by Radley Balko
One study published in 2013 found that, incredibly, crime lab analysts in many states are paid per conviction. Many labs are funded partially or even entirely by fees assessed to defendants, but only upon conviction. No conviction means no fee, and no fees mean less funding. In North Carolina, judges assessed defendants a $600 fee “upon conviction” to fund state and local crime labs. In Kansas, defendants were charged $400 for each conviction that required the use of the crime lab. Washington charged $100. In all, the study found that at least seventeen states (including Mississippi) at least partially funded their crime labs with money assessed upon conviction. Needless to say, funding crime labs with money assessed only after convictions is a dangerous way to get sober, objective analysis.
All of these could be classified as mistakes involving analysts who were well meaning but mistaken. Then there’s another entire class of scandals involving analysts who faked their credentials, “dry-labbed” (a euphemism for faked) test results, or otherwise knowingly deceived jurors. A 2010 investigation of the North Carolina state crime lab revealed analysts’ year-end reviews were conducted by prosecutors, who evaluated them on their ability to help win convictions.
Steven Hayne may have been fired, but he was far from finished. The Innocence Project’s complaint against Hayne with the state’s board of medical licensure was unsuccessful. The board said it was concerned that Hayne was performing too many autopsies, but it declined to take any action against him. The College of American Pathologists sealed its own investigation into Hayne—the entire process was conducted in secret. When it was over, the organization essentially punted. The group did send Hayne a “letter of concern” about the volume of autopsies he had been doing, but the ethics committee ultimately concluded that it lacked “sufficient evidence on which to base a finding that you are deficient in moral character or professional competence or guilty of professional misconduct,” and therefore would take no further action. Hayne’s attorney, Dale Danks, told the Clarion-Ledger that the group had “absolved” his client of “wild accusations.”
The National Association of Medical Examiners (NAME) investigation went a little differently. According to a source involved in the investigation, Hayne was given a choice: either stand for an ethics inquiry or resign from the group. He chose to resign. According to Hayne, after a complaint was filed with the group, he demanded to know who filed it. NAME refused to tell him, so he resigned.
Perhaps emboldened by these professional organizations’ decisions not to discipline him, Hayne and Mississippi’s prosecutors and coroners began to fight back. In April 2009, Hayne filed a defamation lawsuit against the Innocence Project of New York and two of its attorneys. After a contentious deposition in that suit in 2012, Hayne accepted a settlement that was less than it would have cost to litigate the case. The Innocence Project of New York didn’t retract its accusations against Hayne but cited the contract with its insurer. Danks again claimed vindication for his client, and this time said that Hayne “deserves credit” for helping exonerate Brooks and Brewer because Hayne had preserved the DNA from those cases.
That same year, Yazoo County coroner Ricky Shivers asked Mississippi attorney general Jim Hood to issue an opinion about an antiquated state statute that allowed adjoining counties to form their own “districts” for the purpose of administering autopsies. The old law was intended to help poorer counties pool resources to conduct murder investigations. Shivers wanted to use the law to allow adjoining counties to create such districts for the purpose of hiring their own medical examiner. Shivers later admitted—boasted even—that it was all an attempt to circumvent Steve Simpson and bring back Steven Hayne. On June 26, Hood’s office issued an answer: go for it.
Just days after Hood’s office released that opinion, Hayne began faxing copies of the opinion to sympathetic coroners around Mississippi. He followed up with a packet of information, including a copy of the legal forms necessary to form the new independent districts. Shivers said in an interview with Reason that eleven different coroners explicitly told him they had already taken steps to create renegade districts, solely so they could rehire Hayne, and that around twenty others indicated that they planned to do the same. “I’ve already done the paper work for Yazoo County,” he said. “And it’s already been approved by my board of supervisors.”
DPS commissioner Simpson was livid at Hood for issuing the opinion. The ruling “is contradictory to a 1992 attorney general’s opinion that says medical examiners must be approved by the Department of Public Safety,” Simpson said in a 2012 interview. “I had heard that Hayne was soliciting coroners to set up these, ‘independent districts’ I guess they’re calling them.… I would say to the coroners, this is not wise. Where are you going to do these autopsies? They won’t be allowed to use the state lab.”
Hood’s move seemed to irritate Simpson so much that he started speaking more freely about Hayne. “To me, the most troubling thing about this is that these coroners and prosecutors want to use the services of a medical examiner who isn’t board certified, who does way more autopsies than he should, and who wouldn’t be subject to minimal standards and protocols,” Simpson said at the time. “I would caution the district attorneys that whoever they get to do these autopsies, that person isn’t going to be subject to any state law or oversight, and they’re going to have to defend the results in court.”
Of course, the lack of oversight was precisely the point. It was also the arrangement under which Hayne had operated for most of his career.
State representative Robert Evans, who had introduced the legislation to fund and hire a new state medical examiner the previous year, was also irritated by what Hood and the coroners had done. He warned that if the coroners’ plan came to fruition, he’d seek new legislation to stop it.
