The Fifth Circuit turns its back on a huge forensics scandal in Mississippi

Steve Hayne. Screen capture from an undated videotaped deposition.
Steve Hayne. Screen capture from an undated videotaped deposition.

With a curt, three-page ruling late last month,  a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit denied the post-conviction petition of Tavares Flaggs, a Mississippi man currently serving a life sentence for murder.

Flaggs was convicted in large part because of the testimony of Steven Hayne, a medical examiner who for about two decades was able to monopolize the autopsy business inMississippi. This story should really be one of the bigger criminal justice scandals in recent U.S. history. It potentially affects thousands of cases, both criminal and civil. It involves wrongful convictions, and people let off who should be behind bars. Several of the people convicted based on flawed testimony from Hayne are still on death row, in both Mississippi and in Louisiana. Flaggs’ petition, filed by the Mississippi Innocence Project, was the most comprehensive summary of what happened in Mississippi yet to get before a federal court. The Fifth Circuit panel brushed it aside in just four paragraphs.

The back story here is long and tawdry. I wrote the first expose of Steven Hayne in 2007, and have been following the story since. Last year, I wrote about another case involving Hayne and his sidekick, the “bite mark specialist” Michael West, that includes a pretty thorough overview of the history, along with a timeline of their time in Mississippi. But for the purposes of this post, here’s a quick and dirty summary:

    • From the early 1990s until 2008, Steven Hayne performed 80 percent or more of the autopsies in Mississippi. The state had an informal system of shipping autopsies out to private medical examiners. Hayne was able to dominate referrals from prosecutors and coroners because, according to them, he was a good witness. Hayne’s critics say that means he was willing to say what prosecutors needed him to say in order to win convictions.
    • By his own testimony, over this period Hayne performed somewhere between 1,200 and 1,800 autopsies per year. The National Association of Medical Examiners recommends that medical examiners perform no more than 250. For most of this time, Hayne cut open and zipped up assemblies lines of bodies not in a medical lab, but from the basement of a funeral home owned by Rankin County Coroner Jimmy Roberts. Hayne was usually the only doctor present who was authorized to sign off on the autopsies. He also held down two jobs for much of this time, which required him to perform all of his autopsies at night.
    • Hayne’s work has often been criticized by other medical examiners as sloppy, vague, and biased. In one case, he claimed he could tell by bullet wounds in the victim and bullet patters on the wall that there were two people holding the gun that fired those bullets. According to the Mississippi Innocence Project court filings, Hayne also once included in an autopsy report the weight of and made comments about the decedent’s spleen. The problem is that the man’s spleen had been removed four years prior to his death. In an autopsy on a drowned infant, Hayne wrote down the weight of each of the child’s kidneys, even though one of them had previously been removed. In another murder case, Hayne noted in his report that he had removed and examined the decedent’s ovaries and uterus. The victim was male.
    • Testimony from Hane and West about bite marks was critical in securing the murder convictions of Kennedy Brewer and Levon Brooks. The two men were convicted in the early 1990s in two separate cases involving the rape and murder of little girls. Brewer was sentenced to death, Brooks to life in prison. Both were exonerated by DNA testing nearly two decades later. When DNA from the cases was finally run through the state database in 2008, it showed that the same man, Justin Albert Johnson, had committed both crimes.
    • In 2008, Mississippi Commissioner of Public Safety Steve Simpson announced that going forward, any medical examiner who performs autopsies for the state of Mississippi must be board-certified in forensic pathology by the American Board of Pathology. The move effectively terminated Hayne as Mississippi’s quasi-official state medical examiner.
    • Following that decision, a group of the state’s prosecutors and coroners, along with Attorney General Jim Hood, then attempted to reinterpret a decades-old state law to go around Simpson and bring Hayne back, but the Mississippi legislature passed a law to prevent that from happening.
    • Simpson’s decision did not prevent Hayne from testifying in court as an expert witness. He is still free to testify in cases for which he has already done autopsies, in retrials in which he had done the autopsies, and he could still testify in civil cases and for defense attorneys (Hayne almost never testified for the defense before his termination. He now does, and in fact testified in a case just recently.) It also did nothing to go back and review the thousands of cases in which Hayne has testified.
    • Hayne has often testified that he is “board-certified” in forensic pathology. That isn’t true, at least in the way nearly everyone else in his profession understands the term. The universally accepted certifying organization here is the American Board of Pathology. Hayne took their certification exam in 1989 and failed it. Over the years, he has claimed certification from a number of other organizations, some of which no longer exist, others of which are highly suspect. Last year, for example, a journalism grad student working for Frontline was able to get certified as a “forensic consultant” by one of the organizations Hayne has claimed certified him.
    • Hayne has also testified that he didn’t fail the American Board of Pathology exam, but rather walked out on it, because he found the questions “insulting.” Just last year, attorneys from the Innocence Project were able to obtain the exam in question. The “insulting” question Hayne has typically given as an example in this line of questioning didn’t appear on the exam. He was also failing the exam at the time he walked out on it. There’s no question, then, that Hayne has lied in court about his credentials.

