The Cadaver King and the Country Dentist

by Radley Balko

  If that isn’t clear enough, Di Maio himself also said in a 2014 interview that Hayne had misappropriated his text. When asked if it was possible Hayne’s testimony could have been mistaken but well-intentioned, Di Maio replied, “No, I don’t think it’s possible. Look, that passage about SBS begins with a quote from Alice in Wonderland. You would think that would be a good indication that we are skeptical of the diagnosis. I don’t know how he could have honestly misread it.”

  Then there’s Hayne’s mention of the “Alperi study by Harvard University in the Mass General.” That study doesn’t appear to exist. “A search through databases dedicated to SBS scholarship, as well as the entirety of the Westlaw and LexisNexis databases of literature dedicated to SBS, reveals that no such study exists,” Brandon’s lawyers from the Mississippi Innocence Project wrote in a post-conviction petition. “Furthermore… counsel have consulted with both legal and medical experts in the field of SBS who have [n]ever heard of the [study] or anything like it.” They added, “In short, the circumstances suggest that Dr. Hayne simply conjured up a scholarly journal article.”

  Both these examples from Hayne’s testimony would likely have been exposed had Brandon been permitted to have his own expert in the courtroom. Even a defense attorney well-versed in SBS cases isn’t likely to have a thorough enough grasp of the literature to recognize a nonexistent study, or to know when a textbook has been misquoted. But an expert in the field likely would. Without an expert, Hayne was able to give bad information to the jury without rebuttal.

  In his closing argument, the prosecutor doubled down on the misinformation by misleading the jury about why Hayne’s testimony went unrebutted. Referring to Brandon’s claim that the infant died from a fall, the prosecutor told the jury that “every doctor in the world says it [Brandon’s story] is impossible. It’s impossible.” Incredibly, he then argued that Brandon’s defense team couldn’t call an expert witness to contradict Hayne because no such experts existed.

  Brandon’s story was not impossible. There are plenty of doctors who would say so, and there were plenty at the time. The defense didn’t call any of them to the stand not because they didn’t exist, but—again—because the court didn’t provide Brandon with the funds to hire one of them.

  The state’s reaction to Hayne’s testimony was even worse. In July 2014, the office of Attorney General Jim Hood filed a response to Brandon’s motion for a new trial that’s almost too absurd to believe. After first conceding that they too could not find the mysterious study that Hayne had mentioned at trial, the state did point out that in 2012, the Alpert Medical School of Brown University hosted a conference on Shaken Baby Syndrome that included a panel discussion about short-distance falls. Because the name of the school sounded vaguely similar to the name Hayne mentioned as the author of his mystery study, “It is more likely that Dr. Hayne was recalling these studies than it is that he entirely fabricated a study,” the state wrote.

  That sounds like a plausible explanation until you consider that Hayne attended Alpert Medical School at Brown. It seems unlikely that he’d mistake the name of his own medical school for the author of a study.

  But there’s also a much more profound problem with the state’s attempt to rehabilitate Hayne’s testimony: The Boston conference was held in 2012. Christopher Brandon’s trial took place in 2009. By the laws of physics, Hayne couldn’t possibly have “recalled” a presentation from a 2012 conference during testimony he gave in 2009.

  The state also added that the same medical school hosted a similar conference in 2010 and posited that perhaps that was what Hayne was recalling. We’re at least getting closer. But we’re still faced with the fact Hayne couldn’t possibly have recalled a 2010 conference during testimony he gave in 2009.

  For years Mississippi state officials have argued that Hayne could competently perform 1,800 or more autopsies per year, all while testifying in court, completing his continuing education, and holding down two full-time positions. In the Brandon case, they either were alarmingly careless about fact-checking their arguments or suggesting that Steven Hayne could slip the bounds of time.

  It’s odder still that instead of merely asking Hayne to submit an affidavit clarifying his testimony, the state resorted to such wild speculation about what he actually meant. In August 2014 the Mississippi Supreme Court ruled in Brandon’s favor on every claim and ordered the Lee County Circuit Court to hold an evidentiary hearing.

