Via the Washington Post, the FBI conceded two years ago that a bullet-matching technique it’s been using for decades is faulty. Oddly, though, the agency doesn’t feel it needs to notify the people the technique has put in prison.

Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by The Washington Post and "60 Minutes" has found.

The science, known as comparative bullet-lead analysis, was first used after President John F. Kennedy’s assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.

In 2004, however, the nation’s most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI’s testimony about the science "unreliable and potentially misleading." Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect’s gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence."

A year later, the bureau abandoned the analysis.

But the FBI lab has never gone back to determine how many times its scientists misled jurors. Internal memos show that the bureau’s managers were aware by 2004 that testimony had been overstated in a large number of trials. In a smaller number of cases, the experts had made false matches based on a faulty statistical analysis of the elements contained in different lead samples, documents show.

"We cannot afford to be misleading to a jury," the lab director wrote to FBI Director Robert S. Mueller III in late summer 2005 in a memo outlining why the bureau was abandoning the science. "We plan to discourage prosecutors from using our previous results in future prosecutions."

Despite those private concerns, the bureau told defense lawyers in a general letter dated Sept. 1, 2005, that although it was ending the technique, it "still firmly supports the scientific foundation of bullet lead analysis." And in at least two cases, the bureau has tried to help state prosecutors defend past convictions by using court filings that experts say are still misleading. The government has fought releasing the list of the estimated 2,500 cases over three decades in which it performed the analysis.

 

 

There’s quite a bit going on in Mississippi right now. A quick and dirty summary:

What a sad story.

I have a long op-ed in the Jackson Clarion-Ledger today about Dr. Steven Hayne and Mississippi’s system of death examination.

One name that keeps coming up over and over again in this Hayne saga is that of Mississippi District Attorney Forrest Allgood, whose district covers Clay, Lowndes, Noxubee, and Oktibbeha counties

Allgood was the prosecutor who put Dr. Hayne on the stand in the Tyler Edmonds case, where Hayne offered up his outrageous testimony supporting the “two shooter theory.”

Allgood was also the prosecutor in the Kennedy Brewer case. Actually, Hayne performed the autopsy in the Brewer case. He then, as he often does, called in his pal Dr. Michael West to offer up some bite mark quackery. If what I’ve learned about other cases in Mississippi applies in this one, West “found” his bite marks on the little girl only after consulting with Allgood, and ascertaining his theory about how the crime occurred.

Allgood then ran with West’s bite mark testimony, and got his conviction. If it weren’t for the prescience of one of Kennedy Brewer’s attorneys in getting a court order preserving the DNA from the rape kit, the state of Mississippi may well have already executed Kennedy Brewer. But she did manage to get it preserved, and in 2002, more advanced DNA testing revealed the semen of two men in the little girl Brewer was convicted of killing. Neither sample belonged to Kennedy Brewer.

Now here, I’d like to think an honest prosecutor would be rather alarmed. Here it is, 15 years after the murder, and not only do the two semen samples taken from the victim not match the man Allgood has put on death row for more than a decade, two other men who almost certainly did rape this little girl have yet to be identified, and could well still be free.

Moreover, in the years between the conviction and the DNA test, Allgood’s star witness in the case, Dr. West, has been discredited by several professional organizations, and exposed as a fraud by several national media outlets.

None of this seemed to faze Allgood. He simply went about protecting his conviction. After the state supreme court ordered Brewer a new trial, Allgood announced that he planned to try Brewer again. The Innocence Project’s Peter Neufeld says it’s the only time he can remember that a prosecutor has actually retried a defendant after DNA tests revealed semen on the victim that matched someone other than the accused.

Allgood also announced he planned to again use the discredited Dr. West in the new trial, making him one of a very, very select few prosecutors left in the state who still have the temerity to use the disreputable dentist. I’ve been told by defense attorneys that Allgood still occasionally uses Dr. West in other cases, too.

It gets worse. Allgood still believed Kennedy Brewer was guilty of the little girl’s murder, even if he didn’t rape her. So he ran DNA tests on two men who visited Brewer the night of the murder, on the theory that Brewer helped them with the rape and murder. Neither of those men matched the semen samples, either.

One thing Allgood didn’t do was run the semen samples against the state database of convicted felons. According to the New York Times, Allgood says that’s because the state has no such database. This apparently came as a surprise to the state official who has been running said database for several years. Which raises a important question: Was Allgood lying, or is he really ignorant of the fact that the state of Mississippi has has a DNA database of convicted felons, and has had one for a number of years?

