Steven Hayne, Expert for the Defense

Sunday, January 2nd, 2011

Last month, I wrote a column about the latest developments in Mississippi’s continuing medical examiner saga. In it, I noted that Steven Hayne had set out a letter (PDF) to defense attorneys announcing his availability to testify for them. I don’t know for sure how many times he has testified for the defense in the past, but the people I’ve talked to in Mississippi say it’s less than 10, and likely less than five. (He has testified for the state thousands of times.) But the new law barring him from doing official autopsies for prosecutors doesn’t bar him from testifying for defense attorneys or in civil cases.

And sure enough, the Jackson Free Press reports that Hayne is already finding business.

[O]n Dec. 9, Hinds County Circuit Judge Swan Yerger granted Assistant Public Defender Alison Kelly’s request for an independent autopsy review by Hayne. Kelly represents Darion Givens, 18, who faces murder charges in connection with the June 13 shooting death of his girlfriend, Falisha Miller, a Jim Hill High School student.

In court filings, Kelly argued that a second opinion of Miller’s autopsy is necessary to examine inconsistencies in the first autopsy, conducted by Dr. Thomas Deering. Witnesses reported hearing a gunshot, while Deering’s autopsy suggested that Miller’s shooter had used a silencer. Kelly maintains that Jasper Bell, who is charged as an accessory after the fact, was the shooter.

Kelly said this week that for Givens’ case, Hayne was the “best choice for defending [her] client in the most zealous manner.” While aware of controversy surrounding Hayne, Kelly said that she had not thoroughly investigated criticism of his work. Kelly did not seek out a forensic pathologist from the state medical examiner’s office because she wanted a second opinion on work performed by that office.

“In the state of Mississippi, Dr. Hayne is the only (forensic pathologist) that I know of, other than these people that the state is bringing into Mississippi to do their pathology work,” Kelly said. “I’m limited. I can’t use their pathologists to do my cross-examination of their reports.”

Hayne also recently testified for the defense in a case in Louisiana.

As I noted in the column, perversely, it would actually be good strategy for a defense attorney to hire Hayne. The sheer number of times he has already testified for prosecutors likely make him seem credible to a jury unfamiliar with his history. And in Mississippi in particular, there’s a good chance the prosecutor a defense attorney is opposing has used Hayne in prior cases, meaning he isn’t likely to delve into Hayne’s lack of certification, his impossible workload, or the dubious testimony he has given over the years.

I know that a lot of defense attorneys read this site. I’d be interested in hearing your opinions on the ethical issues in play here.  Defense attorneys in Mississippi and Louisiana by now know, or  at least should know, about his credibility problems. But using him may well also benefit their clients.

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22 Responses to “Steven Hayne, Expert for the Defense”

  1. #1 |  Buddy Hinton | 

    Its win / win. If his credibility is not called into isn’t he will testify to anything. If his credibility is called into question, it is Ineffective Assistance of Counsel (IAC) and a new trial.

    Disclaimer: Not a defense atty (hence my suggestion that defense attys might actually purposely try to set up IAC appeals and habeas-type-appeals).

  2. #2 |  Thoreau | 

    I just saw the movie “Catch Me If You Can.” The guy who forged millions of dollars worth of bad checks later became a security consultant and taught companies how to spot bad checks. If Hayne taught defense attorneys how to spot bad autopsies and dubious testimony, this would be a good thing. In all likelihood, though, he’ll just do more of the same for the other side.

  3. #3 |  anonymoose | 

    Ineffective assistance of counsel appeals are hell to win, it’s extremely difficult to win one even when you have an ostensibly clean cut case as you need to not only have ineffective assistance but also a legal issue to challenge (e.g. unsuppressed evidence, bad jury instructions) that might result in a different outcome had you not botched it. Moreover, if you’re an attorney and your clients get a new trial based upon an ineffective assistance of counsel, you’ve by definition committed malpractice. It’s worse if you’re intentionally doing it, since it’s intentional malpractice and you’re going to get your ass disbarred.

    As someone who’s worked in a major city doing indigent defense my first instinct, and then considered judgment would be to stay away from this guy. However, it is an ethically grey area. I have a duty to my client to represent him as well as possible under the law. At the same time, I have an ethical duty as an attorney to not present false evidence or suborn perjury. Furthermore, I’d have to weigh the chance that the prosecutor would discredit my witness by bringing up his past actions and thus hurt my client’s chances more than not presenting a witness would have. Also, I bet this guy charges oodles for his expert witness fee, something virtually all my clients couldn’t afford (your average forensic expert witness ran roughly $650/hr in the city where I worked, from what I recall).

    I’d be tempted to use him against a DA who relied upon him heavily, but the risk of having his credibility wrecked on the stand isn’t worth it.

  4. #4 |  Irving Washington | 

    Radley, the fun is going to start when a Mississippi prosecutor puts him through qualification and reliability (Daubert) hearings. Chances are good that the very state that used to prop him up as an expert is going to make him unusable to the defense bar. One loss on a qualification or reliability hearing is often enough to put an expert out of business for good.