  That same year, the Mississippi Supreme Court overturned another conviction that was due in part to Hayne’s SBS testimony. The court in that case didn’t explicitly criticize Hayne, but ruled that the trial judge was wrong to deny the defendant funding to hire his own expert.

  Mississippi elects its judges at all levels, from local justice courts to the Supreme Court. Over the years, the campaign and election process has produced a lot of scandals and even a few indictments. But one noticeable effect has been to weed the state’s highest court of justices with an inclination to protect civil liberties and the rights of the accused. And that has produced a court that for the most part remained reliably unskeptical of Hayne and West.

  The two factions that have poured the most money into judicial elections in recent years are the plaintiff’s bar (more commonly called trial lawyers) and pro-business groups like the Chamber of Commerce. The judicial candidates who rise out of the plaintiff’s bar tend to be more friendly to regulation and civil liability for corporations accused of wrongdoing. But in a state as conservative as Mississippi, Democrats tend to compensate for those positions with aggressive law-and-order policies on issues like policing, the death penalty, and due process rights. Mississippi’s two most recent attorneys general—current AG Jim Hood and his predecessor Mike Moore—are good examples. Both have been heavily supported by the plaintiff’s bar, but both are also adamantly pro–death penalty.

  This sort of political splintering benefited Hayne and West. Many of the state’s criminal defense attorneys are also trial lawyers. They get paid a few thousand dollars per month to be the official “public defender” for some county or town but make the larger part of their living as plaintiff’s attorneys. Civil liability cases in areas like medical malpractice or product liability often involve allegations of a wrongful death. Those cases require an autopsy. For someone like current Mississippi attorney general Jim Hood, Hayne was the only game in town. He also served a dual purpose: he helped many of Hood’s supporters win wrongful death cases, and he helped prosecutors like Hood win convictions.

  The few justices on the court who have shown proclivity to, say, protect the constitutional rights of criminal defendants, or to criticize the application of the death penalty in capital cases, have come under heavy scrutiny when they run for reelection. That’s how James Robertson—perhaps the closest thing the state has ever had to a civil libertarian justice—was defeated in 1992.

  “It’s complicated,” says the longtime Mississippi defense attorney André de Gruy. “I’ve spent my entire career here, so I’ve only known a system in which judges are elected. But my sense is that whether you appoint them or elect doesn’t make much difference at the local level. But at the appellate level, you probably get better judges if they’re appointed.”

  John Holdridge, the defense attorney who was an early critic of Michael West, says his bigger worry is how the fear of losing a bid for reelection can bias an incumbent. “My sense is that elected judges find it very difficult to rule on these issues when it’s going to seriously affect the prosecution in a high-profile case.”

  “I think that’s why James Robertson may have voted with the state in the Tracy Hansen [case], when he otherwise may not have,” says de Gruy. “There were protests outside the supreme court at the time. You don’t want to be known as the justice who turned a killer loose.” Hansen was convicted of killing a Mississippi state trooper in 1987. There wasn’t much doubt about his guilt, but there were some problems with his trial, and he was sentenced to death under the va
gue death penalty jury instructions later struck down by the US Supreme Court. The Mississippi Supreme Court voted unanimously to uphold both the conviction and the sentence, and Robertson wrote the opinion. Hansen was executed in 2002, ending Mississippi’s thirteen-year dry spell. Robertson lost his election anyway.

  A 2013 report by the liberal group the Center for American Progress found that spending on the 2000 Mississippi Supreme Court elections surged by over three million dollars. In fact, a single group called the Law Enforcement Alliance of America (LEAA) spent more on Mississippi Supreme Court races than all of the candidate campaigns combined. There’s some evidence that all of that spending has affected how the court rules. In its next term, the court ruled against criminal defendants in 90 percent of the cases it heard, a 20 percent increase over the previous term.

  Perhaps that was due more to the facts of the cases the court considered in those terms, but the report found a similar correlation in other states where supreme court justices are elected. As spending from outside groups went up, so did the frequency with which the courts ruled against criminal defendants.

