Here’s the press release from the Innocence Project.

The national Innocence Project has sent a letter to Mississippi’s Dept. of Public safety demanding an inquiry into Dr. Stephen Hayne, the Mississippi medical examiner I first wrote about in my article on Cory Maye back in October 2006, then covered in an investigative piece for reason in November of last year.

The letter states:

"By law, the State Medical Examiner must be a board-certified forensic pathologist. The State Medical Examiner is appointed by, and serves at the pleasure of, the Commissioner of Public Safety. The State Legislature created the position in order to organize and standardize the work of medical examiners across the state and to raise the level of forensic services statewide. Two pathologists served as State Medical Examiners in the mid- to late-1980s, and in 1987 Stephen Hayne was appointed Interim State Medical Examiner. Because he is not a board-certified forensic pathologist, he was set to be removed from the interim position, so he resigned. Two subsequent State Medical Examiners were appointed, until Mr. Hayne and his allies forced the last State Medical Examiner from office in the mid-1990s. This critical position has been vacant since then.

"Although a full investigation of cases involving Mr. Hayne has not been conducted, it is clear that in the cases of Mr. Brewer and Mr. Brooks, Mr. Hayne ignored the applicable science and objective facts. He provided improper testimony to help convict two innocent men in capital murder cases. In each case, he wrongly described indiscriminate scratches and bruises as human bite marks. He then compounded the error by securing an incorrect confirmation from his frequent employee and colleague, Michael West. Recently, a peer-review panel of top forensic odontologists from England, Canada and the United States issued a report completely rejecting Hayne’s and West’s conclusions in the cases of Mr. Brewer and Mr. Brooks.

[...]

"We would be happy to furnish you any additional background on Mr. Hayne’s work in these cases and the urgent need for forensic oversight in this area. We ask for your urgent attention to this matter. The grave consequences illustrated by the cases of Mr. Brewer and Mr. Brooks call for the prompt appointment and full funding of a qualified State Medical Examiner, which falls directly under your authority."

Hayne never responded to my requests for an interview. He did however respond to the Jackson Clarion Ledger for this story:

Contacted for comment, Hayne responded, "I am board certified, and my work has been reviewed by impartial reviewers."

He pointed out the Armed Forces Institute of Pathology reviewed his work on more than 50 jailhouse hangings in the early 1990s and concluded, just as he did, that each was suicide.

[...]

Hayne responded today that his work has been regularly reviewed and upheld as valid.

"When you don’t have facts, you have a tendency to engage in character assassination," Hayne said.

Actually, the AFIP reviewed a case in the late 1990s in which a woman was savagely beaten to death, and Hayne weirdly determined she had died of a stroke. His autopsy was first reviewed by Dr. Stephen Pustilnik, then practicing in Alabama. Dr. Pustilnik told me Hayne’s autopsy in that case was "new complete malpractice." Hayne had failed to empty the woman’s pockets, a standard autopsy procedure. Pustilnik also found that internal organs Hayne claimed in his report to have examined hadn’t been touched.

Hayne’s autopsy was eventually sent to AFIP. According to Pustilnik, AFIP’s review of Hayne’s work was critical. When I called AFIP, I was put in touch with the doctor who reviewed Hayne’s work in that case. All I had to say was "I’m writing a story about a medical examiner in Mississippi," and he immediately knew who I was talking about. He said he’d love to talk with me about Hayne, but that I’d first need to get clearance from the AFIP’s information office. Unfortunately, they called me back to say they were barred by HIPAA privacy regulations from discussing their review of Hayne’s work with me. That is, talking to me would have violated the privacy of the dead woman. I’ve since learned that this may have been a misapplication of HIPAA.

Thus far, I haven’t been able to get in touch with the woman’s family to get their okay for the doctors to speak with me. The woman’s death was officially ruled a homicide, though no one was ever charged in the case. Her family filed a civil rights lawsuit, but I haven’t yet been able to determine how it was resolved.