It’s one or the other. And both prospects are rather frightening.

The same article says that while Allgood notified the local sheriff of the DNA result, the local sheriff also says Allgood has made no request to reopen the case, stating definitively and (somewhat colloquially) that, “The case is already solved, far as the murder.”

All of which suggests that Forrest Allgood doesn’t care much about the fact that the identity of the two men who raped and likely murdered the little girl in the Brewer case is still unknown. He’s got his man, and he’s sticking to his story.

Allgood was finally taken off the Brewer case, and it was assigned to a different DA (who still plans to retry Brewer, and still plans to use Dr. West). But in one last weird attempt to preserve his conviction, Allgood actually objected to Brewers’ attorneys’ request that the semen samples be tested against the DNA of a man convicted of a very similar rape and murder 18 months prior to and very near where the murder Brewer is accused of took place. By that time, Allgood had been removed from the case, and no longer had standing to object. But that he would try to object anyway is awfully telling. What possible harm could such a test do, other than to raise legitimate doubts about Kennedy Brewer’s guilt and possibly catch the actual killer?

Then there’s the following passage from my reason piece on Dr. Hayne. It concerns Dr. Lloyd White, who was astonished at what he saw while serving as Mississippi’s state medical examiner in the late 1980s and early 1990s.

White left his position in 1992 with the election of a new governor. But he went out with a bang. Before leaving, he wrote a blistering public letter to Charles Tisdale, editor and publisher of the Jackson Advocate, a hard-hitting black paper sometimes called “the most firebombed newspaper in America.” Tisdale’s paper had been doggedly pursuing a series of suspicious suicides in Mississippi’s jails that many civil rights leaders believed to be homicides.

White himself suspected the deaths really were suicides. But he didn’t believe they were being properly investigated. In particular, he was troubled that the bodies were being sent to examiners like Hayne, who, experience taught him, couldn’t be trusted to give an unbiased conclusion. White’s letter called Hayne out by name, noting that despite his lack of credentials and poor practices, “Hayne continues to autopsy jail and prison deaths, as well as persons killed by police or sheriff’s deputies, and to generate hundreds of thousands of dollars in personal income as a result of his extremely cozy relations with…state employees and officials.”

White also cited a case in which he had performed an autopsy on a woman who’d been found dead in her bathtub. White concluded it wasn’t immediately possible to determine a cause of death; he needed to wait for the results of toxicology and microscopic tests. According to White’s letter, he soon received a phone call from Hayne, who told him the body had been taken to Hayne’s office for a second examination at the request of Forrest Allgood…Although White was the state medical examiner at the time, he said the second autopsy was performed “surreptitiously, without my knowledge or permission.” Allgood already had a suspect he wanted to charge with the crime, White said, and “he was afraid my autopsy wouldn’t provide him with the evidence he needed.” (Allgood’s office did not respond to requests for an interview.)

According to White, Hayne told him he had concluded that the woman was strangled. White said Hayne then suggested it would be in White’s “best interest” to issue a report agreeing with him.

Allgood was also the prosecutor in the case of Sabrina Butler, an 18-year-old, borderline retarded woman convicted and sentenced to death for killing her infant son. The state supreme court threw out the conviction after Allgood illegally suggested to the jury that they could infer Butler’s guilt from the fact that she didn’t testify in her own defense. After six years on death row, Butler was retried and acquitted. Here’s a surprise: A bad autopsy report was in part blamed for her conviction. Hayne didn’t actually testify that case, but I’ve exchanged emails with Butler’s defense attorneys who tell me that Hayne was advising the prosecution. The baby was later determined to have died from a kidney disorder and/or SIDS.

I’d suggest that any forthcoming investigation looking into Dr. Hayne also take a long, hard look at Mr. Allgood, too. If his behavior in these few cases is indicative of his long tenure as a district attorney (and I’ve been told by multiple sources that it is), there are likely a lot of other convictions to come through his office that ought to be revisited.

Jackson’s alternative weekly put up a post about Dr. Hayne on its blog.

Some interesting chatter in the comments.

I’d heard stories about some of these other doctors, too, but didn’t have the time or the space to follow-up much. Needless to say, as bad as Hayne is, the problem in Mississippi seems to be one of poor incentives and a lack of oversight. When coroners and DAs can pick whatever medical examiner they please, they’re going to keep choosing until they find one they can rely upon. Under a system like that, good medicine and professional standards (not to mention justice) will quickly take a backseat to keeping the coroners and DAs happy, so the referrals keep coming.