This brings us up to last year’s filings by the Mississippi Innocence Project. After the Brooks and Brewer cases, the organization attempted to get Hayne’s medical license revoked. Hayne retaliated with a defamation suit, which was settled in 2012. During the discovery phase of that lawsuit, however, the Innocence Project was able to uncover new information about Hayne and the way the state’s prosecutors, coroners, and judges encouraged and protected him over the years.

The Mississippi Innocence Project, headed by Tucker Carrington, spent a year compiling a dossier on Hanye, then last year filed pleadings in four cases in which Hayne’s testimony was both critical to securing the conviction and has since been deemed in error by other medical examiners. Of the four, three were in the post-conviction phase, meaning the convicted had exhausted his appeals. The other case–against former Mississippi State University professor Donald Parvin–was more recent, and still in its appeal.

Last April, the Mississippi Supreme Court threw out Parvin’s conviction (PDF), and ordered a new trial. In the past, the court had upheld Hayne’s testimony in all but one case, and even in that one—the “two hands on the gun” case (PDF)—it did so cautiously, with the majority stating it had misgivings about Hayne’s qualifications or credibility beyond that particular case. (A dissent written by former Justice Oliver Diaz went much further, arguing that Hayne should no longer be permitted to testify in Mississippi courts.)

With the Parvin decision, though, the court’s language was unusually harsh. The opinion called the forensic testimony from Hayne and another specialist who used Hayne’s calculations “speculative” and “woefully short of the requirements for admissibility.” This gave Carrington and other defense attorneys filing appeals in Hayne cases some hope that perhaps the state’s supreme court was at long last seeing the light.

No such luck. Soon after, the same Missississippi Supreme Court abruptly dismissed the other three cases. The Innocence Project then took two of those three case to a federal circuit court judge.  Tavares Flaggs had already filed a pro se pleading (meaning he filed it himself, without an attorney) with a circuit court judge, and was turned down. The Mississippi Innocence Project to his case directly to the panel for the U.S. Court of Appeals for the Fifth Circuit. That’s the panel that produced last month’s ruling. The Flaggs ruling is the first of the three to come down—which means it’s the first thorough attempt to bring the Hayne saga to the attention of a federal appeals court. And it lost, with a whimper. Carrington says the decision doesn’t bode well for the other two cases, or really for any other attempts to get new trials in federal court based on the argument that Hayne isn’t qualified or credible as an expert witness.

Once a case gets into post-conviction, the courts have decided that “finality” should be the criminal justice system’s main priority. In order to get a new trial based on new evidence in post-conviction, a defendant must show that the evidence is new, that it could not have been discovered at the time of trial, and that if it had been discovered, a jury would have been unlikely to convict. That’s likely why the defendant Parvin got a new trial from the Mississippi Supreme Court, but the others did not. His case wasn’t yet in post conviction, so the bar for a new trial was lower.

The main reason the Fifth Circuit panel—which consisted of judges E. Grady Jolly, Jerry E. Smith, and Edith Brown Clement—gave for denying Flaggs a new trial is that the judges decided that the evidence compiled by the Innocence Project about Hayne was all evidence that could have been discovered at the time of Flaggs trial.

