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OCT 09 2018
IN THE CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI TERESA BAEKSDALE
IN VACATION, 2018 CLERK
EDDIE LEE HOWARD, JR. PETITIONER
VERSUS CAUSE NO. 2000-0115-CV1H
MS SUP CT CAUSE NO. 
STATE OF MISSISSIPPI RESPONDENT
ORDER

 

Comes ?now the Court in the above styled and numbered cause, and pursuant to an order
issued by the Mississippi Supreme Court on August 4, 2015 in which the Petitioner was given
leave to ?le a Motion for Post-Conviction Relief, and the trial court was directed tO hold an
evidentiary hearing on said motion, the Court did so hold an evidentiary hearing over the course
of several days at which it heard expert testimony, and after said hearing was concluded, the
parties ?led briefs containing their argument. The Court, having now reviewed the Petitioner?s
post-conviction relief motion, the State?s response, the briefs, the original trial transcript, the
hearing transcripts, and all the applicable law, does hereby ?nd as follows.

Procedural Historv

The Petitioner was indicted August 13, 1992 on a charge of Capital Murder.1 Howard
went to trial on May 9, 1994, representing himself Since he was unhappy with the performance Of
his trial counsel to date.2 He was found guilty and sentenced to death. This conviction was

appealed and subsequently reversed and remanded on the appellate court ?nding that the

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1 The underlying'felonies being rape and arson.

 

2. His two attorneys remained as ?Stand-by? counsel durmg the trial.

 

Defendant was not competent enough to represent himself.

The Petitioner?s case was placed back on the docket and proceeded to trial for the second
time on May 22, 2000. 3 Howard was again found guilty and sentenced to death. The conviction
was appealed and af?rmed by the Mississippi Supreme Court on July 24, 2003.

In August 2003, the Mississippi Supreme Court appointed the Mississippi Office of
Capital Post~Conviction Counsel (herein after referred to as MOCPCC) to represent Howard in
his post-conviction relief proceedings. After several years of going through discovery and
exhibits provided by the prosecutor, law enforcement, and the Circuit Clerk and conducting
additional investigation, the MOCPCC ?led a post-conviction relief petition. This petition was
denied by the Mississippi Supreme Court on September 28, 2006.

Recently, a national organization, The Innocence Project, became aware of Howard?s case
and ?led a Motion on his behalf to Vacate Conviction and for Post-Conviction Relief, citing
newly discovered evidence and requesting leave to pursue DNA testing of biological evidence.
The Mississippi Supreme Court granted leave to test biological evidence collected ?om the
crime scene, and when testing was complete, they granted leave for the Petitioner to ?le his
petition for post-conviction relief with the trial court. The trial court was then directed to have an
evidentiary hearing on the following issue:

Whether the newly discovered evidence presented in Howard?s Motion to Vacate

Conviction, including the results of his post-conviction DNA testing, is of such a nature

that it ?will probably produce a different result or induce a different verdict, if a new trial

is granted.? Crawford v. State, 867 So.2d 196, 204 (Miss. 2003) (citing Meeks v. State,
781 So.2d 109, I 12 (Miss. 2001)). I

 

3 Prior to the second trial, the Petitioner?s indictment was amended to re?ect that he was a habitual
offender. Howard has a 1972 conviction for assault with intent to ravish and a 1977 conviction for assault with

intent to rape and ravish2018

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As stated above, the trial court did hold an evidentiary hearing over the course of several days
and heard testimony from various experts. Counsel were then given the opportunity to ?le their

argument in the form of briefs for the Court to review, which the Court has now done.

Evidentiarv Hearing

The Court is going to condense several days worth of evidentiary hearings in regards to

the following issues.
Issue 1: DNA Evidence

Numerous items from the crime scene were submitted to have DNA testing done, such as
the victim?s nightgown, the blood stained bed sheets, and the murder weapon itself, a knife.
Jennifer Smith, a DNA Analyst with Orchid Cellmark, did the initial testing for biological ?uids
and touch DNA. iShe testi?ed that of the approximately two hundred stains tested?, male DNA
was only found contained in a sample on the blade of the murder weapon.5 Barbara Leal, also a
DNA Analyst with Orchid Cellmark, conducted the additional testing of the male DNA found on
the knife blade. Leal tested the swabs of the male DNA against that of the Petitioner and found
they were not a match.

