by Radley Balko
Havard was indigent, so the court assigned him a public defender. His attorney asked the district court judge for funds to hire his own forensic pathologist. The judge turned him down, finding that there was no need for a separate pathologist when Dr. Hayne was available. Havard’s jury would hear from Steven Hayne and only Steven Hayne.
Though he had no prior history of abusing or molesting children, by the time Havard’s trial began ten months later, word had spread around Adams County that he was a pedophile and baby killer. Studies have shown that not only can eyewitness memory change over time, it can be significantly altered with the acquisition of new information. That appears to be what happened in Havard’s case, as some witnesses’ memories grew considerably more vivid by the time of his trial. Jurors heard the sheriff, the coroner, and the medical staff at the ER describe “tears,” “rips,” “lacerations,” and other injuries to the child’s anus. Some claimed to have seen blood. Two nurses said it was the worst example of anal trauma they had ever witnessed.
Yet once the infant had been cleaned off, Hayne’s own autopsy photos showed there were no rips, tears, lacerations, or similar injuries anywhere on the girl’s rectum—only the dilation and small contusion.
Despite his own photos, and the fact that he made no mention of sexual abuse in his autopsy notes, Hayne played up the contusion at trial. He told the jury that it was an inch long, not a centimeter, as he put in his report. While he conceded that he had found no tears or lacerations, he speculated that rigor mortis (the tightening of muscles after death) could have caused the girl’s rectum to close, hiding any tears or cuts from his view. But if that was the case, Hayne should have accounted for it in his autopsy and looked more closely for tears. He did neither.
Hayne also testified that because he found the symptoms of Shaken Baby Syndrome, he could conclude that Chloe had been “violently shaken” to death. To emphasize the point, Hayne and the prosecutor exchanged the phrase “violently shaken” an additional six times.
Havard’s defense attorney wasn’t exactly aggressive. The prosecution called sixteen witnesses, whose testimonies comprise 261 pages of the trial transcript. Havard’s attorney called a single witness, a nurse at the ER. His testimony takes up three pages. The state didn’t even bother to cross-examine. It’s hardly surprising, then, that the jury convicted Havard and sentenced him to die. The entire trial, deliberation, guilty verdict, sentencing trial, deliberation, and death sentence took two days.
After Havard was sentenced, his case was taken up by the Mississippi Office of Capital Post-Conviction Counsel, which had been set up by the state supreme court to guarantee that indigent defendants in death penalty cases received adequate legal representation. That office had funding to hire its own experts. Havard’s new attorneys asked former Alabama state medical examiner James Lauridson to review Hayne’s autopsy and trial testimony. Lauridson found a number of problems. Most notably, he found no evidence of sexual abuse at all.
But for Havard’s direct appeal, Lauridson’s opinions didn’t matter. In a 2006 ruling, the Mississippi Supreme Court delivered a brutal one-two punch. The court first upheld the trial judge’s decision to deny Havard funds to hire his own forensic pathologist, finding that Havard’s trial attorneys had failed to show why an independent medical examiner was necessary. The justices then explained that because Lauridson’s affidavit wasn’t submitted during Havard’s trial, they were barred from considering it on appeal. The court upheld his conviction and death sentence. The ruling was unanimous.
Havard’s first post-conviction appeal came two years later. In post-conviction, a defendant has more leeway to introduce new evidence, but the bar for a new trial is set much higher. This time, the court had to at least consider Lauridson’s affidavit. It did, but not all that carefully. For example, in his report Lauridson referred to medical literature documenting the fact that the anus often dilates in infants shortly after death and that this is often mistaken for sexual abuse. He disputed Hayne’s contention about rigor mortis, and speculated that the ER staff likely mistook the exposed lining of the girl’s rectum for blood. Like others before him, Lauridson also had difficulty getting the tissue slides from Hayne, but when he finally did, he found nothing on them that suggested sexual abuse.