There are a number of problems with this. First, it just isn’t true. “The state was actively hiding all of this,” Carrington says. “Trial judges were refusing to grant any discovery about it. All the while Hayne was lying, and getting away with it.”

The Mississippi media hadn’t uncovered all of this, either, despite the fact that it went on for as long as it did. When my initial investigation of Hayne was published in 2007, a criminal justice activist shared a series of emails she had with the then-managing editor of the state’s largest paper, the Jackson Clarion-Ledger. She sent him my story, and urged him to assign reporters to look into it. He told her he had looked into my piece, and had concluded, “We didn’t find any validity to it.” It wasn’t until after the Brooks and Brewer exonerations that the paper finally started investigating Hayne.

This had been going on so long in Mississippi that there was just a sense that this was how things were done. As they old saying goes, fish don’t notice that they’re wet. For a fish, “wet” is just the way things are. It seems unfair, then, to now punish criminal defendants convicted based on dubious testimony from uncredible experts because at the time of the trial, their attorneys were swimming in the same fish bowl as everyone else. At the very least, if defense attorneys failed to challenge Hayne’s credibility at trial, it seems like their client would have a decent claim of ineffective assistance of counsel. But Mississippi courts have shot down those claims, too. And even when a post-conviction defendant has been able to show that he did raise the issue at trial, the state’s courts merely respond that this means the issue has already been settled, and the defendant is thus barred from raising it again.

But what’s most troubling about the Fifth Circuit ruling is its utter failure to take seriously the scope and magnitude of the problem in Mississippi. The Innocence Project’s pleading was over 70 pages, with hundreds of pages of documentation. It lays out a system in which officials across the state knowingly used a medical examiner who didn’t merely violate the standards of his profession, but obliterated them. And it wasn’t as if they weren’t aware of Hayne’s problems. For them, his problems were a feature, not a bug. Under Mississippi law, the state is supposed to have a board-certified forensic pathologist as the official state medical examiner. The two people to hold the position in the 1990s had raised concerns about Hayne, and in response were harassed by the state’s prosecutors and coroners until they resigned. The office then remained vacant for 15 years. There was no interest in filling it, because everyone with some power was served just fine by keeping it vacant. The prosecutors and police got a guy that helped them win convictions (or helped them pass on prosecuting crimes they weren’t interested in pursuing). The legislature saved money by keeping the office empty. The state’s plaintiff’s attorneys got a reliable expert. (By pleasing both prosecutors and the plaintiff’s bar, Hayne mitigated possible opposition from both sides of the aisle.) And Hayne got rich.

Many of the judges in Mississippi who ruled on the challenges to Hayne’s credentials and credibility were former prosecutors who used him while in the DA’s office. Even some defense attorneys were part of the problem. Most defense attorneys in the state are also plaintiff’s attorneys. If they needed autopsies done in, say, a medical malpractice or wrongful death case, Hayne was the only game in town. If you needed Hayne’s services in the cases where you actually made your living, it isn’t difficult to see how you might be reluctant to aggressively question his credibility in your criminal cases. (And again, this isn’t true of everyone. Many defense attorneys did raise many of these questions over the years. The courts showed no interest.)

In most parts of Mississippi, “public defender” is a part-time job that pays $5,000-$10,000 per year. It has taken several years research and depositions by Carrington and his team at the Innocence Project, several defense attorneys in and out of Mississippi, and several journalists to bring all of this to light. To brusquely dismiss all of this, then, as something Flaggs’— or anyone’s—defense attorney should have uncovered at trial is to severely misunderstand the cultural and institutional corruption that allowed Hayne to dominate Mississippi’s autopsy referrals for as long as he did.

The Fifth Circuit ruling rests mostly on the discoverability of all of this. But it does briefly, if obliquely, address the question of whether the evidence Flaggs claims today would have actually made a difference in the trial. That too, is absurdly brusk.

Here’s a quick summary of the main argument Flaggs pleading: Flaggs doesn’t deny killing the victim, but says he did so in self defense. At the trial, Hayne testified that blood spatter patterns at the crime scene supported the prosecution’s theory that Flaggs’ was the aggressor, not Flagg’s story that he was merely defending himself.