Issue 2: Bite Mark Identi?cation
At the Petitioner?s trial (?rst and second), testimony was given that a examination of the

victim?s exhumed body, using an ultraviolet light, revealed three recent bite marks. The State?s

 

4 Testimony was that not all identi?ed stains were tested; instead a representative portion was tested.

5 Some speculation was made that even with the advances in DNA procedures, testing after almost twenty-
?ve years and numerous handlings of the evidence during the two trials could affect sample results.

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expert Dr. Michael West used dental molds of the Petitioner?s teeth to create bite marks on the
same areas of the victim?s body, photographed, using ultraviolet light, the bite marks created by
the mold, then compared them to the photos of the original teeth marks. In the case of two of the
bite marks, West could only Opine that the mark was ?consistent? with the bite of Howard,
meaning he was not excluded as being the biter, but he also could not be identi?ed positively as
being the person who made the bite. In regards to the third bite mark, however, West testi?ed:
Do I have any doubt these teeth made that bite on her breast? I don?t have any. I myself
am satis?ed that these teeth made that mark. Now does someone else share that opinion,
I don?t know. Since I violated the standards of terminology in ninety-four that were
nonexistent, they drafted them in ninety-?ve and accepted them in ninety-six, I try to stay
within the guidelines for stande terminology. Today I would say, reasonable medical
certainty, these teeth of Mr. Howard left that bite mark on the breast of Mrs. Kemp.
(Howard Trial Transcript, Page 584)
The majority of the post-conviction evidentiary hearing centered on discrediting both Dr.
West, in his role as a forensic odontologist, and the techniques that West had used in identifying
the Petitioner?s bite mark on the victim in 1992. As science and technology have progressed in
the twenty?six years since this crime occurred, the standards for bite mark identi?cation have
changed also. Petitioner?s post-conviction counsel procured three witness to testify as to these
changed standards at the evidentiary hearing: 1) Dr. Iain Pretty a professor of dentistry, from the
University of Manchester in the United Kingdom; 2) Dr. Mary Bush, a professor of restorative
dentistry from the University of New York in Buffalo; and 3) Judge Christopher Plourd, a lay
witness, currently a judge in the Superior Court in Imperial County, California. The Court,
taking judicial knowledge that the curriculum vitaes of these individuals are ?led in the court ?le
and, no doubt, a copy of the transcript of the evidentiary hearing in its entirety will be designated
and ?led as part of the appeal record, will very brie?y summarize the pertinent factors 2018
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gleaned from their testimony as follows.

1) Dr. Pretty - Has made a study of bite mark identi?cation as a science and concludes
that it can only be used to exclude potential biters.

2) Dr. Bush - Conducted a study in which dental molds mounted on vice grips were used
to bite human cadavers, then photographed results; concludes that detention may not be
measurably unique.

3) Judge Plourd - While still in practice as a defense attorney in 2001, he conducted his
own blind pro?ciency test in the area of bite mark identi?cation. Plourd sent Dr. West a photo of
a bite mark made by one individual6 and a dental mold from a different individual to conduct a
preliminary bite mark comparison. Dr. West incorrectly identi?ed the owner of the teeth mold as
the biter.

The State called Dr. West as its expert at the evidentiary hearing who, contrary to what he
may have stated in an earlier deposition referred to by Petitioner?s counsel, con?rmed that
validity of his ultraviolet photography technique and stuck with his original conclusion that the
Petitioner was the possessor of the teeth the created the bite mark on Georgia Kemp?s right

breast.


The case given to this Court as its stande of review in this post-conviction proceeding is

that of Crawford v. State, 86 7 So. 2d 196 (Miss. 2003). Crawford was a capital murder/death

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6 This was a regular crime scene photo, not one made using ultraviolet light.

