by Radley Balko
But Burdine’s name is also well known to Mississippi courts, and for less laudatory reasons. By the time he was appointed Brewer’s appellate counsel, Burdine had already been subjected to disciplinary action by the state bar on numerous occasions.
In 1988, he represented a nineteen-year-old high school senior involved in a fight that led to a fatal shooting. Burdine made no effort to request that the state turn over its evidence to him prior to trial, didn’t subpoena any witnesses, and then failed to file a timely appeal after his client’s conviction. The Mississippi Supreme Court later reversed the case, writing that Burdine had failed “to perform any act basic to the defense of the accused.” In 1996 Burdine failed to file a burglary defendant’s appeal on time, despite two reminders from his client; Burdine’s failure cost the man his chance to appeal. In a 1996 death penalty case, Burdine’s opening statement in the penalty phase was just eight lines long. The Mississippi Supreme Court did not find his actions constitutionally deficient. That client was sentenced to death.
So perhaps it wasn’t all that surprising when Kennedy Brewer’s first attempt to appeal his conviction and sentence failed. The Mississippi Supreme Court denied every one of his arguments, including his claim that West should not have been permitted to testify. Brewer next sought to have his case heard by the US Supreme Court. They declined to hear the case. Two days later, the State of Mississippi filed a motion to set Brewer’s execution date once again.
Brewer returned to the Mississippi Supreme Court in 1999. He wanted permission to perform DNA testing on the sperm that had been found in Christine Jackson. Shortly after Brewer’s original trial, his lawyers had been given access to the DNA for testing. But at the time, DNA technology was too primitive for such a small sample to be useful. They feared that if they tried to test it, they might destroy the evidence for future analysis.
By the turn of the century, the technology had improved. Brewer’s legal team sought to have the evidence tested. The Mississippi Supreme Court initially turned them down, although to be fair, Brewer’s attorneys at the time hadn’t made the best legal arguments. But even in declining Brewer, the court did leave the door open to a future challenge. After another challenge from Brewer, the court reversed itself and ordered the trial court to hold a hearing on the issue of testing.
In April 2001, Brewer was finally granted permission by the trial court to test the sperm evidence. They sent it to a lab in New Orleans, which found that the sperm belonged to at least one—and perhaps two—unidentified males. Neither of them was Kennedy Brewer.
To that point, in almost every instance in which a defendant had been given results excluding him from DNA found in a rape victim, the defendant was promptly released from prison. Not in Brewer’s case. When Brewer returned to the Mississippi Supreme Court, this time to ask that the court dismiss the charges against him, the justices turned him down. Though the court agreed that the results of the DNA evidence were compelling, it also found that “the DNA evidence does not prove conclusively that Brewer did not murder the victim” and there was “sufficient evidence in the record… indicating Brewer’s involvement.” The evidence the court was referencing—the only physical evidence in the case—was West’s bite mark claims. The court then remanded Brewer’s case to the trial court.
To his credit, Forrest Allgood didn’t object to the DNA testing. But he also didn’t seem particularly moved by the results. Not only was Allgood determined to retry Brewer, he planned to put Michael West back on the stand as the star of that trial. He had to. It was the best evidence he had. In a just world, the test results would have prompted Allgood to reopen Christine Jackson’s rape and murder investigation and immediately free Kennedy Brewer. Instead, the case became a murder prosecution in search of a theory. Under one of Allgood’s theories, Brewer, Leshone Williams, and Dewayne Graham all participated in Christine’s rape and murder. Allgood had what he believed to be solid evidence: A jailhouse informant allegedly told Allgood’s office that while he was in the Noxubee County Jail, Brewer “confessed” to him that he was forced at gunpoint to bite Christine while Williams and Graham raped her. The claim was baffling and implausible, but Allgood apparently thought it had some merit so asked Williams and Graham to submit to DNA testing. They were promptly excluded as the sources of the sperm. This too wasn’t enough to persuade Allgood of Brewer’s innocence.
