Mississippi Supreme Court Set To Hear Two Cases Involving Dr. Hayne

Saturday, March 1st, 2008

According to the A.P., the Mississippi Supreme Court is now considering post-conviction appeals from Jeffrey Havard and Devin Bennett, two cases in which a man was convicted and sentenced to death for killing a child in his care. Both men were convicted thanks in large part to the testimony of Dr. Steven Hayne, the prolific Mississippi medical examiner I wrote about last October, and who has come under fire from the national and Mississippi Innocence Projects for his role in two recent exonerations.

Unfortunately, neither of these cases involves DNA the state could test to conclusively prove either man’s guilt or innocence. In both cases, a child died in while in the care of the accused. There were no other witnesses to the childrens’ deaths, and in each case, the men say the deaths were accidents. In both cases, the state heavily relied on Dr. Hayne’s autopsy and testimony to establish that the deaths were intentional, and to win convictions death sentences. Finally, in both cases reputable, actually board-certified medical professionals have come forward to challenge Dr. Hayne’s conclusions, thus far to no effect.

I’ve written about the Havard case before. Here’s a summary from my article last fall:

Consider Jeffrey Havard, convicted in 2002 of killing his then-girlfriend’s six-month-old daughter. Havard claims he was bathing the child when she slipped from his hands and hit her head on the toilet. But Hayne testified at Havard’s trial that bruises, scratches, and cranial bleeding indicated a case of shaken baby syndrome. Hayne also testified that the child’s anus was dilated, indicating sexual abuse. The DNA evidence was inconclusive: Havard’s DNA was not found on the baby, but both his DNA and hers were found on a sheet from the bed where she had gone to sleep that night, which was also the bed Havard shared with his girlfriend.

Because there were no witnesses to the incident, the evidence of sexual abuse was key to securing Havard’s conviction and death sentence; the charge was “murder in the commission of sexual battery.” Havard, who had no money, was assigned a public defender. His lawyer was suspicious of Hayne’s conclusions and at trial asked the court for funds to hire an independent pathologist to review Hayne’s findings. The judge refused, ruling that Hayne, the prosecution’s witness, was qualified and sufficient.

After Havard was convicted, attorneys from Mississippi’s post-conviction relief office, which represents indigent defendants in their appeals, were able to get James Lauridson, Alabama’s former state medical examiner, to review Hayne’s work in the Havard case. According to an affidavit he filed with the Mississippi Supreme Court in 2004, Lauridson found significant problems with Hayne’s testimony. Most notably, factors not related to abuse—e.g., rigor mortis—can often cause the anus to dilate after death.

In February 2006 the Mississippi State Supreme Court nevertheless upheld Havard’s conviction. It refused even to consider Lauridson’s review of Hayne’s work, ruling that any expert testimony refuting Hayne’s conclusions had to have been introduced at trial. Havard’s attorney had tried to do that, of course, but the trial judge denied him the necessary money.

[...]

The Havard case is now entering a second round of appeals. Lauridson and Havard’s lawyers wouldn’t discuss the case for this article, citing the ongoing appeal (though Lauridson did call it “a miscarriage of justice”). But according to the court clerk, at press time the case was being delayed because Hayne wouldn’t turn his autopsy records over to Havard’s defense team for review.

As for Devin Bennett, he was convicted of killing his son by (according to Hayne) shaking and/or slamming the boy’s head against a wall or the floor. Bennett says the child was sleeping in a car-seat cradle, and died when Bennett inadvertently kicked the seat off the bed during his sleep. Bennett and his ex-wife (the mother of the child) both testified that Bennett tends to kick violently in his sleep. Bennett actually had an expert testify in his defense, Dr. Emily Ward. Ward was Mississippi’s last official state medical examiner. When she took office, Ward was shocked at the way coroners and prosecutors were using Dr. Hayne to win convictions, and tried to institute reforms. She resigned in 1995 after the state’s coroners and prosecutors rose up against her and circulated a petition calling for her ouster. The man who headed up that petition? None other than Dr. Michael West. You can read a PDF of the petition here.

Again, from my article last fall:

It was West who circulated a petition among the state’s county coroners calling for Ward’s resignation. Forty-two of the state’s 82 coroners signed the document, which accused Ward of failing to support the coroners, diminishing their authority, improperly assisting defense counsel in criminal cases, and attempting to “establish a political power base.” West told the Jackson Clarion-Ledger in 1995 that the state’s Department of Public Safety had “never been able to keep this woman under control.”

