A few items on the Leigh Stubbs case that didn’t make it into my article yesterday:
First, the state’s reply to the Mississippi Innocence Project’s post-conviction petition does argue a couple other reasons why West’s testimony shouldn’t be cause for a new trial other than the procedural issues. They’re both pretty lacking.
The first is that the state included the name of an FBI agent associated with the agency’s analysis of the videotape on the list of potential witnesses it gave to the defense. This, the state argues, was sufficient to fulfill its Brady requirement to disclose potentially exculpatory evidence. Providing the actual FBI report wasn’t necessary. If Stubbs’ attorney didn’t contact that agent and press him enough to learn about the report, that’s not the state’s fault.
There was no explanation as to why the FBI agent was included on the list. And if the attorney did know about the repot but didn’t follow up or bring it up when cross examining West, you’d think Stubbs would have a pretty darned good claim for ineffective assistance of counsel. Of course, the state argues against that, too.
Another of the state’s arguments is that West explained in his testimony that the images in the surveillance tape were “difficult to see” and that the purpose of his testimony was merely to “allow people to look at the video and come to their own conclusions.” The state writes, “In other words, he was trying to assist the jury,” instead of conclusively telling them what’s in the video.
Problem is, that line is lost in West’s BS about his NASA-like enhancement software, which is then followed by pages and pages of him explicitly telling the jury exactly what is in the video. Hayne and West do this often. They include a line or two of mild qualification in their testimony, then go on ad nauseum with baseless opinions and conclusions. It’s the latter that sticks with the jury. It’s the former that Mississippi appeals courts consistently cling to in refusing to throw out their testimony.
One other item of note. I mentioned in the article that Dunn Lampton was the U.S. Attorney who twice indicted then-sitting Mississippi Supreme Court Justice Oliver Diaz. (Diaz was acquitted in both trials. He’s also now suing Lampton.) That experience altered the way Diaz viewed the criminal justice system. He became a strong defender of the rights of the accused, and a vocal opponent of the death penalty. It was Diaz who wrote the strongest opinion denouncing Hayne in the Tyler Edmunds case, and who in that opinion and others attacked Hayne and West, writing on a couple occasions that Hayne should be barred from testifying in Mississippi courtrooms. (In fact, if it weren’t for Diaz, Edmonds would likely still be in prison.)
The unfortunate coda: Diaz then lost his bid for reelection in 2009, in part because of Lampton’s indictments, and in part because a series of TV ads bought by a Virginia-based law-and-order activist group that denounced Diaz for his opinions in three cases. As I wrote at the time, two of the ad’s claims were misleading at best. The third was the case of Jeffrey Havard, a man currently on death row in Mississippi thanks primarily to Hayne’s testimony. His testimony in that case has since been criticized by more reputable forensic pathologists, but Havard is still on death row.