IN THE SUPREME COURT OF MISSISSIPPI No. 2014-DR-01305-SCT ...

E-Filed Document Apr 29 2015 16:37:16 2014-DR-01305-SCT Pages: 37

IN THE SUPREME COURT OF MISSISSIPPI
No. 2014-DR-01305-SCT

_______________________________________________________

EDDIE LEE HOWARD, JR., Petitioner,
vs.

STATE OF MISSISSIPPI, Respondent
______________________________________________________________________________

PETITIONER’S REPLY TO THE STATE’S RESPONSE
______________________________________________________________________________

I. INTRODUCTION


 

The State’s reliance in its Response on State v. Brooks and State v. Brewer1 for the
proposition that bite mark evidence, even that offered by Dr. Michael West, is a legitimate and
admissible forensic discipline, is not only wrong as a matter of both fact2 and law3, it is also
unprincipled.4 The State’s reliance is also bold – in that it assumes that this Court is not aware
of, or, worse, will simply ignore the legacy of those cases and their holdings: the fact that Dr.
West was the forensic analyst in both cases; that he employed the same methodology and the
same bases and descriptions for his opinions; and that he was, in the final analysis, completely
and utterly wrong, a mistake that cost two innocent men more than three-decades of their lives in
prison, Brewer on death row.
 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
1 State’s Response in Opposition to Petitioner’s Motion to Vacate Conviction, and Supplemental
Memorandum in Support of Post-Conviction Relief at 43 (hereinafter “State’s Response”).
2 See, Paul C. Giannelli & Kevin C. McMunigal, Prosecutors, Ethics, and Expert Witnesses, 76 Fordham
L. Rev 1493, 1532-36 (2007)(discussing applicability of Model Rules to prosecutorial obligation as
evidentiary gatekeepers).
3 See Section III infra.
4 See infra at 2-4.

Leaving aside for the moment what Brooks and Brewer illustrate about the jurisprudence

of bite mark admissibility in Mississippi historically, the facts supporting the two exonerations
repudiated absolutely Dr. West’s testimony as well as his methodology.6 The State – especially

the Office of the Attorney General – is abundantly aware of this. When the Attorney General’s

office initiated the reinvestigation of the cases and ultimately arrested and charged Justin Albert

Johnson, the Attorney General’s office learned that Johnson had been a former suspect in both

cases who, according to Dr. West’s analysis, could be definitively excluded as a biter. After

arresting Johnson, the State then proceeded on a theory of prosecution in both cases that, as a

factual and legal matter, rejected Dr. West’s claims about the legitimacy of bite mark matching
and acknowledged them as the junk science that they are.7
 

During his interview with law enforcement, Johnson,8 not only confessed to abducting

and murdering the victims in both cases, but also explained that he had acted alone and had never
bit them.9 It necessarily follows, therefore, that in supporting the exonerations of Brooks and

Brewer and the prosecution of Johnson for both offenses, the State’s implicitly and explicitly

recognized that Dr. West’s methodology and claims were factually wrong and based on invalid

pseudo-science. The State’s Response does not explain, much less justify, how or why it now

takes a contrary position in this matter. Perhaps the State is simply trying to avoid the obvious:

that Howard’s case is no different; it is from the same era and features Dr. West’s same

discredited methodology.
 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
6 Id.
7 See Transcript of Arraignment and Guilty Plea, State v. Justin Albert Johnson, No. 2008-026 (Noxubee
County Circuit Court).
8 See Interview of February 6 and 8, 2008, between State of Mississippi, Office of Attorney General,
Public Integrity Division and Justin Albert Johnson (attached as Exhibit A to this Reply).
9 Id.

2


 

The State’s reliance on Brooks and Brewer is also erroneous as a matter of law. As

illustrated in Howard’s initial petition and in his most recent supplemental pleading, neither Dr.

West’s methodology nor findings were ever subjected to proper Rule 702 analysis at Howard’s

trial. To be sure, there was a good deal of conversation surrounding Dr. West’s findings, and

Howard’s defense counsel engaged in limited voir dire of Dr. West and thereafter cross-

examined him, but at no point did counsel for either party or the trial court engage in what could
remotely be termed a Rule 702, Frye,10 Daubert11 or McLemore12 hearing. The State’s Response

fails to acknowledge this very critical point. The State’s pleading further fails to note that the

same thing was true of Brooks and Brewer; though there was some sparring about Dr. West and

his purported findings, there was nothing approaching a rigorous admissibility hearing. The

State’s invocation of these cases also fails to acknowledge that as a matter of law the precedent
that those cases rely on – as well as Howard I13 and II14 – for the admissibility of bite mark

evidence is similarly deficient. There is no evidence whatsoever in those cited cases that courts

engaged in the necessary 702 inquiry. Had they done so, the discipline would have been

excluded because it does not possess the requisite grounds for admission. Worse, in at least one

of the cases that the Brooks concurrence cites for the discipline’s admissibility, the defendant in
that case has since been exonerated as well, but not before spending over 15 years in prison.15
 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
10 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
11 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
12 Miss. Trans.Comm’n v. McLemore, 863 So.2d 31, 36 (Miss. 2003).
13 Howard v. State, 701 So.2d 274 (Miss. 1997).
14 Howard v. State, 853 So.2d 781 (Miss. 2003).
15 State v. Stinson, 134 Wis. 2d 224 (Ct. App. 1986). See Robert Lee Stinson, INNOCENCE PROJECT,
http://www.innocenceproject.org/Content/Robert_Lee_Stinson.php. The only direct evidence against
Stinson was the bite mark testimony of two board-certified “Diplomates” of the American Board of
Forensic Odontology (ABFO). One expert concluded that bite marks on the victim “had to have been
made by teeth identical” to Stinson’s, State v. Stinson, 397 N.W.2d 136, 138 (Wisc. Ct. App. 1986), and

3


 

As a federal magistrate judge recently noted in exonerating a defendant for the murder by

arson of his young daughter, “’Slow and painful has been man’s progress from magic to law.’”16

About the character of the evidence – arson science – that had claimed a quarter century of the

defendant’s life, the court wrote, “with the benefit of extraordinary progress in human

knowledge regarding fire science over the past two decades it is now uncontested that this fire

science evidence – which was a critical component in the quantum of proof that led to . . . [the]

conviction – is invalid, and that much of what was presented to . . . [the] jury as science is now

conceded to be little more than superstition.”17 Levon Brooks and Kennedy Brewer, each

convicted almost exclusively on the testimony of Dr. West and his claimed ability to match

individuals’ dentition to wounds on the decedents,18 were the victims of the same type of

superstition. They were exonerated in 2008, however.19 The State’s continued defense of Eddie

Lee Howard’s conviction and his death sentence is nothing more than a request that this Court

elevate magic above law.
 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
that there was “no margin for error” in his conclusion. Trial Transcript at 83, State v. Stinson. The other
expert concurred, testifying the bite mark evidence was “high quality,” State v. Stinson, 397 N.W.2d 136,
138 (Wisc. Ct. App. 1986), and “overwhelming.” Id.

Although the bite mark evidence was presented to the jury as “scientific” evidence, the Stinson
court found that by the time Stinson’s appeal was heard the state had rejected the Frye test, and thus the
court found that “evidence given by a qualified expert is admissible irrespective of the underlying
scientific theory.” Stinson, 134 Wisc. 2d at 241 (emphasis added). The court found that bite mark
evidence was a valuable aid to the jury because “[b]y looking directly at the physical evidence used, the
models and the photos, the jury was able to judge for itself whether Stinson’s teeth did in fact match the
bite marks found on the victim's body.” Id. at 235.
16 Lee v. Tennis, No. 4:08-CV-1972, slip op. at 2 (M.D. Pa. June 13, 2014). As the court explained, “[t]his
proverb [is] inscribed at the University of Pennsylvania Law School on the statue of Hseih-Chai, a
mythological Chinese beast who was endowed with the faculty of discerning the guilty.” Id. at 1.
17 Lee v. Tennis, No. 4:08-CV-1972, slip op. at 1 (M.D. Pa. June 13, 2014).
18 Id.
19 See Levon Brooks, Innocence Project, http://www.innocenceproject.org/Content/Levon_Brooks.php;
Kennedy Brewer, Innocence Project, http://www.innocenceproject.org/Content/Kennedy_Brewer.php.

