Autopsies performed by a forensic pathologist with a problematic record on infant cases should receive a much wider review, according to a longtime law professor at the University of Montana.
Last week, the Montana Attorney General's Office released the results of a review it requested of six infant or child autopsies conducted by Dr. Thomas Bennett on behalf of county coroners.
The independent review found "serious deficiencies" in at least one toddler autopsy and generally inadequate examinations.
However, the evaluation was limited to suspected head trauma cases in infants and children.
"We already know that he's (Bennett is) not competent to do it in one class of cases," said Jeff Renz, a law professor who directed the criminal defense clinic at UM for 22 years. "There's something going on in his analysis, whether it's confirmation bias or something else. There's something going on. So I would say any pathology that he offered an opinion on is suspect at this point and ought to be examined."
Last week, the Montana Attorney General's Office said the review did not result in the reopening of the cases. On Friday, a spokeswoman said the agency would be able to comment in the coming week on the call for wider scrutiny.
Bennett's shortfalls came to light because two state medical examiners resigned this year and both cited his work in their letters of resignation. To date, neither doctor has been willing to publicly discuss their departure.
The documents released last week, though, show the pathologist's work in Montana may have implications for cases well beyond those reviewed. Correspondence also shows one former medical examiner's concerns about Bennett's work had grown severe and extended to both autopsies and expert testimony.
Dr. Gary Dale, who resigned in April, shared his concern in a direct email to Attorney General Tim Fox on March 31.
"Stated plainly, it is my belief that in addition to rendering false testimony, Dr. Bennett has willfully obscured evidence of trauma that he has encountered during his autopsies of Montana infants," Dale said in the email; he signed an affidavit echoing similar concerns.
Bennett remains in private practice in Billings, and he has strongly defended his professional record. In an email, he described Dale's allegations as defamatory and libelous, and he took a shot at the former state medical examiner.
"I can only offer that doctors can and will have differences in opinion. The findings of the autopsy should be reviewed fully. Dr. Dale has rarely reviewed all of the information available. He offers conclusions because of his own issues," Bennett said.
Bennett did not elaborate further. In an earlier response to the independent evaluation, he alleged the outside reviewer drew erroneous conclusions based on partial information.
"It's sad that she was compromised by those at the Attorney General's Office giving her partial information," Bennett has said. "I just have to wonder: Why did they do that?"
In her report, the Tennessee doctor who evaluated the cases said she would classify one from 2012 as a homicide; Bennett had listed the probable cause of death as "undetermined, with no distinct disease or injury found to explain death."
The Montana Attorney General's Office spokeswoman identified that case as one in which the parent confessed to a homicide in April 2014. In that case, two defendants pleaded guilty and are awaiting sentencing.
The remaining five cases did not warrant being reopened, according to the spokeswoman. She said Bennett conducted 61 young-child or infant autopsies from 2006 to 2015.
"None of these reviews resulted in a determination that additional prosecutions were warranted," Anastasia Burton, deputy communications director for the Montana Attorney General's Office, wrote in an email.
The agency declined to identify the county associated with each case, citing the privacy of the families involved.
A September 2014 letter from former state medical examiner Dale to state officials indicates Bennett had a hand in federal cases as well as state cases and in child abuses cases, too.
The services the doctor provided included autopsies, autopsy reviews and expert witness testimony.
Bennett made note of more than 10 cases of shaken baby syndrome that he had worked on for the FBI, according to a court document cited by Dale. Dale believed those were "likely nonfatal ones" outside his purview.
However, his letter also mentioned one American Indian baby the FBI "insisted" be brought to Missoula for autopsy. Bennett did work in eastern Montana.
An FBI spokesman said Friday he would look into the matter and direct the Missoulian to the proper authority.
Bennett also worked on cases for the Montana Office of the Public Defender. Chief public defender William Hooks said he believed Bennett had provided the bulk of the expert testimony the agency needed in forensic pathology in recent years.
"I would think so. I don't have this information in front of me, so I'm being intentionally a little bit vague," Hooks said.
Bennett came to Montana in 1998. Dale appointed him as the associate medical examiner, but he prohibited Bennett from doing work on infants because of his track record.
In Iowa, two people went to prison and were later released in a case Bennett had wrongly called shaken baby syndrome. Numerous authorities there raised questions about his work.
In Montana, Bennett provided services to coroners in eastern Montana, and he disregarded Dale's mandate to refrain from infant autopsies.
In a decade, Montana counted 10 homicides of children 5 years and younger that were due to "craniocerebral trauma," according to a chart Dale provided with his email to the attorney general. "None (were) autopsied by Dr. Bennett," read a handwritten note on the chart.
In his email, Dale said the numbers should give cause for concern "on a statistical basis alone."
The matter came to a head in September 2014, officials from the Attorney General's Office said earlier. The reason is not clear.
However, deputy communications director Burton said the agency discovered the dispute around Bennett's infant autopsies had existed for more than a decade, and it launched its own internal inquiry.
"Our administration requested this (independent) review in April 2015 after a period of careful internal review of what we discovered had been an issue since 1999," Burton said.
On June 19, the agency received the report on the six cases. Five days later, the Montana Attorney General's Office alerted Bennett his appointment as an associate medical examiner would end.
In a July 27 farewell letter to Attorney General officials, Bennett said it had been his privilege to serve the people of Montana. He also said the understanding of child deaths is evolving.
In the letter, Bennett argued he worked for the coroners who requested his services and not under the authority of the state medical examiner. The doctor noted coroners and hospitals regularly sought his services.
"I have performed over 200 autopsies annually for Montana's coroners, as they requested and when they authorized them. Throughout my 17 years here, I have also performed numerous autopsies for the Shodair Children's Hospital, St. Vincent HealthCare and the Billings Clinic," Bennett stated in the letter.
According to professor Renz, the known problems with Bennett's work warrant further investigation and his credentials should be suspect in Montana. In an interview, he warned the Office of the Public Defender against using Bennett as an expert witness in the future.
"They should know better," Renz said. "At this point, his credibility is pretty lacking once he gets on the stand, and that applies to whoever calls him."
He also argued the Attorney General's Office should widen the scope of its review of the autopsies Bennett performed as associate examiner. The state does not need to evaluate every case, he said, but it should take a sufficient number of samples to an independent pathologist as an initial step.
The state has tangled with bad forensics in the past, Renz said, and the Attorney General's Office doesn't have a strong record of examining the wrongdoing of its pathologists and scientists. He recalled the case of Arnold Melnikoff as an example.
Melnikoff, former director of the state crime lab, offered bad science on hair and fiber, and his testimony in 1987 led to the rape conviction of James Bromgard.
In 2002, DNA evidence proved Melnikoff was wrong. However, Bromgard spent 15 years in prison for the rape; he got a $3.5 million settlement from the state, the largest at the time.
Melnikoff later went to Washington, and the state learned about his misconduct in Montana in hair cases, Renz said. As a result, Washington officials looked at some of his other work.
"They just took a random sample of some of his drug-testing work, and they found some deficient, and they looked at all of them. And then they fired him," Renz said.