This isn’t to say all medical examiners in Mississippi are corrupt. It is to say that the system tends to reward the ones who are.

Below, a sampling of some letters and messages I’ve received on the Hayne story. I’ve omitted names, because some of these people hold or have held public positions in Mississippi, and are still reluctant to come forward with public criticisms of Hayne. I’ve also been told that at least one coroner and one police chief have already said they plan to stop using Hayne. When I have permission to tell you who, I will.

I’ve also received email from people who’ve had friends or family involved in cases where Dr. Hayne has testified. In some cases, the person they know is in jail or prison because of Dr. Hayne’s testimony. In others, someone they know died under suspicious circumstances, and they have doubts about Dr. Hayne’s autopsy. I’m not publishing those right now, because I have no way of vouching for the accuracy of their claims. I am, however, forwarding them to the appropriate authorities for investigation.

I don’t vouch for every claim made in the message below, either. I run them only to show that there’s strong sentiment among current and former residents and public officials in Mississippi that something is wrong.

Excellent job! Just terrific. Thank you for doing this.

~

I worked as a Forensic Scientist at the Mississippi Crime Laboratory for four years 2000 - 2004. I was certifed by the American Board of Criminalistics in 2002 and worked on a number of cases involving Dr. Hayne. I would like to thank you for bringing his practices to light. It was very difficult to work cases while there. The “little people” like myself were always held to much higher standards than the quacks like West and Hayne.

Unfortunately, we were all placed under tremendous workloads and worked in a very hostile environment for years. I think the story of just how overworked and undercompensated the true forensic experts are and were might make an interesting story.

All reputable forensic experts hate the charlatans who grab the lime-light and whore themselves, unfortunately, that is how fortunes are made in that and many other “businesses”.

Thanks again for offering some degree of vindication for those of us who have been forced to make chicken salad from their chicken shit. It was a great article and long overdue.

~

As a former resident of the Great State of Mississippi, may I commend you for publishing Radley Balko’s article (10/6/07) regarding the frightening practice of Dr. Stephen Hayne, Mississippi’s state “forensic pathologist.” It defies my imagination that prosecutors would be so desperate to prosecute a 13 year old for murder and send him to adult prison with life without parole that they would hire this horrible “physician” to do their dirty work for them. Thank God, the Mississippi Supreme Court intervened and overturned Tyler’s conviction based on Hayne’s outrageous testimony. In Tyler’s case, the behavior of the prosecution-Hayne team amounts to nothing less than state sanctioned child abuse of the worst kind.

Tyler is fortunate because all he lost was his entire adolescence. Others, including a man named Corey Maye who was sentenced to death by virtue of Hayne’s Bullet Trajectory BS, could lose their lives.

I agree with the author and implore Governor Haley Barbour to issue an immediate investigation of the crimes committed by this state employee and the other state employees who have hired him to assist with their prosecutions in murder cases.

~

I recently read your article on Dr. Steven Hayne and I want to thank you for putting that information out there. I’m from Mississippi, and my mother is a pathologist that works in the state. She used to work under Dr. Hayne when he was at the Rankin Medical Center so I am quite familiar with his antics. By the way, he does not and never has spent 55 hours a week either at Rankin or at that Renal dialysis place. He may claim that he was there, and he may have been paid to be there and working but he wasn’t there. Ask anyone that works or has worked under him. They’re the ones that have to pick up the slack for when he’s in court (lining his pockets) or doing autopsies (lining his pockets).

Dr. Hayne’s lack of professionalism is well-known among the “movers and shakers” of Mississippi. It’s not a secret. The issue isn’t that people don’t care. Of course they care about it. It’s just that he (Dr. Hayne) knows the right people to keep him employed and to keep his pockets lined. You know that, you wrote about it. I just hope that with the publishing of your article in Reason Magazine and the Wall Street Journal that he will maybe receive some national or even international attention, and that the Mississippi state governor will be humiliated enough to do something about it. Although I have my doubts about that. Anyway, thank you. The article was great, very informative and very accurate.

I’m sure you can tell by the tone of this e-mail that I don’t like him very much. I tried to be objective but clearly that failed. Sorry.