4


 

II. NO SINGLE ITEM OF EVIDENCE, INCLUDING THE ALLEGED “BITE
MARKS,” TESTED POSITIVE FOR HOWARD’S DNA.
 


 

Although it is undisputed that Howard has been excluded from every evidentiary item

tested, including the alleged murder weapon, the State disputes the materiality of the post-

conviction DNA testing results by claiming that the lab report is unclear on its face. To begin,

the State has been intimately involved in all aspects of post-conviction DNA testing – as a party

to testing in Lowndes County Circuit Court;20 in advocating for its lab of choice; and, in

selecting which items were to be tested and for what reasons.21 The State has kept up-to-date as

testing progressed and has received multiple reports from the laboratory during the testing’s

course.22 Nonetheless, the State argues that Howard should be denied relief because the DNA lab

reports cannot be interpreted by a “layperson” and that “a reading of the test results leaves more

questions than answer [sic].”23
 

The State seems not to have spent much time with the reports, all of which are self-

explanatory. For example, the State complains that:
 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
20 See Howard v. State, 49 So.3d 79 (Miss. 2010).
21 See Howard v. State, 49 So.3d 79 (Miss. 2010). The State further objects to the fact that “fifty-eight
(58) items were submitted with thirty-three not examined. Among those items not examined include a
pulled pubic hair envelope from Ms. Kemp, a wax paper fold of the suspect’s saliva, a clipping from Ms.
Kemp’s knee high stockings, three clippings from her nightgown, cutting from the bedspread, three
cuttings from a blanket, three cuttings from the bottom sheet, three cuttings from the top bed sheet, two
cuttings from Kemp’s house slipper and the blood stained bottom sheet on Ms. Kemp’s bed.” State’s
Response at 56. The State attended a hearing at which the schedule and items submitted for DNA testing
were submitted. Those items which were most likely to yield DNA results were selected. The State
cannot now act confused about why some items were tested and not others when it was present in the trial
court to set the schedule.
22 See State’s Response at 9-10 (acknowledging that the State took part in a hearing regarding DNA
testing on February 18, 2011 and received two separate reports from the laboratory); see also Cellmark
Forensics Report of Laboratory Examination at 3 (August 13, 2014) (listing “Jason Davis” from the
“Office of the Attorney General” as a recipient); See Cellmark Forensics Report of Laboratory
Examination at 4 (April 30, 2014) (listing “Jason Davis” from the “Office of the Attorney General” as a
recipient).
23 State’s Response at 53.

5


 

The petitioner references “three sticks and three swabs” which were part of the
sexual assault kit which were tested saying these items tested negative for blood
and seminal fluid. However, a review of the April 30, 2014, report is unclear. On
the first and second pages of this report, a column on the right hand side under the
letters “PCR” indicates “N” by all items. Does this mean “No” with regard to
DNA or does this mean “No” in that the material was not tested, or does it mean
something else entirely?24
 
Page 2 of the report contains a table of the initial results of DNA testing.25 It clearly

indicates that the vaginal swab sticks, external swab stick, oral/anal swab stick, vaginal swab,

external swab, and oral/anal swab tested negative for the presence of semen. Thus, one can

deduce from these results that these items were tested for DNA and, more specifically, semen.26

Because these items tested negative for semen, they were not further tested for male DNA or to

see if the non-existent male DNA matched any individual male, including Howard.27
 

The State also complains of ambiguity in the report concerning the nightgown. The State

inaccurately suggests that the nightgown tested positive for “seminal fluid.” In fact, the

nightgown tested positive for “acid phosphatase,” a component found in seminal fluid, as well as

other bodily fluids, such as saliva.28 Here, the laboratory performed additional testing by looking

at the sample under a microscope and testing for a prostate-specific antigen. Both of these tests


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
24 State’s Response at 53-54 (internal citations omitted).
25 Cellmark Forensics Report of Laboratory Examination at 2 (April 30, 2014).
26 Petitioner’s Motion to Vacate Conviction, and Supplemental Memorandum in Support of Post-
Conviction Relief at 30-32 (discussing the process of DNA testing).
27 The State also takes issue with the petitioner’s assertion that the swabs and sticks that came back
negative for semen were not tested for blood. State’s Response at 54. It further objects to the fact that the
petitioner asserts that these items did not contain blood. Id Of course, the mechanics of normal, human
sexual intercourse suggest that a rape kit would not test positive for a petitioner’s blood and not semen.
Thus, a rape kit that tests negative for semen also tests negative for blood. Furthermore, if the State was
concerned about there actually being male blood on the swabs and sticks instead of semen, the proper
time to assert this concern was during the course of testing or during the course of the hearing in which
the State agreed to the DNA testing protocol, not now.
28 This is an answer the State could have arrived at through contacting the laboratory or by doing a
rudimentary search on Wikipedia.

6


 

came back negative, as evidenced by the chart on Page 2 of the report. In any event, the State

does not, and could not, suggest that the nightgown contained Howard’s semen.
 

To the extent that the State is “confused” on this issue or on any other aspect of the lab

reports, it is utterly irrelevant to this Court’s disposition of Howard’s petition. Notwithstanding

the State’s position, the fundamental results of the DNA testing could not be more clear: not a

single item tested contained Howard’s DNA, including the areas on the clothing in proximity to
the supposed bite marks. 29
 

III. THE STATE’S RESPONSE DOES NOT ADDRESS THE RECENT
CHANGES IN THE ABFO GUIDELINES, WHICH RENDER INVALID
EVERY ASPECT OF DR. WEST’S TESTIMONY IN THIS CASE, AND
THE STATE’S DEFENSE OF THE BITE MARK EVIDENCE IN
HOWARD’S CASE IS BASED ON MISREADINGS OF BOTH THE NAS
REPORT AND CASE LAW.
 


 

i. Howard has presented uncontroverted proof that the ABFO, the professional
organization certifying forensic odontologists, including Dr. West, has changed its
guidelines in critical ways that discredit the bite mark testimony in Howard’s case.


 

In August 2013, the ABFO conceded that bite mark individualization claims – forensic

findings that a single individual, to the exclusion of all other potential sources, made a particular

bite mark – are invalid in an “open population” case like Howard’s, where the universe of
potential suspects is unknown.30 Just last week, on April 20, 2015, the FBI conceded that

microscopic hair analysis, another forensic discipline used for decades to provide


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
29 Cellmark Forensics Report of Laboratory Examination at 3 (August 13, 2014).
30 See generally Petition at 58, part I, section E, subsection iv-v; Appendix 32 (ABFO Guidelines) at 117.

7


 

individualization testimony, is invalid, and that the FBI’s own experts had given objectively

erroneous testimony in 96% of cases in which hair evidence was used to inculpate a defendant.31

Dr. West’s testimony in Howard’s second trial is “quintessential individualization

testimony,” exactly the kind of testimony proscribed by the guideline changes the ABFO made

in 2013.32 The State’s Response does not address this recent, unprecedented change in the ABFO

guidelines; instead, it claims, wrongly, that Howard now makes “the same arguments…presented

to this Court and others for decades.”33
 

Not only did Dr. West determine without basis in science that Howard was the only

person who could have bitten the victim, he improperly concluded that his identification of

Howard as “the biter” was “without a doubt”: “Do I have any doubt [Howard’s] teeth made that

bite mark on [Ms. Kemp’s] breast? I do not have any.”34 The ABFO guidelines now state:

“Terms assuring unconditional identification of a perpetrator, or without doubt, are not

sanctioned as a final conclusion.”35
 

Furthermore, the ABFO has now rejected – as it must given the subsequent incidence of

post-conviction exonerations – the very means by which Dr. West came to his overreaching and

false conclusions. That is, in addition to rejecting his conclusions, Dr. West’s own board-

certifying entity has rejected the methodology used to arrive at these (invalid) conclusions. In

Howard’s case, Dr. West used the “direct comparison” technique – dipping teeth molds in ink


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
31 See Joint Press Release from the FBI, DOJ, NACDL, and the Innocence Project, “FBI Testimony on
Microscopic Hair Analysis Contained Errors in at Least 90% of Cases in Ongoing Review,” April 20,
2015, available at http://www.fbi.gov/news/pressrel/press-releases/fbi-testimony-on-microscopic-hair-
analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review.
32 Petition at 61; Appendix 30 (Affidavit of Drs. Cynthia Brzozowski, James D. Wood, and Anthony R.
Cardozo (August 22, 2014)) at ¶14.
33 State’s Response at 43.
34 Tr. at 584.
35 Appendix 32 at 119.

