Tomorrow at 2:30pm ET, the Mississippi Court of Appeals will hear oral arguments in the Cory Maye case. You’ll be able to stream the arguments live from the court’s website.

To catch you up:

– PDF of Maye’s appeal.

– My 2006 Reason article on Maye’s story.

– Archive of TheAgitator.com posts about Maye.

– Reason.tv documentary on Maye’s case:

According to Maye’s lawyers, this is good news, but only in the sense that it would have been really bad news if the court had declined to hear oral arguments. The arguments are scheduled for June 4. You’ll be able to watch a live webcast here.

My October 2006 Reason feature on Maye’s case here. And here’s Reason’s award-winning documentary on Maye’s story:

The Reason.tv video Mississippi Drug War Blues: The Case of Cory Maye took top prize in the Best Documentary Short category at the Oxford Film Fest. Congratulations to Paul Feine, Roger Richards, and Dan Hayes for their hard work. And of course, props to Drew Carey for making the video possible. You can watch it below.

A comparison of what happens to frightened citizens who shoot at threats they can’t see during a drug raid vs. what happens to frightened police officers who shoot at threats they can’t see during a drug raid.

You could substitute Ryan Frederick or Derrick Foster (among others) for Cory Maye. And you could substitute Dep. Christopher Long and a whole host of others for Chavalia.

Police who make mistakes during drug raids get suspended with pay, and ultimately vindicated. Citizens who make mistakes during drug raids go to jail.

Here’s the interview I did for reason.tv hashing out some of the broader issues of the case.

So this is the project I teased yesterday–and the reason I was in Mississippi last December.

It’s the latest Drew Carey video, and it’s on Cory Maye. I think it’s really well-done. Warm congratulations to Paul Feine, Roger Richards, and the gang at reason.tv for putting it all together. I know it was a lot of work. It’s the longest Carey video to date, and the one in which the reason.tv staff has invested the most time producing. I think it paid off. It gets quite emotional in places. The scenes with Cory’s mother, and where Melissa Longino reads from Cory’s Thanksgiving card to his daughter still choke me up. It’s beautifully shot, too. I’d recommend watching in full-screen mode.

There’s also a video interview with your humble Agitator about the issues involved in Cory’s story.

Finally, if you want more information on the case, the reason.tv site has a rundown of related articles and links. Or, if you’re really motivated, here’s my archive of posts on Cory’s case.

People frequently ask me how they can help Cory out. Here’s an easy way: Spread this video far and wide. Vote it up on sites like Digg and Reddit (though I’d recommend voting up the reason.tv link, not this one). Email it to people who might be interested in the case. Embed it on your own blog. I think this is the most compelling presentation of Cory’s story yet. It can only help if lots of people see it.

UPDATE: Here’s the Digg entry. Here’s the entry for Reddit.

Several people have written to ask what they can do to help Cory Maye and/or his family. There are a few things.

First, I know that Cory’s fund is empty, and that he was hoping to be able to buy his children some Christmas presents. Keep in mind, this is not a legal defense fund. Covington and Burling is covering all of his legal expenses. This is a fund that enables Cory to pay for his family to come visit him, buy things from the prison canteen, and buy gifts for his kids. You can send a check to:

Cory Maye Justice Fund
c/o R.E. Evans
P.O. Box 636
Monticello, MS 39654

Or you can PayPal to: corymayejusticefund@gmail.com

The money is managed by Bob Evans, Cory’s chief counsel. Bob will send you a receipt and a thank-you note. And all withdrawals from the fund are approved by Cory.

The other thing you can do is write to Cory. I know a few Agitator readers have become regular pen pals with him. You can also send him magazines and paperback books. Parchman’s mail policy here.

Here’s the address:

Cory J. Maye #100961
Unit 32 — E Building
Parchman Penitentiary
Parchman, MS 38738

MORE: You could also help by giving this post some Reddit love.

I spent most of last week in Mississippi, working on a very cool new project related to the Cory Maye case. Details on the project itself forthcoming. I’ll also post some updates on Cory’s legal situation later in the week. For now, though, some rambling thoughts (and photos) from my trip:

This was my fifth trip to Mississippi, and backward as the state’s politics and criminal justice system may be, the place is growing on me. There’s a rustic, pastoral kind of beauty to Mississippi. I’ve made the drive from Prentiss to Jackson about a dozen times now, usually at dusk as I’m headed back to the hotel, and it’s a really pretty ride. Rolling, fence-lined pastures, still green in December, turn to hilly roads tunneled by tall, skinny pines shooting up from their shoulders; lots of lazy, grazing cattle, still gnawing on cud as the sun slips behind the hills; and loads of charming, deep-south imagery—the odd roadside barbecue joint; a massive catfish restaurant with an always-bustling parking lot; a crazy fundamentalist’s property with Bible verses and admonitions against smoking, drinking, and molesting babies tacked to the trees; and your occasional scraggly dog tethered to a tree or beat-up dog house, watching the lumber-hauling tractor trailers blow down the highway. And of course, the people are incredibly warm. I think every third word uttered down here is “sugar,” “hon,” or “baby.” As in, “More coffee for you, baby?” Or, “some pie, sugar?”

