verdon Still Suspiciously Silent; Jimmie Duncan’s Lawyer Not So Silent (e4ab32)

  117. […] I have a habit of documenting when he omits or distorts critical information (as he did when reporting the facts of the Jimmie Duncan case), or when he makes a flat-out factual error (as he did in his recent response to me and Jack […]

    Patterico’s Pontifications » Balko Tries to Prevent Patterico from Reading Him (e4ab32)

  118. […] Balko finally responds to my criticism of his Jimmie Duncan article — and it’s an airy wave of the hand that dismisses all my careful research as […]

    Patterico’s Pontifications » Balko’s Defense: I Don’t Have Time for Accuracy (e4ab32)


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