8


 

and pressing them into a corpse – to link Howard’s teeth to what Dr. West thought were bite

marks on the victim. Under the ABFO’s current guidelines, direct comparison is no longer an

approved methodology for bite mark identification.36 It must be emphasized, moreover, that the

ABFO is only professional organization still claiming there is any probative value to bite mark

analysis whatsoever, and even they reject entirely the conclusions proffered to Howard’s capital

jury.
 

In Brewer v. State, this Court indicated a degree of faith in the direct comparison

method.37 However, post-conviction DNA testing proved that Kennedy Brewer was innocent,

and that direct comparison, the technique Dr. West utilized, led directly to Brewer’s wrongful

conviction and death sentence. Dr. West also used the direct comparison method in Levon

Brooks’s case, which resulted in Brooks’s wrongful conviction and life sentence.38 Meanwhile,

the actual perpetrator was left free to commit at least one additional rape and murder.39
 

ii. The State’s argument that the NAS Report, as well as various decisions from other
jurisdictions, recognize the validity of bite mark evidence of the kind used in

 
Howard’s case is false.


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
36 See Appendix 32 at 113-114 (listing approved methodologies for bite mark comparison); Appendix 30
at ¶15, 17. The primary reasons the ABFO no longer approves of this technique are: (1) “the technique
itself distorts evidence because it requires physical manipulation of the substrate, i.e. decaying flesh,
which may alter the appearance of the alleged mark”; and (2) “…this technique cannot be replicated or
peer reviewed. Thus it is not possible for another forensic dentist to confirm the findings or otherwise
replicate the test.” Appendix 30 at ¶14-18.
37 See Brewer v. State, 725 So.2d 106, 116 (Miss. 1998).
38 See Brooks v. State, 748 So.2d 736 (Miss. 1999). In Brooks, Dr. West directly compared the model of
Brooks’s teeth to tissue that had been “excised and removed” from the already-embalmed body of the
victim, Courtney Smith. Brooks Trial Transcript at 718, 721, 736. This examination “brought [Dr. West]
to the conclusion that it could be no one but Levon Brooks that bit this girl’s arm,” and that the bite mark
“was inflicted at the time of her death.” Id. at 730, 748. In 2008, Justin Albert Johnson admitted to law
enforcement that he had killed Courtney Smith, and that he had acted alone. Early on, Johnson had been a
suspect in Smith’s murder, but after Dr. West excluded Johnson’s teeth from having made the marks on
Smith’s body, law enforcement focused on Brooks. Brooks Trial Transcript at 720.
39 See http://www.innocenceproject.org/cases-false-imprisonment/levon-brooks.

9


 

The State claims in its Response that the “[NAS] report itself acknowledges that bite-
mark testimony is still reliable, stating that, ‘[d]espite the inherent weaknesses involved in bite
mark comparison, it is reasonable to assume that the process can sometimes reliably exclude
suspects.’”40 This argument fundamentally mischaracterizes the NAS Report’s discussion of bite
mark evidence.

The fact of the matter is that no other forensic discipline received the sweeping criticism
from the NAS as that reserved for bite mark analysis. Bite mark evidence, the NAS Report
found, is characterized by “inherent weaknesses” and “basic problems” which have “led to
questioning of the value and scientific objectivity” of the discipline.41 The NAS found that there
is “no science” establishing how to quantify the probability of a “match,” and “no evidence of an
existing scientific basis for identifying an individual to the exclusion of all others.”42 Forensic
odontologists lack “the capacity to consistently, and with a high degree of certainty, demonstrate
a connection between evidence and a specific individual or source,” and thus “the scientific basis
is insufficient to conclude that bite mark comparisons can result in a conclusive match,” or that
the probability of a match can be determined.43 Consistent with the NAS Report, jurists have
since recognized that forensic odontology is an “insufficiently reliable forensic science
discipline[].”44

The State’s misleadingly selective46 quote refers to what the NAS Report noted as the
potential for bite mark evidence to sometimes exclude persons from having made a particular


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
40 State’s Response at 31 (quoting NAS Report at 176).
41 See NAS Report at 174, 176.
42 Id. at 176.
43 Id. at 7, 175.
44 In re Robbins, --- S.W.3d ----, 2014 WL 6751684, at *15 (Tex. Crim. App. Nov. 26, 2014) (Johnson, J.,
concurring).

10


 

mark – in other words, it might be possible that bite mark comparison can suggest a person did

not make a mark in question, (though at present there no evidence that bite mark analysis is

capable of providing even this evidence). This is clearly not the type of bite mark evidence that

Dr. West gave in this case – Dr West positively matched (i.e. included) Howard’s teeth, to the

exclusion of all others, to the wounds on the victim’s body.47

iii. The case law that the State cites to support its claims about the discipline’s
purported validity deal with a methodology that is totally irrelevant to this case.


 

The State’s failure to grasp the distinct categories within the discipline is also reflected in

its misplaced reliance on several cases – cases that, correctly interpreted, actually undercut the

State’s claims and support Howard’s position.49 The authority relied upon share a significant

common fact: neither case involves the use of bite mark analysis to identify the supposed “biter.”

The State first cites to State v. Lopez-Martinez, 2010 WL 2545626 (Kan. App. 2010). The

victim in Lopez-Martinez knew the defendant, and testified that she bit the defendant when he


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
46 The NAS Report has little good to say about bite mark analysis. “The fact is that many forensic tests –
such as those used to infer the source of toolmarks or bite marks – have never been exposed to stringent
scientific scrutiny.” NAS Report at 42. “Assertions of a ‘100 percent match’ contradict the findings of
proficiency tests that find substantial rates of erroneous results in some disciplines (i.e. voice
identification, bite mark analysis).” Id. at 47. “Much forensic evidence – including, for example, bite
marks. . . – is introduced in criminal trials without any meaningful scientific validation, determination of
error rates, or reliability testing to explain the limits of the discipline.” Id. at 107-108. “Unfortunately, bite
marks on the skin will change over time and can be distorted by [various factors]….These features may
severely limit the validity of forensic odontology. Also, some practical difficulties, such as distortions in
photographs…may limit the accuracy of the results.” Id. at 174. “There is no science on the
reproducibility of the different methods of analysis that lead to conclusions about the probability of a
match.” Id. “Even when using the [ABFO] guidelines, different experts provide widely differing results
and a high percentage of false positive matches of bite marks using controlled comparison studies.” Id.
“More research is needed to confirm the fundamental basis for the science of bite mark comparison….the
scientific basis is insufficient to conclude that bite mark comparisons can result in a conclusive match” Id.
at 175.
47 Tr. at 584.
49 State’s Response at 31-43.