On Wednesday we visited Melissa Longino, grandmother of Ta’Corrianna, Cory Maye’s little girl. In a better world, she’d have been Cory’s mother-in-law. Melissa offered moving testimony at the September 2006 hearing. She recounted a deep affection for Cory, and detailed the way Cory doted on his daughter in their short 18 months together. She also talked about how he’s struggled to remain a part of his kids’ lives from prison. As she said at the hearing, Longino told us this week that Cory has never missed an important day when it comes to staying in touch with his kids. He calls both his children every Thanksgiving, every Christmas, every birthday. His cards, she said, come three or four days early, just to be sure Mo (T’a'Corianna’s nickname) gets them in time. Each time Ta’Corianna visits her grandmother, Longino said, the first thing she does is tear through the house to look for the cards and letters her daddy sent her. “Did he write me?” she asks. And yes, Longino says, every time, there’s at least one (usually several) letter from Cory waiting for her. She is and always has been, Longino says, a “Daddy’s girl.”

On Thursday we talked to Dorothy Maye Funchess, Cory’s mother, and she relayed much of the same sentiment. Cory, she says, is better at remembering birthdays than she she is—not just his kids’, but those of everyone in the family. He tells her exactly what gifts to get the kids, and often knows before she does what they want for a birthday, or for Christmas. He calls in the fall to make sure they’re well-outfitted for school, and if Funchess is busy with work or occupied by her other grandkids, Cory enlists his sister to make sure his kids always get what they need. In fact, Funchess says, the first thing Cory said to her after he was sentenced to death was, “I love you mama. Please take good care of my kids.”

Unfortunately (but understandably), Chanteal Longino’s been seeing someone new for a couple of years, and is trying to move on with her life. She now lives in Covington, Louisiana. But her efforts to distance herself from what happened on December 26, 2001, though understandable, mean necessarily distancing Ta’Corrianna from that night as well. And it’s impossible to distance the little girl from the raid and its fallout without also taking her away from Cory. So Cory’s finding it more and more difficult to remain a part of his daughter’s life, despite his best efforts, and despite that he’s a better father from prison than many kids get in their own homes. Dorothy says Cory’s heartbroken over the increasing distance between he and Ta’Corrianna. As is she.

I don’t doubt that there are lots of convicted felons who struggle to stay parents to their kids from prison. But in Cory’s case, it’s particularly brutal. He’s in prison not because he was a poor father, or because he engaged in a life of crime that hurt or put his kids at risk. On the contrary. By all accounts he was loving, attentive father. He had no criminal record. Talk to Cory’s relatives, and they’ll tell you that their memories of him have him dressing his kids, bathing them, changing them, holding them, and brushing and braiding their hair. He cooked for them, and played with them. When construction jobs dried up and he couldn’t work, he became his daughter’s primary caretaker while, Chanteal worked nights at the chicken plant. He’s in prison precisely because he acted out of fear for his daughter’s safety. He thought someone was breaking into his home to harm the two of them. That that act has now put him in a position where he’s being slowly erased from his daughter’s life—from a jail cell where there’s little he can do about it—is a crushingly cruel twist of fate.

To believe Cory was guilty of capital murder, you have to believe that he knowingly and intentionally killed Ron Jones, and that he did so with the knowledge that Jones was a police officer. You have to believe that this man, who had no criminal record, and who’s “crime” was no more than a burnt roach in his apartment, knowingly decided to take on a team of raiding police officers; laid in wait for them to kick open his bedroom door; deliberately chose to engage in gunfire in the room where his daughter was laying; decided to fire just three rounds; shot and killed a police officer; then surrendered with bullets still left in his gun. Almost nothing about that makes sense. It doesn’t make sense even if you don’t know Cory. And it certainly doesn’t make sense if you talk to anyone who knows him.

This isn’t a dangerous, unrepentant cop killer who needs to be separated from society. The far more plausible explanation is that this is a guy who had just moved away from home; who was wary of his neighbor (who actually was involved in the drug trade, and by all appearances was the reason for the raid); who was scared; and who did what he thought he had to do to protect himself and his daughter.

Below, some photos, culled from my several trips to Mississippi. Post resumes after.

When we visited yesterday, Dorothy had just spoken with Cory on the phone. When she told him we were coming, Cory asked her to make sure we were well fed with southern cooking. So she fixed us up a feast of Cory’s favorites: barbecue chicken, smothered cabbage, cornbread, shrimp stir-fry, and rice with gravy. I was full for a day-and-a-half.Dorothy then gave us a tour of her home, the house where Cory grew up. It’s a single-story, humble but well-kept ranch house. There’s a light woods to the back, and a bright green cattle pasture across the street to the front. The property is surrounded by long fences, sad old barns and abandoned properties, and winding gravel roads. The backyard is home to two ponies and three dogs, including one scraggly, war-torn mutt that had just given birth to a litter of six fluffy black puppies. The house has two bedrooms, a living room, and a bright, red and green kitchen. An aging, cast-iron wood-burner warms the place during Mississippi’s short and mild winters.

