Patterico's Pontifications

3/25/2009

Full Balko Story on “Manufactured Evidence” Now Online

Filed under: General — Patterico @ 7:23 am

Radley Balko’s full story about the Jimmie Duncan case — an article which accuses prosecution experts of manufacturing bite mark evidence in a capital case — was posted online yesterday, along with a large cache of documents.

My initial reading is that many of the criticisms I had of the original story still apply. It is written the way a defense brief for Duncan might be written: with the details that support the prosecution position (such as the newly revealed fact that witnesses saw marks on the victim’s cheek before the autopsy) pushed deep into the story, and then revealed in the same breath as the defense explanation.

For example, early on, we’re told that “the bite marks were the only physical evidence used to elevate Duncan from a negligent guardian to a lethal child rapist.” The “only evidence,” that is, except for the anal injuries that a doctor testified were indicative of anal rape. This evidence is not discussed until the 34th paragraph of 50 — at which point it is presented with a pro-defense spin.

A fuller analysis is yet to come. I haven’t looked at the documents, and I have been promised the full video.

Just wanted Steve Verdon to know that something’s coming, since the piece has already been online for more than 54 minutes.

48 Responses to “Full Balko Story on “Manufactured Evidence” Now Online”

  1. What? It’s only minutes later and I’m the ONLY one to comment?

    GM Roper (85dcd7)

  2. And I’m with you Patterico… the evidence is flimsey at best and Duncan’s attornies have yet to disprove the allegation of the anal rape. A tempest in a teapot?

    GM Roper (85dcd7)

  3. I happened to go looking for new details on this case and found it a couple of hours ago over there.

    It’s very unclear as to what marks they are referring to because Balko won’t show us the marks so we can draw our own conclusions. We are only alllowed to see what appears to be a dental mold recording that West is imprinting on the cheek for making his comparison to a possible bite mark.

    The bite mark expert for the defense seems very convincing, at least in the transcript, so I wonder if Balko prefers an appeal to authority over having his readers judge with their own eyes.

    The biggest problem with Balko’s presentation is that he’s trying to present evidence that something didn’t exist at a point of time while also presenting evidence that something did exist at that point of time but it just wasn’t what the prosecution claimed it was. The new material just makes the problem more apparent.

    It’s possible that Balko is just presenting his case sloppily and it’s also possible that he’s presenting his case deceptively.

    j curtis (9cf9fd)

  4. This dead-horse has been lacerated so thoroughly it can be smoked for jerky.

    AD - RtR/OS (10cf6d)

  5. It is written the way a defense brief for Duncan might be written

    If it is supported by direct citations to the record, it is a very good defense brief. And it might even be the opinion.

    nk (8b95c5)

  6. AD, I completely disagree. This man is being demonized for doing something that would be extremely horrible, and we’re at a rare place on the web where someone is going to provide a skeptical, but respectful, analysis of the demonization.

    I think we need a hell of a lot more of it.

    Juan (4cdfb7)

  7. Just went to Balko’s site. Amusingly, Verdon was commenting at around 3 or 4 in the afternoon yesterday that I had nothing yet (even though the piece went online only yesterday). This guy just doesn’t get the concept of a work day.

    There is an interesting disconnect in the logic of the commenters over there. Balko and commenters argue that Balko is not necessarily arguing that Duncan is innocent, but rather questioning the professionalism of Hayne and West. But they can’t seem to understand that I’m not defending Hayne and West, but rather questioning the slant offered by Balko.

    I think this piece is further evidence that Balko is a mouthpiece for the defense. I didn’t want to say that until I had had a chance to read the longer piece, but it’s clear to me now.

    As nk notes, that doesn’t mean he’s wrong. Sometimes the defense is right.

    But when I read a defense brief, I don’t automatically accept its assertions. I recognize the motive to downplay points that favor the prosecution, and emphasize (sometimes to the point of exaggeration) the points favoring the defense. And I see exactly the same tendencies in Balko’s pieces. This one included.

    More details when I get time.

    Patterico (0dcc61)

  8. The Justice System…
    Where the Truth is an unintended result.

    AD - RtR/OS (10cf6d)

  9. “I think this piece is further evidence that Balko is a mouthpiece for the defense.”

    I think that was patently obvious from his burying or omitting discussion of the victims prior visits to the emergency room, her skull fractures, etc. He is not much for providing both sides to an argument.

    daleyrocks (5d22c0)

  10. Holy smokes — I’ve only glanced through the story, but I think it’ll take a paragraph-by-paragraph Fisking to take this down.