The Clarion-Ledger contacted 30 of the 42 signatories to West’s petition and learned that most of them sent their autopsies to Hayne. The paper also found that more than half of the signatories repeated hearsay about Ward they’d heard from other coroners, and could cite no personal grievances against her. The paper concluded that the petition was the result of a “power struggle” between Hayne and Ward.

Not all of Mississippi’s coroners agreed with West’s assessment of Ward. One told the paper the petition was “baseless” and “looked like a group of fifth-graders had written it.” Another lamented that “a small group of individuals for whatever reason—for personal gain or personal ego—have continued to badger Dr. Ward.”

Qualified medical examiners outside of Mississippi seemed to agree. Jamie Downs, who serves on NAME’s board of directors and now practices in Georgia, hired Ward to work for him when he was Alabama’s state medical examiner. “We knew what happened in Mississippi,” Downs says, referring to Ward’s experience in Jackson. “And I’ll just say that hiring Dr. Ward was a no-brainer. She’s a well-qualified, competent medical examiner. And that alone puts her in a completely different league than Dr. Hayne.”

Ward resigned her position in Mississippi in June 1995. The office has been vacant ever since.

Given her tumultuous time as the state medical examiner, Ward was reluctant to review Hayne’s work in the Bennett case. But Bennett’s lawyer persisted. Ward finally agreed, performed a second autopsy, and found that the child’s injuries were more consistent with Bennett’s story than with the testimony of Dr. Hayne. Incredibly, during a nasty, contentious cross examination, the prosecutor actually brought up Ward’s time as state medical examiner, and talked about how West and the state’s coroners rose up against her. He was trying to paint her as an outsider and a troublemaker in order to malign her credibility with the jury.

This same prosecutor who was relying on Dr. Hayne then went on to question Dr. Ward’s methods and practices. During his questioning, he read from Forensic Pathology, considered the premiere text book in the field, written by the renowned medical examiner Dr. Vincent DiMaio. The prosecutor badgered Ward, mangling her testimony with out-of-context quotes from DiMaio’s book to actually make Ward look like the incompetent physician.

But I actually interviewed Dr. DiMaio for my article on Hayne. Here are the relevant excerpts:

Vincent DiMaio, author of Forensic Pathology, widely considered the profession’s guiding textbook, says of Hayne’s remarkable annual output: “You can’t do it. After 250 [forensic] autopsies, you start making small mistakes. At 300, you’re going to get mental and physical strains on your body. Over 350, and you’re talking about major fatigue and major mistakes.” That isn’t even a quarter of the number of forensic autopsies Hayne has said he performs each year.

[...]

“The Mississippi medical examiner system doesn’t exist, except in name only,” concludes DiMaio, the forensic expert and textbook author. “This man provides a service—and at a discount. You’re not going to get any change in a system where all the people in power are happy.”

It’s rather perverse that a book written by the man who gave the quotes above was used by a prosecutor before a jury to actually validate Dr. Hayne’s conclusions and impugn the opinions of a more competent doctor questioning his conclusions.

But it worked. The jury apparently found Hayne more credible than Ward, and convicted Bennett of killing his son. The Mississippi State Supreme Court has already ruled once on this case. The court upheld Bennett’s conviction, and unfortunately found nothing untoward about the prosecutor’s questioning of Ward. Ward told me last fall that she believes Bennett is innocent. Alabama’s Dr. James Lauridson has also since joined in Bennett’s defense.

Obviously no one but Jeffrey Havard and Devin Bennett truly knows whether the deaths of the children in their care were accidents or homicides. Both men may well be guilty. Bennett seemed to have trouble keeping his story straight when talking to authorities. His defense chalked that up to trauma. But each man is due to be executed in large part because of the testimony of Hayne, a doctor whose credibility and objectivity have been called into question, to put it mildly. These aren’t your typical cases where a reuptable prosecution witness was challenged by a defense expert "gun for hire." They’re cases in which respected, credible medical examiners have questioned the conclusions of a doctor who doesn’t abide by the standards of his profession, whose credibility has been attacked by his peers and colleagues, and who played a role in the convictions of two men recently exonerated by DNA evidence.

The Mississippi Supreme Court has said it will rule on both cases based solely on the briefs filed by prosecutors and defense attorneys, and will not hear oral arguments.

