The Cadaver King and the Country Dentist

by Radley Balko

  These are critical questions, and they’re essentially impossible to answer. The courts and Congress have set a trap for these defendants, and absent DNA evidence, there’s really no escaping it. File your claim too soon—say, after the first few studies—and the courts could rule that you haven’t presented enough evidence that the expertise used to convict you has been discredited. You now risk being barred from ever raising the issue again. But if you wait for a stronger scientific consensus before filing, the courts could rule that your deadline passed a year after those first few studies were published. Your window has closed. Here, too, you’re now barred from raising that claim again.

  And that’s all just for the suspect fields of forensics. With individual experts, it gets even trickier. Michael West is a good example. Mississippi’s courts, prosecutors, and attorneys continued to uphold and defend West’s credibility well into the mid-2000s, despite the fact he had been repeatedly criticized and exposed going back to the mid-1990s. As previously noted, Mississippi attorney general Jim Hood finally conceded in 2008 that West wasn’t a credible witness, telling the Jackson Free Press that West “is someone we have investigated, and I don’t support him in any manner.” But while Hood’s office had by then stopped explicitly defending the substance of West’s analyses in court, his office still continues to defend convictions won primarily on West’s testimony. Instead of arguing that West is a credible witness, the office now argues that defendants are procedurally barred from raising West as an issue again, because most of them already challenged West’s credibility and lost. It doesn’t matter that even Hood acknowledges now that the courts back then were wrong.

  For the purpose of challenging West in a post-conviction petition in federal court, then, at what point should a defendant have known that West had been discredited? When did the one-year window begin? Was it the first time West’s testimony was thrown out in the early 1990s? When he was suspended or ousted from forensics groups in the mid-1990s? Was it after the video from the early 2000s when West erroneously matched an uninvolved individual’s teeth mold to the photograph in Ray Krone’s case? Has it even happened yet?

  James Koon wasn’t challenging the credibility of forensic pathology in general, but of a specific medical examiner. That’s even more difficult. Forensic pathology is a particularly tricky area of forensics, because while its general precepts are widely accepted in the medical and scientific community, the line between objective and subjective opinions is often hard to discern. So is the line between informed expert opinions and opinions unsupported by science. “There are four bullet holes in the victim’s heart” is an objective statement. Rarely will two medical examiners argue over such a point. “The bullet’s trajectory suggests that the killer shot the victim while standing” is far more subjective. It may be true, but it’s confounded by variables. “There were two hands on the gun that fired this bullet” isn’t valid testimony. But there are countless degrees of gradation in between.

  The Mississippi Supreme Court tossed Hayne’s “two-hands-on-the-gun” testimony, but it didn’t let his outrageous opinions in that case affect how it evaluated his testimony in other cases. When Hayne was subsequently challenged after Edmonds, the courts evaluated the validity of his testimony in those cases in isolation, on their own merits. But why should that be? Once an expert witness has shown himself willing to give preposterous testimony, why should the court defer to him in cases where his testimony might be scientifically plausible but is still subjective? Why should the court allow future juries in murder trials to give a medical examiner whose previous testimony was found to be reversible error the same consideration they would give a medical examiner whose previous testimony has consistently shown meticulous care for accuracy?

  In cases in which forensic analysts have been clearly exposed as frauds—such as crime lab technicians shown to have faked test results—it’s usually clear when the clock should start running on the window to file a petition for relief. It might be when the analyst was fired or when a newspaper series or inspector general’s investigation was first published.

  But in cases like that of Hayne, the situation is more nuanced. The information trickles out over time. The gradual discrediting of Hayne took place over more than a decade. In November 2014, the Fifth Circuit Court of Appeals ruled that Steven Hayne had earned the label of “discredited.” But exactly when did the court reach that conclusion? And how was James Koon supposed to have known? There was no announcement. There was no press release. There was no notice given to those who may have been convicted by Hayne’s testimony that said, “Hey, you now have one year to file your claims.”

  The added indignity for someone like Koon is that Louisiana offers post-conviction indigent legal help only to those who have been sentenced to death. Koon was sentenced to life in prison, so once he lost his appeal, he lost his lawyer. He filed his post-conviction petition himself. The Fifth Circuit ruling in his case essentially states that from his prison cell, an indigent defendant like Koon should not only have been following each revelation about Hayne’s credibility as it happened but should have been able to discern the precise moment when those revelations tipped the scales to make Hayne “discredited” in the eyes of the court—even though the court itself couldn’t or wouldn’t say precisely when that occurred. And Koon should have then filed his petition within a year of that magical moment.

  But it’s even worse than that. Not only do the courts expect these defendants to abide by these dizzying rules to the letter, the courts refuse to hold themselves to the same standard. The Flaggs ruling that affirmed Hayne’s credibility as an expert witness came in March 2013. That would be nineteen months after July 2011, which the same court declared was the very latest by which Koon should have already discovered the evidence that Hayne was not credible. There’s just no way Koon could have gotten it right.

