Did 'Bite Mark' Expert Fabricate Evidence?

Feb. 20, 2008— -- Imagine being wrongly convicted and jailed for abducting, raping and murdering a 3-year-old girl.

That's apparently exactly what happened to two African-American men — separately — in one rural Mississippi county, and now their livid lawyers are calling for criminal charges to be brought against a controversial "bite mark" expert whose testimony helped convict the two men.

A separate investigation by the state attorney general's office led to the arrest last week of a third man who reportedly confessed in telling detail to killing both toddlers after DNA tied him to one of the murders. He told authorities that he never bit either victim, according to lawyers who reviewed the taped confession.

The two little girls, who were abducted 20 months apart from homes separated by a few miles, were murdered and violated in the same way. Both were left in watery graves. Kennedy Brewer was convicted in the May 1992 murder of Christine Jackson.

In 1990, 3-year-old Courtney Smith had been abducted, raped and murdered. Levon Brooks spent 18 years in jail after being convicted in that killing.

In each case, forensic odontologist Dr. Michael West testified that abrasions on the victims' bodies were bite marks — and told two juries that he conclusively matched the marks to, respectively, Brewer's and Brooks' dental records.

Capital murder charges against Brewer were dismissed by a Mississippi judge last Friday, and Brooks' conviction has been vacated. He was released on bond, pending a dismissal hearing in March.

'Attempted Murder'

Lawyers for the wrongly convicted men are infuriated. They are calling for the criminal prosecution of West, the forensic dentist.

West "deliberately fabricated evidence and conclusions which were not supported by the evidence, the data or the rules of science but … because they were consistent with the prosecutor's theory,'' said Peter Neufeld, co-director of the Innocence Project, a nonprofit legal organization that examines questionable convictions and has won the exoneration of more than 200 inmates.

"If you fabricate evidence in a capital murder case, where you know that if the person's convicted they are going to be executed — as far as I'm concerned that's the crime of attempted murder.''

"He's a criminal," Neufeld said of West.

The two cases were investigated by the same Noxubee County, Mississippi detective and prosecuted by the same attorney, and the same medical examiner and forensic dentist appeared in each case.

This is the first time that Neufeld or his colleagues at the Innocence Project have ever called for the criminal prosecution of a scientist, Neufeld said.

"These are not cases of sloppy forensic science,'' Neufeld said on Monday. "This is intentional misconduct. It's fabricated evidence to send people to death row.''

West did not respond to repeated inquiries Monday, but he told Mississippi's Clarion Ledger newspaper — which first reported the story — that he stands by his testimony in both cases.

He had testified that Brewer bit Jackson 19 times, using only his upper two teeth — a conclusion that fellow forensic dentists told ABC News is extremely tenuous. West identified the wounds as human bite marks, and said they matched Brewer, according to court documents and scientists who reviewed the case.

"Five of those matches I give my highest level of match or comparison -- which is reasonable medical certainty,'' West testified in the Brewer trial, according to court transcripts of the case. "Of the remaining fourteen I have several that are what I refer to as highly consistent, consistent and probable."

Under cross-examination, West confirms that in a report to the deputy county medical examiner, he wrote that the 19 bite marks "were indeed and without a doubt inflicted by Mr. Kennedy Brewer."

Even after DNA tests failed to tie either of two samples found on the young victim to Brewer, West stood by his findings in an interview with CBS's Steve Kroft.

"I never testified that Mr. Brewer raped or sodomized anyone. I testified that Mr. Brewer bit [victim Christine Jackson],'' West said in 2002.

"So [Brewer] bit her, and two other people raped and sodomized her?" he was asked.

"That's a possibility,'' West replied, according to transcripts of the interview.

'Ridiculous' Theory?

But West's medical peers challenge that claim. Iain Pretty, one of England's leading forensic odontologists, called it "patently ridiculous."

Pretty and three leading experts from Canada and the U.S. peer-reviewed the Brewer case for the defense.

In the Brewer case, West "was saying, 'Look, it's [Brewer], definitely, no doubt, no room for error,'' said Pretty.

"There was no scientific evidence, no ballistics, no DNA that would have resulted in a match of that certainty. I mean, DNA is a well-regarded forensic tool, but even with DNA, [experts] will say there's a one in fifty million chance it's someone else. But [West was] not even throwing 50 million at you — he's saying it's definite. And the evidence itself really wasn't sufficient to draw that conclusion.

"We didn't even think they were bite marks,'' Pretty said of himself and his colleagues, who reached unanimous conclusions, according to court documents.

The field of forensic odontology is relatively new and has been met with controversy since its inception in the American Academy of Forensic Sciences in the early 1970s. There is no widely accepted way to measure the reliability of bite marks, no database with which to compare samples, and none of the kind of extensive peer review and research that has come to characterize more scientifically accepted forensic tools like DNA.

"To a jury, science sounds like science, unfortunately, and when you look at someone like Dr. West you see the kind of problems that arise from that notion,'' Neufeld said.

Colleagues who have reviewed his work and law enforcement officials who have worked with him say West has a reputation for testifying with unbridled confidence in his own conclusions, sometimes despite conflicting scientific evidence.