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penalty post?conviction relief case in which, among other claims, the petitioner alleged to have
newly discovered evidence of a previously undisclosed reportl. The Mississippi Supreme
Court found thus:

Post-conviction review is a limited proceeding whereby this Court will only review
?those objections, defenses, claims, questions, issues or errors which in practical reality
could not or should not have been raised at trial or on direct appeal.? quoting Cabello v.
State, 524 So.2d 313 at 323 (Miss. 1988). Claims and theories that could have been but
were not presented to the trial court or to this Court on direct appeal are procedurally
barred from being reviewed by this court on post-conviction review. citing Locket: v.
State, 614 S0.2d 888 (Miss. 1992) Likewise, all issues, both factual and legal, that were
decided at trial and/or on direct appeal are barred from review as [T]he
petitioner must show cause for not having already brought the claim and that this caused
actual prejudice to his [P]etitioner must show that his claim is so novel that it has
not previously been litigated or that an appellate court has suddenly reversed itself on an
issue previously thought Petitioner will also defeat procedural bar if he can
demonstrate that he has evidence, not reasonably discoverable at the time of trial, which
is of such nature that it would be practically conclusive that had such been introduced at
trial it would have cause a different result in the conviction or sentence. (Crawford 2032)

In regards to the speci?c claim of newly discovered evidence, the Mississippi Supreme Court
found:

To succeed on a motion for new trial based on newly discovered evidence, the petitioner
must prove that new evidence has been discovered since the close of trial and that it could
not have been discovered through due diligence before the trial In addition, the
petitioner must show that the newly discoVered evidence will probably produce a
different result or induce a different verdict, if a new trial is granted. This requires a
showing that the evidence is material and is not merely cumulative or impeaching. (Id.

203?04)

It is with these standards of review in mind, this Court reviewed the evidence and

testimony given at the evidentiary hearing, and the briefs of the parties, and now makes its ruling.

 

7The petitioner?s post-conviction motion was denied with the Supreme Court ?nding ?the [petitioner]
failed to show that the F. ..I report at issue would have even a signi?cant effect on his trial, much less the type of
effect necessary for success in this petition.? (Crawford 219) --

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Legal Conclusions

Concerning the issue of DNA evidence, the Court ?nds that the absence of the
Petitioner?s DNA in the items tested is not new evidence that would ?produce a different result or
induce a different verdict.? Crawford v. State, 86 7 80.2617 196, 204 (Miss. 2003) While no DNA
evidence was found that implicated the Petitioner in the crime, no DNA was found that pointed
to a different perpetrator. The lack of evidence linking Howard to the crime scene8 was used in
argument to the jury by Petitioner?s defense counsel in his second trial, and the Court granted a
defense jury instruction that instructed the jury to ?nd Howard not guilty if there was reasonable
doubt he was not present and did not commit the crime. Therefore, the Court ?nds that a new
trial should not and will not be granted on the issue of lack of DNA evidence linking Petitioner to
crime scene.

As to the issue of bite mark evidence, the Court ?nds that the criticism of Dr. West, and
his methods, that comprised the majority of the evidentiary hearing is very familiar territory for
this Court. In the Petitioner?s second trial, Defense Counsel Tom Kesler extensively voir dired
on West?s quali?cations as an expert, pointing out his year-long suspension from the American
Board of Forensic Odontology; the fact that a Defendant in Louisiana was granted a new trial
after the presiding judge threw out the evidence presented by West; and another case where a
Defendant identi?ed by West as the biter/attacker was cleared by DNA evidence, and the

Defendant was released (Howard 1] Trial Transcript 542-46). Kesler continued this line of

 

8 DNA testing was not originally done on any crime scene items since the Mississippi Crime Lab did not
have that capability in 1992; rather they checked for ?ngerprints, seminal ?uid, blood type, and ethic make-up of
hairs. Leave was given to the MOCPCC to seek DNA testing in preparation for Howard?s first petition for post-
conviction relief, but no testing was done at that time. 



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attack in his cross examination. Kesler referred again to West?s suspension from the American
Board of Forensic Odontology and cited that the suspension was in part because West ?failed to
act in a impartial manner.? (Id. 5 64) Kesler also brought up the fact that West resigned from the
American Academy of Forensic Science just prior to being expelled due to an allegation that he
lied in court, then West later dropped a lawsuit refuting that same allegation that he had brought
against the Board (Id 5 79-81). In addition, Kesler referenced a case in neighboring Clay
County, Mississippi that had its conviction overturned because West threw away evidence (Id
585-86). Kesler ?nished with these closing argument statements: ?Well, the State foreshadowed
that Doctor West was going to get attacked, and he was exactly right.? (Id. 630)
[Bite mark identi?cation] is a tool of exclusion, not not reliable for identi?cation. You
know, he?s got some other problems even on top of that. He, uhmI?d heard this one
before, but it??it astounds me every time I think about it ?is when he?s asked about his, uh,
margin of error rate, whatever it is, and he said there is none, and in Louisiana, as he told
you today, he told the court down there that it was something less than Jesus Christ. Ego;
that?s not ego, ladies and gentlemen, that is arrogance, and it?s arrogance that translates
into a so-called scientist who is not a scientist. He?s a?he should be working in a circus
doing tricks to amuse the crowd for pay. (Id. 632)
?[T]he problem with this case, ladies and gentlemen comes back to Doctor Michael West.? (Id.
63 5)9
Presiding Justice McRae took up the criticism of West and his methods in his dissent in
Howard v. State, 853 So. 2d 78] (Miss 2003).
The ?expert odontology testimony? of Dr. West should not have been submitted to the