    Consider this:

    “What is clear is that Duncan didn’t get anything approaching a fair trial. He was convicted based on physical evidence tampered with and allegedly manufactured by Michael West plus hearsay evidence possibly fabricated by a motivated jailhouse informant.

    A “fair trial” is not a “perfect” trial free of all error. Fair is a subjective, not objective, evaluation, and whether a defendant received a “fair” trial is the overriding concern of the trial judge, and the first priority for review by every appeals court to consider a case.

    If this evidence was “tampered with,” then a corpse is “tampered with” when a medical examiner cuts into it to remove a bullet.

    “Hearsay” evidence specifically does NOT include statements made by a party — including most especially a criminal defendant. The government has no ability to force a defendant onto the stand to answer questions about what he/she said to others – a little technicality called the Fifth Amendment. As a result, the rules of evidence — the Hearsay Rule — specifically excludes from the scope of its prohibition statements made by a party that are offered against that party. Such statements are, by definition, “Not Hearsay.” Whether it was fabaricated by a jailhouse informant is a different issue — but jailhouse informants are notoriously easy witnesses to cross-examine. I suspect the jury was more persuaded by the fact that the little girl died a violent death while in the defendant’s sole care than by anything said by a jailhouse informant.

    Shipwreckedcrew (7f73f0)

  11. Here is the absolute cannard in Balko’s piece that he should be rhetorically crucified over:

    It is impossible to say with certainty whether or not Jimmie Duncan murdered Haley Oliveaux. He was alone with the girl when she died, and at a minimum he behaved negligently, even recklessly. There were no witnesses. It isn’t a matter of who killed Oliveaux; it’s a matter of whether she was killed at all, or if her death was an accident.

    This is ABSOLUTELY FALSE.

    How do we know? Because the expert witness called by Duncan’s attorneys to testify on Duncan’s behalf said her death was a homicide — not an accident. This is from the Louisiana Supreme Court decision affirming the conviction:

    “Jimmie Duncan’s own expert pathologist, Dr. Robert Kirschner, “concluded that the victim had died as a result of an assault.”

    Patterico noted in his earlier criticism that this fact was mentioned nowhere in Balko’s original on-line piece. Does anyone see reference to it in the most current version of the story.

    Given that I raised this with Patterico weeks ago, and he included it in his piece, the failure of Balko to address it — and his editors to allow him to make the assertion that I quoted at the start of this comment — is journalistic malpractice.

    Shipwreckedcrew (7f73f0)

  12. How many days has it been since Verdon did not respond to your prior post?

    JD (e738c0)

  13. “Just wanted Steve Verdon to know that something’s coming…”

    I guess you’re okay with this. It’s possible that your remarks are not a threat against Verdon. More importantly, I don’t think he is the type to use it as an excuse to slander you.

    Mike Jackson (a7da41)

  14. Patterico, #7, basically there is a large difference between reporting and advocacy but Balko likes to blur the difference.

    SPQR (72771e)

  15. Purported daily Patterico reader Mike Jackson has a nose which is mysteriously still out of joint.

    ““Just wanted Steve Verdon to know that something’s coming…”

    I guess you’re okay with this.”

    He wrote it that way on purpose dumbass and if you were a daily reader as you claim and actually looked at the link you might have a chance of understanding that. The PW hive mind strikes again! Usurp that meaning people!

    daleyrocks (5d22c0)

  16. daleyrocks,
    The unproductive anger of those people is truly saddening. So much ugliness, so much energy frittered away on petty things.

    Brother Bradley J. Fikes, C.O.R., (f34d89)

  17. Bradley – They have taken the intentionalism/interpretation argument they started with and stood it on its head. Unfortunately they can’t take a breath to see it.

    Usurp away beyootches!

    daleyrocks (5d22c0)

  18. On the defense brief question. If you “overstate”…. The first time you come to a line in the opinion that says “the record does not support”, you might as well stop reading. You have lost.

    And I’m afraid that Radley does have a bit of tendency to “overstate”.

    nk (8b95c5)

  19. Mike Jackson is from the fraudulent “intentionalism” school I discussed yesterday in a comment. He does not like the speaker; intentionalist nose off.

    Since he’s a fraud, I don’t really believe anything he says — including being a reader here for years.

