The Cadaver King and the Country Dentist

by Radley Balko

  Hood also continued to publicly defend Hayne. In 2010, he tried to refute the allegation that Hayne shilled for prosecutors by telling the Sun Herald that Hayne had testified for the defense in some cases Hood had personally prosecuted. But the public record of cases for which Hayne had testified for the defense prior to his termination at all is spare. And there’s no appellate court opinion in any case in which Hood was the prosecutor and Hayne testified for the defense. That doesn’t necessarily mean that it never happened, but if it did, it was rare. When Hood’s office was asked for a list of such cases, no one responded.

  Hood later took a slightly different line on Hayne and West. In a 2011 interview with the Jackson Free Press, Hood claimed he had never publicly defended Hayne. He also told the paper that Michael West “is someone we have investigated, and I don’t support him in any matter.”

  He was being duplicitous. At the very same time that he made those statements, Hood’s office was arguing in cases like Leigh Stubbs and Eddie Lee Howard that the defendants were procedurally barred from challenging West’s credibility. Publicly, Hood was admitting that West wasn’t a credible witness. Less publicly, his office was simultaneously arguing legal technicalities to keep people in prison—and on death row—who had been convicted because of West’s testimony.

  Hood has steadfastly refused to consider a task force or any broad review of Hayne’s work. In a 2011 TV interview, he did claim that his office had opened an investigation into twenty cases involving Michael West. But when asked for a list of those cases, or even the name of the attorney who was heading up the investigation, the office responded, “We can not release any of the information you are requesting at this time.” Hood is one of the most PR-savvy attorneys general in the country. He has never been shy about trumpeting his accomplishments. He often holds press conferences to announce new initiatives and major investigations. Yet here, his office has been suspiciously quiet.

  A few months after Hood’s statement about investigating West, in a hearing for the Leigh Stubbs case, an assistant attorney general from Hood’s office was asked who was running the alleged investigation of Michael West. The assistant attorney general replied that he was. When asked about the status of the investigation, he replied that he had done no more than a Westlaw search on West’s name—the legal equivalent of a Google search. As of this writing, Hood’s office has offered no new information about any investigation into Michael West.

  Still, Hood’s obstinacy about Hayne and West has never hurt him at the polls. In January 2011, DPS commissioner Steve Simpson announced that he’d challenge Hood for attorney general. By the time the campaign was in full swing, Simpson had not only fired Hayne but also appointed Mississippi’s first state medical examiner in sixteen years—Mark LeVaughn, a forensic pathologist from Buffalo, New York.

  “I hired Mississippi’s first state medical examiner in more than a decade. Jim Hood fought me on that,” Simpson said in the August before the election. “I’d be delighted for this to become a campaign issue.”

  In the end, it didn’t matter much. Simpson didn’t really push Hayne, West, and death investigations as a campaign issue, and neither did the press. As a Republican running for statewide office in Mississippi, calling for a review of thousands of murder convictions was probably never going to be a winning campaign issue for him. By Election Day, most of the press and public were more interested in a mini-scandal over Simpson’s request to be reimbursed for a $400 dinner he and some colleagues had eaten at a steakhouse two years earlier. Hood went on to clobber Simpson by twenty-two points.

  The courts were more of a mixed bag. In the 2011 case Gause v. State, the Mississippi Supreme Court finally showed some signs of movement when it came to Hayne, but these were still only the tiniest of fissures. The justices found that while the court had previously found Hayne to be qualified to testify as a forensic pathologist, “that should not be taken as eternal, nonexpiring judicial anointment of Dr. Hayne as an expert pathologist for all of time and in every case in which he might thereafter be tendered to offer expert testimony.”

  That at least was something. Yet when it was time to vote, the court still rejected the challenge to Hayne in that case, too, because it found that the defense attorneys hadn’t sufficiently challenged Hayne’s credibility at trial.

