 Eddie Lee Howard Jr.
The following day, Dr. Steven Hayne performed an autopsy. He concluded that Kemp had been beaten, strangled, stabbed and raped. He found bruises and scrapes on Kemp’s face, head, neck and left shin. Hayne noted injuries consistent with forced vaginal penetration and injuries consistent with manual strangulation. He said the cause of death was two stab wounds to the left side of her chest.
On February 6, 1992, Hayne requested an additional examination of the body because he believed, though the autopsy report and associated notes reflected no sign of them, that there “could be injuries inflicted by teeth.”
On February 7, 1992, after Kemp’s body was exhumed, Dr. Michael West, a forensic odontologist, examined Kemp’s body. Using an ultraviolet light, he concluded there were marks on Kemp’s right breast, the right side of her neck, and her right arm. He said these were human bitemarks.
Police, acting without a warrant, picked up 38-year-old Eddie Lee Howard Jr., who lived near Kemp and had a prior sex crime conviction, and took him to a dentist’s office where impressions were made of his dentition.
On February 8, after Dr. West said that the marks on Kemp’s neck and arm were “consistent with” Howard’s teeth, Howard was arrested. Dr. West said that the mark on Kemp’s right breast was “indeed and without a doubt inflicted by…Howard.”
Howard was arrested that day. He told police that he had been at a gathering with family and friends starting around 5 p.m. –more than three hours before Kemp’s body was found—and that he was still there as late as 10 p.m.—well after Kemp’s body was discovered. A number of people, including his mother, were interviewed by law enforcement and corroborated Howard’s account of his whereabouts.
Five days later, on February 13, Howard asked to speak with Detective David Turner “as soon as possible” regarding the case. Turner later said that when he met with him, Howard said that “the case was solved.” Howard added that he had “a temper and that’s why this happened.” Howard also said that others were involved and that Detective Turner should keep investigating.
Biological evidence, including a rape kit, blood samples from Kemp and Howard, blood-stained sheets and clothing, pubic hair combings from Kemp and Howard, the bloody
knife, and Kemp's fingernail scrapings were submitted to the crime lab for testing. (At that time, the crime lab was not performing DNA testing and samples of the evidence were not sent to any other lab for DNA testing.) The crime lab did perform certain tests that tended to show that DNA testing would not have been helpful to the defense or prosecution. For example, the crime lab tested the rape kit, but no seminal fluid was found. The lab examined latent fingerprints, but only found Kemp's fingerprints. The lab tested various items for blood type, but all of the items tested were consistent with Kemp's blood type and inconsistent with Howard's. The crime lab did not find any “hairs of Negroid origin” in Kemp's pubic hair combing and no hairs of Caucasian origin were found in Howard's pubic combing.
On August 19, 1992, a Lowndes County grand jury indicted Howard on a charge of capital murder. The grand jury charged that the murder occurred during the course of a rape.
In the months leading up to Howard’s trial in 1994, he had been represented first by Richard Burdine, who was replaced by Douglas Stone in February 1993. Five weeks before trial, Stone dropped out. Neither lawyer had filed much in the way of pretrial motions and no motions were filed to challenge the dental evidence or the statements made to Detective Turner. Neither lawyer had consulted with an expert on the dental evidence.
There had been an attempt to assess Howard’s mental competence to stand trial. The trial judge had ordered a mental evaluation after Howard’s first attorney, Burdine, said Howard was unable to “intelligently communicate with his attorney or anyone else.” Though Howard was taken to the hospital, the interview was never completed.
Even so, the physician’s report concluded that Howard “appears to have sufficient mental ability to consult with an attorney with a reasonable degree of rational understanding.” The report also said that Howard was not suffering from “any major mental disorder.”
About five weeks before trial, Howard asked the judge to deny any requests for continuances and said he wanted to represent himself. The judge granted that request and appointed lawyers Thomas Kesler and Armstrong Walters to serve as standby counsel. Howard filed no pretrial motions.
