Cory Maye Update — Your Humble Agitator Cited by the Mississippi Supreme Court

Monday, January 8th, 2007

On Thursday of last week, the Mississippi Supreme Court threw out the conviction of Tyler Edmonds, a 13-year-old accused of murdering Joey Fulgham, his sister’s husband. The prosecution’s theory was that Edmonds and his sister both murdered Fulgham, that they simultaneously held a gun and pulled the trigger together, shooting Fulgham in the head as he slept.

I have no opinion on Edmonds’ guilt or innocences (you can read the point of view of his defenders here). In fact, I don’t know much about this particular case at all except for the part dealing with the remarkable testimony of Dr. Steven Hayne, the medical examiner who performed the autopsy on Fulgham. Hayne testified at trial that the bullet wounds in Fulgham’s body were consistent with the prosecution’s theory that there were two hands on the gun that fired those bullets. I’ve talked to more than a dozen board-certified forensic pathologists, all of whom have confirmed my suspicions — Hayne’s testimony is so ridiculous in this case, it borders on malpractice.

What’s significant is that in throwing out Tyler Edmonds’ conviction, the Mississippi Supreme Court specifically cited the implausible testimony of Dr. Hayne.

Now, Dr. Hayne has testified in hundreds of criminal cases in Mississippi. To my knowledge, this is the first time his testimony has been called into question by the state’s highest court. Let’s hope it’s the start of a trend.

Now for the fun part. In a concurring opinion joined by one other judge, the court’s Justice Diaz cites extensively from my article on Cory Maye for reason. Here’s the part of the article he quotes:

Mississippi’s forensic pathology system is, in the words of one medical examiner I spoke with, “a mess.” The state has no official examiners. Instead, prosecutors solicit them from a pool of vaguely official private practitioners to perform autopsies in homicide cases. Steven Hayne, who performed the autopsy on Jones, appears to be a favorite. In the words of Leroy Reddick, a respected medical examiner in Alabama, “Every prosecutor in Mississippi knows that if you don’t like the results you got from an autopsy, you can always take the body to Dr. Hayne.” Defense attorneys in the state bristle at Hayne’s name. In a case last year in Starkville, he testified that he could tell by the wounds in a corpse that there were two hands on the gun that fired the bullet, consistent with the prosecution’s theory that a man and his sister team jointly pulled the trigger. Several medical examiners have told me such a claim is preposterous.

Hayne testified at Maye’s trial that he is “board certified” in forensic pathology, but he isn’t certified by the American Board of Pathology, the only organization recognized by the National Association of Medical Examiners and the American Board of Medical Specialties as capable of certifying forensic pathologists. According to depositions from other cases, Hayne failed the American Board of Pathology exams when he left halfway through, deeming the questions “absurd.” Instead, his C.V. indicates that he’s certified by two organizations, one of which (the American Board of Forensic Pathology) isn’t recognized by the American Board of Medical Specialties. The other (the American Academy of Forensic Examiners) doesn’t seem to exist. Judging from his testimony in other depositions, it’s likely Hayne meant to list the American College of Forensic Examiners. According to Hayne, the group certified him through the mail based on “life experience,” with no examination at all. Several forensics experts described the American College of Forensic Examiners to me as a “pay your money, get your certification” organization. A February 2000 article in the American Bar Association Journal makes similar allegations, with one psychologist who was certified through the group saying, “Everything was negotiable–for a fee.”

From this, Justice Diaz writes of Dr. Hayne:

II. This Court Cannot Qualify Dr. Hayne as an Expert.

While the majority finds that “Dr. Hayne is qualified to proffer expert opinions in forensic pathology,” that determination is exclusively left to the trial courts; we only review that determination. No expert is Daubert-proof. As science, like the law, evolves over time, one generation’s expert is another’s quack. There are serious concerns over Dr. Hayne’s qualifications to provide expert testimony. First, he admitted at trial that he was not certified in forensic pathology by the American Board of Pathology because he walked out on the qualifying examination. This means he is unqualified to serve as State Medical Examiner, as our law requires that “[e]ach applicant for the position of State Medical Examiner shall, as a minimum, be a physician who is eligible for a license to practice medicine in Mississippi and be certified in forensic pathology by the American Board of Pathology.” Miss. Code Ann. 41-61-55.

Second, Dr. Hayne testified that in his 25 year career, he has performed 25,000 to 30,000 autopsies. This would mean that he has performed at least 1,000 autopsies per year since he was admitted to practice, which seems highly unrealistic.

[…]

Accordingly, this Court should not give Dr. Hayne, or any expert, a free pass to testify before our juries. With Daubert, we have equipped our trial judges with the appropriate tools to distinguish between qualified expert testimony and “quackspertise.”