Dorothy then showed me the woods behind the house where Cory shot at rabbits and raccoons while growing up; the stove and grill where he learned to cook; and the pictures of Cory growing up that she keeps on the wall. Dorothy had initially kept Cory’s childhood room intact, “hoping against hope,” she says, that he’d be home from prison in short time to sleep in his bed again. But she eventually had to pack up Cory’s things and put them away. When Cory Jr. would visit, he’d immediately go back to his daddy’s old room, see Cory’s bed and his belongings, and start to cry. Dorothy keeps some shoes and old clothes in the room now. She says she didn’t want to move Cory’s things, but she also didn’t want her grandson associating visits to her home with tears, sadness, and missing his daddy.I received a letter from Cory last week. He’s trying to settle in to his new surroundings. He’s now at Unit 32 at Parchman Penitentiary, the hardest-knock wing of one of the hardest-knock prisons in the country. It’s the highest-security wing in the prison, save for Death Row. When it comes to living conditions, it’s likely worse. Lately, Unit 32 has had problems with rioting. There have been three inmate murders in the last two years. In a 2005 complaint, the ACLU described Unit 32 like this:

…profound isolation and unrelieved idleness; pervasive filth and stench; malfunctioning plumbing and constant exposure to human excrement … grossly inadequate medical, mental health and dental care; the routine use by security staff of excessive force; and the constant pandemonium, night and day, of severely mentally ill prisoners screaming, raving and hallucinating in nearby cells.”

This is Cory’s home, now.

Even after his death sentence was tossed in the fall of 2006, Cory requested to remain on Death Row. He was isolated there. He could stay in his cell and read and watch TV. When I asked him about Death Row in September 2006, he actually said he had no complaints (though Bob Evans, Cory’s chief counsel, says he rarely complains about much of anything). He didn’t need to fear for his safety there—about getting beaten or raped. Cory’s a shy, gentle guy. It’s hard to see him thriving in the general population of a high-security prison unit. So he remained on Death Row until last month, when he received his new sentence, life without parole. He’ll now need to learn to live in the general population, with Mississippi’s worst of the worst.

Cory’s still isolated for now, which he says is common for newcomers to gen-pop at Parchman. He just enrolled in a GED program. And he’s hoping to land a job in the prison kitchen, so he’ll be able to cook again. In spite of the circumstances, the letter seemed upbeat. Dorothy said he told her he’s disappointed that the guards won’t let him wash his own clothes, as he’d grown accustomed to doing on Death Row. In Unit 32, he says, his clothes come back from the laundry dirtier than they were when he sent them away.

I’m back in Virginia now, from what was a pretty emotionally draining trip. I’ve other stories to work on until the next hearing or development in Cory’s case. For Cory, Dorothy, Melissa, T’corrianna, Little Cory and everyone else affected by Cory’s incarceration, there’s no plane to board that’ll drop them into another life. They wake, eat, breathe, and, when they can, sleep (when they can) with this stuff—with the continuing fallout from that raid six years ago.

The family of Ron Jones won’t ever get away from it, either. I’m sure that as the anniversary of the raid approaches, as the holidays near, the Jones family’s pain will again grow starker and harsher and harder to handle. We also visited the memorial to Jones in front of the Prentiss city hall while we were in Mississippi last week. The afternoon was sunny, but brisk and windy. Jones’ polished, stone slab memorial rises from the sidewalk like a headstone, framed by the entrance to the building that houses the mayor’s office and the police and fire departments. Strongly as I’ve advocated for Cory’s innocence, there is of course no mistaking the tragedy of Jones’ death, too. That, incidentally, is always something Cory always emphasizes and expresses his sorrow for in his letters. Still today, he refers to Jones as “Mister Ron,” a term of respect and affection. I sat near Jones’ parents both days of the 2006 hearing in Poplarville. Their pain was obvious. I’m sure this has all been agonizing for them, as will the coming years, particularly if things go as I and Cory’s supporters hope they will. There were two tragedies, here. That’s unfortunate. What’s even more unfortunate is that one of them can be undone, at least partially, but not without making things worse for the people still hurting from the other one.

Much of my trip centered around the people affected by Cory’s incarceration. But there was a moment of pronounced solemnity while standing front of Jones’ memorial. Downtown Prentiss isn’t a terribly busy place. All was quiet while we stood there—only wind lapping at the U.S. and Mississippi flags ten feet or so above the memorial. My thoughts drifted to a particular part of the hearing last fall when Jones’ death was recounted in testimony. I saw Jones’ mother’s head fall, her eyes close tight, and her thumb and forefinger pinch at the bridge of her nose.