The trial began on May 9, 1994 in Lowndes County Circuit Court. Howard did not object to any prospective jurors. He did object when the prosecutor offered to protect Howard’s interest by challenging some jurors. These included the wife of a Columbus police officer who had discussed the case and admitted she could not be impartial; a woman who had been raped; and William Coleman, whose son-in-law was the police officer in charge of the investigation that resulted in Howard’s arrest. Howard’s objection was sustained. Coleman would become the foreman of the jury that convicted Howard just a few days later.
The prosecution relied primarily on the testimony of Dr. West and his conclusion that there were bitemarks on Kemp’s body that were made by Howard’s teeth. There was no evidence presented relating to blood or semen to link Howard to the rape. Evidence of the bruises and scrapes was presented. One of the marks, Dr. West testified, was a “positive match” to Howard’s dentition.
Howard did not object during Dr. West’s testimony, though at one point, he stood up and said Dr. West was engaging in “hocus-pocus stuff.”
Kayfen Fulgham, Howard’s former girlfriend and the mother of his adult child, testified that she saw Howard after the crime was discovered. She said he smelled of smoke, later characterizing it as not like cigarette smoke, but “like burnt clothes or something, you know, wood, like smoke.” Fulgham also testified that Howard liked to bite her on the neck and breast during intercourse.
Howard conducted his own cross-examination of the witnesses and rarely touched on the evidence. He asked the firemen who testified about putting out the fire about the department’s hiring practices. An appeals brief later noted that he rarely questioned anyone directly, preferring instead “to propound asides to them, much as in a Shakespearean play.” He also frequently offered “quips,” such as two wrongs don’t make a right…the Wright brothers made an airplane.”
At one point during the trial, Howard’s standby lawyers urged the trial judge to reconsider the question of Howard’s competency. Attorney Walters said, “Judge, I’m not sure he’s capable of assisting in his own defense, much less carrying his own defense out.” The trial judge declined to revisit the issue, and the trial continued.
During his closing argument, Howard questioned why the young girl who first reported seeing the smoke coming from Kemp’s house wasn’t doing her homework instead. He also said that his own family members had killed Kemp and were framing him and suggested that one of the jurors might have committed the crime.
On May 12, 1994, the jury convicted Howard of capital murder after deliberating for about 35 minutes. During a one-hour sentencing hearing, Howard presented no evidence. Asked if he had anything to say, Howard replied, “I don’t have no argument. Shit planned before I even got to Columbus.” The jury deliberated 90 minutes and voted to sentence him to death.
In June 1997, the Mississippi Supreme Court set aside the conviction and ordered a new trial. The Court ruled that the trial court should have held a competency hearing. The Court also ruled that the trial judge had erred when he declined to grant a request from Howard that his standby attorneys deliver the closing argument to the jury.
The Court did not address the defense appellate argument that bitemark evidence was “constitutionally unreliable.” The Court noted that there was “little consensus in the scientific community on the number of points that must match before any positive identification can be announced.” The court said that if such evidence was offered, “it should be open” to a defendant to challenge it.
In dissent, Justice James Smith argued that the court should have ruled that bitemark evidence was admissible and that Dr. West was “imminently (sic) qualified” as a bitemark expert.
Prior to a retrial, Howard was examined and found to be mentally competent. He went to trial a second time on May 22, 2000 and was represented by attorneys. The trial was a virtual replay of the first trial with a couple of exceptions.
The prosecution, possibly concerned that Howard’s defense lawyers might call alibi witnesses (which Howard had not done in his first trial), presented testimony from Columbus Fire Department Lt. George Bass, an arson investigator. Bass testified that the fire had smoldered for as long as four to six hours and could have been started as early as 2 p.m., undermining Howard’s alibi, which placed him at the family gathering around 5 p.m.
Dr. West again testified that he had matched Howard’s teeth to the invisible bitemarks on Kemp’s body.
The defense called no witnesses. They did not call an expert to testify. They did consult with Dr. Richard Souviron, another odontology expert. The defense told the trial judge that they did not call Souviron because Souviron told them that he would probably concur with Dr. West. Souviron, who had attracted acclaim as an expert after his testimony about bitemarks contributed to the conviction of serial killer Ted Bundy in 1978, later, during post-conviction proceedings, said the defense had falsely represented his position. In the affidavit, he said he would not have offered an opinion unless subpoenaed and that he had given adverse opinions on West in the past.