Kennedy Brewer had been arrested within hours of Christine Jackson’s disappearance. When he was excluded as her rapist some fifteen years later, no one seemed in much of a hurry to try the case again. Brewer would languish in prison for nearly six more years.
The initial DNA test results may not have freed Kennedy Brewer, but they did again thrust Michael West into the national spotlight, bringing yet more negative media exposure. In 2001, Newsweek profiled West, calling him a “clutch witness” who was “affable and supremely confident,” but also noting West’s growing number of critics, who West said were driven by “ignorance” and “personal jealousy.”
But the article also provided space for the broader argument against bite mark evidence in general, an issue that to that point had been less discussed. Newsweek referred to a recent proficiency test given to twenty-five bite mark analysts (including West). Each analyst was given four sets of bite marks and asked to match them with seven sets of dental molds. The experts who made a positive “match” had an astonishing error rate of 63.5 percent. This was the same field whose practitioners had compared their proficiency to fingerprint or DNA evidence. It wasn’t just West. These analysts were putting people in prison.
Parroting the party line, West told Newsweek that he still believed Brewer to be guilty. “Just because the DNA isn’t his doesn’t mean the bite marks aren’t his,” he said. He then told the reporter to “stop bothering me.”
After the story was published, West complained about it to local media, insisting that the national criticism was inaccurate and likely orchestrated by well-funded death penalty opponents. “The national interest is not in my work; it is in the death penalty,” West told the Clarion-Ledger. “In a murder trial when the death penalty is not involved, there is very little interest. When the death penalty is, it is amazing the money and interest that comes into play. Opinions are based on science or who wrote the check. My opinions are based on the science.”
The following year, West was profiled on the CBS news program 60 Minutes. Though the profile was far from flattering, West speaks of the profile as a professional accomplishment. Steve Kroft interviewed John Keko’s attorney, who called West “a dangerous, dangerous witness.” When Kroft asked West how bite mark evidence compared to DNA or fingerprint evidence, West didn’t stop at calling them similar; he claimed that his field was actually superior. “If you look at bite marks, you don’t walk into a woman’s house and borrow a phone and accidentally bite her on the arm,” he said. “You have to be in a violent contact with that individual to deposit a bite mark. In that light, bite marks are better than fingerprints, because they not only show that you were present, they show you were in a violent confrontation with that individual.”
West told Kroft that he had testified seventy-three times in nine states, resulting in convictions that had only been overturned three times because of his testimony. “I’ll take that percentage rate of error,” West said. As John Holdridge pointed out to Kroft, West was boasting about an error rate of 6 to 7 percent—far too high when the consequences are life in prison or the death penalty. But even that figure wasn’t quite right. West only counted the cases in which a judge had determined that his testimony wasn’t based on sound science. It didn’t include wrongful arrests or cases where prosecutors had decided to drop the charges on their own. It also didn’t include Kennedy Brewer and Levon Brooks.
As Hayne’s autopsy load continued to pick up, so did criticism of his work, including in cases where he appeared to have taken shortcuts and made questionable findings. Ken Winter, who served as crime lab director in the early 200
0s, says that every year he would allocate part of his crime lab budget to hire a new state medical examiner. Every year, the legislature took it out. “You have to understand, the coroners and prosecutors loved Hayne,” Winter says, “and with the counties paying his fees, the legislature didn’t have to fund a state office and staff.”