Over the next few months, Hood and Governor Barbour began receiving letters of support for Hayne from law enforcement officials across the state. The overarching theme of the letters was that there couldn’t possibly be any truth to the allegations against Hayne, because the prosecutors who wrote the letters had never heard complaints about Hayne—from other prosecutors. The president of the Mississippi Sheriffs’ Association wrote to declare his support for Hayne as “an invaluable tool to law enforcement.” Forrest Allgood wrote Barbour, too, though he confessed that he couldn’t understand why his effort was even necessary. “Many accusations have been made against him of late,” Allgood wrote, referring to Hayne. “It seems he works too hard, sleeps too little, and testifies too much. This is Mississippi. We are a poor state and we are all under staffed. I know I am. Consequently, we all have to do more.”
District Attorney Jim Powell fretted over what he would do with all the homicide cases in his district for which he was preparing to call Hayne as a witness. Now defense attorneys were going to ask questions about Hayne’s competence and credibility. Powell urged Barbour to reinstate Hayne. He also denounced the “propaganda” from the Innocence Project and expressed his displeasure that the taxpayers had to continue to fund it—a reference to the organization’s affiliation with the University of Mississippi.
A few years later, attorneys from the Mississippi Innocence Project would help solve a grisly murder that had haunted a town in Powell’s district for fifteen years. Through some diligence and communication with the state crime lab, the attorneys helped find the man who killed Kathy Mabry—a crime law enforcement had never been able to solve. In the late 1990s, the decision by local officials to ask West to examine Mabry’s body had led to the arrest of the wrong man. That man remained in jail for a year before he was cleared by DNA testing. The case then went cold until the defense attorneys solved it in 2012.
At about the same time these letters arrived at the offices of Barbour and Hood, defense attorneys across Mississippi also received a letter from a newly formed company called Pathology Consultations Inc. The letter began: “We are pleased to announce that Steven Hayne, M.D. will be available immediately to assist criminal de
fense attorneys in the state of Mississippi.”
Among his many other qualifications, the letter noted that Hayne is “board certified” in “Forensic Pathology.”
15
NO RECKONING
The truth does not change according to our ability to stomach it emotionally.
—Flannery O’Connor
Steven Hayne has maintained that most of the criticism directed at him is just cherry-picking. His defenders argue that he did tens of thousands of autopsies in Mississippi, and in the vast majority of them, no one complained about the quality of his work. Likewise, in the vast majority of the cases in which he testified, his testimony wasn’t at all controversial. Even for those cases in which his testimony was challenged by other medical examiners, his conclusions were rarely dispositive of guilt. There was often plenty of other evidence against the accused.
There’s a good deal of truth in all of these points. There’s also a lot of truth in Hayne’s contention that he was providing a service for Mississippi—that the state faced a critical shortage of medical examiners, and he was only doing what was asked of him. No one would doubt that Hayne put in long, hard hours of work, over many years. His schedule was grueling and would have quickly worn out just about anyone.
But it is also important to remember that all of this was by design. Hayne did approximately four out of every five autopsies in the state because that’s the arrangement that Hayne and most of the state’s DAs and coroners wanted and fought for. And as this book has shown, the workload itself was a huge part of the problem. Every medical examiner consulted for this book said that it’s simply impossible to perform anywhere near that volume of autopsies with the care, precision, and best practices required of the profession. When confronted with these opinions, Hayne has simply insisted that he isn’t your average medical examiner. In the past, noted medical examiner Michael Baden, a personal friend of Hayne’s, has criticized Hayne in individual cases, but has defended Hayne’s professionalism and credibility in the press and in affidavits.
Yet in many of the cases documented in this book, cases where Hayne’s testimony was critical to the outcome of a case, his approach to the work appears to have been less, rather than more, rigorous, and was at times characterized by a willingness to testify outside of his expertise, and to draw conclusions that have little basis in science.
Hayne has also pointed out in testimony that some of his critics have themselves been embroiled in scandal. After his death, for example, Louisiana medical examiner George McCormick was shown to have signed off on autopsies he didn’t do. Thomas Bennett, the second state medical examiner in Mississippi, has come under fire after a series of Shaken Baby Syndrome diagnoses in Iowa and Montana. (Bennett preceded Hayne, and was a critic of the Mississippi system, not of Hayne in particular.) Georgia state medical examiner and longtime Hayne critic Kris Sperry retired in 2015 after a newspaper investigation found he was billing the state for time he spent testifying as a private consultant. (Interestingly, among the criticisms of Sperry were that he had a caseload that ranked “among the highest in the country.” But that investigation found that between public and private, Sperry had performed or reviewed 366 autopsies over a four-year period—a total Hayne regularly cleared in a month.)
Hayne views his role in the Brooks and Brewer cases as minimal. In filings for the lawsuit filed against him by the two exonerees, Hayne’s attorney argues that Hayne is not responsible for either conviction—that he never stated that the marks on the victims were human bites (he only suspected as much), and that it was West, not Hayne, who made the identifications that implicated Brooks and Brewer. In his 2012 deposition for his own lawsuit against the Innocence Project of New York, Hayne made similar comments. He said he was “suspicious” that the marks on the girls were human bites, he said, “but that was beyond my expertise.” But Hayne’s autopsy report on Courtney Smith clearly stated that there were bite marks on the girl.