If there’s something particularly cruel about Cory’s act in defense of his daughter that night leading to him now being increasingly separated from her, there’s also unfortunate irony in Jones’ death. My reporting indicates that Jones was a one of the few police officers trusted and respected by nearly everyone in Prentiss, black and white. Over and over, blacks in Jefferson Davis County have told me of Jones, “He was a friend,” or, “He was one of the good ones.” I should add, here, that I think Jones took some shortcuts that night. And those shortcuts are in part to blame for what happened. But after talking to lots of people in Prentiss and Jeff Davis County, I’m also convinced Jones was a good guy doing what he thought was good police work. There was nothing malevolent about him. In an area of the country where black people are particularly wary of white cops, Jones was respected—nearly beloved. Bob Evans says that knowing what he knows of Jones, had it been any other officer killed that night, he believes Jones would have been an advocate for Cory Maye.

One of the people I spoke to during my visit two years ago is Linda Shoemaker, who runs the Prentiss tobacco shop. Shoemaker’s a white woman, middle-aged, and was described by many to me as the town’s unofficial historian. She knows everything that happens—judging from my time there, likely because nearly everyone in town stops by her shop to buy tobacco. Shoemaker knew Ron Jones well, for most of his life, and was quite fond of him. But she’s also one of the few white people in the area who doesn’t believe Cory ought to be in prison. I still have a quote from her in my notes from two years ago. “If somebody every broke in on me and my grandbabies…” She then paused. Her eyes filled with tears and she glanced upward. “Forgive me for saying this, Ron,” she said. “You know I love you. But if anybody broke in on me and my grandbabies at night, I’d have done the same thing Cory Maye did.”

You have one man taken from his family, in the prime of his life. You have another man, also taken from his family, now losing the prime of his life. You have a son taken from his mother and father. And you have a loving father being taken from his son and daughter.

Thank this war. The goddamned drug war. It is so incredibly senseless and stupid. And it’ll continue to claim and ruin lives, because too few politicians have the backbone to stand up and say after 30 years, $500 billion, a horrifyingly high prison population, and countless dead innocents, cops, kids, nonviolent offenders, decimated neighborhoods, wasted lives, corrupted cops, and eviscerations of the core freedoms this country was allegedly founded upon, the shit isn’t working. It’ll never work. It never has. It’s a testament to the facade of truth that is politics that no leaders from the two majors parties have in thirty years been able to say this. That maybe, just maybe, we’re doing it wrong. Maybe, just maybe, kicking down doors in the middle of the night and storming in with guns in order to stop people from getting high….isn’t such a good idea. Maybe, just maybe, the idea getting tips from racist, illiterate, drug-addicted informants about which doors, if you kick them down, will lead to drugs? Well maybe that isn’t such a sound policy, either. We can’t even get one of the leading candidates for president to say that. The safe position is always to advocate for more money, more government power, more militarism—and less freedom, less common sense, and less worry about collateral damage. Sensibility, honesty, or compassion? Too risky.

Incidentally, the whole no-knock, door-kicking, middle-of-the-night-storming stuff wasn’t the result of trial-and-error police tactics. It wasn’t suggested to policymakers by academic criminologists with years of experience studying best practice police tactics, either. It wasn’t even something police were particularly interested in at the time. If you read the book Smoke and Mirrors, journalist Dan Baum’s terrific history of the drug war, the sad fact of the matter is, the “no-knock raid” was a concept dreamed up in the late 1960s by political strategists working for the Nixon campaign.

That’s right. This map comes courtesy of a bunch of political hacks who knew very little about actual police procedures or criminal justice. But they did know a little something about winning elections. The no-knock raid was one of several get-tough-on-crime policies they thought would win over white suburban voters. They wanted to implement it in Washington D.C., the one urban area over which Congress had the power to directly implement criminal justice policy. What tougher crime policy could there be than to let narcotics cops bust down the doors of suspected drug users and distributors? These were voters who’d mostly only seen D.C. on TV, but they were voters Nixonians (correctly) anticipated were fed up with seeing evening news reports of black people rioting in the streets, and hippies smoking dope on the National Mall.

The plan worked. Nixon won, and his crime platform and appeal to the “silent majority” had a lot to do with it. By 1972, he’d initiated the modern “war on drugs.” Wars of course mean combat. And so door-busting narcotics raids took off 1970s, then exploded in the 1980s with the rise of SWAT teams.

I’m not a huge fan of conservative political theorist Richard Weaver. But he was certainly right about one thing: Ideas have consequences. The door-bashing drug raid—an untested, unstudied, get-tough-on-crime political tactic dreamed up not by guys in badges but by party animals in tailored suits—has had some very real consequences. One of those consequences can be seen in the memorial outside the Prentiss, Mississippi city hall, which marks the too-early death of good cop. T’a'Corianna Longino and Cory Maye, Jr. are also consequences of that idea dreamed up three decades before they were born. Just two more black kids who, if the state of Mississippi has its way, will spend the rest of their lives without a father. In this case, that’s despite the fact that they have a father who loves them, and desperately wants to be a part of their lives.