On May 25, 2000, the jury convicted Howard of capital murder. He was again sentenced to death.
In 2003, the Mississippi Supreme Court upheld the conviction. The court again rejected a defense challenge to the bitemark evidence. “We have ruled on more than one occasion that Dr. West’s testimony is admissible and that he possesses the knowledge, skill, experience and training necessary to qualify as an expert in forensic odontology,” the Court declared.
Justice Charles McRae dissented, calling bitemark evidence “junk science” and “not a reliable discipline.” He further noted that it “lacks generally recognized criteria or methodology.”
Justice McRae pointed out that “Dr. West himself has been a controversial character in the field 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.” In 1994, the Justice noted, the American Academy of Forensic Science had opened an ethics investigation against him in relation to a murder trial in Mississippi. “Ultimately. Dr. West was given the opportunity to resign from the organization before being expelled,” Justice McCrae said. “Since that time, Dr. West has been allowed to re-enter the organization.”
In August 2003, the Mississippi Office of Capital Post-Conviction Counsel was appointed to represent Howard. A request for a complete set of law enforcement files from District Attorney Forrest Allgood triggered what the state Supreme court later called “the beginning of a very contentious” legal fight over whether the prosecution had disclosed all of the reports and evidence in the case. Both the defense and prosecution would ultimately be chided by the state Supreme Court—the defense for not pursuing the records in a timely manner and the prosecution for being “less than completely cooperative in producing discoverable items.”
A petition for post-conviction relief subsequently was filed that raised numerous issues, including the failure of the trial defense lawyers to call an expert witness to challenge Dr. West’s bitemark testimony.
That petition was denied and in September 2006, the Mississippi Supreme Court upheld the denial ruling.
On February 15, 2008, the murder conviction of Kennedy Brewer, who was represented by the Innocence Project, was vacated and the charges were dismissed following DNA testing that exonerated him of the murder of a three-year-old girl in Noxubee County, Mississippi. The DNA identified the true killer. Brewer had been convicted of capital murder in 1995 and sentenced to death based in part on testimony from Dr. West that bitemarks on the girl were made by Brewer. What Dr. West said were bitemarks turned out to be insect bites.
Shortly after Brewer’s exoneration, lawyers from the Innocence Project and the Mississippi Innocence Project won the release of Levon Brooks from prison. Brooks had been convicted and sentenced to life in prison without parole for the 1992 murder of a three-year-old girl in Noxubee County as well. Like Brewer, Brooks had been convicted after Dr. West testified that there were bitemarks on the girl’s body and that the marks were left by Brooks’s teeth. The perpetrator of the murder for which Brewer had been convicted also admitted to committing the murder for which Brooks had been convicted.
In December 2010, the Mississippi Supreme Court granted a new post-conviction request for DNA testing.
In 2011, West testified during a deposition in the case of Leigh Stubbs and Tammy Vance that he no longer believed his own testimony regarding bitemark evidence and that the existing science did not support bitemark identification. “When I testified in this case, I believed in the uniqueness of human bitemarks. I no longer believe in that. And if I was asked to testify in this case again, I would say I don’t believe it’s a system that’s reliable enough to be used in court.” Vance and Stubbs were exonerated in 2013.
In 2015, Howard was granted permission to file an amended petition, based on the results of the DNA testing and other issues.
The petition claimed that over the previous decade, the field of bitemark identification “has devolved from a favored forensic science…to a craft of forensic charlatanism. It has proved to be completely unreliable, inadmissible, and little more than speculation.”
An evidentiary hearing began in 2016. Howard’s legal team included Tucker Carrington from the Mississippi Innocence Project, as well as Innocence Project lawyers Vanessa Potkin, Chris Fabricant, Peter Neufeld, and Dana Delger. The defense presented evidence that Kemp’s nightgown tested negative for semen. No male DNA was found at all on the nightgown. Similarly, no male semen or male DNA was found on Kemp’s stockings or slippers. Tests conducted on the rape kit and the bedding were negative for semen or male DNA. Tests on Kemp’s fingernail scrapings were negative for male DNA.