In October 2002, a grand jury indicted a man for the murder of a woman whose partially clad, skeletonized body had been discovered on the side of a road in Rankin County. Hayne did the autopsy. Under “Cause of Death,” he wrote, “Changes consistent with Suffocation/Strangulation.” Two years later, the defendant’s attorney sent Hayne’s autopsy report to Harry Bonnell, a forensic pathologist in San Diego who at the time sat on the board of ethics of the National Association of Medical Examiners. In a preliminary letter back, Bonnell called the quality of Hayne’s report “pathetic,” adding that “the failure to obtain specimens and perform toxicology testing in this type of death borders on criminal negligence.” In November 2004, Bonnell sent his full review of Hayne’s work. It was more scathing still. He wrote that Hayne’s favored cause of death was “near-total speculation.” Because the body was in an advanced state of decomposition, the description of the remains in Hayne’s report would have been consistent with nearly any cause of death. The defendant eventually pleaded guilty to manslaughter. When asked about the case in a deposition years later, Hayne claimed that the defendant’s plea vindicated his work in the case.
Hayne had made similar claims about a partially skeletonized body in another case. In 1999, after the remains of Tonya Ward had been found in a wooded area of Jefferson Davis County, Mississippi, Hayne testified that she had been strangled to death. But there was no neck tissue left on Ward’s body to examine. In that case, the defendant was acquitted.
As Hayne did more and more autopsies, testified in more and more cases, and gained more and more influence, the courts seemed to give him more latitude to testify outside his area of expertise. In murder cases like that of Tavares Flaggs, he took full advantage of the opportunity.
In April 2005, Flaggs was accused of murdering a man during an altercation. Flaggs never denied killing the man, but said he had done so in self-defense. At trial, Hayne testified that blood spatter patterns at the crime scene supported the prosecution’s theory that Flaggs was the aggressor—and he hadn’t been defending himself.
There are multiple problems with Hayne’s testimony. First, blood spatter analysis in general is a controversial field. It has been roundly criticized by scientific bodies like the National Academy of Sciences. But even if one were to accept blood spatter analysis as scientifically sound, Hayne was never presented as a blood spatter expert at the trial, only as a pathologist. Nothing about the skills and experience required to be a medical examiner would automatically qualify someone to give an expert opinion about blood spatter patterns. Nevertheless, over Flaggs’s lawyer’s objection, the trial court allowed Hayne to testify. He then told the jury that given the pattern of spatter, the victim was “moving in a backward position away” at the time of his injuries, and that the spatter was produced as he raised his arm and hand in a manner that was “consistent with defensive posturing injury.”
There was another, more severe problem with the blood spatter testimony. As Flaggs’s attorneys from the Mississippi Innocence Project wrote in their petition to the court, “Dr. Hayne provided testimony concerning the discolorations on the hallway walls that were presumed to be—but without any evidentiary support—blood spatter,” adding, “the ‘blood spatter’ was never tested in order to determine whether it was in fact blood; nor, it follows, was there any determination about whose blood it was.” The only evidence for the alleged blood spatter were crime scene photos the state introduced into evidence, and Flaggs’s attorneys argued that the state offered no evidence Hayne even examined those. If the state did test the discolored portions of the walls to make sure that (a) it was blood and (b) it was the victim’s blood, one would assume it would have introduced those tests into evidence. It didn’t. Even in its response to Flaggs’s petition, the state didn’t contest that the alleged blood spatter had never been tested, instead arguing that even if Hayne’s testimony had been admitted in error, it was “harmless error”—that is, the remaining evidence was sufficient to find Flaggs guilty.
When Flaggs appealed his conviction and life sentence, the Mississippi Court of Appeals summarily dismissed the blood spatter controversy and Hayne’s testimony by finding that “our supreme court has indicated that forensic pathologists are qualified to give opinions regarding blood spatter.… Therefore, while there was no mention of blood spatter analysis during Dr. Hayne’s expert qualification, we cannot say under the circumstances of this case that the trial court erred in allowing Dr. Hayne to testify regarding blood spatter.” George Washington University law professor Jonathan Turley wrote about Flaggs’s case in 2014: “No one reading this record could come away with anything but disgust for the handling of the prosecution.” Turley also criticized the “dismissive ruling” in one of Flaggs’s later appeals. Yet the conviction has been upheld by three Mississippi courts and a federal court of appeals. Flaggs is still in prison today.