I’ll leave you with the message from the Thanksgiving card Cory sent to Ta’Corianna this year. A bit of context: Cory had hoped to see his daughter last month, when he was allowed out of Parchman for his re-sentencing hearing. Unfortunately, Ta’Corianna’s aunt got lost on the way to the courthouse. The hearing was over and Cory had been moved back to Parchman by the time they figured out where they were, and how to get to the courthouse. Cory writes:

Ta’Corianna,

Hi baby! I know we didn’t get a chance to see each other while I was down for court. Hope you’re doing well, cause I think of you each day. You’re always within my heart & prayers. You & I have a lot of thinks to talk about & time to make up for.

We’ll be together soon if it’s the Lord’s Will. He’s been protecting us & making sure we stay strong for one another. So I’m sure he’ll send me home to you one day. Just try not to worry.

I know it’s been hard at times, but just try to do what I do. I look at your pictures & think happy thoughts, where all of this will be behind us. We’ll be fishing at the lake. Yeah, daddy’s going to take his little girl fishing at the lake. We’ll have a picnic, and we’ll talk until the sun goes down. Maybe we’ll have some ice cream, too. If we can keep it from melting.

Take care and stay sweet. I love you more than life and words can say. Happy Thanksgiving!

Love always,

Cory J. Maye.
Daddy.

Cory was resentenced yesterday to life without parole, the only option for someone convicted of capital murder if the state decides against seeking the death penalty. Now that that’s official, he’ll formally start his appeal. I know his lawyers had planned to introduce some of my reporting and their own research on Dr. Hayne into the record before the sentencing, but I haven’t yet heard how that went. More a bit later.

Bob Evans is making a go at public office. It’s my pleasure to help him get word out to blogland about his decision. Bob, you’ll remember, is Cory Maye’s chief counsel. He’s also a defense attorney in private practice. You may also remember that Bob stuck by Cory even after being threatened by the mayor of Prentiss that he’d lose his gig as public defender if he continued to represent Maye in his appeal. Bob continued to represent Cory, and ended up losing his job (I’m still fairly certain all of this was illegal).

Bob’s no libertarian (he’ll be the first to tell you that), but I think readers of this site would do well to help him out if they can. For one, he tells me criminal justice reform will be one of his pet causes in Jackson. And Bob’s seen a hell of a lot that needs to be reformed. One thing near and dear to Agitator land he said he’ll push for is the codified right to record police officers while they’re on the job. Bob’s other pet issue is actually a tax cut. He wants to eliminate Mississippi’s tax on groceries, a tax that seems particularly odious given that the state is one of the poorest in the country.

Bob tells me the real race here is in the primary, which takes place next month. RThis part of Mississippi rarely sends Republicans to Jackson. So conservative Democrats who vote like Republicans (which, Bob says, is an apt description of the incumbent) fight it out in the primary with more liberal Democrats (which probably describes Bob), and the winner usually has an easy time of it in the general election.

I’d imagine that most people outside the state of Mississippi don’t care much about the state’s tax code, property taxes, or other issues. But most people reading this site do care about criminal justice issues, and Bob has told me that’s an area he’ll spend a lot of time looking into if elected.

If you’re wondering, Mississippi’s is a part-time legislature. So Bob will continue his practice, and continue representing Cory Maye, along with the team from Covington and Burling.

Bob’s also just an all around good guy. I have an interview with him I’ve been meaning to turn into a podcast. If I can find some time, I’ll try to get that done.

Here’s the front and back of Bob’s campaign flier, which includes his contact information.

Here’s an AP wire article on District Attorney Hal Kittrell’s (Buddy McDonald’s replacement) announcement that he will no longer be seeking the death penalty for Cory Maye.

This is good news, now made official. But I hope the lack of a looming death sentence doesn’t mute the sense of urgency many people have felt about this case. Life in prison isn’t much better.

Got a letter from Cory Maye asking if I might put out a public request for pen pals. Gotta’ be tediously boring in prison. Here’s how you can reach him:

Cory J. Maye #100961
Unit 32-C Building
Parchman, MS 38738

Check these guidelines, too.

Here’s the info on the Cory Maye Justice Fund. You can also Paypal to: corymayejusticefund@paypal.com.

At the request of several potential donors, Bob Evans has set up a PayPal account for Cory Maye’s fund.

If you don’t want to send a check, you can PayPal to:

corymayejusticefund@gmail.com

Bob Evans, Cory’s lawyer, writes to say that Cory’s justice fund is now at a zero balance.

As I’ve previously written, legal expenses for Cory are no longer a problem. Covington and Burling is footing the bill for his defense. But Cory’s family is rather poor. And he of course can’t support his kids from prison.

So once Covington came on board, Cory used the fund to help his family make the trip from Monticello, Mississippi to Parchman Farm where he’s imprisoned. Evans says it’s about seven hours round-trip, and that these trips have become more important in keeping Cory’s spirits up since his motion for a new trial was denied a few weeks ago. As I’ve previously mentioned, one important benefit to being in the general population instead of on death row is that Cory can now have “contact visits.” Meaning he can touch and hug his son and daughter when they visit.

Some of the money was also deposited into Cory’s prison account for personal items, stamps, pens, paper, and such. And the remainder was used by Cory to support his kids, notably to buy them some Christmas gifts last month.