Tests on the knife revealed male DNA, but Howard was excluded as the source of it, suggesting that the unidentified male DNA belonged to the real killer. Significantly, Howard’s DNA was not found in any areas where he was alleged to have bitten Kemp.
The defense also called Dr. Iain Pretty, a forensic odontologist; Dr. Mary Bush, a professor of restorative dentistry; and Christopher Plourd, a California Superior Court judge. All three testified that the American Board of Forensic Odontology (ABFO) had revised its guidelines such that Dr. West’s testimony would not have been permitted and would not have been admissible any longer.
Dr. Pretty discredited Dr. West’s testimony because new research showed that an expert could not reliably distinguish a human bitemark from other injuries, there were no visible bitemarks on Kemp, the exhuming and unembalming of the body had a negative impact on the ability to assess an injury, and Dr. West’s claim that he could see bitemarks under ultraviolet light was “questionable.”
Dr. Bush testified, “Even if you assume that the human dentition is unique, the skin does not faithfully record that uniqueness.” Judge Plourd testified that in 2001, while he was still a criminal defense attorney, he administered a blind proficiency test to Dr. West. Plourd said he created a mock case with a mock suspect. He sent dental models and a bitemark for analysis, knowing that the teeth that made the models had not made the bitemark. Dr. West “failed the proficiency test” by identifying the models as matching the bitemark, Plourd testified.
In October 2018, the trial court denied the motion for postconviction relief.
On August 27, 2020, the Mississippi Supreme Court reversed that ruling, vacated Howard’s conviction, and ordered a new trial.
The Court said that given the “inadmissibility of Dr. West’s identification of Howard as the biter, the absence of forensic or eyewitness evidence putting Howard at the scene of the crime, and the newly discovered presence of another man’s DNA on the murder weapon, we conclude that Howard met his burden to show by a preponderance of the evidence that in light of newly discovered evidence, a jury would probably not find him guilty beyond a reasonable doubt.”
The Court noted that despite Dr. West’s claims that he took photographs of these alleged bitemarks he claimed to have found, no such photographs had ever been presented. And the autopsy photographs showed no bitemarks.
In a concurring opinion, Presiding Justice James Kitchens declared, “Not only have the ABFO guidelines changed, but Dr. West’s credibility also has been destroyed since Howard’s trial. In the intervening years, West and his methodology have plunged to overwhelming rejection by the forensics community to the point that today his methodology is not at all supported by mainstream forensic odontologists. In fact, West’s methods are wholly contradicted and disqualified by today’s ABFO guidelines.”
“This court,” Justice Kitchens wrote, “should not uphold a conviction and death sentence on the testimony of a proven unreliable witness, Dr. West.”
While the case was being reviewed by the new district attorney, arson expert John Lentini reviewed the evidence relating to testimony about the smoldering fire. Lentini contradicted the prosecution’s arson expert that the fire smoldered from four to six hours before firefighters arrived—testimony that had diminished the importance of Howard’s alibi about being at the gathering of family and friends.
Lentini noted that the materials that Lt. Bass testified were smoldering were in fact, “like most combustible materials, not subject to smoldering.” Lentini also noted that first responders reported that when they arrived, they found a fire on the first floor that they extinguished with water.
“Thus, when the fire was discovered, it was flaming, not smoldering,” Lentini reported. “There is no evidence, and no reason to believe, that this fire ever smoldered.”
Lentini concluded, “I hold the opinion that there is no way that any competent fire expert would opine that the fires burned for longer than an hour. The jury heard objectively false testimony from Lt. Bass, who, based on his demonstrated lack of knowledge, was not qualified to render an opinion regarding the duration of the fire.”
On December 4, 2020, Howard was released pending a retrial. On January 7, 2021, the prosecution dismissed the case. Howard subsequently filed a claim for compensation with the state of Mississippi and was awarded $400,000.
Two other Mississippi men who were convicted in part due to testimony from Hayne, also have been exonerated: Tyler Edmonds and LeeVester Brown.
On August 24, 2021, Sherwood Brown
, who had been sentenced to death for a murder in DeSoto County, Mississippi, was exonerated after spending 26 years on death row. He had been convicted in part based in part on Dr. West’s testimony that his teeth left bitemarks on the victim.
– Maurice Possley
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