Friday, May 15, 2009

Prosecutors and Wrongful Convictions: They Don't Care, Anymore

Supposedly, the worst nightmare for a prosecutor is obtaining a wrongful conviction and having the errors he or she committed played out in front of others. Yet, because prosecutors rarely face any real problems or sanctions for engaging in the behavior that brings about wrongful convictions, we find that they are likely to be fast-and-loose with the truth.

I became involved in the infamous Duke Lacrosse Case because I believed that the prosecutor, Michael B. Nifong, was knowingly presenting false evidence and pursuing charges solely for political and personal reasons. I believed that even before he obtained indictments against Reade Seligmann and Collin Finnerty, and I will tell you I was not surprised when he finally was caught with his pants down during a hearing on December 15, 2006.

One of the things we have heard ad nauseum has been that Nifong was an outlier, a "rogue" prosecutor, someone who does not follow the rules. I wish that were true, and that Nifong were the exception to the rule. Unfortunately, I don't believe that, anymore. While Nifong clearly embarrassed other prosecutors with his showboating antics and his bald-faced lies, nonetheless there are plenty of other prosecutors in this country who care as little for the truth as did that cocky sociopath who ruled the roost for a brief time in Durham County, North Carolina.

Radley Balko of Reason Magazine has done a lot of heroic work in uncovering prosecutorial misconduct that brings about wrongful convictions. He does it again here in a great article which exposes the quackery in so-called forensics science which has put innocent people on death row and in prisons for long terms. Balko's target this time is the Mississippi dentist Michael West, who has been a favorite "expert witness" for prosecutors in Mississippi and Louisiana, as he is well-known for testifying that whoever happens to be on trial was the murderer, as "proven" by his "bite marks."

As Balko demonstrates, this "expert" became the target of a private sting conducted by attorney Christopher Plourd, who sent West photos of a bite marks on the breast of a murdered woman, and then sent his own dental mold, but told West that the mold was taken from the "prime suspect" in the murder. He also sent West the required $750 retainer.

West fell for the bait and told Plourd that the mold matched the bite marks on the woman. Plourd publicized the findings but, incredibly, the Mississippi State Supreme Court still insists that convictions in cases in which West supposedly fingered the guilty party are legitimate:

West failed Plourd’s test in 2001. Yet as late as 2003, the Mississippi State Supreme Court still upheld West’s bite-mark testimony in a murder case. In rejecting an appeal by convicted murderer and death row inmate Eddie Lee Howard, the court wrote that “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.” And as late as 2006, Mississippi District Attorney Forrest Allgood relied on West’s bite-mark testimony to keep rape and murder convict Kennedy Brewer in prison. Though DNA evidence had shown back in 2003 that Brewer didn’t commit the rape, Allgood argued that because West matched bite marks he claimed to have found on the victim to Brewer’s teeth, Brewer must have bitten the victim while someone else raped her. (Other analysts say the marks weren't even bites.) Brewer remained in prison an additional five years, and was only released in 2008.
So, here we have evidence that Mississippi prosecutors and judges have been made aware of just what a liar and charlatan Michael West really is, but he still is their great expert. Who would use an "expert witness" who has been caught fabricating evidence and lying in a court of law? Why, a prosecutor seeking a conviction at all costs.

Prosecutorial misconduct did not begin and end with Michael Nifong. Unfortunately, he is the only one who received punishment, as mild as it might have been, for his crimes. As long as American courts continue to treat these people with deference and reverence, we will have wrongful convictions and prosecutors who brag that "any man can convict a guilty person, but it takes a great prosecutor to convict an innocent man."


Chris Halkides said...


I have suggested (probably naively) that defendants be given a sum of money with which to obtain forensic testing:

My suggestion may have its flaws, but this case is one more piece of evidence to suggest that reform of some kind is necessary. The right to counsel is the right to effective counsel, and I cannot imagine mounting an effective defense against bad forensic testing unless I had access to a second opinion.


Dave Bear said...

Chris, generally speaking, indigent defendants who are having their attorney paid by the citizens do have access to "free" resources to conduct these kinds of tests.

Bill, a few cents on the subject: A good trial attorney should always be able to discredit a private citizen who has only testified for one side. If a private doctor has only testified for one side he is easily made to look like a biased homer. The most credible witnesses have testified in both directions. (I say 'private citizen' because state agency actors are obviously different).

But think about which witness is more likely to fabricate the truth, the one being paid $750 by the prosecutor's office or the one being paid $10,000 by the wealthy private criminal defendant/defense attorney? The wealthy defendant has infinitely more resources than that "mammoth" prosecutor’s office, despite the common thought.

- Dave