Federal court: Despite ‘grossly negligent’ testimony that put 2 innocent Black men in prison, forensic experts can’t be sued

From [HERE] Regular readers of The WashPost will by now be familiar with the saga of Steven Hayne and Michael West, the two men who dominated Mississippi’s death investigation system for the better part of 20 years.

West testified in dozens of cases, Hayne in thousands. Both often gave testimony well outside the constraints of science. Hayne, for example, once claimed that the bullet wounds in a murder victim were “consistent with” a theory that two people were holding the murder weapon when it was fired. West has claimed to be able to trace bruises on a victim’s abdomen to the specific shoe that inflicted the injuries; claimed to match fingernail scrapes to the specific fingernails that made them; and in one particularly nutty case, claimed that the knife wounds in a murder victim could only have been caused by one specific knife, and then claimed to have found marks on the chief suspect’s hands that could only have been caused by gripping the handle of that knife — and only that knife.

This week, the U.S. Court of Appeals for the 5th Circuit ruled that because Hayne and West are protected by qualified immunity for any case in which they testified, they’re only liable to a lawsuit if the plaintiff can show that they acted recklessly. Mere negligence — even gross negligence — is not enough.

The lawsuit in question was brought by Levon Brooks and Kennedy Brewer, two men who were wrongly convicted in the 1990s, largely due to testimony from Hayne and West. In both cases, a little girl was abducted from her home at night, sexually assaulted and murdered, and her body was thrown into a creek. The two crimes occurred just a couple of miles apart. In both cases, the authorities suspected a boyfriend of the mother. In both cases, they took the body to Hayne for autopsy. In both cases, Hayne claimed to have found bite marks that other experts have since said were not human bites at all. In both cases, Hayne then called in West, who was making a name for himself as an expert bite-mark analyst. In both cases, West claimed that the marks were in fact human bites and that the marks “indeed, and without a doubt” were a match to the authorities’ chief suspect.

In reality, the same man — Justin Albert Johnson — committed both crimes. Johnson had a history of attempted sexual assaults. On at least two other occasions he had broken into a home, at night, and attempted to attack a sleeping victim. In fact, he was initially a suspect in the first murder. Had Hayne, West and local authorities not wrongly implicated Levon Brooks in that first crime, the second little girl may never have been attacked and murdered. Instead, West actually exonerated Johnson. He compared a dental mold of Johnson’s teeth with the alleged bite marks and determined that they weren’t a match. (As it would turn out, he was right about that, but only because those marks weren’t bites at all — Johnson never bit either victim.)

Brooks was sentenced to life in prison. Brewer was sentenced to death, and at one point was given a death warrant. In 2000, Brewer was excluded as the source of the sperm found in the little girl, yet local officials insisted on keeping him in prison, citing West’s testimony. Brewer may not have raped the girl, they argued, but because West said that Brewer and only Brewer bit her, he must have participated in the attack. They speculated that he must have held her down and bit her while someone else raped her. Yet for reasons that remain unclear, they refused to run the DNA profile from the sperm through the state database. Years later, Brewer’s attorneys finally got a court order for testing. When they did, it was a match to Justin Johnson. He then confessed to both crimes.

After they were released from prison in 2007, Brewer and Brooks sued. Their lawsuits were later combined. A federal district court dismissed the suit, finding that Hayne and West had absolute immunity for the testimony in court and qualified immunity for the reports that they wrote for police and prosecutors. They appealed. The appeals court released its opinion this week. [MORE]