11


 

attempted to assault her.50 Thus, unlike Howard’s case, jurors were not required to blindly accept
the claims of biting from unvalidated and unreliable bite mark analysis proffered by a discredited
expert. Moreover, unlike the instant case in which only Dr. West claimed to see a bite mark, not
only did the victim identify the “biter” – herself – but the police “observed on Lopez-Martinez
the bite mark [the victim] described,” and the forensic dentist merely testified that the victim was
one of an unknown number of people who could have left the mark and excluded other potential
biters.51
 

In other words, the odontologist in Lopez-Martinez used bite mark comparison only to
exclude individuals from having made the mark on the defendant – at no point in that case did
the expert include anyone, that is, state that a particular person, to the exclusion of everyone else
in the world, inflicted the mark on the defendant. This is not what Dr. West did in Howard’s
case. Dr. West included Howard, matching his bite pattern to the wounds he alleged to have
found (but failed to document in any way) on the victim’s body, declaring that Howard had
“without a doubt” made the marks.52 Although Lopez-Martinez is factually inapposite here,
comparing it to Howard’s case further casts into relief the extent of Dr. West’s overreaching.
 

This is a critical distinction in understanding the relevance of Lopez-Martinez to this case.
The State’s Response fails to note it. For example, though the court (the Court of Appeals of
Kansas) deemed this particularized use of bite mark evidence valid, it did so solely on the basis


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

    12
50 Id. at *1.
51 Id.
52 Tr. at 584.

 

of a Kansas Supreme Court case from 1980.53 The Lopez-Martinez concurrence expressed

reservations about the ultimate soundness of such an approach:
 

The Peoples decision was issued more than 30 years ago, which is a long time when
considering the lifespan of a modern scientific method’s viability. Like most other courts, our
Supreme Court held that bite-mark evidence was sufficiently reliable to be admitted as expert
testimony because courts elsewhere had so held….But reliance solely on past cases can be a
problematic method for continued acceptance of scientific tests.54
 


 

The concurrence goes on to suggest that “[r]econsideration of the admissibility of bite-mark

testimony seems appropriate,” citing, among other things, the 2009 NAS Report.55 The

concurrence also discusses the NAS Report’s finding that bite mark evidence “can sometimes

reliably exclude suspects” (the same finding the State quotes in its Response56), emphasizing that

“that’s just the way the bite-mark evidence was used in [Lopez-Martinez],” and that, therefore,

the forensic dentist’s findings in that case were not at odds with current bite mark science as

articulated by the NAS Report.57 Once again, this is not the way bite mark evidence was used in

Howard’s case.
 

In support of its argument that the NAS Report is not newly discovered evidence, the

State’s Response quotes, almost in its entirety, a 2012 Court of Appeals of Texas opinion,

Coronado v. State.58 The odontologist in Coronado, like the one in Lopez-Martinez, used bite

mark analysis only to exclude people from having made the mark in question (defendant


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
53 Lopez-Martinez, 2010 WL 2545626 at *2 (finding bite mark identification reliable, relying on State v.
Peoples, 227 Kan. 127, 132 (Kan. 1980).
54 Lopez-Martinez at *4 (Leben, J., concurring) (emphasis added).
55 Id.
56 Response at 31.
57 Lopez-Martinez at *5 (Leben, J., concurring).
58 State’s Response at 34-42 (quoting Coronado v. State, 384 S.W.3d 919, 922-28 (Tex. App. Dallas
2012).

13


 

Coronado could not be excluded, but was not included).59 Discussing its reasons for finding that

the bite mark evidence in the case was not improperly admitted, the Coronado court emphasized

that, “[s]ignificantly, the evidence in this case was used for the very purpose the NAS deems

reliable – to exclude suspects in a closed population.”60 Again, in Howard’s case, Dr. West

included Howard where the number of possible suspects was innumerable, that is, an open

population.
 

What the State does not mention anywhere in its Response are two significant

developments that add important context to Coronado. First, in 2013, the Texas Legislature

passed Article 11.073, the purpose of which was to prevent wrongful convictions by keeping bad

science out of the courtroom.61 Second, late in 2014, the Texas Court of Criminal Appeals (the

court of last resort in Texas criminal cases) decided Ex Parte Robbins, the first case to come

before it based on the new statute.62 Robbins turned on the court’s interpretation of a particular

provision in this statute, but the majority opinion, along with its two concurrences, evinces a

wariness about taking on faith the validity of a forensic field, or a particular expert’s findings in

that field, simply because courts in the past had accepted them – in contrast to the deference to


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
59 Coronado, 384 S.W.3d at 922, 927.
60 Id. at 928. The Coronado court also noted that in 2010, the Texas Court of Criminal Appeals upheld the
admission of bite mark evidence when it was used, as it was in Howard’s case, to “positively identify a
suspect rather than exclude the suspects from a closed population.” Id. at 927 (discussing
Chanthakoummane v. State, 2010 WL 1696789 at *21-23 (Tex. Crim. App. 2010). In that case,
Chanthakoummane, one of the reasons the court found no error with regard to the bite mark evidence was
that the odontologist “followed the guidelines established by the ABFO when conducting his forensic
dental analysis.” Chanthakoummane at *23. As discussed above, though, the ABFO no longer approves
of “individualization” testimony, which “positively identifies” a suspect, in an open population case. As
was the case with the defendant in Lopez-Martinez, the evidence (other than the bite marks) against
Chanthakoummane was overwhelming: “DNA analysis linked [Chankthakoummane, a stranger to the
victim] to evidence from the crime scene,” including DNA found under the victim’s fingernails and DNA
collected from various objects and surfaces in the victim’s home. Id. at *3.
61 Tex. C.C.P. Art. 11.073; see Ex Parte Robbins, 2014 WL 6751684, *13-14 (Tex. Crim. App. 2014).
62 Ex Parte Robbins, 2014 WL 6751684 (Tex. Crim. App. 2014).

14


 

precedent the Texas Court of Appeals showed in Coronado (the opinion from which the State

cites at length in its Response). Significantly, both concurrences singled out bite mark analysis as

a discredited forensic technique.63
 

The defendant in Robbins was convicted in 1999 of capital murder of a child, solely on

the basis of medical testimony from the prosecution’s expert.64 The expert, Dr. Patricia Moore,

“testified that the cause of [the child’s] death was asphyxia due to compression of the chest and

abdomen and that the manner of death was homicide”; she also testified that she “’believed” this

to be the correct diagnosis “beyond a reasonable doubt.”65 In 2007, the Montgomery District

Attorney’s Office asked Dr. Moore to review her autopsy report in Robbins’s case.66 Dr. Moore

wrote a letter to the district attorney, stating that though she still “[felt] that this was a suspicious

death….I now feel that an opinion for a cause and manner of death of undetermined…is best for

this case.”67 On the basis of this letter, the State recommended that Robbins be granted a new

trial, claiming “because it relied on Moore’s opinion in presenting its case, which has now been

recanted, confidence in the outcome has been undermined.”68 After several years of further

independent review of the medical evidence, an evidentiary hearing, and the trial court


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
63 Id. at *13, *15.
64 Id. at *3.
65 Id. Dr. Moore also established the approximate time of the child’s death, which was during a span of
hours that the child had been alone with Robbins. Dr. Robert Bux testified as a medico-forensic expert on
Robbins’s behalf, telling the jury that the cause of the child’s death “could not be determined and that no
anatomical reason demonstrated during the autopsy could have led to a specific cause of her death.” Id. at
4. Regarding the time of death, Dr. Bux found that the victim had suffered the fatal injuries when Robbins
was not with the child. Id.
66 The D.A.’s Office’s request came after two other medical examiners (one at the behest of the
defendant, the other by the D.A.’s Office) re-evaluated Dr. Moore’s autopsy findings and both disagreed
with Dr. Moore’s conclusion about the cause of death. Id. at *5.
67 Id. Dr. Moore “explained that since her original opinion, she has had more experience, and she has
reviewed additional information.” Id.
68 Id.