  Lastly and perhaps most importantly, as this book has now thoroughly documented, this is all the more unfair given that Mississippi officials tried desperately to keep information about Hayne, his autopsies, and his arrangements with the state from public view. Mississippi’s open records laws are among the worst in the country. When Innocence Project attorneys requested autopsy reports from district attorneys’ offices to look for other cases possibly corrupted by Hayne or West, those requests were unanimously rejected. The criminal defense systems in both Louisiana and Mississippi are also underfunded and overworked. Even if Koon had an attorney, the idea that a lawyer appointed to a capital case and handed a $1,500 check should or could have spent hours looking into Hayne’s credentials, researching his background, fighting with state officials to see how many autopsies he’d done, and soliciting other forensic pathologists to review his work—sometimes with no additional funding from the court—has never jibed with reality. Even if an intrepid attorney were willing and able to take all of that on, the simple fact of the matter is that the courts had qualified Hayne as an expert witness thousands of times. Though he was often challenged, no trial judge ever refused to let him testify. Not a single time. At some point, it becomes clear that any attorney who spends hours and hours chasing down material in an effort to discredit this particular expert would be doing a disservice to his client. That time would be better spent on matters more likely to have an impact on the case.

  Moreover, the notion that the defendants in such cases would now be punished for their attorneys’ failure to investigate or challenge Hayne (a failure that the courts also consistently ruled did not rise to the level of ineffective assistance of counsel, anyway) is anathematic to any concept of justice. And it’s all the worse for those inmates who didn’t have an attorney to help with their appeals.

  Koon was convicted based on testimony from an expert that the Fifth Circuit now considers discredited. For the same court to nevertheless uphold his conviction because he missed a deadline he had no way of knowing existed is yet another example of keeping a person in prison on a technicality. The fact that the ru
ling in Koon wasn’t necessarily wrong under the law is only more evidence that the system values process far more than justice.

  Finally, it’s worth noting that the “discredited” acknowledgment in the ruling did not prevent Hayne from testifying in future cases in the Fifth Circuit—or anywhere else. It did not prevent Louisiana prosecutors from using him if they so desired, or even Mississippi prosecutors should the state change its laws. Ironically (or perhaps not), the only real consequence of the Fifth Circuit’s acknowledgment that a longtime expert witness for the state was now discredited was to prevent criminal defendants from challenging that expert in federal court.

  For years, Steven Hayne had claimed that he wasn’t certified by the American Board of Pathology (ABP) because he found the test questions insulting and walked out. For years, the courts bought that line. He rode it to an appointment as the interim state medical examiner, aided by his claims to be certified by a number of other, less accepted groups.

  It took a while, but in 2012 a more plausible explanation finally emerged. Back in 2008 the Clarion-Ledger had contacted the ABP to inquire about the exam Hayne took in 1989. “I pulled the text of this examination from our files,” Dr. Betsy Bennett, the group’s executive director, told the paper. “There was no question on that examination that was remotely similar to Dr. Hayne’s description.”

  But Hayne stuck to his story. He told the paper he was certain that the question was on his test. Not only that: he said he’d stake his reputation and career on it. “She is flat wrong,” he said of Bennett. “She doesn’t know what she’s talking about. It’s like remembering where you were when men landed on the moon.”

  In a deposition four years later, Hayne was confronted with a copy of the exam, provided by the ABP. There was no “colors of death” question. When asked why for two decades he had peddled the story about storming out over a bogus question, Hayne posited that perhaps more than one test had been given that year (the ABP said this wasn’t the case), before finally saying he had “no explanation.”

  If Hayne did “walk out” as he had claimed, his scores offer an explanation of why: At the time he quit, Hayne was failing every section of the test. On every section, he was in the bottom decile of test takers. According to the American Board of Pathology, about 80 percent of candidates pass the exam on the first try.

  Hayne has never really explained why he didn’t just try to take the test again. Perhaps he felt it was beneath him. Perhaps he wasn’t sure he could pass it. Instead he continued to testify about his certifications as he always had. He got away with it for twenty years.

  Within just the last few years, more challenges to Hayne and West have come before appellate courts. Several are cases in which Hayne and West have introduced to the criminal justice system ever more novel methods of forensic analysis. In one such case, the murder trial of John Ross, the two men fired bullets they had made themselves into “freshly harvested canine skins” in an attempt to boost the prosecution’s theory that a woman had been murdered by her husband and hadn’t committed suicide as her husband had claimed. The two experts testified that when they replicated the powder burns seen on the woman’s head on the dog skins, the gun was two to three inches from the skins, a distance more consistent with homicide than suicide. Ross was convicted.

  But only four in five gun suicides are from that distance, meaning there was still a 20 percent chance this wasn’t a murder. Hayne also claimed in his testimony that women shoot themselves in the chest instead of the head at a rate of “four, five, to one.” But the research on women, guns, and suicide doesn’t ultimately support Hayne’s contention. In fact, one expert on guns and suicide has said not only that “there’s no scientific evidence” to support the notion, but that the notion itself is based on a sexist assumption that women are vain and don’t want to leave behind a disfigured corpse. And yet the verdict was upheld on appeal.