  In March 2013, the court finally threw out Hayne’s testimony for a second time. In a unanimous decision, the justices ordered a new trial for David Parvin, a former Mississippi State University professor, who had been convicted of killing his wife. In that trial, Hayne testified that he could tell by the shot pattern in Joyce Parvin’s skin that the gun that killed her was fired at shoulder height, not at waist height as Parvin had claimed. Despite never inspecting the gun, or even knowing what type of shotgun it was, Hayne also said he could tell by the shot pattern in Joyce’s skin that the gun had been fired from four feet away, again contradicting David Parvin’s story.

  The state supreme court didn’t buy it. With unusually pointed criticism, the court ruled that Hayne’s testimony was “woefully short of the requirements for admissibility.” Furthermore, the court ruled that “the speculative ‘expert’ opinions” should never have been put before a jury.

  The court also seemed to be onto Hayne’s tactic of writing vague autopsy reports, then elaborating on the fly at trial. Quoting Parvin’s brief, the court noted that the measurements in Hayne’s autopsy report were made “without comment, explanation, or support,” and none of these measurements could be “determined by the autopsy report or any of the related scientific tests.” Hayne had waited until trial to spring those details on the defense, as he’d done many times before. This time, the court called him on it.

  Hayne and a few of the prosecutors who regularly used him often engaged in a misleading and manipulative use of hypotheticals. This isn’t uncommon, but Hayne and some prosecutors were particularly deft at it. A prosecutor might ask Hayne if a crime could have happened in a way that contradicted the testimony of or otherwise implicated the accused. Hayne would reply in the affirmative. The prosecutor would then tell jurors in his closing argument that Hayne’s testimony was proof of the defendant’s culpability or evidence that the defendant’s version was implausible. If challenged during cross-examination or later criticized, Hayne could always point out that he was merely responding to a hypothetical, or that he had merely said his findings were “consistent with” the hypothetical, not that he thought the crime could only have occurred that way. How prosecutors then used his answer in their closing arguments, in other words, wasn’t his responsibility.

  The majority opinion in Parvin points out that using Hayne’s measurements and observations, prosecutors concocted a “possible scenario” of how the shooting occurred. Though there was no scientific evidence to suggest that particular scenario was certain—or even probable—the jury was nonetheless shown a detailed computer animation based only on Hayne’s approximations—which Hayne then affirmed in his testimony. The court noted that “the only scientific method or principle appearing in the record was the ipse dixit or self-proclaimed accuracy of Hayne.”

  In the few years leading up to the Parvin decision, the Mississippi Innocence Project had been compiling a long and comprehensive dossier on Hayne, which attorneys for the organization then used to file appeals or post-conviction petitions. Parvin’s case was one of those still on appeal. But for those who had exhausted their state appeals, the federal courts were the only remaining option. The problem is that absent a DNA test, it has become nearly impossible to get a federal court to order a new trial.

  Under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), in order for a federal court to order a new trial on the basis of new evidence, a defendant must show that (a) there is new evidence, (b) that evidence could not have been discovered at the time of trial, (c) the petition has been filed within one year of when the new evidence could reasonably have been discovered, and (d) the new evidence would likely ha
ve altered the jury’s verdict.

  It’s an exceedingly high bar, and the Tavares Flaggs case illustrates just how high it is. After the Mississippi Supreme Court denied Flaggs’s post-conviction relief, his lawyers with the Mississippi Innocence Project went to federal court, backed by their new dossier on Hayne. (Flaggs is the case in which Hayne had contradicted the defendant’s self-defense claim with speculative blood spatter testimony based on photos of discoloration on a wall near the crime scene.) In January 2014, a three-judge panel for the US Court of Appeals for the Fifth Circuit turned Flaggs down with a curt, four-paragraph opinion.

  Flaggs had based his claim on revelations from the 2012 deposition that Hayne had given in his lawsuit against the Innocence Project. The court wasn’t impressed. The judges wrote that Hayne “had been widely and publicly criticized for several years before the 2012 deposition and certainly before the filing of Flaggs’s first application in 2011. Indeed, the deposition merely revisits the facts compiled in the Innocence Project’s letter.”

