Correction to My Previous Post on Dr. Hayne

Tuesday, September 9th, 2008

I explained on Sunday evening that I’ve come across several documents showing that there were concerns about embattled Mississippi medical examiner Dr. Steven Hayne going back to the early 1990s.  Before I get into the first few pages of the file I found on Dr. Hayne that was compiled by one of his rivals, I need to make a correction to my previous post.  Referring to Mississippi’s last official state medical examiner, Dr. Emily Ward, I wrote:

Ward’s predecessor, Dr. Lloyd White—who was also chased out by the good ol’ boys—had explained how when he would tell a district attorney that his autopsy didn’t support the DA’s case , the DA would merely take the body to Hayne, who would then give the prosecutor the diagnosis he was looking for.  When they would do this to Dr. Ward, she would infuriate the state’s prosecutors by calling up the defense counsel and offering to testify for them. 

Dr. Ward emailed me to say that while her detractors accused her of reaching out to defense counsel in such cases (and I have letters where they have made those accusations), she never actually did so.  She says reaching out to defense counsel in such a way would have been "very unprofessional."  Dr. Ward has worked with defense counsel on occasion, but she emphasizes that she didn’t initiate the contact in those cases.

I’m happy to correct the post, and I apologize to Dr. Ward for mischaracterizing how she came to work with defense lawyers.

But here’s my question:  Why would it be considered unprofessional for a state medical examiner to reach out to defense counsel under the circumstances above?  If your job as state medical examiner is to make sure autopsies are science-based and accurate (as opposed to say, merely trying to help the state accumulate convictions), and you know that the state is about to prosecute a case based on faulty forensic evidence provided by a hack doctor, I’d like to think you’d feel obligated to let the defense and the court know what’s going on.

I guess don’t understand what possible prevailing ethic would render such action "unprofessional."

MORE: I should add here that I have a high opinion of Dr. Ward, and that she did all she could to change Mississippi’s autopsy system for the better. When she says reaching out to defense counsel would be “unprofessional” I’m sure she’s reflecting a widely-shared sentiment among her peers and colleagues.

I guess I just don’t see the reason for that sentiment.

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10 Responses to “Correction to My Previous Post on Dr. Hayne”

  1. #1 |  Michael Chaney | 

    While they may see it as unprofessional, not doing so in that case would (at least to me) be tantamount to withholding exculpatory evidence, and grossly immoral. I hope you’re reading this, Dr. Ward, as I also have a high opinion of you, but I want you to think this through.

    There is no obligation to act “professionally” when it means a known-innocent person is going to jail.

  2. #2 |  Eric | 

    Its the same cartel-ish self-preservation that keeps (AZ at least) school superintendents from trying to attract students from other districts. No one wins in the long term.

  3. #3 |  Judi | 

    It is the DUTY of the PROSECUTOR to SEEK the TRUTH…NOT CONVICTIONS. (A fact they seem all too often to forget) Perhaps the DA’s in Mississippi could use a ‘brush-up’ in Law 101.

    It is NOT the medical examiner’s ‘job’ to convict or exonerate. Theirs is one of reporting an ethical, professional and QUALIFIED opinion of their findings without prejudice. This TOO, is a TRUTH SEEKING factor for both the defense and the prosecutor in that is is SUPPOSED to be UNBIASED. (Hayne, are you reading this? ETHICS 101)

    Therefore it would NOT be ‘unprofessional’ for the CERTIFIED, QUALIFIED and ETHICAL medical examiner to ensure the RIGHT of DUE PROCESS if he/she KNEW this ludicrous and undeniable injustice was taking place. As a matter of fact, it would most certainly be his/her DUTY to REPORT it.

    Witholding exculpatory information would certainly be grounds for a mistrial.

    Dr. Ward testified at Devin Bennett’s trial and rebutted Hayne’s testimony. However, she was NOT a ‘clubhouse member’ of the Little Rascals or a ‘teamplayer’ who followed the ‘rules’ therefore her testimony was discounted. Now an INNOCENT MAN (and many others) LANGUISH on DEATH ROW wasting taxpayer’s money since he should not have been in there in the first place. AND to execute Devin and others will be astronomical and most certainly a costly mistake on MANY levels.

    Can we not LEARN from history? (History 101):

    “Those who cannot remember the past are condemned to repeat it”…George Santayana

    Dr. Emily Ward should be MORE than applauded for her efforts to uphold our constitutional rights. I vote we give her the Congressional Medal of Honor.

    “Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong”…Theodore Roosevelt

    It is a downright SHAME and DISGRACE that we don’t have MORE like her. If we DID, we wouldn’t even be having this conversation.