The majority opinion roundly dismissed Lauridson’s report—and also appears to have badly misread it. Justice George Carlson wrote that Lauridson “opined in his affidavit ‘that there is a possibility that Chloe Madison Britt was not sexually assaulted.’” Carlson then wrote, “Taking this statement to its logical conclusion, this leaves open the possibility that she was.”
That isn’t necessarily the logical conclusion at all. Worse, the phrase “there is a possibility,” which Carlson put in quotes, doesn’t actually appear anywhere in Lauridson’s affidavit. Lauridson actually wrote: “The conclusions that Chloe Britt suffered sexual abuse are not supported by objective evidence and are wrong.” Lauridson did write that he couldn’t definitively say there were no signs of sexual abuse because that would require examination of Hayne’s tissue slides, and at the time of his original report, he still didn’t have access to them. When he finally saw them, Lauridson was much more conclusive.
Justice Carlson continued to mischaracterize Lauridson’s report throughout his opinion. It was arguably a more forceful brief for the state than those submitted by the prosecutors themselves. Havard’s appeal was denied, and his conviction and sentence upheld. The vote this time was 8 to 1. The lone dissent was from a justice named Oliver Diaz, though Diaz didn’t write an opinion. That dissent would come back to haunt him.
In March 2012, the Mississippi Supreme Court again denied Havard relief. His attorneys had asked for a new trial because in the intervening years even Steven Hayne had changed his opinion—sort of. In a declaration for Havard’s attorneys, Hayne wrote, “Based upon the autopsy evidence available regarding the death of Chloe Britt, I cannot include or exclude to a reasonable degree of medical certainty that she was sexually assaulted.” Hayne also acknowledged, as Lauridson had pointed out, that a dilated anus is not in itself evidence of sexual abuse.
Even here, Hayne was typically hard to pin down. He managed to reframe his trial testimony without directly contradicting it. At trial Hayne had never definitively testified that Chloe Britt had been sexually assaulted; he merely said her injuries were consistent with that possibility, then speculated that one possible method of assault could have been “penetration of the rectum by an object.” The prosecutor did most of the heavy lifting to advance the assault narrative, often by citing the observations of the ER staff, sheriff, and coroner. For most of his testimony, Hayne merely acquiesced, despite the fact that he knew he’d found no biological material from Havard on or in the child, and that the only anal trauma was the small contusion.
Forensic experts say a credible and conscientious medical examiner should have said at trial what Hayne stated in his declaration a decade later. A credible medical examiner wouldn’t have let the jury be misled, and wouldn’t have allowed a prosecutor to use his own testimony to do so, even if his own testimony wasn’t technically false.
Three months later, the Mississippi Supreme Court rejected Havard once more. Justice Carlson again wrote the opinion. Carlson first argued that Hayne’s declaration and deposition in 2012 weren’t substantially different from his testimony at the trial. Hayne hadn’t explicitly testified at trial that Chloe had been sexually abused, Carlson argued, so his 2012 declaration stating he had found no evidence of abuse wasn’t really new evidence. Yet in his 2008 opinion, Carlson himself wrote that Jim Lauridson’s conclusion that the girl’s dilated anus was not indicative of sexual abuse “was… contrary to that of Dr. Hayne” and that of emergency room personnel. Hayne may not have explicitly testified that the dilation was caused by sexual assault, but his testimony was so suggestive of it that even Carlson at the time seemed to think that this was Hayne’s position. The jury obviously did, too.
In
two rulings handed down just four years apart, then, Justice Carlson had found that Hayne’s testimony supported the jury’s finding of sexual assault and that Hayne had never explicitly testified that a sexual assault had taken place. Hayne could make a state supreme court justice argue two self-contradictory points without realizing that they were contradictory. It’s little wonder why prosecutors loved him.
