Mississippi Attorney General Tries to Remove Defense Lawyers Who Challenged Suspect Bitemark Evidence

Attorneys for Mississippi death row pris­on­er Eddie Lee Howard (pic­tured) are seek­ing to prove his inno­cence and chal­leng­ing the ques­tion­able expert bite mark tes­ti­mo­ny that per­suad­ed jurors to con­vict him and sen­tence him to death in 1992. As part of the attack on that evi­dence, Howard’s lawyers recent­ly deposed Michael West, the dis­cred­it­ed foren­sic odon­tol­o­gist who tes­ti­fied against Howard and many oth­er defen­dants in the 1990s, pri­mar­i­ly in Mississippi and Louisiana. 

A two-part sto­ry by Washington Post colum­nist Radley Balko recounts the com­bat­ive depo­si­tion in which defense lawyers sys­tem­at­i­cal­ly picked apart the cred­i­bil­i­ty of West’s tes­ti­mo­ny in Howard’s case, and the appar­ent retal­ia­to­ry efforts by the office of Mississippi’s attor­ney gen­er­al to remove the lawyers from the case after they asked that charges against Howard be dropped. 

West, who was bel­liger­ent, open­ly con­temp­tu­ous, and pro­fane dur­ing the depo­si­tion, was pop­u­lar as a pros­e­cu­tion expert wit­ness because he pur­port­ed to be able to match marks to a sin­gle indi­vid­ual, exclud­ing all oth­er pos­si­ble sus­pects through an idio­syn­crat­ic tech­nique that, he said, he alone was capa­ble of using and could reveal bite marks that oth­er experts couldn’t find. 

In the mid-1990s, Newsweek and 60 Minutes pro­filed West and raised ques­tions about the verac­i­ty of his tech­niques. He was lat­er expelled from three pro­fes­sion­al orga­ni­za­tions, and sev­er­al peo­ple he tes­ti­fied against have lat­er been proven inno­cent, includ­ing Kennedy Brewer, who was exon­er­at­ed in 2008 after DNA evi­dence impli­cat­ed anoth­er sus­pect, who then con­fessed to the crime. 

Bitemark claims such as those made by West were the sub­ject of sting­ing crit­i­cism in a 2009 report of the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward. The report crit­i­cized the field of foren­sic odon­tol­ogy as lack­ing any ​“evi­dence of an exist­ing sci­en­tif­ic basis for iden­ti­fy­ing an indi­vid­ual to the exclu­sion of all oth­ers” and ​“lack[ing] valid evi­dence to sup­port many of the assump­tions made by foren­sic den­tists dur­ing bite mark comparisons.”

In April 2016, Eddie Howard’s attor­neys arranged a depo­si­tion with West in advance of a hear­ing in which they planned to present DNA evi­dence to sup­port Howard’s inno­cence claim. West, who had refused to pre­pare for. the depo­si­tion, assert­ed that he stood by his tes­ti­mo­ny from Howard’s tri­al, even as he con­tra­dict­ed that testimony. 

Days lat­er, Howard’s attor­ney, Tucker Carrington of the Mississippi Innocence Project, sent a let­ter to Mississippi Assistant Attorney General Jason Davis describ­ing the depo­si­tion and the new evi­dence and ask­ing Davis to drop the charges against Howard. Davis and Attorney General Jim Hood filed a motion the next day chal­leng­ing the com­pe­ten­cy of Howard’s attor­neys, despite hav­ing vouched for their qual­i­fi­ca­tions in a dif­fer­ent con­text less than a year earlier. 

Howard is rep­re­sent­ed by respect­ed and expe­ri­enced death penal­ty attor­neys, but a vague­ly writ­ten Mississippi court rule known as Rule 22 could poten­tial­ly have dis­qual­i­fied them. Hood’s office has repeat­ed­ly used Rule 22 against well-qual­i­fied attor­neys from out-of-state law firms or legal aid groups to attempt to exclude them from rep­re­sent­ing Mississippi pris­on­ers. Almost imme­di­ate­ly after Hood’s motion was filed, the Mississippi Supreme Court revised Rule 22, effec­tive­ly stop­ping the motion in its tracks. 

An evi­den­tiary hear­ing in Howard’s case was held in May, but the judge has yet to rule.