This week, the U.S. Court of Appeals for the 5th Circuit ruled that Michael West and Steven Hayne are protected by immunity for any case in which either testified over the course of their 20-year run in Mississippi's death investigation system.  The court ruled that they're only to be held liable to a lawsuit if the plaintiff can show that either of the men acted recklessly while testifying. Therefore, two wrongfully convicted men will not receive justice.  The lawsuit leading to the decision was brought about by two men who were wrongfully convicted back in the 1990s -- Levon Brooks and Kennedy Brewer.  Each were on trial for the sexual assault and murder of a young girl abducted from her home whose body was found in a nearby creek.  The jury convicted them mainly due to the testimony of Hayne and West.  Hayne claimed to have discovered bite marks on the victim.  He called in West, who was making a name for himself at the time mas an expert bite-mark analyst, and  West stated the marks were in fact human bites, contrary to what other experts claimed.  He said they were “indeed, and without a doubt” human and a  match to the chief suspect.  The testimony the men gave regarding this evidence was so compelling, there was little room for jurors to question it.  However, the real killer, Justin Albert Johnson, was finally brought to justice sometime later.  He had a history of attempted sexual assaults and had attempted the same crime Brooks and Brewers were convicted for on at least two other occasions.  He was initially a suspect in the murder, and had the testimony of Hayne and West not been so compelling, authorities would have shifted their focus back on him.  West's statements, for all intents and purposes, actually let Johnson go free. He compared a dental mold of Johnson’s teeth with the alleged bite marks at trial and determined that they weren’t a match.  It was eventually discovered there was no way they could have matched -- they weren't bite marks at all.

Image Courtesy of Bode Cellmark Forensics

Brooks was sentenced to life in prison. Brewer was sentenced to death and even received a death warrant.   For some reason, a DNA profile from the sperm collected in an assault kit was never requested through the state database. Years later, Brewer’s attorneys finally got a court order for testing.  It was then that authorities discovered it belonged to Johnson. Faced with irrefutable evidence, the man was forced to confessed to both crimes.  Brewer and Brooks were released in 2007 and immediately sued, separately for some time, then their cases were combined into one.First, a federal district court dismissed the suit, stating that Hayne and West should be subject to the same immunity that state employees receive even though they were not employed by the state.  They were in private practice, working on a contractual basis.  The men wrongfully convicted appealed, and the appeals court released its opinion this week, upholding the original decision.  The court said that experts can be wrong, but expert witnesses are often extremely persuasive in jury cases.  West's trademark was "indeed, and without a doubt," allowed for him to be especially persuasive.  The phrase, in fact, has been found to be more effective than the scientific jargon used by other experts. Unfortunately, Brooks and Brewer, while exonerated, will not receive the justice they’ve sought.

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Federal court: Despite ‘grossly negligent’ testimony that put two innocent men in prison, forensic experts can’t be sued5th Circuit Confers Immunity On Hayne And West