Good news from Mississippi

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

Here at The Watch, we’ve been following the case of Christopher Brandon, a Mississippi man convicted in 2009 of killing his girlfriend’s 15-month-old son. The case is already controversial because Brandon was convicted based in large part on a diagnosis of Shaken Baby Syndrome, which has come under fire in recent years.

But Brandon’s case is particularly troubling because the diagnosis came from Steven Hayne, the controversial medical examiner who has testified in thousands of cases, and whose testimony, professionalism and credibility have been under fire for years. In the Brandon case, Hayne supported his testimony by citing a study that doesn’t exist and by citing a textbook that actually says the precise opposite of what he claimed on the witness stand. When Brandon’s attorneys at the Mississippi Innocence Project pointed out the phantom study in a brief, attorneys for the office of Mississippi Attorney General Jim Hood attempted to claim that Hayne must have been referencing studies or panels from conferences that took place in 2010 and 2012. As I pointed out last month, this seems unlikely given that Brandon’s trial was in 2009.

Now the Mississippi Supreme Court has issued its decision.  The good news is that the court has ruled in Brandon’s favor. The better news is that the court ruled in Brandon’s favor on every single one of his claims. There was also no dissent (although the order came from a panel of judges, not the entire court.)

The court didn’t order a new trial for Brandon, but instead ordered an evidentiary hearing on all of the issues raised on his brief. Tucker Carrington, head of the Mississippi Innocence Project says it was the most the court could do at this time.

“It’s a good decision, obviously. It’s cost our client seven years of his life to get to this point, though, and we’re not close to being done yet. What occurred in the case is egregious, but no more egregious than what has been going on for years with Dr. Hayne and the State’s unfettered reliance on his bogus expertise and credentials. Brandon is simply one of many. I suppose one of the things that makes this case interesting is how blatant Hayne’s misrepresentations under oath were.”

Carrington will now get to depose Hayne, something for which he and his staff have spent the last several years preparing.

Over the years, the Mississippi Supreme Court has largely been uninterested in challenges to Hayne’s credibility. The court has thrown out his testimony in a few select cases in recent years, but until now had never entertained such a broad challenge to his credentials, practices and expertise as in the Brandon case. Interestingly, when the court has thrown out his testimony, it has been on direct appeal, not in post conviction (after a defendant has technically exhausted his appeals), where the bar for a new trial is set much higher. In many of those cases, the court has simply ruled that the defendant either missed his chance to challenge Hayne’s credibility during trial or on appeal, or that the defendant already made such a challenge and lost.

Either way, the court has found that they’re barred from doing so again. It is essentially denying defendants a new trial based on a legal technicality. If Hayne is now known to have been willing to lie and make outrageous statements unsupported by science from the witness stand, if we’re interested in justice, the fact that prior courts incorrectly found him credible, or prior defense attorneys failed their clients by neglecting to challenge Hayne’s credentials, shouldn’t matter. 

But it does. And so those unfortunate enough to be convicted and having exhausted their appeals before we knew all about Hayne seem to be out of luck. The courts seem to be saying they’re hamstrung. That suggests that the better solution would be political. But there has been little interest in an external review either. That’s largely because such a review would probably need to come from state attorney general Jim Hood, who, as a prosecutor, used Hayne and continues to defend him.

It’s unclear at this point if the ruling in the Brandon case is a one-off, or a hint that the court is getting fed up with Hayne and with the state’s increasingly inept attempts to defend him. But it’s certainly the most thorough ruling against Hayne that the court has handed down to date.

In response to a 2013 CNN report about Hayne, Hood’s office issued a statement asserting that if it ever discovers that fraudulent testimony has been given by witnesses in a criminal case, for the defense or prosecution, that his office would investigate and prosecute. He may soon be forced to confront that promise with a witness he frequently used in his role as a district attorney.

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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Radley Balko · August 20