    There is another aspect of his behavior that may be worth its own comment. It has to do with using the charge of “hypocrisy” to engage (sometimes to the nth degree) in conduct you decry in others.

    Again, this is pretty intellectual window dressing for doing what you like, but whining when others do it.

    So says “Patty.” (Inside joke. Daleyrocks gets it.)

    Patterico (3cda4d)

  20. Hey, you know what was a great Seinfeld episode? The “Jerry Seinfeld is the devil” episode.

    There were a lot of good ones but I really liked that one.

    Patterico (dc25a8)

  21. If it’s the same Mike Jackson, he’s a drive-by from the far Stormfront right. I may have accused him of being a racist spammer, once. He intruded one time, in a totally drunken manner, on a discussion I had with M.D. from Philly involving compromise verdicts. Yes, please ignore him.

    nk (8b95c5)

  22. I like the Soup Nazi episode. And the one where Elaine did that spastic dance. I denounce myself.

    JD (e54d51)

  23. My two favorite Seinfeld episodes not about “The Contest” — that’s far and away the best ever — are “Festivus” and “Bubble Boy”.

    Shipwreckedcrew (7f73f0)

  24. Patterico – check your email.

    Shipwreckedcrew (7f73f0)

  25. That Verdon character is a piece of work. He faults Patterico for remaining too on topic. He seems to want to move on to other “damning” cases involving West and Hayne, but without conceding anything on the topic at hand before the move.

    It might need to be pointed out to reason-challenged subscribers to “Reason” that although you can easily make an accusation against the “overall validity” of a system, that accusation can’t be validated without coming to a conclusion on each and every element.

    j curtis (1cf24d)

  26. Check out the Balko note on his website where he claims that

    a) anal lacerations are conclusive of anal sex only with microscopic evidence

    b) the examiner claimed to have prepared slides which showed said microscopic evidence

    c) when the defense asked for the slides, they could “no longer be found,” for any one of several reasons.

    If this is true, then the strongest objective argument for guilt has evaporated – and suspicions of fraud strengthened.

    great unknown (b751d2)

  27. “If this is true, then the strongest objective argument for guilt has evaporated – and suspicions of fraud strengthened.”

    great unknown – What was available from the emergency room visits prior to her death? Was everything supressed? Balko treats it and the CPS visits pretty cavalierly.

    daleyrocks (5d22c0)

  28. “Since he’s a fraud, I don’t really believe anything he says…”

    How convenient for you to make such a declaration. I’m a fraud? But you, who was forced to admit that you lied to your readers a few days ago are what? A lawyer/prosecutor/blogger who lies about those he has accused?

    You should ask yourself why you lied about a critic’s communications with you when it met your agenda and then, much worse, smeared him with a false “death threat” accusation. Is that part of your training? I hope not.

    As to my being a regular reader for years, you could easily determine that, as internet savvy readers no doubt understand. But why prove yourself wrong when deliberate ignorance serves better? Or maybe you checked your log and are simply lying again.

    You’ve done some good work in recent years (LA Times), Patterico. Much better, more focused, than your first year or so. Why you chose to go the dishonorable route with your knowingly false accusation against Jeff G. was a real headscratcher. Ego, I guess, and laziness. Whichever, it is dishonorable conduct. You must know that. Maybe you have been influenced by your resident hammer, nk. (“If its the same Mike Jackson…”. Should I go into how many different endings we could attach to “same Patterico” or “same nk” if we had the same ethics and imagination as nk?)

    I sincerely hope that you make an effort to undo the damage you have caused and to reverse the direction you are taking, both in how you treat critics and in how you employ your good friend nk to smear them.

    Mike Jackson (a7da41)

  29. Patterico — check your email.

    WLS Shipwrecked (f6941a)

  30. Get a life Mike.

    WLS Shipwrecked (f6941a)

  31. I guess I don’t get it. I mean, it seems simple and obvious to me. Merely put two items together.

    1) From Shipwreckedcrew’s excellent post (#11):
    +++++++++++
    This is from the Louisiana Supreme Court decision affirming the conviction:

    “Jimmie Duncan’s own expert pathologist, Dr. Robert Kirschner, “concluded that the victim had died as a result of an assault.”
    +++++++++++

    Add to the above, from Balko’s own story:
    +++++++++++++++
    Oliveaux drowned in a bathtub that morning in West Monroe, Louisiana, while in the care of her mother’s boyfriend, Jimmie Duncan. Duncan said he was washing dishes at the time.
    +++++++++++++

    Duncan was the only one there, so the defendant’s own expert essentially accused him of homicide.

    jim2 (a9ab88)

  32. Hmmm I’m not sure the commenters here are taking it very seriously.

    There appears to be a very few bits of evidence that could have reasonably been relied on by the jury to establish guilt.