If you’re wondering why Hayne would have ruled a clear homicide a death by "natural causes," so was I. On background, several of Hayne’s critics have told me that in some areas of Mississippi, prosecutors simply don’t want to deal with murder cases, particularly when they involve low-income people. That seems to be consistent with what people in Prentiss, Mississippi have repeatedly told me about crime in Jefferson Davis County. "Murders don’t seem to get solved around here" is a popular refrain down there. A few critics of Hayne told me that they’re actually more concerned about the number of people who get away with murder down there han the number who get wrongly convicted.

Hayne is also wrong when he says his work has "been regularly reviewed and upheld as valid." Over the last year, I’ve spoken with more than a dozen medical examiners about Dr. Hayne. I’ve heard lots of colorful adjectives used to describe him. "Valid" was never one of them. His autopsies have been repudiated over and over again by other doctors, both in court and in civil depositions. I have copies of scathing reviews of his work written by his peers.

There is also at least one complaint against Hayne now pending at the National Association of Medical Examiners. It was filed by a member of the group’s ethics committee. After my article ran last fall, Dr. Joseph Prahlow, the immediate past president of the organization called to tell me the organization is very concerned about Hayne, and plans to address the issue this spring. NAME is moving far too slow for my taste, particularly given that Hayne’s testimony is still putting people in prison. But Dr. Prahlow emphasized that they haven’t yet acted should by no means be interpreted to mean that they endorse Hayne’s practices.

The judiciary committee in the state senate has passed a bill setting up a DNA task force to look at how best to collect and preserve evidence after violent crimes.

That’s a great start. Long, long way to go. But a good start.

…is up.

It’s about innocence and wrongful convictions. Specifically it asks, with all the checks and balances that are supposed to be built into our criminal justice system, how is it that hundreds of innocent people can still not only be convicted, but also have those convictions upheld through the appeals process?

The column riffs on a new law review article that examined 200 exonerations, and what happened to those cases on appeal. What the author found should give pause to those people who say defendants get too many appeals, and waste too much money working their way through the system.

It won’t. But it should.

Over the weekend, Mississippi Attorney General Jim Hood announced that 51-year-old Albert Johnson had been arrested for the brutal rape and murder of two three-year-old girls in the 1990s. Johnson had been an early suspect in both cases, but despite the fact that the state had samples of his DNA on file for more than a decade, it never bothered to test it against the DNA found in the little girls.

That’s because Mississippi District Attorney Forrest Allgood decided early on in both cases that he had his man, and little could convince him otherwise. One of those men is Kennedy Brewer, a mentally handicapped man who served more than a decade on Mississippi’s Death Row, then served another five years even after DNA evidence had cleared him. Allgood insisted on retrying Brewer anyway, arguing that bite marks on the little girl’s body matched Brewer’s teeth.

Curiously, Allgood resisted testing the DNA from the crime scene against that of a man he had earlier convicted of an eerily similar crime—another rape and murder of a young girl in the same area. It now seems clear why Allgood resisted the test. As it turns out, the man he’d convicted for that crime, Levon Brooks, is innocent, too. Brooks had been sentenced to life in prison.

Hood is expected to announce on Thursday that Brewer has been completely exonerated. A similar announcement for Brooks could also come Thursday, or perhaps a few days after.

Had Allgood not fixated on Brooks after the first murder, he may have been able to prevent the second. Instead, we have two little girls dead, one man wrongly incarcerated for nearly two decades, and another who came perilously close to execution. And of course, there’s also the matter of a two-time child rapist and murderer running free for 15 years.

In both cases, District Attorney Allgood asked Dr. Steven Hayne to perform the autopsies on the little girls. Dr. Hayne then called in his longtime collaborator Dr. Michael West to perform "the West phenomenon," a bit of quackery using fluorescent lights and yellow goggles that West says enables him to see bite marks no one else can spot. West was Allgood’s star witness in both cases. In fact, after the DNA test exonerating Brewer in 2001, West’s testimony was all Allgood had left, and was the reason he insisted on keeping Brewer in prison until late last year. In the Brewer case, the defense called an actual, board-certified medical examiner, who testified that the marks weren’t from human teeth at all, but bug bites due to the body’s exposure in a woods.