~

It’s been a long time of trying to get this guy exposed. Former
Columbus police chief J.D. Sanders demonstrated great professionalism
and courage in taking Hayne to task.

Let’s hope the state of Mississippi FINALLY gets rid of this jerk and
hires a real board certified forensic pathologist. God only knows
how many lives he has ruined on both sides of the courtroom for many
years.

~

I just finished reading my copy and I feel that a weight has been lifted from my shoulders. It brings to light things I have wanted others to know for over five years. Mississippi NEEDS change so badly and those who are trying to effect change seem so few and far between without the clout of political power and authority.

Maybe this will help. I KNOW that is will at least spread the word and raise awareness. The trick is getting the legislature and others in power to recognize the IMPORTANCE of this issue. This is not a petty issue but, rather, an issue of life and death. I only hope that this will spread and the right people will see it. An article like this can be a catalyst for major change. The fact that several leaders in the field of forensic pathology chimed in on this artice is huge…it shows that concern is there and is growing nationally. It seems like such a huge mountain to climb, though.

~

Radley: your article is, quite simply, stunning. It is my understanding that it, and the shorter WSJ version, have been circulated to all judges at the Mississippi Supreme Court and Court of Appeals.

Through your extraordinary investigative reporting, you will change Mississippi.

There are simply no words to express my appreciation for your work.

~

I was just sent your WONDERFUL articles about Dr. Steven Haynes & Michael West. I was elated to get these because I know of inmates in MS who are wrongfully convicted and we all feel West & Haynes had a lot to do with their wrongful conviction.
Mr. Doug Todd, with Mississippi Justice Project sent your articles to me. I have forwarded these to the families of these wrongfully convicted people.
I also have met recently with Mr. Tucker Carrington who is the new Director of the “Newly Formed Mississippi Innocence Project” at Oxford MS and when he was asked to explain the procedure they go through as to rather they take a case he explained of course the number one is DNA but went on to mention when we asked that Dr. Haynes cases and Dr. West cases ( when they testified) are definitely considered. I was pleased to hear this.
Your articles are JUST FANTASTIC!!! Thank you for writing these.

~

I just read the summary of your upcoming article on the medical
examiners system in Mississippi and Dr. Hayne.
Hopefully this will start some serious review of this situation. Thank
you for writing this article.

Remember that Jackson TV news report, where Dr. Hayne said he couldn’t remember the name of the board that certified him in forensic pathology? I think there’s a reason for that.

First, here’s some background from my reason piece:

Though Hayne routinely testifies under oath that he is “board certified” in “forensic pathology,” he isn’t, at least as the phrase is understood by most of his peers. Instead, Hayne says he’s certified by other organizations that are considerably less reputable.

[...]

One of the groups Hayne lists on his C.V., the American Academy of Forensic Examiners, doesn’t seem to exist. Some forensic experts interviewed for this article say it is an alternate name for the American College of Forensic Examiners, which has been criticized by legal experts as a mail-order outfit where the only necessary qualification is a check. Consistent with that reputation, Hayne has testified that the American Academy of Forensic Examiners “grandfathered” him into certification without an exam.

In the past Hayne has listed another certifying group, the American Academy of Neurological and Orthopaedic Surgeons. It no longer offers specialty certifications in forensic pathology. The forensic experts I interviewed for this article had never even heard of it. The doctor the group sent to proctor Hayne’s exam for the organization has since been indicted on felony charges and no longer practices medicine.

There’s actually a third organization that Hayne has claimed under oath to be certified by. The following excerpt is from the transcript of his testimony in the March 2001 case, State of Mississippi v. Bobby Joe Townsend. Defense attorney Robert McDuff is asking the questions:

Q. Now, under the present law–under the present statute you are not qualified to be state medical examiner, are you?

A. No. I’m not board certified by the law [sic] that they want. They want the Board of American Pathology, and I have the Board of American Forensic Pathology.

Q. The American Board of Pathology, right?

A. Right.

Q. That is what the state law requires, for someone to be board certified by the American Board of Pathology before they can be considered and hired as state medical examiner, correct?

A. That’s correct.

Hayne goes on to say that he took the American Board exams, but walked out in the middle of them because he found the questions “absurd.” Of course, thousands of forensic pathologists have taken those tests before and after Hayne, and managed not to be offended by them.

