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.
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.
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.