The weekend’s events put a big, fat exclamation point on the corrupt, good ol’ boy forensics system in Mississippi I reported in a feature for reason last November.

My article focused mainly on Hayne, but Allgood and West also made appearances. Dr. Lloyd White, one of Mississipppi’s last two official state medical examiners, left his position in disgust after trying and failing to rein in Dr. Hayne and the state’s prosecutors and coroners. This passage seems particularly relevant:

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, the district attorney for Clay, Lowndes, Noxubee, and Oktibbeha counties. 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.

White’s replacement also resigned in disgust after butting heads with Hayne, West, and the state’s coroners and prosecutors. The office has been vacant since the mid-1990s, giving Hayne and rogue prosecutors like Allgood free reign.

This also isn’t the first time an Allgood death penalty case has been overturned. In 1990, he convicted an 18-year-old mentally handicapped woman of killing her infant son. She was acquitted and released from death row after being granted a new trial due to problems with (surprise!) the conclusions drawn by the medical examiner Allgood recruited to perform the autopsy on the boy.

Since my article (and accompanying op-eds in the Wall Street Journal and the Jackson Clarion-Ledger) ran, very little has changed. That’s too bad, because my sources in Mississippi tell me all the appropriate people down there were made aware of it, several times over.

Defense attorneys are more keen to Hayne, now, and are filing briefs challenging his status as an expert witness. But thus far, they’ve found little sympathy from the state’s courts. Hayne is still doing autopsies in Mississippi, and judges are still letting him testify. Last November, the new judge in Cory Maye’s case dismissed a brief in which Maye’s lawyers asked that they be allowed to question Hayne’s credentials. He said the case needed "closure." In another case, the court refused to grant an indigent defendant the funding to hire his own expert witness to review Dr. Hayne’s autopsy. In both cases, attorneys cited my reporting on Hayne. My reporting on Hayne was also brought to the attention of Mississippi’s State Supreme Court in the January 2007 case appeal of Tyler Edmonds. That case represented the first time the court had ever tossed out Dr. Hayne’s testimony. Allgood was also the prosecutor in that case, too.

So Mississippi’s courts, lawmakers, and executive agencies are all well aware of the problem. They simply aren’t interested in doing anything about it.

Attorney General Hood is doing the right thing in exonerating Brewer and (likely) Brooks. But it shouldn’t stop there. It’s time for Mississippi to conduct a thorough review of every case in which Dr. Hayne or Dr. West has ever testified. In fact, there are other medical examiners in the state whose work has been called into question, too. It wouldn’t be the first time this has happened. Similar reviews have been conducted in West Virginia, Houston, and Oklahoma City after deficiencies and fraud in crime labs was exposed.

It’s probably also time to start looking at possible criminal civil rights violations by Hayne, West, and Allgood. The state’s entire medical examiner system is in need of a major overhaul. But right now, it’s more important to undo the damage already done, and free the people Hayne and West may have already wrongfully sent to prison.

The Boston Phoenix investigates the sad case of Stephan Cowans, wrongfully imprisoned for killing a Boston police officer. Cowans was exonerated in 2003, then murdered in 2004 by someone with designs on his $3.2 million settlement. The paper digs into Cowans’ conviction, and finds evidence that police knew Cowans was innocent, yet forged ahead with his prosecution anyway. Regular readers of this site will recognize this language:

What disturbs some political critics, as well as some defense attorneys, is that an unusually high number of botched police cases have not resulted in significant internal reform or any disciplinary action. This despite police conduct that a judge called “a fraud upon the court,” in Christopher Harding’s conviction, and that another judge, presiding over Donnell Johnson’s appeal, said “suggests either serious misconduct or negligence.”

In other cases of wrongful conviction, there was no effort made to answer tough questions about what went wrong. A feeble attempt was made in the wake of Cowans’s exoneration. But its inadequacy only underscores the rottenness of the system. And of all these cases, it is the Cowans conviction that raises the biggest questions about local law-enforcement officials’ ability to police themselves.

[...]