  5. #5 |  Kevin3% | 

    I am not an attorney but it seems to me if the guy has been demonstrably proven a fraud shouldn’t that disqualify him from testifying on either side?

    However, if he is hired for the defense and the prosecution (especially in Mississippi) claims he is not reliable (read a fraud) should that not bring in to question any prior cases he was used in to testify as an expert?

  6. #6 |  Buddy Hinton | 

    Moreover, if you’re an attorney and your clients get a new trial based upon an ineffective assistance of counsel, you’ve by definition committed malpractice.

    There are a lot of IAC cases out there. I am still waiting to see my first malpractice claim or disbarrment on this basis. The trick is to never admit that you did it intentionally. The criminal justice system winks at IAC because they know that the state doesn’t pay defense attorneys enough and wants to keep it that way.

    In general, defense attorneys are very complicit, albeit passively complicit, in the shambles that the criminal justice system has become. You hate to attack them because their intentions are good (like the proverbial telephone customer service representive sweating it out at some massive call center in India who is “just following policy”), but, really, defense attorneys need to get on the stick and call much louder for SPENDING PARITY. Til then they are part of the problem and not the solution. If a defendant has money their attorney is not going to hire Hayne. The problem is money, or, more precisely, lack thereof.

    IAC is a classic “don’t throw me in the brair patch” gambit, and deep down, defense attorneys know it. They have to.

  7. #7 |  Stormy Dragon | 

    Well, now that he’s gone over to the defense side, you can expect the state to start doing a serious investigation into his past misdeeds.

  8. #8 |  MikeZ | 

    I’m not sure how hiring Hayne can be bad even if the defendant had money. If he is shown to be a charlatan by the prosecution, the defense points out that the D.A. has been using him exclusively for years, If their office couldn’t recognize an obvious charlatan how can they recognize this client is guilty? If they leave the Hayne qualifications alone, I’d guess he’s highly motivated to show his replacement isn’t as good as he was.

  9. #9 |  EH | 

    I call this, “using the system against itself.”

  10. #10 |  Z | 

    Interesting. #4 has a good point. Theoretically, the state can put him through the Daubert ringer and finish him off: naturally the next question will be from thousands of defense lawyers in unison: “Why did you use this guy for decades?” and the filing of appeals based on that. Since MS judges are elected and the 5th circuit is nothing to scream about, this question will fall on deaf ears. A more likely outcome tho is that MS, especially rural MS, being very buddy-buddy, and since defense lawyers want the sweet government moolah that judges control and dispense for representing indigents, neither the defense nor the prosecutor will say boo about Hayne’s qualifications. It’s like what George V. Higgins wrote:

    “At the end of the day, the only people in that courtroom who give a good shit about the case are you and your client and if you’re smart he’ll care about it a hell of a lot more than you.”

  11. #11 |  thorn | 

    Didn’t Hayne once testify that he could determine if a shooter was left- or right-handed based on a bullet entry in the victim?

    If so, he’s a perfect choice to testify if a silencer (ie, suppressor) was used in this shooting, as I believe it’s rather dubious to factually determine this from an autopsy. ;)

  12. #12 |  Carl Drega | 

    As an attorney and firearms enthusiast, I wonder what in the hell about the autopsy suggested the use of a “silencer”. A suppressor doesn’t leave any evidence behind besides lack of sound. How can lack of sound be detected by autopsy?

    When a gun is fired the force of the explosion of gunpowder, combined with most bullets’ supersonic speed, produce the loud sounds of a gun firing. A suppressor reduces sound by slowing the expansion of gas through cooling and offering a large expansion area. Suppressors do not however touch a bullet in flight, or leave any kind of mark at all on a bullet. When recovered from a shooting victim, bullets can tell a few things, but I can’t see how they can possibly tell that they were shot with a suppressed gun.

    Also, most common handguns fire rounds typically loaded to travel well above the speed of sound. This means that even if a suppressor is used the shot will not be quiet because of the sonic boom or “crack” the bullet makes when breaking the sound barrier in flight. Special ops types use uncommon cartridges where the amount of gunpowder is reduced to ensure bullet flight below the speed of sound and thus no sonic boom or crack.

    Oh, and the state will shit all over Hayne – because in this case he is against them. He will be discredited and wind up no longer in court (thank you baby jesus) and because they couldn’t find shame in the dictionary, will fight and win any attempt to have his previous pro-prosecution testimony discredited.

    Also Buddy Hinton, you sound like someone commenting on legal proceedings whose sole experience is viewing a marathon weekend of Law & Order reruns. Putting on an expert who is discredited just makes you look like shit and hurts your case and will get you nowhere on appeal.

  13. #13 |  The Johnny Appleseed Of Crack | 

    As an attorney and firearms enthusiast, I wonder what in the hell about the autopsy suggested the use of a “silencer”. A suppressor doesn’t leave any evidence behind besides lack of sound. How can lack of sound be detected by autopsy?

    I was wondering that as well. Perhaps the victim was shot at point-blank range, but had much less of a powder burn than would be expected from the caliber of gun that was used. Since a suppressor captures and slows down many of the hot gasses that exit a firearm, it seems likely that they would reduce the extent of a powder burn.