I mentioned this in the article, but the astonishing point to be made here is that even though Dr. Hayne isn’t qualified by state law to be Mississippi’s state medical examiner, he has basically become the de facto state medical examiner anyway. He does the vast majority of the state’s autopsies, by virtue of his cozy relationship with the state’s DAs and coroners, and because the legislature hasn’t appropriated funds for a real, board-certified state medical examiner in 12 years.

But I bring up this testimony in the Townsend case because as you might have noticed, Hayne here claims to be certified by yet another mysterious certifying organization. He calls this one the “Board of American Forensic Pathology,” which sounds an awful lot like the accreditation he should have, which is a certification in forensic pathology by the American Board of Pathology.

The thing is, like the American Academy of Forensic Examiners, the “Board of American Forensic Pathology” doesn’t seem to exist. Now perhaps this group does exist, and just don’t have a website. That would be odd, but not impossible, I guess. But none of the forensic pathologists I’ve spoken with have never heard of the organization, either.

In my reporting, I found three versions of Hayne’s curriculum vitae (Hayne has revised his CV over the years after being questioned for listing publications that, if you look him up, don’t actually list him as the author). None of the three copies of Hayne’s CV that I have lists a group called the “Board of American Forensic Pathology.”

It would be interesting if someone where to ask Hayne exactly what group he was referring to while testifying under oath in the Townsend case. If he really meant the “Board of American Pathology,” where is this organization headquartered, and what are their qualifications for certification?

If he misspoke, to what group was he referring?

Read this post. Make what you will of it.

Let me make this as simple as possible: The entire point of Tyler Edmonds’ trial was to determine if Edmond’s confession was true, or if his recantation of that confession was true. The confession states that Edmonds and his sister fired the gun together. The recantation says that his sister fired it by herself. There’s no question about what killed the victim. There’s no question that he died of a gunshot to the head. There’s no question about the murder weapon or the bullet.

If Hayne had testified only about what killed the victim, and that the bullet wound was consistent with the type of bullet from the the type of gun the prosecutors say was used, there would have been nothing wrong with his testimony. But he went beyond that. Hayne very clearly with his testimony lent his (pseudo) scientific imprimatur to the prosecutor’s contention that Edmond’s initial confession (two people fired the gun) was a more likely scenario than his recantation (one person fired the gun). That’s why he mentioned Edmond’s videotaped confession in his testimony. He was stating that his examination of the wound supported the confession’s version of events, not the recantation’s.

And so he was saying that his examination of the wound supported the theory of two hands on the gun, not one. It really is that simple. And there’s no scientific validity for that kind of testimony.

Once again, I have no opinion on Edmond’s guilt or innocence. Only that Dr. Hayne gave testimony he wasn’t qualified to give–or that any expert would have been qualified to give. And by an 8-1 vote, the Mississippi State Supreme Court–a conservative court that had repeatedly upheld Hayne’s testimony in the past– agreed.

(UPDATE: Dr. Hayne did not appear on the show. Other than that, it went pretty well.)

I’ll be discussing my article on Dr. Hayne on statewide Mississippi radio tomorrow at about 8am ET.

The producer tells me there’s a chance that Dr. Hayne will be also be on to defend himself.

Should be fun. You can listen live here.

Meanwhile, here’s YouTube goodness of last night’s local Jackson news report on Dr. Hayne.

A local station in Jackson has picked up the Steve Hayne story, and managed something I couldn’t — they got Hayne to answer a few questions. There’s apparently video, but I can’t get my Mac to play it. A couple of points on the text of the report….

First:

Currently, Dr. Hayne receives a lot of business from county coroners who are overloaded. Each autopsy he performs, Doctor Hayne is paid 550 dollars. Balko claims that’s why Hayne does so many. Hayne refutes that, saying he isn’t the only one performing the examinations from his office.

Perhaps there is more than one forensic pathologist doing autopsies in Hayne’s office right now, at the present time. But that hasn’t been the case for most of his career. Here is Hayne in a June 26, 2003 deposition in a medical malpractice case (Civil Action No. 99-0307-CI):

Q. Now how many autopsies do you in a year, please, sir?

A. In a range of 1,500 a year.

Q. 1,500 a year that you do yourself?

A. Yes.

Q. And on top of that, you also go to Rankin county–whatever the name of the hospital is–Rankin Medical Center here?

A. Correct.

Q. Do you go there every day or five days a week?

A. Almost seven days a week.

Q. 9:00 to 5:00 or 9:00 to 6:00?

A. No.

Q. How long are you there?

A. It will vary. Sometimes half hours, sometimes two hours. It depends on what I have to do.

Q. And then you have responsibilities at a renal care facility in Jackson?

A. No.

Q. Where is this?

A. In Rankin County.

Q. In Rankin County. You are head of that lab or whatever?

A. No. Medical Director.

Q. Medical Director. And you have responsibilities there?

A. That’s correct.

Q. And you do all those [autopsies] yourself? The 1,500 a year or about.

A. All myself? Well, there’s a whole group that participate in the actual performance of the autopsy. There are several dieners and other individuals that are working.