After examining 15 wrongful convictions — all but four in Boston — Reilly and the state’s DAs concluded that they “did not suggest a present systems failure,” and laid most of the blame vaguely on “erroneous eyewitness identifications.”

In the only specific reference to Cowans, the report said that “the Commonwealth’s fingerprint evidence was flawed.”

Such comments fail to acknowledge what the BPD itself concluded more than two years earlier — that the fingerprint evidence was not flawed, but deliberately manipulated and lied about in court.

Defense attorneys who have fought wrongful-conviction cases say that without a more honest and thorough explanation, the public and law-enforcement officials alike cannot know whether a “present systems failure” exists.

It’s a damning article. But if history is any indication, it’s unlikely to bring any real reform.

From my home state…

A man who spent more than two decades in prison for the slaying of an 89-year-old woman walked into the Vigo County Courthouse shackled to three other prisoners and walked out a free man after a judge agreed with prosecutors that DNA evidence exonerated him.

Scott, 39, had been serving a 50-year prison sentence for the 1984 murder of Loretta Keith, who was bludgeoned to death in her bed with a hydraulic jack. Authorities said that DNA testing not available in 1984 — including analysis of blood found on a nylon stocking at Keith’s home — cleared Scott.

Prosecutors said the DNA test results showed that Kevin Mark Weeks, 44, of LaGrange, Ky., was the person who killed Keith. Weeks was arrested Friday, and was still being held in the Shelby County, Ky., jail on Monday.

Note that in this case, Scott was convicted largely because of a taped recording of him admitting to participating in the crime. False confessions are much more common than you might think. They happen for a variety of reasons (police brutality, the desire to end a marathon interrogation, the belief that evidence will surface proving innocence), but tend to occur most frequently with young people (Scott was 15 at the time) and suspects with a low IQ or mental handicap (Scott was learning disabled). In this case, Scott appears to have been tricked into confessing by an investigator. What’s unforgivable is that not only was there evidence exonerating Scott that was never introduced at trial, but the DNA evidence could have been tested years ago.

DNA evidence frees a man who had done ten years in prison for a murder police say he committed when he was 15. They pursued him for 12 years, won a conviction, then kept in prison for a decade until the DNA evidence pointed to someone else. The evidence against him seems to be that (1) the victim was found in a park near his home, and (2) police found a series of violent drawings in his home. It looks like his mistake was cooperating with the police on the assumption that if he was innocent, he had nothing to worry about by answering their questions.

I’ll go out on a limb, here, and predict it’s the first of many:

Attorneys for Arthur Johnson believe they will win his release from prison after a Sunflower County judge hears new DNA evidence they say clears Johnson of the crime of rape.

The Mississippi Supreme Court on Jan. 4 cleared the way for Johnson to argue for his freedom based on DNA tests that he alleges show he did not rape a woman in Sunflower County.

Johnson was convicted in 1993 of rape and burglary and was sentenced to 55 years in prison. The state Court of Appeals upheld his conviction in 1995.

Emily Maw, an attorney for Innocence Project New Orleans, said no physical evidence linked Johnson to the crime and his conviction was based on the victim’s identification of him as her attacker.

In August 2005, Circuit Judge Ashley Hines ordered the evidence in the rape kit to be tested by ReliaGene Technologies in New Orleans. After delays due to Hurricane Katrina, ReliaGene completed the testing late in 2007.

Maw said the testing excluded Johnson as the source of the seminal fluid collected from the underwear worn by the victim when she was raped.

“This DNA testing proves that Arthur Johnson was telling the truth when he claimed, from the beginning, that he is innocent of this charge,” she said in a statement Friday.

Defense attorneys in Mississippi like Rob McDuff, Andre de Gruy, and the New Orleans Innocence Project’s Maw deserve a ton of credit, and not just for this case.  They’ve been fighting long odds and an entrenched, corrupt system for years down there.  Now that the state has its own Innocence Project, expect to see more of these.  The major barrier will be fact that prosecutors in Mississippi have a habit of destroying case files after a defendant has exhausted his appeals.  One of Tucker Carington’s first objectives as director of the new project is to push a bill through the state legislature requiring prosecutors to preserve the evidence in these cases.