If you’re interested in contributing, the information is below. But please do so knowing that you’d be contributing to more of the same sorts of expenses. This is not a legal defense fund.

Evans says that Cory signed off on all withdrawals from the account, and he’s happy to provide an accounting of when the withdrawals were made to anyone who has donated or is considering donating. Evans also says that both he and Cory have tried to provide written acknowledgment of each contribution.

Here’s the address:

Cory Maye Justice Fund
c/o R.E. Evans
P.O. Box 636
Monticello, MS 39654

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.

I got an email this morning accusing me of misleading people in the Cory Maye updates below. I’m not sure I agree, and it wasn’t deliberate if I did, but I’m happy to set things straight.

So just for the record: The ruling Friday night denied Maye a new guilt phase of his trial. He will still get a new trial on the sentencing phase. So he is still off of death row, at least for now. And given that the guilt phase would likely take place in Jefferson Davis County, there’s a pretty good chance he’ll stay off death row. What yesterday’s ruling basically means is that unless Maye wins at the Mississippi Supreme Court, or somewhere in his federal appeals process, he’ll likely spend the rest of his life in prison.

The email also suggested I was too hard on Judge Eubanks because he did, after all, grant Maye a new sentencing trial. I guess that’s a subjective call. The ineffective assistance of counsel ruling at the sentencing phase was a no-brainer. If you’ll remember, Rhonda Cooper actually admitted to Eubanks during the sentencing trial that she wasn’t prepared, saying “I didn’t think it would get this far.” It’s also important to remember that Cooper made that admission the same day the initial verdict came back. Which means Cooper went from competent to incompetent in a matter of hours.

Eubanks still thinks Maye spending his life in prison is a just outcome for this case. I disagree, and think that his barely-argued ruling didn’t do justice to the pages of evidence and testimony put forth by Cory Maye’s lawyers over the last few months.

In any case, for clarification, Friday’s ruling means Cory won’t get any relief from the trial judge on the actual trial. He will still be getting a new sentencing trial. And he still has a long road of appeals ahead of him. But that still doesn’t make Friday’s ruling right or just.

Here’s the ruling from Judge Michael Eubanks denying Cory Maye’s motion for a new trial.

After hundreds of pages of testimony, several hundred pages in briefs, two-plus days of hearings, expert witnesses, and the defense team’s discovery of the racist, red-neck informant, Eubanks dismissed the case in all of eight pages. Double spaced.

His dismissal of the Wheeler case is particularly disappointing. I’ve analyzed Wheeler’s impact on this case before. But here’s the gist: Wheeler was approached by two uniformed officers in broad daylight. He engaged in a struggle with them, and managed to wrestle the gun away from one. He then fired that gun at a third officer in the doorway, killing her. The Mississippi Supreme Court ruled that as a matter of law, Wheeler couldn’t have known the third officer in the doorway was a police officer, and therefore couldn’t be convicted of capital murder.

In Cory’s case, the raid took place at night. He had been sleeping. Officer Jones was shot seconds after entering Cory’s home, not after any sort of struggle. When Wheeler learned the officers in his home were cops, he fought them. When Maye learned the men raiding his home were cops, he surrendered. The officers in Wheeler’s home were wearing uniforms. Officer Ron Jones was wearing a dark shirt, vest, and pants. The only marking on the uniform was a small police patch on the sleeves.

From these two sets of facts, Judge Eubanks concluded that Cory had more reason to know that Officer Jones was a police officer than Wheeler. It’s an absurd reading of the two cases.

The dismissal of the ineffective assistance of counsel motion is equally ridiculous, though I do understand that this is a much tougher motion to win. Still, Rhonda Cooper’s inexplicable initial decision to move the trial out of Jefferson Davis County almost certainly hurt Maye’s case, and probably cost him an acquittal. Likewise with her ineptitude in using the arraignment to get the officers involved in the raid on record early with their account of how it happened (especially so given that some officers’ account of the raid changed over time).

As for the informant, Eubanks seems rather nonchalant about the fact that there was something seriously wrong with the way that warrant was procured. Once again, we go back to this business about how the only thing that matters is that the warrant was legal. Only in this case, we don’t actually know whether it was legal, or whether the officer who obtained the warrant did so in good faith — because that officer was the first one in the door, and subsequently shot and killed. What we do know is that it was obtained based on the word of an admitted bigot, that the bigot’s slightly more credible brother accompanied him on the buy that led to the raid, and that said brother offered an account of the evening that strongly suggests Officer Jones did indeed act in bad faith in procuring this particular search warrant.

We also know that the town of Prentiss has done everything in its power to deny Cory Maye a fair crack at justice, including firing his lawyer as the town’s public defender. And we know that Cory had no prior criminal record. And that there’s no evidence whatsoever suggesting he’s a drug dealer.

How a judge can look at all of this, shrug, then dash off an eight-page opinion essentially stating that Maye deserves to spend the rest of his life in prison is beyond me. Eubanks is retiring, now.

A rather dishonorable way to go out, if you ask me.