Q. A diener is a German name for helper?

A. That’s correct.

Q. But you’re the only pathologist that’s been doing those 1,500 autopsies a year?

A. Those are the ones I sign. Those are the ones I do.

Q. That you do yourself?

A. That’s correct.

Hayne is slippery on the stand. But his testimony in this case is clear. He does around 1,500 autopsies per year, and he’s the only pathologist doing them (yes, he does have assistants, but they don’t perform the actual autopsy–at least they aren’t supposed to). If Hayne is now saying he has other MD forensic pathologists splitting up his workload, that’s one thing. But I have a foot-thick stack of depositions in which he has testified. And he has repeatedly testified over a range of about 15 years that he himself performs in the range of 1,200-1,800 autopsies per year. He’s almost boastful about it.

Moving on:

Doctor Hayne told WLBT by phone he was tired of the attacks. Hayne says, “We will address the issue in a court of law and we will have no difficulty proving our point.”

Well, we’ll see I guess. Maybe Hayne will sue me. I’m confident in my reporting. Frankly, I doubt Dr. Hayne really wants a bunch of lawyers poking around in his records, as would certainly happen in the discovery phase of a libel suit related to allegations published about his credibility.

Finally, this passage from the Jackson report:

The National Association of Medical Examiners limits the number of autopsies a medical examiner can perform in a year to 250. After 325, that organization will no longer certify a medical examiner’s practice.

Doctor Hayne says he is certified but couldn’t remember the name of the organization when we spoke to him.

I think this one pretty much speaks for itself. Over the years, Hayne has listed a few different “certifying” organizations in forensic pathology on his C.V., none of them the American Board of Pathology. He has subsequently taken a couple of them off when questioned about them in court.

We decided to post my full-length article on Dr. Hayne from the November reason a bit early.

So here it is.

Please do feel free to distribute far and wide.

In his latest post, Patterico cites the Mississippi Court of Appeals ruling in the Tyler Edmonds case, and faults me for not mentioning their decision upholding Edmond’s conviction, particularly the part where they uphold Dr. Hayne’s testimony.

This again is a pretty cheap criticism. By an almost unanimous vote (there was one dissent, and even that justice conceded Hayne may have been in error), the conservative state supreme court in Mississippi voted to overturn the state’s court of appeals. I’d submit that to say I should have taken the space in a 1,000 word article to cite and refute the Court of Appeals ruling (as I do in this post) that the state supreme court near-unanimously overruled is asking a bit much.

Again, how far back do these disclosures need to go? Do I really need to recount the entire appellate history of the case? The state supreme court wrote a near-unanimous opinion stating that Dr. Hayne wrongly asserted that the bullet wounds in the victim were consistent with the prosecution’s theory that there were two hands on the gun that fired the fatal bullet. That’s what I wrote.

But let’s look at that state appeals court decision, anyway.

Patterico notes that the opinion makes hay of the fact that Tyler Edmonds confessed to killing his sister’s husband, and in the confession, said that he did in fact hold the gun simultaneously with his sister when pulling the trigger.

Edmonds later recanted that confession, saying his sister coerced it. But that’s beside the point. I have no opinion on Edmond’s guilt or innocence. Nor do I have any opinion about whether or not the crime happened exactly as prosecutors say it did. It may well have.

I do however have a problem with Hayne testifying that his expertise tells him the crime happened as prosecutors say it did. As does the Mississippi Supreme Court. Because that just isn’t feasible.

The state court of appeals opinion tries to argue that Hayne didn’t really say that. It attempts to look beyond Hayne’s words, into his brain, to divinie his true meaning, and concludes that despite the plain meaning of the words, what Hayne was really saying is that given Tyler’s confession, that in that confession he says he didn’t aim the gun, and given that the shot was toward the middle of the victim’s head (which I guess is impossible to do without aiming, even if you’re just inches away), Hayne was merely factoring all of these things together, they argue. The first problem here is that this is no longer the expert opinion of a forensic pathologist. It’s weighing all of the evidence together, as a juror would, and coming to a conclusion.