It would be an awful mistake for the state of Mississippi to execute either of these men without a new trial—preferably one in which Dr. Hayne isn’t permitted to testify.

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16 Responses to “Mississippi Supreme Court Set To Hear Two Cases Involving Dr. Hayne”

  1. #1 |  tomwright | 

    Someone should sue on behalf of public defenders, to get equal funding with the prosecutors offices and polic lab funding.

    Equal protection under the law, right?

  2. #2 |  incongruities | 

    Obviously there is corruption but to what ends? Usually it’s money involved but the cases you document in Mississippi seem to be of an ideological nature, viz there is a group of people who would like to see the threshold for capital punishment lowered to include abusers of children.

    Even disregarding Dr Hayne’s bogus testimony I am pretty sure Jeffery Havard was up to no good from one single fact: “Havard claims he was bathing the child when she slipped from his hands and hit her head on the toilet.”

    Not even his kid… Doesn’t happen. Slam dunk case. And I would convict the mother of something as well. If Havard shook the baby, then slammed it’s head on the toilet to cover up her death — which in my opinion is way more likely then the baby simply slipping from his hands — he absolutely deserves to fry.

    Maybe the backwards assed folks of Mississippi don’t mind a little baby killing as long as there is no buggery going on and the judiciary is compensating by using Dr Haynes.

  3. #3 |  supercat | 

    Whether or not Mr. Harvard deserves to be prosecuted using proper procedures, nobody deserves to be prosecuted using shambolic procedures. If the state can secure a conviction using the testimony of a real certified medical examiner and other credible witnesses, great. Even if Mr. Harvard is guilty, though, there’s no reason the state shouldn’t be required to prove it without the use of a quack.

  4. #4 |  Bronwyn | 

    incongruities – Did you ever stop to think that perhaps he was lifting the wet child from the tub in order to place her on a towel? Or he was trying to lift her in a towel? Or she was trying to climb out (as my son tries to do)? Infants are slippery when wet and they can be hard to handle.

    I’d say both of them may be of negligence, but not homicide, and I imagine Mr. Havard simply didn’t get a good enough grip on the child – pure accident and the stuff of new mothers’ nightmares.

    Think of people whose kids fall out of bumbo chairs and crack their skulls – those people, instead of suing the chair company, should be charged with negligence or reckless endangerment for putting the child in the chair on a countertop or table. That’s a tragedy just waiting to happen and the manufacturer even lays out the risks to those who need to be slapped in the face with the obvious. Same thing with the child car seat on the bed. A man who knows he is violent in his sleep has no business sleeping with an infant – and certainly not while the infant is in a carseat. Carseats weren’t made to serve as cosleepers.

    Just as it sickens me when parental stupidity is ignored in favor of flashy lawsuits (mis-assembled cribs, anyone?), it equally sickens me when prosecutors seek murder charges to make themselves look good when the appropriate charge is clearly negligent homicide at worst, reckless endangerment at best. (standard IANAL disclaimer here).

  5. #5 |  incongruities | 

    What a sucker; a defense attorney’s dream.

    In my experience infants are not very difficult to handle, wet or not. You can contort your mind however you feel necessary to explain how a tiny baby can overpower a man’s grip but I don’t have to do that because common sense tells me that a man does not bathe a infant female baby for his “girlfriend at the time.” That is, if I may, an enormous incongruity. Now had the boyfriend been hosing the kid off with a water hose when something horrible happened, maybe I could see it.

  6. #6 |  Bronwyn | 

    common sense tells me that a man does not bathe a infant female baby for his “girlfriend at the time.”

    Who’s the one with the contorted mind?!?

    Also, I don’t suspect you’ve had all that much experience with infants. They are strong and very wriggly. When a 10-month old decides he wants out of your lap, he will arch his back and writhe his way out and the best you can hope for is to ease him down so he doesn’t launch himself onto the floor.

    I’m trying to be civil here, but good god damn sir, you are an idiot.

  7. #7 |  Against Stupidity | 

    Since these prosecutors know how Dr. Hayne works. Just putting him on the stand is an act of suborning perjury. Isn’t that generally a capital offense when the potential sentence is the death penalty.

    Of course, the truth and what can be proven in court are two different things.

    Tomwright’s comment about equal protection is right on the mark. A policy such as he proposes would prevent prosecutorial abuse with “expert witnesses”. If someone has limited means, the state should provide matching funds for the defense to refute the State’s position.