  That was all true. Yet it was also true that both state and federal courts had been rejecting challenges to Hayne’s credibility throughout that period of time. Nevertheless, the panel ruled that Flaggs had failed at part (c) of the AEDPA test—he hadn’t filed his petition within one year of when the new evidence could reasonably have been discovered. For good measure, the panel added that even if he had made the deadline, Flaggs hadn’t convinced them that Hayne wasn’t a credible witness. “Moreover, Flaggs does not show that Hayne’s testimony at trial was false or unreliable,” they wrote. “Nor does he show by clear and convincing evidence that no jury would have convicted him but for the allegedly unconstitutional admission of Hayne’s opinion testimony.”

  Ten months after that ruling, a three-judge panel from the same court of appeals issued a stunning decision in a separate challenge to Hayne. That ruling was also short, and might have been easy to overlook. But it included one critically important sentence. It was a damning sentence—damning for the court of appeals and damning of the criminal justice system in general. When taken with the ruling ten months earlier—which again was issued by the same appeals court—that single sentence illustrated as well as anything could how the courts and AEDPA have made it next to impossible for those wrongly convicted by bad forensic testimony to even be heard, much less find their way out of prison.

  Here’s what happened: In the second case, a panel from the same Fifth Circuit unanimously denied a new trial for a Louisiana man named James Koon, who had been convicted in 1996 of killing an infant. Hayne was the state’s expert witness. In his petition, Koon claimed that the recent revelations about Hayne’s credibility were newly discovered evidence. As in Flaggs, the panel unanimously rejected that claim. As with the previous panel, this panel ruled that Koon should have discovered allegations made by Hayne’s critics years earlier. But this particular opinion included two important words that proved Koon and appellants like him never really stood a chance: “The evidence shows the witness for Louisiana, Dr. Steven Hayne, a now-discredited Mississippi coroner, lied about his qualifications as an expert and thus gave unreliable testimony about the cause of death.”

  “Now-discredited.” This was the first time a majority opinion from an appeals court of any kind had acknowledged that Hayne had been “discredited.” Not only that, the opinion acknowledged that Hayne had lied about his credentials.

  Unfortunately, because of what that panel did next, the acknowledgment provided no relief for the people trying to get a new trial by challenging Hayne’s credibility. That’s because despite the fact that this was the first time an appeals court had described Hayne as discredited, it was already too late to do anything about it.

  The federal district court judge who first ruled on Koon’s petition determined that despite the evidence that Hayne had been discredited, “Dr. Hayne’s expertise was questioned by the Mississippi Supreme Court in an opinion published in May 2007; Justice Diaz’s Special Concurrence relied upon a magazine article published in 2006. In the absence of any evidence to the contrary, it is safe to conclude that a habeas petitioner exercising due diligence should have discovered this information well before the fall of 2011…. In other words… this petition is clearly time-barred.” The Fifth Circuit panel agreed. The panel noted that several media outlets had first begun to criticize Hayne between 2006 and 2008, that the Innocence Project had filed its complaint against Hayne in 2009, and that Mississippi Supreme Court Justice Oliver Diaz had criticized him in his concurring opinion in the Edmonds case in 2007.

  “Koon’s assertion that he could not have learned of Edmonds from information in the Louisiana State Penitentiary law library is both implausible and immaterial in the light of the public information about Dr. Hayne that was available for several years prior to July 2011,” the court wrote. Because Koon could have discovered these criticisms of Hayne much earlier, he had missed his deadline. He was out of luck.

  With a single short opinion, the Fifth Circuit admitted that the medical examiner Mississippi had been using for two decades was no longer a credible witness, but then slammed the door on anyone he had helped convict. Under a precise reading of federal law and the relevant case law, this was arguably correct. It was also incredibly unfair and a stark illustration of just how ill-equipped the federal courts and federal law are to catch and correct quackery disguised as expertise.