15


 

recommending a new trial for Robbins, the Texas Court of Criminal Appeals denied Robbins
relief.69
 

Article 11.073, the new Texas post-conviction law, provides for post-conviction relief

“where the applicant can show by the preponderance of the evidence that he or she would not
have been convicted if the newly available scientific evidence had been presented at trial.”70 The

statute gives guidance about how courts should determine if the scientific evidence is “new” or

not – the primary question is “whether the scientific knowledge or method on which the relevant
scientific evidence is based has changed.”71 The State argued that a single individual changing

her mind – Dr. Moore’s new conclusion that the cause of death was “undetermined,” rather than

asphyxiation – should not be considered “a change in scientific knowledge.” The court

disagreed, finding Dr. Moore’s personal change of opinion to be a “change in scientific
knowledge,” even though there had not been any changes in her field of pathology itself.72
Robbins was thus granted a new trial.73
 

Two justices on that court wrote concurring opinions, discussing forensic issues that have
come to light due to scientific developments, such as those reflected in the NAS Report.74 Justice

Cheryl Johnson noted the need for courts to “acknowledge and address” changes in scientific

knowledge both in general and in individuals, and lists “bite marks” among a list of now-

disputed types of evidence – “[s]ome such evidence has involved misrepresentation based on

out-dated knowledge, some are simply junk science that has never been subjected to any kind of


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
69 Id. at 8. At one point during those proceedings, the State changed its position, arguing that Robbins
should not get a new trial. Id. at 7.
70 Id. at 8.
71 Id. at 9.
72 Id. at 10.
73 Id. at 11.
74 Id. at *11-22.

16


 

scientific investigation.”75 Justice Cathy Cochran specifically cites the NAS report, describing it

as an “expose of the shoddy forensics used in criminal proceedings.”76” Like Justice Johnson,

Justice Cochran lists “forensic odontology” among the set of what she considers “insufficiently

reliable forensic science disciplines.”78 Closing her Robbins concurrence, Justice Cochran writes:

“Regardless of whether a conviction is based on an unreliable field of science or unreliable

scientific testimony, the result is the same: an unreliable verdict cannot stand the test of time.”79

In the present case, Howard’s conviction was based on both unreliable pseudo-science

and unreliable testimony about it:
 

(1) Though the ABFO still avers that some bite mark evidence is valid, and the NAS
gives it a tepid endorsement (“Despite the inherent weaknesses involved in bite mark
comparison, it is reasonable to assume that the process can sometimes reliably
exclude suspects.”80), both organizations agree that bite mark evidence which
includes – positively identifies – a suspect is untrustworthy and invalid. Dr. West
provided exactly this kind of evidence at Howard’s trial, giving the State its only
physical evidence linking Howard to the murder.


 

(2) Dr. West himself has now renounced the validity of all bite mark evidence, going
even further than the ABFO and NAS: “[I]f I was asked to testify in this case again, I
would say I don’t believe [bite mark analysis is] a system that’s reliable enough to be
used in court.”81 Though, somehow, he still claims to stand by his own bite mark
testimony in every case where he testified (unlike Dr. Moore in Robbins, who
admitted she had changed her opinion), Dr. West’s wholesale disavowal of the very
forensic analysis he used in each of those cases (including Howard’s) changes, by
necessity, his opinions in all of them, whether he is willing to admit it or not. For
example, in a newly post-Copernican world, a repentant pre-Copernican scientist,
acknowledging his errors, would have to recalculate everything she had calculated
using pre-Copernican equations.


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
75 Id. at 13. “Some examples of ‘contradicted scientific evidence relied on by the state at trial’ include
arson, infant trauma, bullet-lead analysis, bite marks, some ballistics tests, blood-spatter patterns, and
scent line-ups.” Id.
76 Id. at 14.
78 Id. at 15.
79 Id. at 21.
80 NAS report at 176.
81 Deposition of Michael West at 37-38, Vance v. State, No. 2011-288-LS-LT (Lincoln Cnty. Cir. Ct. Feb.
11, 2012) (attached as Appendix 5 to Petition). See Petition at 29-30.

17


 

 


 

IV. HOWARD’S CLAIMS ARE NOT SUBJECT TO ANY PROCEDURAL
BARS BECAUSE THEY ARE BASED UPON NEWLY DISCOVERED
EVIDENCE AND FUNDAMENTAL, CONSTITUTIONAL RIGHTS.
 


  In its Response, the State tries to invoke a host of procedural bars to prevent the Court
from considering Howard’s substantive claims.82 The crux of the State’s argument is this: that

Howard’s petition is procedurally barred because his Newly Discovered Evidence claims and

Fourteenth Amendment claims are merely an attempt to re-challenge Dr. West’s credibility, a
claim Howard has previously brought in prior post-conviction filings.83 This argument, however,

fails in light of the law concerning petitions for post-conviction relief. More specifically, newly

discovered evidence and claims concerning fundamental, constitutional rights are specifically
exempted from procedural bars.84 The Court should therefore not apply any procedural bars to
Howard’s petition and consider his arguments on the merits.85
 

In his petition for post-conviction relief, Howard presents multiple, significant pieces of

newly discovered evidence that place this conviction and death sentence in grave doubt,

including, inter alia: DNA testing results showing that none of Howard’s DNA was found at the

crime scene; an affidavit from three prominent members of the ABFO stating that the marks Dr.

West identified as “bite marks” at trial were not, in fact bite marks at all; a change in the

professional guidelines governing this forensic discipline, which indicates a complete rejection

of the methods and analysis Dr. West used in his bite mark analysis at Howard’s trial; a National


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
82 See State’s Response at 9, 16-30, 45, 48, 52, 53, 57, 59 (invoking, inter alia, the bar against successive
writs, the time bar, and res judicata).
83 See State’s Response at 16-30.
84 MISSISSIPPI CODE § 99-39-5(2); Rowland v. State, 42 So.3d 503, 508 (Miss. 2010).
85 See Rowland, 42 So.3d at 508.

18


 

Academy of Sciences report on the usefulness and reliability of bite mark analysis; multiple

scholarly journal articles indicating that the type of identification Dr. West made in this case was

impossible; a deposition by Dr. West where he renounces his belief in bite mark analysis; and

new proof of a stunning number of wrongful convictions, including two wrongful convictions in
Mississippi that relied upon Dr. West’s bite mark analysis.86

All of this evidence was discovered after Howard’s criminal trial, and none of it could

have been discovered through due diligence. This evidence fits squarely within the parameters

governing newly discovered evidence and therefore is explicitly exempted from UPCCRA’s
procedural bars.87 Furthermore, in the absence of the State arguing that Howard has presented

this specific information (instead of information generally calling into question Dr. West’s

reliability) before this Court on a previous occasion, all of the State’s invocations of res judicata
to bar the Court’s consideration of this new evidence lack merit.88 The Court has never been

presented with this evidence before in this case; it has thus never made a ruling on its

applicability in this case.
 

Howard’s current claims are therefore substantially different than claims raised in his

previous petition for post-conviction relief. Whereas his original petition challenged the

reliability of Dr. West’s methods under Rule 702 and his trial counsel’s failure to obtain an


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
86 In its Response the State asks the Court not to consider the affidavit of Ross Parker Simons (which
discusses reversed convictions based on bite mark evidence), because the version filed is an “unsworn
“piece of paper.”” State’s Response at 30. Counsel for Petitioner, in putting together the appendices,
inadvertently included an unsigned version (as Appendix 10) rather than the signed and notarized one; the
intended signed affidavit is attached to this Reply as Exhibit B. Because this Reply is being filed
electronically, counsel for Howard will mail the original affidavit to the Clerk for filing.
87 Id.
88 State’s Response at 29, 45, 48, 50,.