  8. #8 |  Against Stupidity | 

    incongruities,

    When someone is babysitting, they are expected to take care of all the child’s needs, that includes bathing. Maybe he was clumsy, maybe he was inexperienced with infants, but his story is not really as far fetched as you’re trying to imply. The situation as presented is quite plausible.

  9. #9 |  Drama Unfolding | 

    I know a man who did the same thing in Calif. FINALLY charges were dropped against him. How many times have we bathed our little ones and them jump and us loose our grip with them. If this is how they based his case I really can uderstand HOW it can happen..

    I hope to see ALL Hyanes cases go back to trial. Even if he did not testify but had a part in the investigation process. Who was the investigator in this case if I might ask… SOME EVIL ONE’S IN MS….

  10. #10 |  incongruities | 

    “I’m trying to be civil here, but good god damn sir, you are an idiot.”

    Funny, Bronwyn I was just thinking the same thing about you guys. I don’t know where you all are from (Possibly Mississippi?) but around here people don’t “accidentally” kill babies while giving them a bath. I can not recall even a single case. Google can not recall a single case nationwide except for one where it was used as a defense against allegations of shaking the baby to death.

    Young men don’t typically babysit infants that are not theirs — especially if they don’t even know how to give one a bath without killing it. This is not a mental contortion, it is just a fact.

    Yeah, Dr. Hayne is bad, Ward is bad, Mississippi justice is bad, police power is out of control, and the war on drugs is a travesty, but I got a dollar to a donut that this guy Havard shook that baby. If you don’t like my opinion, go fuck yourself. And I mean that in the most civil way.

    Face it, this is not the best poster case for your cause. Furthermore, I bet if the baby “accidentally” killed by Havard was your grandchild, you would not take such a stoopid position.

  11. #11 |  enormous iNCoNgrUiTieS » Blog Archive » Defending alleged baby killers | 

    [...] I started a little brouhaha with some commenters over at The Agitator’s site who believe I am an idiot. Maybe they are right.  How easy is it [...]

  12. #12 |  Bronwyn | 

    You didn’t start a brouhaha, you trolled. And you trolled around some passionate and caring parents who know a little something about infant care and how easy it is for them to slip from your grip.

    You can keep your dollar and your donut. The fact of the matter is, you weren’t there and neither was I, so we’re both full of shit.

    You go ahead and keep your superior knowledge based on, “I haven’t heard of it” and “google doesn’t…” while the rest of us who actually live with and care for children every day, and who have decades of hands-on experience in child care will simply rot in our gaping abyss of ignorance.

  13. #13 |  incongruities | 

    Hands-on experience. You got to be kidding me. I am sure you are too simple to be that witty so I will let that insensitive remark slip by. But you do seem unable to say anything without name-calling. I guess that is to bolster your argument when the circumstances are so weak.

    I’ll stipulate that your “hands-on” experience qualifies you as an expert. So how many babies have you killed in your decades of “hands-on” experience? How many babies have “the rest” of your contemporaries killed with their “hands-on” experience? Not including Havard, do you personally know of a single case where someone “accidentally” killed a baby due to it being too much to handle while wet?

  14. #14 |  Lloyd Flack | 

    No, Bronwyn and others are saying that their hands on experience lets them imagine how things could go tragically wrong.

    Freak accidents happen and when they do law enforcement gets suspicious and can easily put innocent persons on trial.

    You are far too certain that some things do not and cannot happen and have far too little reason for your beliefs.

  15. #15 |  incongruities | 

    I get it. We should base our justice system upon the imaginations of what is possible, however unlikely. There is no place for common sense evaluation of facts. Besides, what evidence do we have that Bronwyn, or any of the others, has any hands-on experience with infants at all?

    I bet my “beliefs” are more substantiated by actual facts than yours — not to mention reason. For example, unless you consider losing your temper and shaking a baby to be a freak accident, I bet domestic violence committed by a “boyfriend” against a child that is not his is at least a thousand times more likely to occur than your freak accident scenario. I would be shocked if any of you could refute this with anything more substantial than emotionally charged gibberish.

  16. #16 |  Steven Hayne, Michael West ‘Expert’ Witness Scandal Could Affect Mississippi … | HollywoodDaily.us | 

    [...] bite mark evidence from West and Hayne (one in Mississippi and one in Louisiana). There are at least two other men on death row due primarily to testimony from Hayne that has since been called into question by [...]

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