  Since the onset of DNA testing in the 1990s, the legal system has slowly been coming to terms with the fact that forensic analysts aren’t nearly as accurate and reliable as they’ve often claimed to be. The problem has been documented in countless studies, reports, and law review articles, but the most damning evidence is the most straightforward: according to a 2007 study of the first two hundred post-conviction exonerations, over half involved flawed forensic evidence. In the majority of those cases, the state’s forensic witnesses gave inaccurate and unreliable testimony.

  And even as the criminal justice system can’t seem to keep bad science out of its courtrooms, once someone is convicted, the same system then shifts to protect the “finality” of the verdict. Federal lawmakers have only made it worse with laws like AEDPA, altering federal code to make it ever more difficult to challenge state verdicts in federal court. The courts still let these witnesses testify at trial—as experts. But years later, when science proves them wrong, or the defendant finally finds funds to hire an expert to say as much, the system is all about protecting the verdict. At that point, it no longer wants to hear from experts.

  But science doesn’t operate on deadlines. It’s a process. DNA has shown us that defendants who expert witnesses said without equivocation were guilty were unquestionably innocent. Unfortunately, the fact that unproven expertise caused a wrongful conviction in some cases hasn’t been enough for the courts to reconsider other convictions in which the primary evidence came from those same disproven fields (or in a disturbing number of cases, even from the same expert) but for which post-conviction DNA testing isn’t dispositive of guilt.

  Most of these more subjective forensics fields have largely avoided exposing themselves to scientific scrutiny. It’s easy to see why. There’s no incentive for them to do so. The purpose of forensics is to solve crimes. The end game is to testify in court and persuade a judge or jury. Once the courts begin accepting analysts from a new area of forensics as experts, there’s no upside to those analysts then subjecting their methods and analysis to scientific scrutiny. They already have the only approval they need: that of the courts. If the science affirms their methods, they’re no better off than they were before. At best, they get the benefit of telling the jury that their field is backed by scientific research. (As we’ve seen with West, anyone can claim as much, regardless of whether it’s true.) But if their field doesn’t withstand scientific scrutiny, it’s free material for opposing attorneys. It could put their entire livelihood at risk—or at least it ought to.

  Because so many of these forensic specialties hav
en’t sought out scientific validation, and because of the pervasive tension between science and law, scientists have been slow to scrutinize their claims. That began to change after the first DNA exonerations in the early 1990s. But full-fledged scientific scrutiny of forensics didn’t really get going until the last decade or so.

  The scientific process is slow and deliberate. A study will get submitted for peer review. It might then be published. Other studies come along to verify that study, contradict it, or refine it in some way. There’s no set point in time at which science officially declares a theory to be proven or disproven. It’s about the process itself. It’s about the gradual accumulation of knowledge.

  Courts operate under entirely different rules. Statutes of limitations toll. Procedural rules impose deadlines. And there’s all of that emphasis on finality. With science, no theory is final. Revision and correction are encouraged. Judges and prosecutors, on the other hand, seem to feel that the very integrity of their system demands the certainty of a closed tomb. Institutionally, the two systems operate in fundamentally different ways. We’ve known this since lawyers and medical doctors first began quarreling about death investigations in the early twentieth century. Yet we still haven’t figured out how to reconcile these differences.

  Imagine that defendant “Johnny” is convicted based on handwriting analysis evidence. This particular variety of expert testimony has been criticized for many years but has only been acknowledged as invalid by government agencies in the last few years. Johnny now wants to file a post-conviction petition for a new trial based on the scientific consensus that the evidence used to convict him isn’t scientifically reliable. At what point does the year-long window in which Johnny had to file his petition begin to take effect? Should it be after the first critical study? The second? Is it once the scientific community has reached a consensus? What defines a “consensus”? How does one define the field of scientists among which such a consensus must arise? It isn’t as if scientists take an annual vote on these things.