Cory Maye has lost his motion for a new trial. The opinion is half-assed and poorly argued. Reads like a guy who had already made up his mind, and didn’t want to be bothered with the damned facts. I can’t believe the same attentive judge I saw at the hearing last December cobbled the shabby thing together.

Oh, and Dr. Bernard Rottschaefer lost his appeal tonight, as well.

With Richard Paey, David Ruttenberg, Maye, and Rottschaefer all getting denied by courts over the last few weeks, you can help but start to wonder what the fuck is wrong with this country.

Think I’ll have a drink and go to bed.

I’ll have more on all of this later.

How very depressing.

The judge’s decision could come down any time this week, most likely sometime today.

On a related note, yesterday marked the 5-year anniversary of the raid. That’s five years of Cory Maye’s life unjustly spent in prison, most of that time on death row. It’s also five years that Maye’s son and daughter haven’t had a father.

And it marks five years since America’s dumb drug war unnecessarily claimed yet another life: that of Officer Ron Jones, who, tragically, by all appearances was an honest, decent police officer in an area of the country where they seem to be in short supply.

No real news from the hearing this week.

Judge Eubanks did rule on a new defense motion, and found that Rhonda Cooper was again competent during the guilt phase of Maye’s trial, this time with respect to her failure to discover the identity of the confidential informant.

One of the requirements for newly discovered evidence to be able to force a new trial is that it can’t be evidence that could or should have been discovered in the original trial. It’s a sucky rule if you happen to have an incompetent, overworked, or under-motivated lawyer.

In Cory’s case, though, the defense is arguing that the informant’s identity is such a vital piece of evidence that’s crucial to determining his guilt or innocence that if the judge determines that it could or should have been discovered by Rhonda Cooper, then she must be declared incompetent for not having discovered it. Yesterday, Judge Eubanks ruled that she was not incompetent for not having discovered it.

That doesn’t mean he can’t still order a new trial on the CI stuff. It just means that if he does, it would be under the assumption that the CI’s identity couldn’t have been determined during the guilt phase, not an unreasonable assumption, given that at the time, Cory didn’t have the means to hire a private investigator to track the guy down. And of course, it’s still possible that he’ll rule against Cory on this issue — that the newly discovered evidence regarding the CI isn’t enough to merit a new trial.

Judge Eubanks also held off ruling on the numerous other defense arguments.

There’s a hearing this Wednesday in Monticello, MS.

Attorneys from both sides will present oral arguments pertaining to the defense team’s motion regarding the newly discovered evidence about the identity of the confidential informant.

As I understand it, there’s a chance Judge Eubanks may issue some rulings from the bench. Or he could take some more time to mull it over. So we may have good news Wednesday evening. Or bad news. Or no news at all.

Stay tuned. I’ll post PDF files of the amended motions pertaining to the informant later this week.

I’m mentioned/quoted in this Christian Science Monitor piece and this Popular Mechanics piece, the latter written by Instapundit Glenn Reynolds.

Both are on paramilitary police raids. The Popular Science piece has a pretty nifty cartoon, too.

Both also mention Cory Maye.

One of the more interesting aspects of last month’s hearing was the role the case of Mississippi v. Wheeler will play in Judge Eubanks coming rulings and, if necessary, in the rest of Cory’s appeals process.

As noted on this site shortly after I first found Cory’s case, Wheeler seems to be directly on point, and can’t be distinguished from the facts in Cory Maye’s case in any way that’s not favorable to Maye. In Wheeler, a team of uniformed police officers entered Mr. Wheeler’s home to arrest him. They entered in broad daylight. Mr. Wheeler resisted, and engaged in a struggle with two officers. During that struggle, he took possession of one of the officers’ sidearm. He then fired at a figure in the doorway, which happened to be a fourth, uniformed officer. The Mississippi state Supreme Court ruled that as a matter of law, jurors could not have concluded that Mr. Wheeler knew the figure in the doorway was a police officer when he fired. They set aside his capital murder conviction and death sentence, but kept intact his murder conviction and life sentence.

Wheeler has not been overruled or distinguished since. Now contrast the facts in Wheeler with the facts in Maye’s case. Officers in Wheeler approached during the day, in Maye’s case they came at night. In Wheeler, the officers were uniformed. In Maye’s case, Jones was wearing a dark vest, dark pants, and shirt that were unmarked, save for two small patches on the side of either shoulder. In Wheeler, the defendant had ever reason to suspect the figure he shot at was a police officer, given that he was already struggling with uniformed officers. In Maye’s case, there was no direct line to the outside of the apartment. Maye was also sleeping. And he lived next to a reputed drug dealer.

As defense attorney Abe Pafford argued at the hearing, the only evidence the prosecution offered suggesting Maye should have known the men outside his home were police was the officers’ testimony that they repeatedly announced themselves, and one officers’ testimony that he saw someone peer out the window shortly after they arrived. The latter testimony is suspect given that it doesn’t jibe with the same officer’s testimony given shortly after the raid, and that he actually changed his testimony on the stand at trial, at the prodding of DA Buddy McDonald. Even then, that officer — Stephen Jones — ultimately conceded on cross-examination that he didn’t see anyone peer out. So it’s disingenuous for the prosecution to cite Jones’ original testimony without pointing out that he eventually changed it in a way quite favorable to Maye. As for the announcement, the defense correctly noted that the only officer to testify at trial who was actually inside the duplex when the raid took place — officer Darryl Graves, who was in Smith’s half of the duplex — said on the stand that he couldn’t hear any announcement.