The appeals court writes, referring to Hayne:

He knows that you cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously.

Except that that is exactly what Hayne was saying. Consider this passage, from the trial transcript:

Q:

Dr. Hayne, you testified earlier that the defendant’s statement that you saw was consistent with how the gunshot wound occurred?

[Note: This would by Edmonds' initial confession, later recanted, but now endorsed by the prosecution.]

A:
It would be consistent with the physical findings that I observed and the information provided to me by opposite side counsel.

Q;
And do you understand that the evidence is that two people fired that shot?

A:
That was essentially the summary of the information given to me and seen on the video.

Q:
And let’s suppose if one person had fired that shot, would your opinion be the same?

A:
I could not exclude that; however, I would favor that a second party be [sic] involved in that positioning of the weapon.

Q:
And what would be the distance of the shot?

A:
The distance?

Q:
Based on the fact that if one person had done this?

A:
The distance of the shot, if you’re addressing the muzzle of the weapon to the back of the head, all I can tell you it’s at least two to three inches away. If you are talking about the relative position of the weapon, then I would indicate that the weapon was placed much more towards the bed and that would be consistent with one person assisting another person to achieve that trajectory, the aiming of the weapon. Since it would be past the center line of the decedent’s head when fired, 20 degrees past the center line of the head, so, therefore, it would be consistent with two people involved. I can’t exclude one, but I think that would be less likely.

In the emphasized passage, Hayne is very clearly claiming that based on the trajectory of the bullet in the victim’s head, he thinks it’s likely that two hands were on the gun that fired it. He has left Edmond’s confession, and is speculating now about where the gun was in relation to the bed, and about two hypothetical people assisting one another in positioning it–again based not on other evidence already presented, but on the where the bullet entered the victim’s head.

I’m not a ballistics expert (neither is Hayne–more on that below). But I have a hard time conceiving of how one could say from a bullet wound that the gun that made it would be more likely to be in a position where two people were holding it than where one person would be. I can’t even conceive of what that position might look like.

Also, the important thing here is not what an appellate judge divines Hayne may have been saying or meant to say, but what a juror would have actually thought he was saying. If a juror thought Hayne was saying that, in his expert opinion, there were two hands on the gun that fired the fatal bullet–an interpretation that pretty plainly fits with Hayne’s words–that’s what’s he’s going to factor into his decision to convict or acquit.

There’s one other area where the appeals court errs, here, and where courts in Mississippi have made repeated errors about Hayne is in allowing him to give too much testimony on what happened before the bullet entered the body. Whether Hayne is even a qualified forensic pathologist is debatable. But he is not a crime scene investigator. His job is to determine how the victim died (in this case, it should have been limited to “a gunshot to the head”).

Hayne routinely oversteps his bounds in this area. He did it in the Cory Maye case, when he speculated about Cory’s position in the room based on the trajectory the bullet took through Ron Jones’ body, despite not knowing other important variables. The state’s supreme court also just denied an appeal in another case where Hayne offered up testimony that was more ballistics in nature than medical.

Patterico says the state supreme court misstated the appeals court’s argument. He’s right, here. They did. I don’t know why they did. They didn’t need to. Maybe they were being coy. Maybe they thought the appeals court’s ruling was absurd.

What’s pretty clear is that they didn’t buy it. And with good reason.

My article on Dr. Hayne was the most read article on the Wall Street Journal’s website today. It’s also currently sitting at #6 on Digg.

Hopefully, word will continue to get around in Mississippi, too. The (much) longer version will be up on the reason site in about a week.

I have an op-ed in today’s WSJ.

(Link should be good for non-subscribers for about a week.)

It’s a shorter version of my article on Mississippi’s Dr. Steve Hayne from the November issue of reason.

This is terrific exposure for this story. Hopefully it will have an impact down there.

One minor correction: The subhead refers to Dr. Hayne as a “coroner.” That’s not accurate. He’s a medical examiner. Each county in Mississippi elects its own coroner, a position that requires no medical training at all. The coroners are responsible for death investigations, and they’re the ones who usually refer autopsies to Dr. Hayne. Usual disclaimer here about how authors don’t write or approve headlines.

Much more on Dr. Hayne to come.