    The testimony of the jailhouse snitch who said he confessed.

    The bite mark testimony

    The anal laceration testimony.

    The jailhouse snitch testimony looks awful. The other cellmate says it didn’t happen. ON that topic we have:

    The other major piece of evidence against Duncan was testimony from a jailhouse informant who claimed that Duncan confessed to his crime while behind bars. Michael Cruse testified that he shared a jail cell with Duncan for one day in late December 1993. (Cruse also claimed another inmate in the same cell confessed a felony to him, according to the letter he wrote to prosecutors.) Duncan’s current attorneys have since obtained an affidavit from Michael Lucas, another inmate in the cell that day, who says that not only did Duncan not confess, he repeatedly asserted his innocence, despite Cruse’s constant attempts to elicit a confession.

    Since then, two other inmates have reported being asked by Ouachita Parish law enforcement officials to lie about hearing Duncan confess. One of them, Charles Parker, who had worked as an informant for the FBI, wrote a letter of complaint to the district attorney’s office about the incident. In a later interview with Duncan’s post-conviction attorneys, he described how an investigator named Jay Via approached him and fed him information about Duncan’s case. “He gave me details of the crime, saying that the child was less than two years [old] and that she had been anally raped,” Parker said “He told me that when I came forward I was to say that Jimmie had confessed to biting the child while he was raping her.”

    On the bite mark we have the very damning video, which despite what jcurtis says, you can see on the website, and you can see pictures of her dead without bite marks and then with marks on her afterward.

    So that looks pretty bad for the prosecution.

    On the rectal lacerations we have:

    The most disturbing of the injuries found on Haley Oliveaux the night she died were some lacerations to the outside of her rectum. Those, together with the bite marks, undoubtedly weighed heavily on the jury. As the prosecution showed blown-up photos of Oliveaux’s lacerated rectum, Hayne testified that the injuries were “consistent with” penetration by a penis, though he couldn’t rule out penetration by another object. Another state witness, Edward Gustavson, a pediatrician with no forensic pathology certification, stated more definitively that the lacerations could only have been caused by a penis, along with the trauma from an assailant’s pelvis grinding against Oliveaux.

    Bonnell says both are wrong. “Dr. Gustavson’s explanation…is ludicrous, and probably based on fantasy, definitely not scientific or medical fact,” he writes. Bonnell adds that penetration from a penis or similar-sized object would have resulted in significant anal tearing and perforation, neither of which were found. Duncan’s attorneys speculate that the injuries were caused by a hard stool, an explanation Bonnell finds plausible.

    Bonnell says he can’t conclusively rule out that the injuries were caused by sexual abuse. The problem, he says, is that it would be impossible for him to reach a definitive conclusion about what caused the rectal injuries without examining the microscopic slides of the anal tissue. Those slides, made by Hayne, are now nowhere to be found.

    In response to a 2008 court order to produce the slides, Hayne first said he didn’t have them, because he had sent them to the Mississippi State Crime Lab in Jackson. But the crime lab told Duncan’s lawyers it has never possessed the evidence. Even if Hayne somehow managed to lose the slides (an egregious mistake, given their importance), he should have a written record of what they showed. According to Duncan’s post-conviction attorneys, Hayne hasn’t produced any of that documentation either.

    Hayne has been shown repeatedly to be a very sketchy witness, and not even an expert (he can’t pass the patholgy board). The slides AND the reports on the slides have gone missing, which should be at least a bit disturbing, right?

    Sebastian (f01cac)

  33. “Hmmm I’m not sure the commenters here are taking it very seriously.”

    Sebastian – Do you believe this post and thread are about establishing Duncan’s guilt or innocence?

    daleyrocks (5d22c0)

  34. The posts on this thread do not appear to be about taking the evidence of poor conduct by the medical examiners very seriously.

    Sebastian (f01cac)

  35. We must all take everything as seriously as Sebastian, all while waiting for Verdon to comment on Patterico’s posts, which he has cowardly avoided.