There are multiple problems with this. First, even if you believe in the “science” of blood spatter (and there’s reason to believe its evidentiary value is overstated), Hayne is not a blood spatter expert. And even if one were to overlook all the questions about Hayne’s credibility and credentials and concede that he is qualified to testify as a medical examiner, there’s nothing about the skills required for that job that would automatically qualify someone to give expert opinions about blood spatter at a crime scene. Yes, a medical examiner could in theory independently get certified as a blood spatter specialist. But the prosecution offered no evidence that Hayne was qualified to testify about blood spatter. That the trial judge — and subsequent appeals courts, apparently — don’t seem to understand the distinction is telling.

Second, Hayne never visited the crime scene. His testimony about blood spatter was based on photos of some discoloration on the walls of the building where the killing took place. There’s not even evidence that the discoloration was blood. The material was never tested. Therefore, even if it was blood, it was also never tested to see whose blood it was.

As Flaggs’ attorneys write, “[D]espite his lack of personal knowledge concerning the apartment, the fight, Flaggs’ wounds, his lack of expertise in blood spatter, and the lack of verification that the discoloration on the hallway walls was in fact blood, Dr. Hayne determined with a ‘reasonable degree of medical certainty’ that the ‘blood’ had in fact come from Wright’s wounds on his right arm and that it was a further indicator of’defensive posturing.’” This was the only evidence the state presented that contradicted Flaggs’ claim of self defense.

Here is how the Fifth Circuit panel addressed these points:

Flaggs does not show that Hayne’s testimony at trial was false or unreliable. 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.

That’s it. It would be one thing if the court had explained why it didn’t find Flaggs’ pleading on these points convincing. Instead, the panel merely dismissed the arguments with no discussion of their merits at all.

Carrington says this has been a recurring problem since he took over the Mississippi Innocence Project in 2008. “It’s frustrating” he says .”It isn’t that we can’t get the courts to agree with us, it’s that they won’t even address our arguments. You file a detailed, well-supported pleading with lots of documentation, and it just gets rejected, with no explanation.”

I have no idea if Flaggs is innocent or guilty. His is just one case. But the federal courts were in some ways a last line of defense to address the scope and magnitude of what’s happened over the last two decades in Mississippi.

There’s certainly a good argument to be made that in considering Flaggs’ post-conviction appeal, the Fifth Circuit panel wasn’t obligated to consider the broader context of Mississippi’s massive forensics problem. There’s even a pretty good argument to be made that the panel shouldn’t, and should stick only to the facts of Flaggs’ case. But to dismiss Flaggs’ pleading because all of this evidence about Hayne could in theory have been uncovered at trial, to overlook the institutional corruption and political realities that prevented that from happening in these cases, to hold the defendants accountable for all of that, and to then not even address the questionable testimony Hayne gave doesn’t look much like justice. It looks like a federal court that doesn’t want to pop the top to a potentially messy can of worms.

Carrington says he and his associates will evaluate where to go from here, but that it may now be “the end of the line” for Flaggs. And not just for Flaggs, but for just about any other post-conviction pleading in a case that turned on questionable testimony from Hayne.

A political solution also seems unlikely. Mississippi Attorney General Jim Hood frequently used Hayne when he was a district attorney, and has steadfastly defended Hayne at every turn. As noted above, Hood in fact tried to reinterpret an old law to get around Hayne’s effective termination by Public Safety Commissioner Simpson. A couple years ago, Simpson then ran against Hood in Hood’s bid for reelection, and made Hayne a campaign issue. Hood defeated him soundly.

We now definitively know that Hayne’s testimony and his work with West led to at least two wrongful convictions, and acquittals after new trials were granted in other cases. We also know he has repeatedly given testimony unsupported by science, and has lied on the witness stand. It seems likely, then, that there are more innocent people behind bars because of what he has said in court. But unless there’s some intervention from the U.S. Department of Justice, or perhaps some sort of oversight move from the Mississippi legislature, the prospects of finding and exonerating those people seems dim.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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