UPDATE: Changed the link above. It should now work for people who don’t have a subscription.

A few weeks ago, I wrote about Kennedy Brewer, the Mississippi man sentenced to death for raping and killing his girlfriend’s daughter. The state’s case against Brewer was based largely on the testimony of Dr. Michael West, a megalomaniacal "bite mark expert" who has since been suspended by several forensic professional organizations, and was forced to resign from another. Jurors believed West’s assertion that bite marks on the little girl’s chest matched Brewer’s "upper plate," despite testimony from another expert who said the marks weren’t bite marks at all.

Brewer’s conviction was later thrown out when advanced DNA testing revealed that neither of two semen specimens in the rape kit taken from the little girl was his.

Yesterday, the New York Times ran a good piece on the case. The Times points out that this is the first time DNA experts can ever recall prosecutors insisting on retrying a case even after DNA testing showed samples left at the crime scene didn’t match the defendant. District Attorney Forrest Allgood initially maintained that Brewer acted alone. When the DNA testing showed the presence of two other men, he merely changed his theory so he could retry Brewer as an accessory. But the only evidence linking Brewer murdered body of the little girl is the testimony of the clownish Dr. West and, apparently, a jailhouse informer who says Brewer admitted to him in 2005 assailants forced him to bite the girl at gunpoint (a strange tale that doesn’t conform with any theory to date abut how the crime actually happened).

What’s absolutely unforgivable is that despite the fact that two men who weren’t Kennedy Brewer obviously raped this little girl, prosecutors and local law enforcement have made no effort whatsoever to identify or find them. They’ve been too busy trying to protect their conviction.

Allgood has since been ordered off the case, and a new prosecutor has taken over. He will still retry the case and still plans to use Dr. West, but he has at least dropped the death penalty. That means Brewer is out on bond while awaiting his next trial.

I’ll have an article in the November issue of reason looking deeper into the problems with forensic analysis in Mississippi, including another case involving Mr. Allgood.

The ACLU blog follows-up on my story about Mississippi’s Dr. Michael West:

As Balko notes, the ACLU’s Capital Punishment Project Director John Holdridge has successfully challenged West’s findings in the past. In 1993, John freed Larry Maxwell, an innocent man charged with three capital murders in Mississippi, and later helped to exonerate Anthony Keko, who was wrongfully convicted in Louisiana of killing his ex-wife. Both men had faced West’s dubious science in court.

John also filed ethics complaints against West with three professional organizations to which the doctor belonged; those complaints resulted in West’s resignation from two of the groups, and suspension from the other. Despite this loss of standing in the forensic community, he’s still routinely called to testify in death penalty trials, almost always for the prosecution.

As I understand it, West’s frequency of court appearances has dropped pretty dramatically in the last few years, to the point where District Attorney Forrest Allgood is the only prosecutor who still uses him regularly. Of course, that’s bad enough. And there’s also the matter of revisiting all the cases in which Dr. West has testified in the past, which should certainly be done. But I’m just getting started on Mississippi. The worst is yet to come.

MORE…The Innocence Project’s blog also weighs in, noting that faulty bite mark evidence has sent at least four other innocent people to jail.

I have a piece up at reason today–also my Fox column from earlier this week–about Dr. Michael West, a dentist in Mississippi who has declared himself a virtuoso and pioneer in forensic bite mark analysis. Most people consider him a fraud. Well, other than prosecutors. And the occasional jury.

The article is related to a longer article I’ll have in the magazine in a few months about Mississippi’s very troubled forensic science and medical examiner system.

…if you’re going to marry a forensic scientist, it’s probably not a good idea to cheat on her.

Many forensics experts have been raising questions about so-called "shaken baby syndrome" for years. Their concerns only intensified after the term entered the pop culture lexicon after the Louise Woodward trial in 1997. That trial sparked an increase in diagnoses around the country, raising concerns that parents and caretakers of children who tragically died in falls or accidents were wrongly being prosecuted for manslaughter—or worse.

Critics of the diagnosis are now starting to make some noise and, more importantly, they're gaining traction in courtrooms.

I'm working on a story for reason that's tangentially related to all of this; there are at least two men currently on death row in Mississippi due in part to questionable shaken-baby diagnoses.

Given the sharp divide among forensic pathologists over the validity of the diagnosis, it seems that at the very least, courts should require more evidence of abuse than merely the conventional signs of shaken baby syndrome in order to allow a conviction.