Those of you unfamiliar with the Daubert test, check here.

Also, before I go further, a quick word on those 1,000 autopsies per year. According to the American Board of Pathology, and the National Association of Medical Examiners, the maximum number of autopsies a single medical examiner can perform per year and still be considered competent is 250-300. In fact, 200 is generally considered to be the ceiling. Several medical examiners were floored by Hayne’s claim of of 1,000 or more (or between two and three per day, every day), with some saying that that number itself is indicative of malpractice.

It’s important to note that Dr. Hayne has testified in hundreds, if not thousands, of criminal trials in Mississippi over the last decade or so. His testimony has undoubtedly put many, many, many people in Mississippi in prison. As one doctor who has opposed Dr. Hayne in civil medical malpractice cases told me, “With my clients, it was only money on the line when Dr. Hayne went up to testify. I can’t believe this man’s so-called expertise has put people in jail, or on death row. I continue to be shocked that the ACLU or the NAACP hasn’t looked into this, yet.”

To my knowledge (and I could certainly be wrong, here, as I obviously haven’t reviewed them all), this is the first time Dr. Hayne’s credibility has been called into question by the Mississippi Supreme Court. Frankly, I think the court needs to not only bar Dr. Hayne from testifying as a forensic pathologist in the future, they ought to revisit every case in which he had ever testified. But this is at least a start.

So what does all of this have to do with Cory Maye?

Well, Dr. Hayne was the medical examiner who performed the autopsy on Officer Ron Jones, the police officer Maye shot. And a huge part of Maye’s appeal (all of which, incidentally, was completely ignored by Judge Eubanks in his eight-page dismissal of Maye’s motion for a new trial) concerns yet more questionable testimony by Dr. Hayne.

First, Dr. Hayne testified under oath that he is board-certified in forensic pathology. He isn’t, at least not by the only reputable certifying board. Second, Hayne offered extensive testimony about the trajectory of the bullet, and from that testimony, offered expert support for the prosecution’s theory about Cory’s position when he fired the gun. This testimony contradicted Cory’s testimony, and severely undermined Cory’s credibility with the jury. Problem is, Hayne isn’t qualified to offer that kind of testimony. He’s only qualified to testify about matters related to pathology, or the manner of death of the victim. That hasn’t stopped him from trying to do so, of course. Savvier defense attorneys in Mississippi do their research on Hayne, and make clear at the onset of the trial that he isn’t qualified to offer expert testimony on forensic matters.

In one of her few bright spots during the trial, Cory’s first lawyer Rhonda Cooper correctly objected when Hayne offered this testimony for which he wasn’t qualified. Judge Eubanks overruled those objections. What’s strange is that when the defense pointed out to Eubanks during the hearing last September that he had wrongly overruled Cooper’s objections, Eubanks replied, “Did I overrule all the objections” (quote is exact, emphasis is mine, to show the tone Eubanks used) suggesting that he realizes he may have erred. Yet in his opinion, he doesn’t bother to explain or discuss any of this.

So the Edmonds case is good news for Cory Maye for several reasons. First, it shows that the current lineup on the Mississippi Supreme Court is capable of throwing out a capital murder conviction (something about which I have previously expressed some pessimism), even on a case like Edmonds, which I’d argue is less compelling than Maye’s (again, I have no opinion on Edmonds’ guilt or innocence, but he did apparently confess to the killing). Second, it shows that the court is (finally) willing to question the testimony of Dr. Hayne, particularly when he attempts to give his unqualified opinion on forensics matters.

Finally, it shows that at least two of the justices have read my article on Cory, which means they’re not only aware of the case, they’re aware of some of the troubling aspects of the case that for reasons of legal relevance may not make it into Cory’s appeal. Justice Diaz has already called Hayne’s testimony in the Maye case “questionable.” That’s not a bad starting position if and when Maye makes his appeal to the Mississippi Supreme Court.

Of course, this case is a slam dunk when it comes to Hayne. The two-hands-on-the-gun stuff is absurd. What’s troubling is that Hayne has testified in numerous other cases where his forensic pathology-related testimony actually was plausible, and didn’t stick out like a sore thumb on appeal. One can’t help but wonder how many people are in jail in Mississippi because their lawyers didn’t think to look into Hayne’s expertise, because he was able to convince a jury to believe him over another expert who was actually board-certified, or because — as was the case with Cory Maye — the defendant couldn’t afford to hire his own expert. Put another way, how many times was someone wrongly convicted because Dr. Hayne’s dubious testimony was enough to sway a jury to buy into the prosecution’s theory, instead of the defendant’s?

Here’s hoping Hayne gets continued scrutiny from the state’s supreme court going forward, including when they sit to hear Cory’s case.

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