Carlson closed his opinion with one last and especially absurd contradiction. Carlson first claimed that Hayne’s 2012 declaration wasn’t new evidence because it was “duplicative” of the Lauridson affidavit that the court had rejected in 2008. Yet, as noted, in that 2008 decision Carlson himself wrote that Lauridson’s opinion was “contrary to that of Dr. Hayne.” Between his 2008 and 2012 opinions, then, Carlson asserted that (a) Lauridson’s affidavit contradicted Hayne’s trial testimony, (b) Hayne’s 2012 declaration was “duplicative” of that affidavit, and yet (c) there was no substantial difference between Hayne’s trial testimony and his 2012 declaration.
Logically, these three things can’t possibly all be true. Two affidavits can’t at the same time be both duplicative of and contrary to one another. And yet Carlson stated exactly that. So did his fellow justices. Again, the court denied Havard’s petition. This time, the vote was unanimous.
Over the next few years, the state’s case against Havard continued to deteriorate. First, two more forensic pathologists reviewed the case and wrote scathing reports deriding Hayne’s work. Then in January 2014, Hayne appeared to walk back his trial testimony even more. In an interview with the Clarion-Ledger, Hayne said he never believed Chloe Britt had been sexually assaulted at all. The following July he filed another affidavit with Havard’s trial attorneys, this time claiming he had explicitly told prosecutors on more than one occasion that he could not support a finding that Chloe had been sexually assaulted. Havard’s attorneys said this information was never turned over to them.
At Havard’s trial, the prosecutor told jurors that Hayne would “testify for you about his findings and about how he confirmed the nurses’ and doctors’ worst fears this child had been abused and the child had been penetrated.” Now, all this time later, Hayne claimed he explicitly told prosecutors precisely the opposite.
If true, that would be a major violation on the part of state prosecutors. Hayne’s statement to them would have been exculpatory information, and they would have been obligated to turn it over. Moreover, Hayne was the only medical examiner to testify, and the alleged sexual assault was not only a major part of the state’s case but the aggravating factor that allowed prosecutors to seek the death penalty.
While it now seems clear that Chloe really wasn’t sexually assaulted, Hayne’s latest attempt to rehabilitate his role in the case is hard to comprehend. Although it’s true that he never explicitly testified that Chloe Britt had been sexually abused, his testimony did plenty to help prosecutors convince the jury she had.
“A medical examiner has an ethical duty to clarify whatever point is being made, whether by the prosecution or the defense,” says Jaime Downs, a medical examiner who has served on numerous forensics ethics committees and recently edited the book Ethics in Forensic Science. “If someone is putting words in your mouth, or manipulating your testimony to give a false impression, you have an obligation to speak up and say, ‘That’s incorrect.’”
If Hayne knew all along that the state had persuaded a jury to convict Jeff Havard of an assault he never believed happened, why did he wait thirteen years before speaking up? Why did he speak up only after three other forensic pathologists filed affidavits?
In 2015, Jeffrey Havard finally caught a break. It was a modest win, but it at least put his execution on hold. In April of that year, the Mississippi Supreme Court gave Havard’s attorneys permission to request an evidentiary hearing on the scientific validity of SBS. The court still rejected Havard’s claims challenging the allegations of sexual abuse. The ruling wasn’t an exoneration, and it wasn’t a new trial. It was a three-paragraph order giving Havard permission to ask a trial court judge to hold a hearing to determine the scientific validity of SBS. In June 2016, the judge granted permission for the hearing. If Havard could convince the judge that Shaken Baby Syndrome is no longer a scientifically reliable diagnosis, he’d finally get a new trial.
It took Havard’s jury less than two days to deliberate, convict him based on bad scientific evidence, hear evidence on appropriate punishment, deliberate again, and sentence him to death. It took thirteen years for the courts to admit that a small portion of the bad evidence might have been scientifically unsound. It took another fourteen months for the trial court judge to agree to hold a hearing on the matter. It will be another fourteen months from that decision until the hearing itself.
It’s often said that the wheels of justice grind slowly. That isn’t always true. When it comes to convicting people, they can move pretty swiftly. It’s when the system needs to correct an injustice—admit its mistakes—that the gears tend to sputter to a halt. For now, Havard remains on death row.