Likewise, Hayne’s testimony in the Brewer case belies his claim that only West—and not he—ever stated that the marks on the girl were human bites. At Brooks’s trial, Forrest Allgood asked Hayne to draw on his training and expertise after having examined “thousands of bodies” to state “to a reasonable medical certainty whether or not these marks that you found on this child’s body that you perceive could very well be bite marks, [or] whether or not they were the result of insect activity?”
Hayne replied, “I did not think that they were insect bites.”
Hayne has also tried to further distance himself from Michael West more generally. In his 2012 deposition for his lawsuit against the Innocence Project of New York, Hayne said he thought the “West Phenomenon” was “a little excessive.” He also claimed that he tried to convince West that the ultraviolet method needed to be proven effective and reliable by a scientific study. West wouldn’t comply, so “I stopped using it. I wanted to see a scientific study.” Yet at the same time, he insisted, “I didn’t have doubts” about his prior uses of the technique, because “it’s an old process,” but he added, “but I think if you introduce in a court of law, you have to have a scientific study where you can show error rates.” Those statements are hard to reconcile. Hayne’s efforts to distance himself from West are also hard to reconcile with the fact that the two men coauthored articles together on the technique, marketed the technique, and that Hayne employed West well after West’s methods had been widely criticized. Hayne has also admitted that he himself has used West’s highly controversial method of pushing a suspect’s dental mold directly into the victim’s skin.
Hayne also said in that deposition that he no longer trusts bite mark analysis in general. “I would be very reluctant to call in a forensic odontologist to do a bite mark comparison study,” he said. “It’s not a fingerprint. It’s not DNA.” With these statements, and his statements in the Jeffrey Havard case, Hayne seems to acknowledge the use of bad science during his time in Mississippi, and that injustices may have occurred as a result. But other than conceding in Havard that he (and a lot of others) may have been wrong about Shaken Baby Syndrome, he has yet to acknowledge his own culpability in any of it.
As the rebelling coroners and prosecutors planned their mini-coup against the Department of Public Safety, state representative Robert Evans made good on his promise of a legislative response. In early 2010, he and other state lawmakers introduced a bill that required any doctor performing an autopsy for the state of Mississippi to be both board certified in forensic pathology by the American Board of Pathology and deemed qualified by the Department of Public Safety. When the bill unanimously passed the state senate, Hayne and Hood sprang into action and began lobbying state representatives to defeat it.
Hood disseminated an email calling the bill an “Innocence Project bill which threatens cases which involved Steven Hayne,” and promised, “Our office is working diligently to stop this potentially harmful legislation.” Among other things, Hood’s lobbying clearly suggested that so long as he was in the attorney general’s office, there would be no serious review of old cases to find other potentially innocent people Hayne’s testimony may have helped convict.
In public, Hood’s office insisted that he took no position on the bill. He couldn’t support the bill: it thwarted his behind-the-scenes effort to bring back Hayne. But to oppose a bill requiring that doctors who perform state autopsies be certified by the group widely recognized as the gold standard in forensic pathology might raise some eyebrows. So Hood remained neutral on the bill in public, even as he privately lobbied to kill it.
The Mississippi legislature passed the bill anyway, by a vote of 91 to 31. Governor Haley Barbour signed it into law.
Several months after the new bill passed, Hayne received a letter from his old friends at the American College of Forensic Examiners Institute (ACFEI), congratulating him on his newly achieved status of “Certified Forensic Physician,” a position that, according to the group’s website, “holds an integral role in deter
mining the outcome of many important court cases.” The cost for the new certification: $869.
In what appeared to be a last-gasp attempt to get back in the game, in May 2010 Hayne sent a letter to the Mississippi attorney general’s office inquiring whether his new ACFEI certification (which was still pending at the time), along with his “re-certification” from the “American Board of Forensic Pathology,” fulfilled the requirements of the new law. A state legislature could and should require some minimum qualifications before allowing someone to perform autopsies paid for by the state. Here, the legislature had made its intent pretty clear. Hood’s office had no choice but to tell Hayne that his request would ultimately be answered by the Department of Public Safety. And DPS commissioner Simpson had already made his intent clear. All of which meant that the challenges, schemes, and appeals had come to an end. Hayne was finally finished doing autopsies for the state of Mississippi.
A more daunting task remained: a thorough accounting of the damage and persuading state officials to fix it.
“I wish now that I had been more courageous,” says Edwin Pittman, the former chief justice of the Mississippi Supreme Court. “A couple of those old cases embarrass me now. We should have been less accepting of Hayne and that culture.”
Pittman, now in his early eighties, retired from the court in 2004. He has likely held more high state offices than anyone in Mississippi’s history. Before joining the court in 1989, he had been a state senator, state treasurer, secretary of state, state attorney general, and brigadier general in the Mississippi National Guard.
Pittman’s tenure on the court began just as the careers of Steven Hayne and Michael West were taking off, and lasted through all but the tail end of their dominance of the state’s death investigation system. As a justice, he reviewed forty-six cases in which Hayne was a witness, second only to justices Chuck McRae and James Smith. He didn’t throw out Hayne’s testimony in any of them.