19


 

expert in his defense,89 Howard now argues that newly discovered evidence proves that Dr.
West’s bite mark analysis was not just unreliable but patently false.90
 

Even assuming that the State were correct that Howard is merely reasserting claims from

his previous petition for post-conviction relief, UPCCRA’s procedural bars still do not apply in

this case. This Court held in Rowland that procedural bars cannot be applied in the face of

“errors affecting fundamental rights,” because such a violation “is too significant a deprivation of
liberty to be subjected to a procedural bar.”91 Concurrently, the right to be free from a conviction
using false evidence invokes Howard’s Fourteenth Amendment Due Process rights.92
 

In addition to a litany of claimed procedural bars under UPCCRA, the State also

repeatedly attempts to invoke the judicial doctrine of res judicata to prevent the Court from

considering Howard’s constitutional claims. This court recently held in Smith v. State, that

“neither the common law nor our own constitutional law applies the doctrine of res judicata to
constitutional claims.”93 Moreover, “[a]lthough the doctrine of res judicata is based upon the

public policy of putting an end to litigation, we nevertheless think the doctrine is not inflexible

and incapable of yielding to a superior policy . . . . The doctrine of res judicata must yield to the
constitution.”94 And, in Ex parte Pattison, 56 Miss. 161 (1878), in considering an appeal from a

trial court's denial of a prisoner's petition for writ of habeas corpus, this Court stated:
 

At common law, an adverse decision on one writ of habeas corpus did not
preclude a second one. Indeed, so tender was the law of the liberty of the subject,
that he might, when deprived of it, resort in turn to every judge in the realm, and


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
89 See id. at 20-28.
90 Petition at 68-74.
91 Rowland v. State, 42 So.3d 503, 508 (Miss. 2010) (quoting Smith v. State, 477 So.2d 191 (Miss.1985));
accord Smith v. State, 149 So.3d 1027, 1031 (Miss. 2014).
92 See Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28, 31 (1957).
93 Smith v. State, 149 So.3d 1027, 1031 (Miss. 2014).
94 Id. (internal citations omitted).

20


 

was entitled to be enlarged if any one of them thought proper to bail or discharge
him.
 
Ultimately, because Howard’s petition invokes his Fourteenth Amendment rights and challenges

his unlawful conviction and corresponding wrongful incarceration, the Court should reject the

State’s invitation to ignore the new evidence and allow it to put Howard to death based on false

and misleading “scientific” evidence and address the merits of his claims.95

V. CONCLUSION

For the reasons set forth above, Petitioner requests that the Court grant him post-

conviction relief.

Respectfully submitted,

EDDIE LEE HOWARD, JR.

BY:

s/W. Tucker Carrington
W. TUCKER CARRINGTON, MSB NO. 102761
s/William M. McIntosh
WILLIAM M. MCINTOSH, MSB NO. 102835
MISSISSIPPI INNOCENCE PROJECT
UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW
ROBERT C. KHAYAT LAW CENTER
481 COLISEUM DRIVE
P.O. BOX 1848
UNIVERSITY, MS 38677-1848
TELEPHONE: (662) 915-7471
FACSIMILE: (662) 915-5213


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

    21
95 See Smith, 149 So. 3d at 1032.
 

 

s/M. Chris Fabricant
M. CHRIS FABRICANT

s/Vanessa Potkin
VANESSA POTKIN

s/Peter J. Neufeld
PETER J. NEUFELD
THE INNOCE N
  CE PROJECT
 
 
 
 
40 WORTH STREET, SUITE 701
NEW YORK, NY 10013
TELEPHONE: (212) 364-5359
FACSIMILE: (212) 364-5341
PRO HAC VICE

COUNSEL FOR PETITIONER


 

22


 

CERTIFICATE OF SERVICE
I, William M. McIntosh, hereby certify that I have, on this day, delivered through this
Court’s electronic filing system a true copy of the foregoing Reply to the State’s Response to
the following party:
Jason Davis, Special Assistant Attorney General

RESPECTFULLY SUBMITTED on this, the 28th day of April, 2015

s/William M. McIntosh
William M. McIntosh
Counsel for Petitioner


 

 

 
 

 
 

 

23


 

Exhibit A

STATE OF MISSISSIPPI
OFFICE OF THE ATTORNEY GENERAL

PUBLIC INTEGRITY DIVISION

REPORT

CASE NO : 08-0041W

SUBJECT: Interview of Justin Albert Johnson

DATE: February 5, 2008

INVESTIGATOR: Ronnie Odom

On February 2, 2008, Public Integrity Division (PID) Investigators D. Welch and R. Odom
proceeded to Noxubee County Justice Court to obtain an warrant for the arrest of Justin Albert
Johnson, Brooksville, MS on the charge ofcapital murder. Justice Court Judge Dirk Dickson was
apprised of the facts, as known at the time, relating to the impending charges. After his review of
the affidavit, warrant, underlying facts and circumstances and other supporting docwnentation,
as well as a brief discussion, Judge Dickson issued said warrant for the arrest of Johnson on the
charge of capital murder.

Investigators Welch and Odom then proceeded to Brooksville, MS, where they met with
Criminal Investigator Johnny Bell, District Attorney's Office, Lieutenant Kenny Blaine,
Ni'iSslssippi ·Bureau of Investigation (MBI) and Agent Clay Baine, MBI. These officers were

ap.,qsed t!f the nature of the warrant and other brief related facts concerning the matter. After

cuncluding· this brief, Agent Baine and Investigator Odom traveled attempted to locate the
r~si_dence and determine if there was any sign indicative of Johnson's presence.

J~~on's residence, located at 1272 Sanders Hill Road, Brooksville, MS, described as a green

hquse with the numbers 1272 prominently displayed on the front was located without delay. It

was" further noted during this observation that at least one (1) black male was present at the

residence, ·described as a dark complected, older, black male. This unknown subject was
observed sitting in the driver's seat of an older model truck parked next to the residence. After
making this observation, the other officer's assisting in the mest were notified and all parties
proceeded to the residence. Upon arrival Investigators D. Welch and J. Bell made contact with a
Riale =subject at .the entry door of the residence and subsequently asked to speak with Justin
Albert Johilson. Johnson eventually came to the doorway and after confirming his identification

! . ~. '

··.J: 1 •

Jbhnson lnteiView Odom B.doCY:\DNA\CLIEN"nBrewer_Kennedy.coe16\MOTION To DISMISS

l~qlq1MENT\Exhlblt B\Johnson lnteNtaw Odom.wpd

'~ ':; :·

..-•'··,· '.

;·..

.:·.· :·\·

.he was taken into custody and apprised of the charge against him. Johnson's arrest was affected
... a,t appro~imately 1500 hours on February 4, 2008.

1 • iohnson was placed in Agent Baine's vehicle, driven by Baine, who was accompanied by
Investigator Odom. These two (2) officers then transported Johnson to the Chickasaw County
Jail, Houston, MS per predetermined instructions from the Attorney General's Office. While en
.·route to the jail, Johnson was read his rights as reflected on a Miranda Warning fonn by
Investigator Odom and verbally indicated that he understood his rights. After engaging in casual
conversation, Johnson was advised of the deoxyribonucleic acid (DNA) recovered from victim
.Christine Jackson. It was further explained to Johnson, who acknowledged that he was a suspect
in the original criminal investigation, that although his DNA was collected, a comparison to
.DNA gained from spermatozoa found in victim Christine Jackson was not conducted until
recently. After being afforded this information, Johnson began to quiet his denial of any

involvement in Jackson death and began to make remarks that it was bad. Agent Baine asked
·Jrihrison·ifhe was sorry for what he did, and Johnson replied that he was sorry. Johnson advised
:Biune and Odom of his extensive drug use over the years, including his use of crack cocaine
during the time of his abduction of Jackson. He also offered that he had experienced personal
·tragedies during his life and stated that he had been seeing a therapist. Johnson further stated that
he was currently taking medication and provided that he felt that ifhe were taking said medicines
:when he was younger then he may not have acted like he had.

As the trip to the Chickasaw County Jail continued Investigator Odom began to engage Johnson

in .more specific questions regarding his (Johnson's) actions on the night of Jackson's abduction.

Johnson·was asked if he had ever been into the residence before that night and he responded that

he.h.ad not..Johnson was asked questions in an attempt to determine if his actions that night were
preplanne~ and responded by insisting that he had not preplanned the abduction of Jackson~

offe,ring that his actions were spontaneous. As the trip ensued, Johnson was advised that upon

mri.val at the jail~ the conversation between he, Baine and Odom would be repeated for the
b~~~fit oflnvestigator Welch, who would join in the interview.
·

Upon arrival at the Chickasaw County Jail, Johnson was allowed to use the restroom and to also

get a cup of water. An interview room was provided for the ensuing interview ofJohnson, which

was .conducted by Baine, Welch and Odom. Investigator Bell was afforded the benefit of

momtoring the interview from a mirrored observation room.