  Perhaps the oddest Hayne case to hit the appellate courts in recent years involves his use of a “death mask.” Joseph Osborne was accused of killing his girlfriend’s son in 2002 by smothering the boy as he slept. The family initially believed that the boy had died after accidentally ingesting some drugs. But after an autopsy, Hayne concluded that the cause of death was murder by suffocation. Five months later, the boy’s young brother gave some information in a police interview that was vaguely incriminating of Osborne. The authorities exhumed the boy’s body and took it to Hayne for a second look. Hayne requested the services of a forensic odontologist (this time, someone other than Michael West), who created a plaster cast—a “death mask,” according to Hayne’s terminology—of the boy’s face. Hayne then marked on the mask the sites of injury that purportedly corresponded with previous marks he’d made on his autopsy diagram. From all of this, Hayne claimed that he could determine the approximate size of the hand that inflicted the injuries. He said his calculations were consistent with the size of Joseph Osborne’s hand.

  At trial, Hayne testified that the boy was suffocated and that his injuries were consistent with an adult person having covered the child’s nose and mouth with a hand. He further declared that his death mask demonstrated that it was a “large hand,” which would “favor a male’s hand,” that caused the child’s injuries.

  When asked by the New York Times in 2013 to comment on Hayne’s testimony, Dr. Andrew M. Baker, a previous president of the National Association of Medical Examiners and the chief medical examiner for Hennepin County, Minnesota, told the paper, “I saw a very similar case like that on ‘Law & Order: SVU.’ I’ve never heard of it in real life.” Baker said not only was the technique itself unprecedented, so was the ability “to speculate from those sorts of wounds about hand size or gender.” (Interestingly, the prosecutor in the case preemptively explained to the judge that Hayne was “no Michael West,” and that the death mask technique was in no way as ridiculous as West’s ultraviolet light technique.)

  The judge allowed the death mask testimony, and after six hours of deliberation, the jury found Osborne guilty of depraved-heart murder. His conviction was then affirmed by the state’s appellate courts.

  By the time both John Ross and Joseph Osborne went back to court in 2014, Hayne and West had come under fire. The Mississippi Supreme Court also seemed to finally be giving more scrutiny to expert testimony. It had recently overturned a number of verdicts because of witness statements it had ruled were scientifically unreliable. In one case, the court even reminded trial judges that their gatekeeping duty under Daubert “includes making sure that the opinions themselves are based on sufficient facts or data and are the product of reliable principles and methods.”

  The timing seemed right. And yet the Mississippi Supreme Court refused to grant either defendant relief. Without addressing the merits of the claims in either case, the majority wrote only that any evidence about Hayne or West was “reasonably discoverable at the time of trial,” and that even if it had been barred at trial, it would not “have caused a different result in the conviction or sentence.”

  There is one critical difference between cases like Osborne and Ross and those in which the Mississippi Supreme Court had recently been more skeptical of expert testimony: the other cases were civil cases. The other cases pitted two private parties against one another. In those cases, both parties had access to devoted and competent counsel—or even entire firms—who had taken the cases voluntarily and were presumably handling manageable caseloads. In those cases, the court was deciding between two private parties, not between the state and the criminally accused. The parties who mounted the challenges to expert testimony in such cases also tended to be large companies that were being sued. That meant they had more resources to support those challenges, but in a conservative state, the justices also had some political cover should they decide to uphold them.

  A vote to throw out the unscientific evidence in a criminal case could result in an overturned conviction. It could anger state officials. And it could subject the justices who
voted that way to attack ads when they were up for reelection.

  In fact, legal scholars have consistently pointed out that Daubert challenges are far more likely to be successful in civil cases than in criminal cases. This despite the fact that in criminal cases the consequences of a verdict tainted by junk science are obviously quite a bit more profound.

  John Ross had no more luck in federal court. Like the Mississippi Supreme Court, the federal district court found that he should have discovered the existing criticisms of Hayne and West before his trial.

  At the end of the day, the courts’ refusal to grant a new trial in these cases is understandable—still outrageous, but understandable. On some level, these defendants were asking for much more than their right to a fair trial. They were asking a court, whether the Mississippi Supreme Court or a federal court, to repudiate years—an entire era, really—of what had passed for the fair and just application of criminal law in the state of Mississippi. Every judge who considered the claims from defendants like Ross and Osborne had come of age in that era. The federal judge who denied Ross’s claim had been a prosecutor for much of the 1980s and later a circuit court judge during Hayne and West’s heyday. Of the nine Mississippi Supreme Court justices at the time, only one had any extensive criminal defense experience. To the extent that the others had any, they were former prosecutors. None gained their seats because they exhibited skepticism of the criminal justice system. All were cultivators and beneficiaries of the status quo.