The Havard case is also illustrative of the way Mississippi state officials have neglected their duty to look into Hayne. Beginning in the late 2000s, media exposés and groups like the Innocence Project had finally begun to single Hayne out for criticism. For the most part, Mississippi prosecutors and coroners continued to defend him. One of the more important of those officials has been Mississippi attorney general Jim Hood, who himself used Hayne back when Hood was a local district attorney. By 2013, Jeff Havard’s case had attracted a lot of attention. The Clarion-Ledger and the Huffington Post had both published articles about Havard, and a website and Facebook page maintained by his friends and family has been marshaling supporters.
The fact that Hayne was now arguably contradicting his own testimony in a death penalty case made it hard for officials like Hood to continue to defend him. By that time, Havard’s case was in federal court (he had exhausted his state appeals). So in August 2013, Hood’s office filed a motion in federal court asking for a gag order. Hood wanted to prohibit the public from seeing any further filings or proceedings.
The state claimed the motion was sparked by a Facebook post from one of Havard’s lawyers who had complained that the state didn’t “want to be bothered by actually responding to his [Havard’s] claims of innocence.” But the state’s brief itself revealed the real motivation: Havard’s case “had become a public spectacle.” The attorney general’s office argued that it had received letters from Havard supporters and expressed concern that the letters were similarly worded, which suggested the letters’ authors had all gotten their information from the same source. Why this was of such grave concern isn’t exactly clear. A federal judge ruled against the motion.
Hayne’s testimony in yet another Shaken Baby Syndrome case was more controversial still, and provides an even more egregious example of the lengths to which state officials have gone to defend him. Christopher Brandon was convicted in 2009, well after the concerns about overdiagnosing Shaken Baby Syndrome had been documented in both medical literature and the popular press. But Hayne also cited a textbook that actually states the precise opposite of what he claimed at trial and cited a study that doesn’t appear to exist.
Brandon claimed that his girlfriend’s fifteen-month-old son died after falling and hitting his head on a toy. (There was an external bruise on his head.) Hayne claimed the infant had been violently shaken, despite the absence of any signs of neck trauma. As in other cases, the trial judge had refused to give Brandon funding to hire his own pathologist to review Hayne’s work.
Brandon’s attorney asked Hayne if he was aware that some researchers had begun to question the basis for the SBS diagnosis. Hayne said he was but countered by first citing a forensic pathology textbook written by Vincent Di Maio. “There are disagreements in the field,” Hayne answered, “but, the standard text, Di Maio and Di Maio, they list shaken baby syndrome as a cause of death and they go into the explanation of the differen
t variables that constitute shaken baby syndrome. So the preponderance of the experts in this country do believe an injury like this to be shaken baby.”
Hayne was then asked about a recent study showing that the injuries commonly attributed to SBS can occur in a short-distance fall. He replied, “That would be in disagreement with the vast preponderance of the literature.” The attorney followed up—but had he read the study? Hayne replied, “Yes, counselor. That has been roundly argued against that position by that particular physician. I think the… most important article that has come out recently, [is] the Alperi study by Harvard University in the Mass General, and they disavow that position.”
With no one to counter Hayne’s testimony for the defense, Brandon was convicted. After his conviction, another medical examiner reviewed Hayne’s work and concluded that the child did not die from being shaken, and that his medical condition had been affected by an advanced case of pneumonia.
Even when defendants were given funding to hire their own experts, Hayne’s testimony often won the day. But as with Jeffrey Havard, the Brandon case shows how, when there was no one to counter him, Hayne could be absolutely devastating. A defense expert well-versed in the SBS literature, for example, might have pointed out that the Di Maio textbook Hayne cited on the witness stand actually states the precise opposite of what Hayne claimed. From the textbook: “The authors [of Forensic Pathology] have grave reservations as to the existence of SBS. This was expressed in the first edition of this book. Since then, we have no reason to change this opinion but rather to solidify it. There is just no conclusive evidence that this entity exists.”