  In the early 2000s, Mississippi was ground zero for all of these interests. By the early 2000s trial lawyers, pro-business groups, and law-and-order groups were all spending furiously to seat their preferred justices in Jackson. For the most part the trial lawyers backed one candidate, while the pro-business and law-and-order groups backed the other. (There really weren’t any well-funded interest groups to promote civil liberties or protections for the accused.)

  But it didn’t always line up that way. In the 2000 Supreme Court elections Justice Lenore Prather, who had become the state supreme court’s first female justice in 1982 and its first female chief justice in 1998, was heavily favored to win reelection and had strong backing from the Chamber of Commerce. Toward the end of the campaign Prather’s opponent, a little-known municipal judge named Chuck Easley, began attacking her for being “soft on crime.” Prather was a moderate conservative. She had occasionally voted to overturn convictions but rarely went out on a limb. (She voted to uphold Kennedy Brewer’s conviction and death sentence in 1998 and then to deny him DNA testing in 2000.) Easley won in an upset that surprised much of the state.

  The Mississippi justice everyone expected to lose in the 2000 campaign was Oliver Diaz, an affable, mop-haired former state legislator from the Gulf Coast. Diaz made his jump to the judiciary in 1994, when he was elected to the Mississippi Court of Appeals. In March 2000, Governor Ronnie Musgrave appointed him to the state supreme court to finish the term of a justice who had recently died. But the term to which Diaz was appointed expired later the same year. He’d barely had time to zip up his robe before he had to start thinking about reelection. The Chamber of Commerce spent $800,000 trying to defeat Diaz, including TV ads accusing him of supporting “baby killers and drug dealers” when he sat on the court of appeals. Somehow, Diaz still won. But in winning he had to raise a lot of money in a short amount of time. That would eventually present problems for him.

  Diaz later affirmed that the ads affected how his fellow justices handled criminal cases, and that it was causing opinions based more on politics than on the law. “A fellow member of the Mississippi Supreme Court… actually saw those ads, and after that point, he refused to vote to overturn criminal cases,” Diaz told ThinkProgress. “Judges who are running for reelection do keep in mind what the next 30-second ad is going to look like.”

  By the end of his first and only complete term, Diaz would emerge as the court’s toughest critic of Steven Hayne. He’d also have some personal experience with the criminal justice system that would make him better equipped than his colleagues to talk about the perils of letting the political process run roughshod over the judiciary. But his outspokenness would eventually get him voted off the court.

  The next justice to feel the wrath of law-and-order groups was Charles “Chuck” McRae. By the end of the 1990s, McRae was really the only justice willing to take a skeptical look at Michael West. To that point, he was the only judge in the state who had actually criticized West in an opinion. (No judge—McRae included—had so much as batted an eye at Steven Hayne.)

  McRae seemed more like the protagonist in a Hemingway novel than a state supreme court justice. He was more brash than bookish, more insouciant than stuffy. In 2003, Forbes described him as “a colorful, cocky figure who drives a motorcycle to the courthouse and dresses in cowboy boots, blue jeans and lots of leather.” The same year, the Franklin County Times noted that McRae had run with the bulls in Pamplona, climbed Mt. Kilimanjaro, and enjoyed scuba diving in the Bahamas. The Clarion-Ledger noted that he sometimes swam in public while wearing only a thong.

  McRae grew up poor and orphaned on the Gulf Coast, but moved to Pennsylvania just before graduating high school. He returned to Mississippi after college to teach and coach high school, then went to law school. Despite his criticism of West, McRae was hardly a bleeding heart on criminal justice. While he was a former president of the Mississippi Trial Lawyers Association, he had also served as counsel for the Pascagoula Police Association.

  But McRae was an outspoken opponent of tort reform, and by the time he was up for reelection in 2003, it was a hot issue, nationally and especially in Mississippi. That put him squarely in the crosshairs of pro-business groups like the Chamber of Commerce.