jury as it is ?junk science? and not generally accepted by the scienti?c community as
required by then Rule 702 of the Mississippi Rules of Evidence and yre v. United States,

 

9 Kesler put on the record at the end of the case that the trial court had given Defense Counsel leave to
seek, and ?mding for, a defense expert in the ?eld of forensic odontology; however, the defense chose not to do so
after a preliminary consultation with Dr. Richard Souviron revealed that his opinion would most likely coincide with

Dr. West?s. (Howard Trial Transcript 598- 600) 

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293 F. 1013 (DC. Cir. 1923). Likewise, neither Dr. West nor his ?junk science? meet the
standards and requirements for admission under Daubert v. Merrell Dow
Pharmaceuticals, IncCt. 2786, I25 2d 469 (1993), and
revised Rule 702 of the Mississippi Rules of Bite mark identi?cation is not a
reliable discipline and lacks generally recognized criteria or methodology. This Court has
recognized that there are serious disagreements in the forensic scienti?c community about
whether a defendant can be uniquely identi?ed on the basis of teeth Areas of
bite mark identi?cation which are still the subject of disagreement in the forensic
odontology community include: (1) the timing of the bite mark injury; (2) enhancement
procedures and techniques (such as the use of ultraviolet light); (3) the type of matter for
test bites or the accuracy of test bites under various mockup conditions; (4) the pressure
necessary to produce the various levels of tissue injury under normal and unusual
circumstances; (5) manipulation of and various types of distortion to produce correction;
(6) whether in fact another set of teeth could have produced the same or similar marks;
(7) no universal agreement on which injuries are bite mark related; and (8) research on
the minimum number of point of concordance or the minimum number of teeth marks
needed in a bite mark for certainty is also not well established Additionally, Dr. West
himself has been a controversial character in the ?eld of forensic odontology. On several
occasions, Dr. West has been held to have exaggerated the reliability of his disciplines
and has proceeded to testify outside the scope of his expertise. (Howard 11 799?800)

Justice McRae then posed the question: ?With these revelations, how can this Court stand

by and allow Dr. West to testify and give an opinion as an expert to procedures, methodology,

and testing which have not been adopted by his own scienti?c community?? (Id. 801)

Dr. West and his shortcomings were again one of the main topics in Petitioner?s ?rst

Motion for Post-Conviction Relief ?led by the MOCPCC (Howard v. State, 945 So. 2d 326

(Miss. 2006). The Petitioner ?rst mentioned West concerning the Issue of Ineffective Assistance

of Counsel, based on the allegation that defense counsel had been ?ineffective in not obtaining a

bitemark expert to debunk the testimony of Dr. Michael West.? (Howard 348) Petitioner

produced af?davits from Dr. Richard Souviron which he felt constituted newly discovered

evidence, which would except the issue from being procedurally barred. Souviron stated in part:

Had I been retained by Mr. Kesler, I would have been able to provide proper background
information to voir dire Dr. West Dr. West ?s statements during voir dire were either

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halftrae or misleading. If the facts had been known, Mr. Kesler would have been able to
prove ?the spin? Dr. West?s placing on his expulsion from ABFO, the American
Academy of Forensic Sciences and the International Association of Identi?cation
[T]he pattern injuries that were interpreted as bite marks by Dr. West were not bite marks
in the Keko case, the Brewer case, the Brown case, or the Harrison case Had Mr.
Kesler asked, I would have been able to provide background information that Mr. Kesler
was not aware of with regard to Dr. West?s quali?cations, Dr. West?s reasons for
suspension from the American Board of Forensic Odontology. (Id. 351)

In regards to this issue, the Mississippi Supreme Court found that while the ?failure to call an
expert witness was de?cient performance,? no prejudice to the defense was proven so there was
no ineffective assistance of counsel; they further stated:

In support of his post-conviction claim, Howard has offered numerous expert af?davits
and other documents which attack Dr. West, his testimony, and bite mark evidence in
general. These af?davits and other documents point out how many times Dr. West has
been proven wrong and they discuss how unscienti?c his methods are. One af?davit
even states that Dr. West made a mis-diagnosis in Howard?s case, but, it does not go on
and opine that HoWard did not bite Kemp. Just because Dr. West has been wrong a lot,
does not mean, without something more, that he was wrong here. (Id. 352)

Petitioner next PCR issue referencing West was ?Whether the Daubert/Kumho Gate?Keeping
Functions Apply in State Death Penalty Cases.? The Mississippi Supreme Court found this issue
was addressed in the direct appeal and stated:
In fact, Howard?s argument in his petition echoes the dissenting opinion in his direct
appeal We ?nd that this issue in barred by the doctrine of res judicata and is barred
from re?litigation by Miss. Code Ann. 99-39-218). ?Rephrasing direct appeal issues
for post?conviction purposes will not defeat the procedural bar of res judicata. The
Petitioner carries the burden of demonstrating that his claim is not procedurally barred.?
quoting Jackson v. State, 860 So.2d at 660-61 (Id. 368-69)
Petitioner?s ?nal issue of his ?rst PCR was ?Whether Petitioner Was Denied Due Process and a
Constitutionally Fair Trial Due to the Alleged Falsehoods, Misrepresentations, and Perjured
Testimony by Dr. Michael West.? Petitioner contended that West?s testimony was ??replete?
'ury ?out noEmk
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with ?instances of false, incorrect and/or misstatements of fact? 

  

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informed decision when the information supplied to them was false?? (Id. 370) While ?nding
that this issue was procedurally barred since it could have been raised on direct appeal, the
Mississippi Supreme Court further found that it was without merit anyway:

Howard speci?cally points to four of Dr. West?s statements and contends they were false.

Each of those statements are regarding Dr. West?s background and competence as an

expert. Those statements are not regarding his ultimate conclusion that Howard bit

Kemp. At trial, defense counsel spent a signi?cant amount of time examining Dr. West

both during voir dire and cross-examination. The jury heard ample information regarding

Dr. West?s credibility, or lack thereof. Even if these statements were false, it is not

reasonably likely that they ?affected the judgment of the jury.? quoting Barrientes v.

Johnson, 221 F.3d 741 (5th Cir. 2000) at 756 (Id. 370-71)

So, as stated previously, this Court, and the Mississippi Supreme Court, should be very
familiar at this point with the criticism of Dr. West and his methodology. This very familiarity
however means that this is not new evidence; it is rather just further impeachment of West?s
character and his techniques. A jury heard extensively that West was not the most reliable of
witnesses and that his techniques, and actually the very science of bitemark identi?cation, was
questionable. The Mississippi Supreme Court reviewed this same issue on direct appeal and still
af?rmed the Petitioner?s conviction, with Justice McRae writing a dissent that eerily echoes
Petitioner?s current argument. The Mississippi Supreme Court again reviewed the troublesome
issue of Dr. West during Petitioner?s ?rst Petition for Post-Conviction Relief, and the appellate
court denied that Petition, again upholding Petitioner?s conviction. What the Mississippi
Supreme Court has not done is to ?nd that bitemark identi?cation is inadmissable as evidence
and that Dr. West should not be allowed to testify in the trial courts of this state, and trial courts

are without the authority to change the law as pronounced by the Mississippi Supreme Court.

What the Petitioner has not done is present any new evidence regarding Dr. West or his bitemark

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identi?cation that would constitute ?newly discovered evidence [that would] probably produce a
different result or induce a different verdict, if a new trial is granted. This requires a showing

that the evidence is material and is not merely cumulative or impeaching.? (Crawford 204)

Court?s Ruling

The Court ?nds that it conducted an evidentiary hearing pursuant to Mississippi Supreme
Court mandate and heard no new evidence of such a nature that it would produce a different
result or induce a different verdict, if a new trial was granted. THEREFORE, the Petitioner?s
Motion for Post-Conviction Relief is denied.

The Circuit Clerk is directed to forward a copy of this Order to all parties including the

Clerk of the Supreme Court.

SO ORDERED this the 5 TR day of . 2018.

9AM

JUDGE



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