    In 1994, I stood up for a patient’s rights after witnessing an ER “Doctor” (and I use the term loosely) kill that patient. I too, lost my job. I was a paramedic.

    There was a conspiracy between the doc and the nurse (whom he was ‘bedding’ and later married) and a COVER-UP. He warned the STAFF NOT to REPEAT anything they saw (they would surely lose their jobs) AND even ran a fake ASYSTOLE EKG strip AFTER the body had been taken to the funeral home. Times and dates were forged on documents.

    It was NOT until a year later that one of the ‘witnesses’ broke down and supported my story. She was depositioned and confessed that she AND his bedtime buddy, the nurse, ran the strip while the leads ‘hung on the wall’. She also testified that my ‘story’ was the absolute TRUTH. (Through supoenas we also were made privy to REPORTS from the respiratory therapist, another nurse and even the secretary that I had told the truth).

    Unfortunately, sometimes there is a PRICE TAG for doing the RIGHT THING.

    I have NO REGRETS and have no doubt Dr. Ward shares my sentiment.

    “Justice delayed, is justice denied”…William Gladstone

  4. #4 |  Highway | 

    I, too, find severe moral problems in the idea that the state medical examiner, whose job it is to find FACTS about a person’s death, should somehow be prohibited from working with the defense in a case.

    I think there is a severe problem with the ‘justice’ system, in that it’s more of a ‘blame’ system. Let’s find someone to blame, make sure that we use the courts to ‘prove’ it, and then we can wash our hands of it. It’s a vile perversion of what justice should be, but it’s unfortunately what people often stop at, without thinking through to the sad and logical conclusions of such a system.

  5. #5 |  Nick T | 

    The reason this kinda IS unprofessional goes back the problem with prosecutors. Normally the scientist would hand over a report or otherwise state their conclusions, THAT piece of evidence must be shared with defense if it is exculpatory. So the scientist should not need to go over to defense counsel and share her results because the prosecutor is *constitutionally* obligated ot share it.

    So while doing so might be important, to do it automatically, would mean you were assuming the prosecutor would not do his job. So it is “unprofessional” but of course it may become ethical, and certainly it is morally correct when it appears the informaiton is not being shared with the defense.

  6. #6 |  Steve Verdon | 

    The reason this kinda IS unprofessional goes back the problem with prosecutors. Normally the scientist would hand over a report or otherwise state their conclusions, THAT piece of evidence must be shared with defense if it is exculpatory. So the scientist should not need to go over to defense counsel and share her results because the prosecutor is *constitutionally* obligated ot share it.

    Good point (and +1 to boot). However, it seems that the system in Mississippi is already corrupted and as such it is at least arguable that the above does not apply and as such a ME/scientist doing the above is correcting for what is an egregious breach of your judicial system. Maybe it is still unprofessional, at least in theory, but it is still the right thing (moral/ethical) thing to do. Anyone holding this against such a scientist is only slightly less contemptible than the prosecutors who are perverting justice and sending the innocent to suffer in jail.

  7. #7 |  Helmut O' Hooligan | 

    Good discussion of the legal/ethical implications involved. I tend to agree with Radely’s assessment that this shouldn’t really be seen as unprofessional. The job of a forensic practitioner should be to seek the truth and to promote justice (though justice is a rather subjective notion). If an old boys network is obscuring the truth, then you may have to ignore professional courtesy and follow your conscience. If the system breaks down to the point that it has in MS, then people who are dedicated to serving the people and honoring their professional oaths/responsibilities are going to have to do this in order to protect the citizens they are trying to serve.

  8. #8 |  Highway | 

    BTW, Radley’s cross-post of this to Hit and Run did get a response from Dr. Ward, addressing the ‘unprofessional’ aspect of the comment. The gist was that it’s unprofessional to go shopping it around, for the ME to call up the defense and say ‘I’ll volunteer to testify for you’. She said that she had no problem with testifying for either counsel.

  9. #9 |  Steve Verdon | 

    Not sure I even buy that. If the evidence says A and the prosecution takes it to a guy they know will give them Z, and that Z is just patently untrue and silly to boot…shop it around at a discount, IMO.

  10. #10 |  supercat | 

    Perhaps the ‘professional’ way to handle things would be for the medical examiner to give the prosecutor a copy of the relevant evidence and give the prosecutor a reasonable amount of time to forward it to the defense. After that time, give the defense a courtesy notice asking them to confirm receipt, and inviting them to ask with any further questions, with the proviso that any further questions and answers by either side will be CC’ed to both.

    If such courtesy notices were given as a matter of routine, there need be no implication of underhandedness in their delivery.