I have been following Radley Balko’s writings on law enforcement and criminal justice for as long as I can remember his byline existing. He has been one of the most foremost writers in bringing attention to many criminal justice issues, most notably police militarization. His first book, Rise of the Warrior Cop, is still a must-read for understanding how policing has become increasingly aggressive, increasingly confrontational and increasingly dangerous. So I was happy to pick up his new book — co-written with Innocence Project attorney Tucker Carrington — The Cadaver King and the Country Dentist — which delves into the depths of Mississippi’s criminal justice system.
From the publisher’s summary:
After two three-year-old girls were raped and murdered in rural Mississippi, law enforcement pursued and convicted two innocent men: Kennedy Brewer and Levon Brooks. Together they spent a combined thirty years in prison before finally being exonerated in 2008. Meanwhile, the real killer remained free.
The Cadaver King and the Country Dentist recounts the story of how the criminal justice system allowed this to happen, and of how two men, Dr. Steven Hayne and Dr. Michael West, built successful careers on the back of that structure. For nearly two decades, Hayne, a medical examiner, performed the vast majority of Mississippi’s autopsies, while his friend Dr. West, a local dentist, pitched himself as a forensic jack-of-all-trades. Together they became the go-to experts for prosecutors and helped put countless Mississippians in prison. But then some of those convictions began to fall apart.
Steven Hayne, despite not being certified by the American Board of Pathology, was doing over a thousand autopsies a year — up to five times the recommended maximum caseload. He was then giving prosecutors all kinds of damning testimony in criminal trials, some of which was bizarre (in one case, he claimed a bullet’s trajectory proved the gun was being held by two people). Michael West, among other things, invented a pseudoscientific technique of using ultraviolet light to find otherwise invisible bite marks on bodies and positively match them to the accused. And when that failed, he sometimes resorted to making a mold of the suspect’s teeth and repeatedly jamming it into the corpse. Their dominance of the Mississippi forensic scene and the effect this had on the criminal justice system is explained through the example of the Brewer/Brooks cases, one of the most egregious among the many miscarriages of justice they enabled.
Those of you who follow Radley’s work will be familiar with the basics of the tale, which he has written about many times. But the book places these two men into the broader context: a criminal justice system that cares less about justice than it does about never being wrong; a system of forensics that is beset by pseudoscience whose main purpose is to enable convictions; a judiciary that fails to reign in prosecutorial or forensic misconduct. I give it a strong recommendation.
Where I really wanted to focus on this post, however, is the third leg of our criminal justice system: the judiciary. One of the problems the book highlights is that judges have been made the gatekeepers of expert testimony. They decide when expert testimony can be introduced and when it can’t, and when bad testimony can form the basis of an appeal. And this is a problem. Judges are not scientists and to task them with deciding whether a claim is scientifically valid or not is beyond their abilities. Even if a judge had the scientific background, they are temperamentally unsuited to the task because judges rely on precedent for their decisions. And so techniques that have been generally accepted will continue to be accepted long past the point where science has discredited them. Despite a growing body of evidence that bite mark analysis is dubious (to say the least), it is still allowed because … it always has been. Even SCOTUS is not immune. In Florida v. Harris, they unanimously decided that drug dog alerts were probable cause despite being presented with extensive evidence that drug dogs aren’t reliable (they tend to trigger more on the suspicions of their handler than the presence of drugs).
Once you’re past trial, forensic evidence and the validity thereof can become the subject of appeals. And it is here where The Cadaver King becomes the most frustrating. Over and over again, appellate judges rejected legitimate challenges to forensic evidence. Over and over again, they upheld evidence that Hayne and West presented that was outlandish in its claims and unfounded in scientific fact. And when the roof finally caved in and Hayne and West were discredited, the court put appellants in a Catch-22, decreeing that convictions couldn’t be appealed based on Hayne and West’s incompetence because it was too late. According to the courts, Hayne and West had already been discredited many years earlier. The time to challenge the evidence they presented was … well, it’s not really clear. But definitely not now.
Balko and Carrington note that this bias does not show up in civil cases, where judges frequently exercise skepticism over forensic claims. It’s mainly in criminal cases. Why should that be? Well, many judges have come up through the very system they are being asked to adjudicate. Many of them have benefited from the testimony of men like Hayne. A huge fraction are former prosecutors who tend to see cases through a prosecutor’s eye: this dude is guilty and if we question anything, that will let a guilty man off the hook.
But there is one other clearly aggravating factor: our nation’s unusual practice of electing judges.
A couple of weeks ago, the voters of California tossed Aaron Persky — the judge who gave convicted rapist Brock Turner a ridiculously light sentence — off the bench. Many hailed this as a victory for women. I don’t know if this will have a positive effect on how judges deal with sexual assault. But I do know it will have an effect on their willingness to put people in jail for long stretches and reject appeals at every turn. You can read through this Twitter thread which lists study after study showing that judges give longer sentences when elections near, are more likely to give death sentences and, overall, are more tuned to politics than the law. Read Justin Dillon’s post at Above the Law:
You see, here’s the rub: Persky’s recall will only pressure judges to be harsher on all criminal defendants. Recalling Persky won’t undo the racial disparities in prisons or inspire judges to start being more merciful in sentencing low-level drug offenders. It will do precisely the opposite. The recall sends elected judges across the country a message — leniency could lose you your job, but severity is safe. And severity is the last thing our criminal justice system needs more of.
Public pressure on judges to issue punitive sentences is already enormous. The Brennan Center found in a 2015 study that “the pressures of upcoming re-election and retention campaigns make judges more punitive toward defendants in criminal cases.”
This problem rears its head in The Cadaver King. Judges who exercised skepticism of Hayne and West were blasted in the press. It was simply too easy to appeal to the mob by claiming a judge sided with a baby murderer. And while the mob might be justified in the Turner case, it’s still a mob. It’s still a bunch of people ousting a judge because he wasn’t tough enough.
Our entire criminal justice system needs an overhaul. It has become too aggressive, too punitive and too canted against defendants. It’s not one part that’s going wrong: it’s the whole thing. From cops who are trained in “killology”, to prosecutors who face no consequences for withholding exculpatory evidence, to forensic labs that are frequently paid per conviction, to judges who only worry about technicalities when it comes to denying an appeal.
There are many things that have to change (despite his recent disgrace, I’ll recommend Alex Kozinski’s article on the subject). But one good start would be to change how we stock the judiciary. They are the final authority, the one branch that has the power to reign in abusive prosecutors, reject junk science, mitigate harsh sentencing and defend the rights of the accused. Having even a handful of judges who view the law enforcement system through a skeptical eye could have a massive effect (Balko and Carrington argue that at least one appeal may have succeeded because a lone judge was so persuasive in arguing with his colleagues).
Our criminal justice system is supposed to be designed to temper the enthusiasm of the mob. Cases are not decided by popular vote, but by juries that are presented with evidence by both sides. We don’t just hang ’em all and let God sort ’em out; we have rules of evidence, warrant requirements and the right to an attorney. So why on Earth do we elect judges? Why, in a system designed to resist the passions of the mob, do we bring it back in at the point of maximum leverage?
Opportunities for criminal justice reform — especially under our current leadership — are slim. But I think this is one battle that could be fought and could have an impact, at least in some states. No doubt, removing the vote would be derided by many as “un-democratic”. But this is one place where we could use a little less democracy.