  McRae didn’t do himself any favors. In 1995 he had crashed his sports car just outside of Jackson and then refused to take a breathalyzer. He was sentenced to a two-hour meeting with victims of drunk drivers, which sparked (probably accurate) accusations of special treatment. In 1999, his behavior on the roads again put him in the headlines when he and a friend were pursued by a Mississippi Highway Patrol officer while riding their motorcycles. The friend stopped; McRae didn’t. He sped up, taking the officer on a chase through Jackson, during which McRae at times exceeded a hundred miles per hour.

  Despite all of that, one of the more damaging blows to McRae’s reelection hopes was over what in retrospect was perhaps his finest moment on the court. During the 2003 campaign, the LEAA bought a round of TV ads touting McRae’s opponent, Jess Dickinson, whom the ads called “a strong leader who supports the death penalty.” The ad then ominously shifted to McRae. “When a three-year-old was sexually assaulted, the Mississippi Supreme Court upheld the murderous conviction. Only Judge Chuck McRae voted to reverse it.” A similar ad delivered the same ominous message: McRae “was the only judge to reverse the conviction of the murderer of a three-year-old girl.”

  The “murderer” to which both ads referred was Levon Brooks. McRae lost his reelection bid by thirty points.

  No one really thrives or flourishes in prison, but Levon Brooks did better than most. His charisma and optimism served him well. So did the fact that at thirty, he was a little older and perhaps wiser than most of the men in his cell block.

  “It felt like a dream,” Brooks says, reflecting back to the first days after his sentencing. “I remember I questioned God. ‘What have I done to deserve this?’” Brooks at first thought he’d have to harden. “Everyone I knew who had been in prison came out so doggone mean,” he says. “I figured it would turn me, too.”

  But he quickly changed his outlook. “My momma told me, ‘You do what you gotta do in there, but don’t change who you are. God’s gonna get you out.’” Brooks pauses after he says this, then lets out a soft laugh. “She was right. It sure took Him a while. But I got out. And I didn’t get one write-up [for disciplinary problems] while I was in there. I’m proud of that.”

  Brooks’s experience cooking at the Santa Barbara helped him get a spot in the prison kitchen. That was critical. It made him feel productive, gave him something to do. More importantly, it gave him access to food, which he could occasionally distribute outside the rules. It would become powerful currency for him: first to carve out some independence and space for himself, and then to help out his fellow inmates. “You’d be surprised what you can get done with extra sand
wiches,” he says.

  Brooks also helped guards and other prison staff with their paperwork. Having always had some talent with a pencil, he began drawing greeting cards and selling them to prison staff. That earned him both some spending money and additional favor. He then put that favor to use in the kitchen, where he’d sneak in indulgences like fast food for his fellow inmates. Sometimes he even got unofficial permission to prepare fancier meals on holidays. Ever the opportunist, he also used his kitchen access to sell sandwiches to guards and other prison personnel on the side.

  Brooks says his dominion over the kitchen provided him with some protection. Despite the conventional wisdom about what happens in prison to people convicted for hurting or sexually abusing children, Brooks says he was largely left alone and was able to avoid the prison’s gangs. Over time, his lack of affiliation positioned him to become something of a broker between the gangs, and between the gangs and the guards. He says he once helped a man get out of a prison gang, get into protective custody, and eventually get transferred to another prison. He stopped another man from hanging himself.

  “You just have to keep your humanity about you,” Brooks says. “That’s how I got by. You do little things for people, you make their lives better, and it comes back to you.”

  He kept his eye out for new inmates in particular. “It’s lonely when you first get in,” he says. “It goes a long way if you think you have an ally—that there’s somebody on your side. It can be the smallest thing.” Brooks would typically reach out to new inmates with the only thing he had the power to do—he’d give them an extra half sandwich or an extra piece of meat. “I just tried to look out for folks,” he says.

  One story in particular still moves him. A few weeks before Brooks was released from prison, a white man came to visit him. The two had been in the same cell block, but Brooks never really got to know the man. “I do remember when he first got in, though,” Brooks says. “He was a bad case. He was hurting. He just had this broken look about him that said, ‘What am I going to do?’”