Lt. ·

\\''

I ,i

Johnson Interview Odom B.docv:\DNA\CLIENT\Brewer_Kennedy.C0816'1MOTION TO DISMISS

INOiCi'Mi:tmExhlblt BVohnaon lnte.view Odom.wpcl

I . •' '

:, .

STATE OF MISSISSIPPI
OFFICE OF THE ATTORNEY GENERAL

PUBLIC INTEGRITY DIVISION

REPORT

CASE NO: 08..0041W

·SUBJECT: Interview of Justin Albert Johnson

DATE: February 7, 20.08

INVESTIGATOR: Danny Welch

On February 5, 2008, Investigator Danny Welch and Investigator Ronnie
Odom with the Mississippi Attorney General's Office prepared an arrest warrant
•for Justin Albert Johnson for the Capital Murder of Christine Jackson on May 3,
· · 1992. The case was originally investigated by the Noxubee County Sheriff's
Department in 1992, but post-conviction deoxyribonucleic acid (DNA) tests were
conducted which revealed that the original suspect, Kennedy Brewer, was
eliminated as the donor of the spermatozoa. Additional comparisons were made
from the DNA profile obtained post mortem from the spermatozoa found In the
vaginal vault of Christine Jackson, and the test concluded that Justin Albert
Johnson was the donor of the spermatozoa found In the vaginal vault of Christine
Jackson.

Investigator Welch and Investigator Odom met with Noxubee County
Justice Court Judge Dirk Dickson at the Noxubee County Justice Court. Judge
Dickso_n reviewed the Warrant Affidavit, the Warrant, and the Underlying Facts
and Circumstances. After reviewing the information, Judge Dickson signed the
. arrest warrant for Justin Albert Johnson. Investigator Welch and Investigator
Odom·met with District Attorney Investigator Johnny Bell, Mississippi Highway
Patrol Bureau. of Investigation (MBI) investigators Lieutenant Kenny Blaine and
Agent Clay Baine in Brooksville, Mississippi. The purpose of this meeting was to
obtain their assistance in the apprehension of Johnson.

. . hivestigator Odom and Agent Baine traveled to Sanders Hill Road in an
· . attempt to locate a visual on Johnson. Investigator Odom contact Investigator

·welch and informed him that a vehicle with an older black male had just parked
at the residence and was sitting in the truck. They were sitting down the road to
ensure the vehicle did not leave prior to our arrival.

Investigators traveled to the residence of Justin Johnson at 1272 Sanders
Hill Road and made contact with his father at the residence. Johnson was
present ~nd came to the door and met with lnvesti~ator Welch. After verifyin~
his identity, Johnson was placed into custody and Informed of the charge agamst
him. He was placed into MBI Investigator Baine's vehicle for transportation to the
Chickasaw County Jail. Investigators retrieved his medication from his mother
and his parents were informed of the charges against him. Investigator Baine
and Investigator Odom then transported Johnson to the Chickasaw County Jail.
Lie4tenant Blaine, Investigator Bell, and Investigator Welch followed the transport
. vehicle· to the Chickasaw County Jail. Upon arrival at the jail, Johnson was
·allowed to use the restroom and was provided with water. Johnson agreed to be
interviewed by the investigators about the charges against him.

Investigator Welch, Investigator Odom and MBI Investigator Baine was
present in the interview room with Johnson and Investigator Bell was in and
adjacent room where he could monitor the interview. Investigator Odom read
Johnson his Miranda Warning, and asked if he understood his rights. Johnson
acknowledged that he understood and would be willing to speak with the
investigators. Johnson also acknowledged that he had been transported by
Investigators Odom and Baine and that he had not been threatened or
intimidated in any way during the ride, and he was not coerced into speaking with
the investigators. The following Is what Johnson related during the interview to
que'stions posed by the investigators:

Johnson explained that he just could not help himself back then. He now
sees a psychiatrist and a counselor for his problems. He described an event ·
during his childhood when he was approximately 5 years old. He and his
younger brother was playing in the house while his mother was cleaning their
w·ooden floor. She told them to get out of the kitchen, and he left the room but
his' brother remained in the kitchen. He went back into the kitchen to get his
brothe~ and noticed that he was falling backwards into boiling water. He reached
oufand grabbed his arm, but his hand slipped through and his brother landed in
the'boiling water. His brother died from complications about a month later. This
took a lot out of him and he has not been right since that happened.

He does remember the time when Jackson died, but he does not
remember the exact date. He did not enter the house on that night, but rather
reached through a window and removed her from the house. He remembered
that'Brewer was asleep on the bed near the child. He raised the window and
reached inside and was able to pick the child up and pull her out of the window.
He did not remember anything specific about the window, just that he slid it up to
remove Jackson. He remembered that it was dark inside the room and both
Brewer and Jackson was lying in the bed. Jackson did not wake up immediately
when he gother out of the window.

While he was taking Jackson out of the house, his mind was running and

he could not catch it. It was not something he planned to do and he could not

control himself because he was on crack, marijuana, and alcohol. At this time,
he did not know about medication that could help him, he was just looking for

help then. He related that Brewer never woke up when he removed the child.
After removing her from the residence, he carried Jackson across the field, and
through some woods. She did wake up during the walk and she began walking
beside him with him holding her hand. He didn't know what to do, and then he
began hearing the voices telling him what to do. The voices were telling him to
"sex molest her and hurt her and dispose of the body." His mind began to run

and· he sat down and started beating the ground because he did not know what

to do. Stie was asleep at this time, but he could not fight off the voices.

1• . He did not take his clothes off during this, rather he just took his ''thing out"
referring to his penis. He first had his "thing" laying over the top of her, and she

woke up. When she woke up, it scared him because she started crying and

hollering. The only thing that he remembers her saying was "you want my

momma." He was unable to say anything back to her. He does not remember

what she was wearing that night. When they got near the creek, he laid her

qown and he sat down, she was crying at this time. He was looking at her while

she was lying there, and then he "taught" her. He thinks that she had on panties

and he· must have pulled them off. She was lying on her back and he was on top

of her. Her;legs were between his legs. He just unzipped his pants and pulled

hi~ penis out. He tried to insert his penis but could not get much of it in her. Only

about an inch went inside her vagina. He had sex with her with just that much of

his penis in her. His penis stayed inside her a minute or better before he

ejaculated. He recalls ejaculating, but he only did this one time. She was

hollering while he did this. She finally stopped crying, but she was still alive. He

sat down and stie said that she was cold. He began to think, and realized that he

had hurt the "poor child" and he began to cry. ·

. · · : Then the ·voices came back and told him that he had to get rid of her.· The

voiees told him to throw her in the creek. They were not very far from the creek.
She walked beside him to the creek. He picked her up by the waist, she was
facing him at the time, and threw her Into the creek. She tried to get outbut.ttie

creek was to deep for her to stand up, and she went back under and did not

came up again. He jumped into the creek, but he did not see her anymore.
Where he was with the child, it was very thick. The water was up and he

believes that she must have washed down the creek before the body was found.
He stayed in the woods for a long time, then went home.

He had never been to the house before the night he took Jackson from the
window. He had not planned it out or anything, he had just gone to the window
and they were lying there. He did feel bad after they arrested Brewer for the
crime; but there was nothing could be done by him turning himself in and that
Would not help Brewer. He had never seen Jackson prior to this night and did

.f .

not know her mother. Prior to the sexual act with Jackson, he touched her
"privates" referring to her vagina, and inserted his finger into her. When asked If
he kept anything from that night that belonged to Jackson, and he related he did
not keep anything because he was not a pervert.

He was then asked about any other time that something like this

happened to another child. He initially stated that this was the only time It
happened. He was a suspect In a case that Levon Brooks was convicted
because his vehicle was seen In the neighborhood where the child was taken,
buthe did not do it. He later stated that "it happened." He related that he was on
dr~gs and alcohol that evening. too and the voices started talking to him. The
c;l,emons had him and he could not help himself.