Of course, even if Maye did hear the announcement, Wheeler says you still can’t automatically assume he knew the man who broke into his home was a police officer. He could have been a criminal fleeing the scene of the raid next door, for example.

Now, you can disagree with the merits of Wheeler. But there’s no disputing the fact that it is on-point, and it’s the controlling case law. Again, there’s no way to honestly distinguish the case from Maye’s case in a way that doesn’t favor Maye.

The prosecution knows this. In their brief, their only response to the defense team’s invocation of Wheeler was to quote from the dissent. And here’s how McDonald addresses Wheeler at the hearing:

With respect to Wheeler we agree with the dissent. We feel that Wheeler is an unusual case and we don’t think that Wheeler should control this case and frankly we hope that there’s — will be an opportunity for Wheeler to be readdressed by the Court and put in the proper context.

That’s it. They don’t explain why or how the Wheeler case can be distinguished. They only say they hope it’s overturned, or “put in the proper context.”

It’s quite possible that all of that might happen. Remember back to the brief history of Mississippi and the death penalty I relayed to you a couple of months ago. Wheeler was decided at a time when Mississippi’s Supreme Court — which is elected — was unusually humane and deferential to defendants in capital cases. Everyone I’ve talked to down there has said that prosecutors and law-and-order judges can’t wait to overturn some of the capital cases that came down during the Robertson era.

What happens if the state’s Supreme Court uses Maye’s case to overturn Wheeler? I have no idea. Seems to me there’s something fundamentally unjust about reversing a precedent, then holding the defendant in the case that reverses the precedent to the new rule, despite the fact that the incident took place while the old rule was still in effect. We don’t let legislators pass ex post facto laws. Seems the same principle ought to apply to case law. I talked to a few experts in constitutional law abou this, and while all agreed that such an outcome would be unjust, none had any strong opinions on whether or not it would pass constitutional muster.

Of course, the state Supreme Court might get around all of that with some slippery meneuvering that “distinguishes” Wheeler without overturning it, but “distinguishes” it in such a way that for all practical purposes overrules it.

This is all speculative, of course, and assumes the unlikely chain of events that would lead to Maye’s case reaching the state Supreme Court on Wheeler, and the Court using Maye to wipe Wheeler from the books.

What’s more pratical, pertinent, and relevant is how Judge Eubanks will deal with Wheeler in the next few weeks. I don’t see how he can ignore it. He’ll have to address it in some way. And I have a hard time seeing him taking the prosecution’s bait and declaring that Wheeler doesnt’ apply without offering an explanation as to why it doesn’t apply. It would be very difficult to distinguish Wheeler from Maye’s case in an intellectually honest way without coming to the conclusion that the facts in Maye’s case are more compelling than those in Wheeler.

Once we get to that point, things look good for Maye. If Eubanks accepts the argument that Wheeler is on-point and the controlling case law, and he accepts the argument that Wheeler can’t be distinguished from Maye in any way unfavorable to Maye, he then has no choice but to throw out the capital murder conviction.

But then what? You can’t rule that as a matter of law, the jury could not have reached the verdict it did, then order a new trial in which a new jury could come to the very same conclusion. Legal minds in reader-land, feel free to correct me if I’m wrong. But that doesn’t make a hell of a lot of sense. A new trial would be a huge victory. But if a judge were to accept the premise that Wheeler is both on-point and indistinguishable from Maye, I don’t see how he could do anything other than pronounce Maye “not guilty” as a matter of law.

Here’s where it really gets interesting. The defense argues — and the prosecution concedes — that if Cory Maye isn’t guilty of capital murder, he isn’t guilty of anything. That is, if as a matter of law Maye did not know that Officer Jones was a police officer, then as a matter of law, he was within his rights to use lethal force to defend his home and his family from an intruder. That means no manslaughter, felony recklessness, or some other crime that doesn’t require intent. Which means he’d be released.

The problem is that it’s really difficult to see a judge coming back on motions concerning a man who is on death row for admitedly shooting and killing a police officer with an order that the defendant be freed. It would be an extraordinary move. And to be honest, I don’t think it’ll happen. It’s just too politically perilous (though it’s worth noting that Judge Eubanks is retiring). A new trial seems like a more politically feasible outcome. Still, from a logical standpoint, I just don’t see how Judge Eubanks could negotiate his way around Wheeler and its implications and come up with anything short of releasing Maye. At least in a convincing way.

Of course, Wheeler is just one of the defense team’s arguments. I’m interested to hear what blogosphere criminal lawyers and constitutional scholars make of all of this.

One other thing — Rhonda Cooper made no mention of Wheeler during the trial or in her post-trial motion.