The Jackson Free Press has an excellent article about Mississippi’s new Innocence Project, led by Tucker Carrington, and started with the help of John Grisham.

Maw and Carrington identified three major areas of concentration for changing Mississippi’s laws. First on the list is enacting legislation requiring courts to preserve evidence—rape kits, blood and other types of biological material—after conviction. Twenty years ago, few anticipated that DNA science would play such a crucial role in proving guilt or innocence. And it would take a crystal ball to foresee what new science will emerge 20 years from now.

“It’s a huge problem,” Grisham said. “There are a lot of guys at Parchman right now who have been there for many years who have claims of innocence that should be pursued, but the evidence is not there. There may have been DNA 20 years ago, but the evidence is gone. Those are hopeless cases. And it’s not just in Mississippi, that’s everywhere.”

Maw mentioned one case where the Supreme Court ordered DNA testing 25 years after the case. “Of course, the evidence had been thrown away,” she said. In another case, a 17-year-old black defendant convicted of raping a white woman in Jackson in 1981 “doesn’t even have a transcript of his trial,” she said. “They (originally) had a rape kit in that case; they could have done testing.”

[...]

Still, one of the biggest barriers to overcome in Mississippi and much of the Deep South is the perception that wrongful convictions simply aren’t a problem.

“It’s a very hard sell in a lot of jurisdictions,” Grisham said. “A lot of it is race-based. I mean, the white community does not believe it’s a problem. That’s true in a lot of states, not just Mississippi. If you go into the black community, they know. They know someone who has been pushed around, abused or wrongfully convicted. … What we’ve got to do first is convince the people that there’s a problem with the system.”

It’s changing, though. Yesterday, I put up a post about the former chief justice of the North Carolina Supreme Court becoming active in that state’s Innocence Project. There’s a former chief justice now doing defense work in Mississippi, too. Grisham’s partner in the innocence movement is fellow author and former federal prosecutor Scott Turrow. And of course, they aren’t the only former judges and prosecutors to have their eyes opened to the problem.

The Free Press also did an interview with Grisham here.

The answer in North Carolina is apparently yes—but only if it helps prosecutors.

In a bizarre case, former state supreme court justice I. Beverly Lake Jr., now in private practice, is representing a convicted double murderer named Lee Wayne Hunt. Hunt was convicted in part due to lead-bullet analysis, a discredited forensics technique long used by the FBI. The FBI now admits the technique is flawed, though the agency says it’s under no obligation to do anything about the people convicted because of it.

The other evidence against Hunt, an admitted marijuana dealer, was testimony from two fellow dealers. After one of those dealers, Jerry Cashwell, committed suicide in prison, his lawyer came forward to say that prior to his death, Cashwell told him he alone committed the two murders for which Hunt has been convicted.

Upon learning that Hunt had been convicted on faulty forensic evidence and on the word of a convict who subsequently made a deathbed confession exonerating Hunt, the court immediately granted Hunt a new trial, right?

Nope. The court not only denied Hunt a new trial, it referred Cashwell’s lawyer to the state bar for an ethics investigation into a possible breech of attorney-client privilege.

That’s odd, because in 2006, the North Carolina Supreme Court ruled that prosecutors can force an attorney to divulge information that might help their case if the client who supplied the information has died. Hunt’s lawer, former Chief Justice Lake, wrote that opinion.

"It makes no sense that a lawyer can be required to divulge information from a dead client to the state but then not be allowed to do the same if it helps a defendant," Lake told the Washington Post.

No, it doesn’t. But it’s not terribly surprising, either.

The Washington Post details a disturbing case of likely innocence in Guantanamo.

The problem with Guantanamo is not that there may be some innocent people in the prison. It’s that there’s very little evidence at all against the vast majority of people we’re holding there.

If I may indulge, and quote from a short piece I wrote for reason a while back:In May 2003, Guantanamo held 680 prisoners, the highest number to date. About half have since been released. The Bush administration has claimed the prisoners at the camp represent the “worst of the worst” terrorist threats to the U.S. But when the Seton Hall law professor Mark Denbeaux and the defense attorney Joshua Denbeaux analyzed information supplied by the Defense Department, they found that less than half the inmates were determined to have committed a hostile act against the United States or its allies. Only 8 percent are suspected to be Al Qaeda fighters.