· ·.· · He went to the house, referring to the house Courtney Smith was in, and

he went inside this house and got the child. She was lying on the floor when he
walked in. Someone else was In the house, but he did not get seen by this
person. The person was a grown man, but the man did not see him. He picked
the child up and took her out of the house. He carried her between the houses
and across the road next to the "pool" referring to the pond near the house.

He did not have sex with her, but he did "taught her'' referring to digital

penetration of the child. While he was inserting his finger into her, she woke up

and began crying. She did not say anything to him during this act. He was by ·

the· pond When he was touching her. He does not remember her having on any·

panties. He never tried to put his penis in her. After he was finished, he began

to hear the voices again telling him to get rid of her. He then stated that he hates

all that happened, but he can't change any of it. He does feel bad for Levon and

Kennedy. He did not see Levon Brooks on the night he got Courtney Smith.
:. . . . .

., ·;; The demons was telling him to get rid of her, so he threw her Into the·

ptind; · Whe~ she hit the water, he thinks she crawled to the other side in the

water.· When she got to the edge, she put her head down and he guesses that

was· it· He eould not go check on her. He was unsure If she crawled or floated to

the side. He then got In his car and went home. He was asked if he stayed there

for a while like he did with Jackson. He related, "No that was in a neighborhood."

·· · There was a dim light on in the house when he entered the it. When he
walked in, the child was on the floor and the only other person that he saw was
the male subject who he did not know. He did not know who lived in the house,
and did not know there was a child inside. The door was unlocked and that is
how he got inside.

Johnson was adamant that he was by himself on both occasions, with ·
Jackson and Smith. He did not see levon Brooks on the night he took Courtney

Smith, and Kennedy Brewer was asleep when he took Christine Jackson. He
was asked if these were the only occasions that things like this happened and he

related that it was the only times. He stated that he would not say anything about
himself that did not happen.

Additionally, Johnson agreed to show us the location of the residence and
the "pool" that involved the Courtney Smith incident. The location was in
Brooksville, Mississippi. He directed Investigator Odom and Investigator Welch
to the main road going into downtown Brooksville. He then directed us to tum left
onto Calmes Street and then onto the first right, which Is North Phillip Loop.
Upon turning onto North Phillip Loop, Johnson stated that Is the "pool" I put her
in, referring to the pond on the corner of Calmes Street and North Phillip Loop.
He related that his car was parked next to the pond, off the roadway in a small
wooded area. He then stated that the house was around the curve, and as we
traveled around the curve and back towards Calmes Street again, Johnson
related that was house, which was the third house on the left not counting the
trailers, where he got the little girl. The house where the lady lived that he
originally went to see was the second house on the left, not counting the trailers
as we enter North Phillip Loop from Calmes Street. He related that he knocked
on the door, but she would not let him in, so the voices told him he needed to do
something. So he went to that house and that Is where he found Smith. He
related that there had been rain recently, but on the night when he took Smith
there, the pond was lower. He stated that he was near then pond over a small
hill when he digitally penetrated Smith and the threw her into the pond.

Exhibit B

STATE OF MISSISSIPPI
COUNTY OF JACKSON

AFFIDAVIT OF ROSS PARKER SIMONS
I, ROSS PARKER SIMONS, declare the following to be true and correct:
My name is Ross Parker Simons and I am an adult resident of Jackson County,
Mississippi. My address is 504 Orange Avenue, Pascagoula, Mississippi. I have been a
practicing attorney since 1986 and have served in the full-time positions of Jackson County
Assistant Public Defender from 1987 to 1992, Jackson County Public Defender from 1992 to
1999 and as the 191h Judicial District Appellate Public Defender from January 2000 through
September 2006. I am now in private practice.
During my tenure as a public defender I encountered the work of Dr. Michael West, a
dentist from Hattiesburg, Mississippi, who regularly assisted the district attorney ofmy district in
capital and other cases. Two cases in particular stand out in a manner that pitted Dr. West's
certitude against an even stronger refutation of both his methodology and his conclusions.
First, was State v. Mark Oppie, Jackson County Cause No. 90-10,600(3), a 1990 capital
murder case in which Dr. West rendered an opinion that scratch marks on Mr. Oppie's biceps
and hands were "[n]ot only consistant [sic] with the fingernails of[the victim], but many unique
charteristics [sic] of the fingernails are represented in the wounds" and were "consistant [sic]
with the time <;>f death." Dr. West went on to conclude that: "The wounds on Mr. Oppie's skin
are indeed and without doubt produced by Mr. Shumock." Report of Michael H. West, in letter
form, to Lt. Jim McAannally [sic] dated 18 Jun [sic] 90. Dr. West effected the "matches" only

1

after removing the fingernails of the victim, placing them on sticks and aligning them with the
scratches on Mr. Oppie.

In trying to determine which recognized field of expertise encompassed removing
fingernails, placing them on sticks, aligning them with wounds, and then concluding "indeed and
without doubt" that the fingernails caused the wounds, I contacted both forensic odontologists
and other forensic scientists. I learned that there was no field of expertise that recognized this
procedure, that ifthere were one, a forensic odontologist would not be the expert to draw this
type of conclusion, and that no conclusion stronger than "a possibility" could be drawn from such
a comparison. I also learned that this type of comparison was more or less analogous to tool
mark comparison, but that Dr. West's methodology of comparing the tools (fingernails) to the
marks (wounds) was unacceptable and flawed as legitimate tool-mark comparisons are made by
replicating the mark in a similar medium with the suspected mark-maker and then comparing the
new mark to the one at issue.

Second, in State v. Johnny Bourn, Jackson County Cause No. 93-10,214 (3), Mr. Bourn
was charged with rape, aggravated assault, armed robbery and burglary of an occupied dwelling,
the victim being an 80-year-old widow. Copious amounts ofbodily fluids were found at the
crime scene, fingernail scrapings were taken from the victim, unknown fingerprints ofvalue were
lifted and Negroid pubic and head hairs were also collected.1

The victim described her assailant, and a police officer sketched a composite drawing.
Some time later, the Pascagoula detective working the case encountered Mr. Bourn in that city's
jail and thought he looked like the composite drawing created from the victim's description.

1Mr. Bourn is African-American; the victim of the crime, Caucasian.
2

However, the detective never conducted a photographic or in-person line-up to give the victim
the opportunity to identify or not identify Mr. Bourn as her attacker. Instead, the detective called
in Dr. West who examined a purported bite mark on the victim and compared it to models made
from a casting of Mr. Bourn's teeth. Indictment followed, based solely on Dr. West's
conclusions.2

Although the discovery indicated that fluids and tissue were available for forensic testing,
the state asserted that the amounts were insufficient for testing. I asked that the evidence be
preserved and re-submitted. When it was, the state crime lab conclusions were that the Negroid
pubic and head hair samples from the crime scene did not match Mr. Bourn's hair, and the
fingerprints lifted from items that the assailant used to beat the victim and other items did not
match Mr. Bourn's prints. More tellingly, tests conducted by GenTest Laboratories, Inc.
concluded that scrapings from the victim's fingernails yielded the DNA of the victim, as
expected, and of a third party who was conclusively not Mr. Bourn. The trial judge eventually
granted the prosecutor's Motion to Nolle Prosequi Mr. Bourn's indictment.

Most of my involvement with Dr. West was in the two cases set out above, but our office
also challenged Dr. West in State v. Harrison. His conclusions that marks on a victim in that
case were human bite-marks made by Mr. Harrison were later refuted by Dr. Richard Souviron, a
forensic odontologist who concluded that the marks in the Harrison case were made, post-
mortem, by insects.

2 The district attorney's detailed Motion to Nolle Prosequi sets out incorrectly that the
indictment was based both on the victim's identification of Mr. Bourn, which did not occur, and
Dr. West's conclusions.

3

Signed and Witnessed, this the day ofJuly, 2010.

~,,1;,Jcrc0t«~

ROSS PARKER SIMONS

My Commission Expires:

4

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