  14. #14 |  Pete | 

    Hayne will most likely continue to be a disgusting chode of a person who, in each case he accepts retainer for, will attempt to prove a theory presented to him instead of attempting to find out what happened or what the evidence said.

    That said, personally I will be delighted when prosecutors who have used him in the past are suddenly faced with the same bullshit they used to get convictions they most likely shouldn’t have gotten, and it bites them right in their evil asses.

    And yes, I really mean evil. Any prosecutor in a position to have his ass bitten by testimony from Hayne-who-they-used-before has already demonstrated a callous disregard for truth.

    I am sure there are a few decent ones who were told about Hayne from colleagues and had no idea, but at the first inkling of trouble over his methods and practices – and those inklings were widely publicized – an honest man would seek to learn more and decide not to use him ever again, and a ‘moral’ man would realize maybe he had railroaded someone into a sentence they didn’t deserve, and would try to re-open it to right that wrong.

    You never see prosecutors taking the lead in examining their own old cases, even in situations where it is blatantly warranted.

    Evil.

  15. #15 |  SamK | 

    Silencers reduce velocity and thereby energy at impact. If range and ammunition type is known and there is evidence of lower energy impact (smaller, less striated wound cavity…lower penetration etc) then you could argue for a silencer, but I don’t think you could conclude the presence of one solely based on a reduction in energy.

  16. #16 |  Aresen | 

    Carl Drega | January 2nd, 2011 at 10:45 pm
    As an attorney and firearms enthusiast, I wonder what in the hell about the autopsy suggested the use of a “silencer”. A suppressor doesn’t leave any evidence behind besides lack of sound. How can lack of sound be detected by autopsy?

    IOW, if a body falls in a locked room and there is no one there to hear the bullet, the victim isn’t really dead. – Bishop Berkley Hayne.

    ;P

  17. #17 |  SJE | 

    I am not a criminal lawyer, but I regularly deal with all sorts of conflict of interest issues. Usually, conflicts are limited to the exact same case: representing both parties in the same case (unless there is an express waiver). A conflict arises in a different case if you would be using some inside knowledge from your former client. This should not be a problem here. What would be interesting would be to have a prosecutor try to impeach Hayne and thereby show that Hayne has been willing to say anything for the state for years. Ordinarily, this should cause a huge kerfuffle, because the prosecutors are admitting that they were perverting justice all this time. Of course, nothing ever happens to a prosecutor.

  18. #18 |  SJE | 

    #15: The only other way to lose energy would be penetration through an object and so if no other object was found, your autopsy could be consistent with a silencer.

    Of course the only silencer Hayne is used to is the form of crisp green paper that ensures his silence on relevant issues.

  19. #19 |  Carl Drega | 

    “Perhaps the victim was shot at point-blank range, but had much less of a powder burn than would be expected from the caliber of gun that was used. Since a suppressor captures and slows down many of the hot gasses that exit a firearm, it seems likely that they would reduce the extent of a powder burn.”

    A suppressor would definitely reduce powder burns for a close in shot, but so would firing from inside a jacket. Discovering few powder burns when you knew the shot was close and determining a suppressor is even in the top 25 reasons for same is ridiculous. Sure if we were talking about a head of state being assassinated, but this is a ghetto murder of a 16 year old after an all night partying binge.

    “Silencers reduce velocity and thereby energy at impact. If range and ammunition type is known and there is evidence of lower energy impact (smaller, less striated wound cavity…lower penetration etc) then you could argue for a silencer, but I don’t think you could conclude the presence of one solely based on a reduction in energy.”

    WRONG! While there are different types of suppressors, by far the most common modern suppressors actually increase bullet velocity, though only very slightly. When a gun fires, the explosion of gunpowder forces the bullet down the barrel by force of the rapidly expanding gases. Bullets reach their peak velocity at the end of the barrel because they are no longer being pushed. A suppressor fits on the end of the gun’s barrel and in doing its job of slowing the expansion of gases it actually lets the exploding gases push a tiny bit more on the projectile. The extra push very small, but it certainly is the opposite of reducing velocity.

  20. #20 |  Pablo | 

    As others have noted, it is an ethical grey area. I love the idea of putting him up as a defense witness and seeing if the prosecutor has the guts to challenge someone they used to rely so heavily upon. On the other hand, in the courts where I practice, attorneys who use sleazy “experts” (witnesses everyone knows are full of shit) or otherwise cut ethical corners soon get a reputation for doing so and for being less than completely trustworthy. As an attorney all I really have is my reputation, and if yours is solid then judges (and prosecutors) will take your word on certain things, and will give you the benefit of the doubt in a close call–which is crucial to your ability to represent your clients.

  21. #21 |  Mannie | 

    #18 | SJE |
    The only other way to lose energy would be penetration through an object and so if no other object was found, your autopsy could be consistent with a silencer.

    You’d not get enough reduction in energy to measure accurately. For all the self assured testimony of forensic experts, there are so many variables in energy determination from wound characteristics, this is rule of thumb stuff.

  22. #22 |  Mannie | 

    You’d not get enough increase in energy to measure, that way, either.

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