Of the 385 still held at Guantanamo, the Pentagon plans to formally charge 60 to 80. To date, just two have been tried by a military tribunal, and only one, Australian David Hicks, has been convicted. He was sentenced to nine months in prison, which he was allowed to serve in Australia.

Worse, those who are cleared and released often then have nowhere to go.

Remember, Mitt Romney wants to “double or triple” the size of Guantanamo. Wonder who he plans to put in there?

Via the comments section (you guys are great!),

Alabama’s governor claims he doesn’t have the power to order DNA testing for death row inmate who may be innocent, even though the Innocence Project may pay for it:

Riley said he supports post-conviction DNA testing, and will support it again when legislation making it mandatory is expected to be introduced during the upcoming legislative session.

But he said the way the law stands now, the power to order and have the state pay for such tests rests exclusively with the courts.

The governor’s legal adviser, Ken Wallis, said he has advised Riley that no governor of Alabama has the power to order such tests under the Alabama Constitution.

The problem here is that it’s often the case that once an inmate has exhausted his appeals, even incontrovertible proof of his innocence won’t get him a new day in court. My next Fox column in fact looks at a new study of exonerations showing that even after DNA testing has completely cleared some inmates, they have continued to be incarcerated because the courts consider their cases closed. They were released only after a governor stepped in to pardon them or grant them clemency.

So if Riley is correct in his interpretation of Alabama law, there’s something seriously flawed about Alabama law.

Riley’s claim of executive impotence also contrasts rather starkly with the city of Huntsville’s claim that executive privilege allows them to keep secret the results of an internal investigation into the Kenneth Jamar case. One point I overlooked in my last post on Jamar–even if the city is right about “executive privilege” (and my guess is that either the city spokesperson or the reporter is mistaking executive privilege for sovereign immunity), that doesn’t mean it must exercise the privilege. It eoulc still turn over the documents because it’s the right thing to do. Don’t count on that happening of course.

I suppose it’s possible that Alabama law does indeed give government broad powers to keep documents secret after agents of the government wrongly shoot and nearly kill a man, and, at the same time, narrowly restricts government power when it comes to ordering tests to make sure an innocent man isn’t executed.

If that’s the case, I guess the lesson is to stay the hell away from Alabama. With apologies to my friends in Alabama.

Here’s more on the 15th DNA exoneration in Dallas County since 2001. This guy did 27 years for a rape he didn’t commit.

Meanwhile, Scott at Grits for Breakfast notes that if you count the 24 people wrongfully convicted in the Dallas fake drug scandal of 2002 (in which gypsum and pool chalk planted by an informant miraculously came back positive for cocaine and meth in police field tests), the number of total exonerations in the county since 2001 rises to 39.

You may have seen Volz’s case in the news of late. He’s an American who was wrongly convicted of murdering his girlfriend in a sham trial in Nicaragua. His conviction was recently overturned, but the Nicaraguan government has now decided to keep him jailed indefinitely, anyway. And the Nicaraguan media is out and out encouraging vigilantism.

Volz is apparently a friend of blogger Will Hinton, who has much, much more information on the story.

Georgia man exonerated of rape after DNA testing.

Here’s hoping he now gets his life turned around. The guy has a shady past, so I’m sure there will be some who won’t be particularly bothered by his wrongful imprisonment for the rape. I obviously don’t share that sentiment, but even if that’s your inclination, his conviction for the rape represents yet another data point against the exclusive use of eyewitness testimony.

In Florida, the Innocence Project marks its 210th exoneration with the release of Chad Heins, who has spent the last 14 of his 33 years in prison for a rape and murder he didn’t commit.

Meanwhile, a jury in Tennessee has acquitted a man who served 15 years on that state’s Death Row. He was granted a new trial after DNA tests showed a hair found at the scene and used against him at trial couldn’t have been his.