    JD (e54d51)

  36. As has been mentioned before, if you do not have the full record before you it’s hard to make a judgment. Radley asserts a damning case against Haynes and West but WLS already caught him in a very material “overstatement”.

    nk (c90ef8)

  37. Which misstatement did WLS catch? Do you mean comment #10?

    I would say that a trial consisting of dubious jailhouse informant testimony, that ridiculous bite mark analysis (seriously did you watch that video, that can’t be right?!?), and an autopsy by Haynes complete with lost slides and lost records, isn’t exactly amenable to a paragraph on ‘fair’ vs. ‘perfect’ trial. It is closer to ‘fair’ vs. ‘frame-up’ analysis.

    Sebastian (f01cac)

  38. Sebastian — a little girl dies while in the sole custody of the defendant.

    The expert called by the lawyers for the defendant states she died as at he result of an “assault” — not an accident.

    That makes it homicide.

    Is there another person positioned to have committed the homicide?

    It’s up to the jury to determine who much evidence they need to reach a CONCLUSION about who is responsible beyond a reasonable doubt. The evidence doesn’t need to be “beyond a reasonable doubt”, the judgment that the defendant’s is guilty must be “beyond a reasonable doubt.”

    Purge the bite-mark evidence and jailhouse informant testimony from your mind.

    Who killed the little girl?

    Shipwreckedcrew (7f73f0)

  39. I neglected the mention one other thing about this case working only from my recollection of what I read over a month ago when Patterico first put it up — Duncan told multiple versions to different people with respect to what happened to the little girl. There were lots of problems with consistency and plausibility.

    All those statements came into evidence — and I’m not talking about the jailhouse informant, but statements to the neighbors, the EMT, the police, and the hospital personnel.

    When all those statements got introduced, you know what happened?

    The jury concluded he was a liar.

    Shipwreckedcrew (7f73f0)

  40. Shipwreckedcrew – My recollection is the same. Balko wouls have us believe the autopsy and bite mark analysis was the only deciding factor. Was the jury actually polled or interviewed? Is that done in murder trials?

    daleyrocks (5d22c0)

  41. I came into this late, but I’m with Shipwreckedcrew, too, as my #32 indicated.

    jim2 (6482d8)

  42. Saying that there had been a homicide is not the same as saying there had been a murder. The fact that the little girl drowned in the bathtub is excellent evidence that a minimum Duncan was inattentive, and perhaps criminally negiligent (which in most jurisdictions is considered a homicide).

    Which is not typically a death penalty offense.

    I’m certainly not suggesting that nothing went wrong. Anytime a child drowns in a bathtub something went horribly wrong.

    But that isn’t a death penalty offense.

    To get to a death penalty offense you need more. And that is precisely where the bad/manufactured medical ‘evidence’ and highly suspect jailhouse informant testimony comes in.

    Sebastian (f01cac)

  43. Sebastian seems pretty invested in this.

    JD (454fb4)

  44. On the bite mark we have the very damning video, which despite what jcurtis says, you can see on the website, and you can see pictures of her dead without bite marks and then with marks on her afterward.

    Why would West use a dental mold – a perfect or near perfect model of Duncan’s teeth – to make a tape removal mark that according to the bite mark expert for the defense claimed looked nothing like a bite mark ( no arc, no teeth ) and even supposedly showed the bubbles and creases that aligned with the bubbles and creases in a picture ( taken of the child at the hospital with the tape in place ) that the jury looked at?

    Wouldn’t a mark made by a dental mold at least look like a bite mark? Of course it would. So we can only presume that the marks being considered by the witness and the jury were not the marks left by West. The marks left by West would be apparent though, so, with no information made available to show otherwise, it seems logical that the West marks were recordings used for comparison purposes and that the jury was made aware of that at some point.

    If the marks that the defense expert said were tape removal marks were indeed marks made using a dental mold, then that expert is a quack who will be ruined and will never be able to testify as an expert again.

    j curtis (4b8a66)

  45. Sebastian seems pretty invested in this.

    JD – Sabastian also seems to be conspicuously avoiding the points raised by jim2 and Shipwreckedcrew.

    daleyrocks (5d22c0)

  46. I also want to believe that the baby was not raped and tortured. For her sake. If the new evidence bears that out, it will be fine with me.

    nk (c90ef8)

  47. And I believe so does everybody else, here, Sebastian. It’s not really about Jimmie Duncan or the death penalty.

    nk (c90ef8)


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