Cleared by DNA testing—but still locked in a cell and condemned to die—Kennedy Brewer finally decided to take it upon himself to save his own life. He wrote yet another letter to his lawyer. “Could you send me about $60.00 to get me a type writer,” he asked. “What I am doing is fixing to get involve in learning the law because I just can’t spend my life in prison for nothing that’s why I try to learn more and about the law each day.”
Brewer’s lawyer never sent either money or a typewriter. But Brewer continued to learn everything he could about the law, devouring any legal-related newspaper articles or magazines he could get his hands on. In the back of one of those magazines, he saw an ad for an organization that seemed promising. So Brewer pulled out a piece of lined notebook paper and a pen and began writing another letter.
“Dear Mrs. Greene,” he began in careful script, “how are you today? I know you probably don’t know me but the reason am writing is can you… help me out concerning my case? I really, really, really would highly appreciated.”
Four days later, Brewer’s letter arrived at the Innocence Project in New York.
13
THE UNRAVELING
And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it.
—G. K. Chesterton
Sometime around 2006, Steven Hayne and Jimmy Roberts had a falling-out. One former Roberts staffer said the spat had been building for a while but came to a head when Roberts started billing Hayne for supplies and Roberts’s staff began complaining about the hours they had to work to accommodate Hayne’s schedule.
In a 2012 deposition, Hayne offered a different take. He said Roberts’s monopoly on the business of transporting dead bodies for the counties had begun to fray. Some counties had purchased their own hearses. Other, wealthier counties had bought several and had begun transporting bodies for neighboring counties for a fee. New private competitors had also sprung up. According to Hayne, Roberts was losing money, which created friction between Roberts and the other coroners. That friction could have threatened Hayne’s relationship with those coroners, too. So Hayne parted ways with Roberts.
But Hayne already had a new plan in the works. In 2006, Commissioner of Public Safety George Phillips offered Hayne a contract that gave him the noncompensated position of chief state pathologist. That specific title didn’t exist anywhere in Mississippi law. It was invented. But it certainly sounded official. Under the contract, Hayne would continue to teach training classes to coroners. And he could continue his private autopsy practice.
More importantly, the contract allowed Hayne to use the st
ate crime lab for his private autopsies, at a low rate of $100 per procedure. The state of Mississippi would also foot the bill for his supplies and give him use of an office. Hayne now had the title and the facility, and was doing more autopsies than ever. He was no longer reliant on Jimmy Roberts. He was at the height of his career. Soon, it would all begin to unravel.
The years 2000–2008 were the busiest years of Hayne’s professional life. And it’s probably safe to say that a day in Steven Hayne’s life at that time was unlike a day in the life of just about anyone else. In 2008, an opposing attorney in a civil case subpoenaed Hayne’s autopsy and testimony records for an eighteen-month period in 2007 and 2008. Those records give a more complete picture of Hayne’s jaw-dropping schedule. On September 10, 2007, for example, Hayne testified for a case in Jackson and performed four autopsies. The next day, he traveled 160 miles to Marks, Mississippi, testified, traveled back to Jackson, and performed three more. The following day, he again testified in Jackson and completed five autopsies. The next day, it was 118 miles to Greenville for court testimony, then 90 miles back to the town of Marks for testimony in a separate case, 170 miles back to Jackson, and four more autopsies. The four-day total: five court appearances, sixteen autopsies, and over 700 miles of travel. The following day he did six more autopsies.
According to these records, as well as a review of Hayne’s court testimony, over one forty-eight-hour period on January 22–23, 2008, he testified in Clarksdale in the Delta, Magnolia and Columbia in the far south, and Forest in central Mississippi, and knocked out seven autopsies. But Hayne’s most impressive two-day stretch during that eighteen-month window came on April 3 and 4, 2007, during which he testified in Jackson, Hazlehurst, Tunica, and Yazoo City, and also performed nine autopsies.
