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New case again demonstrates duplicity of embattled Mississippi medical examiner

In February, I wrote about a Fifth Circuit decision rejecting the claims of a defendant who was convicted based on improbable testimony from the controversial medical examiner Steven Hayne. Over the course of about two decades, Hayne nearly monopolized Mississippi’s criminal autopsy referrals, performing 1,500-1,800 autopsies per year all by himself. Most of these were done for the state’s prosecutors. Hayne’s testimony was responsible for several convictions that later resulted in acquittals after a new trial, dismissed charges, or DNA exonorations.

I’ve been covering this scandal for the better part of a decade now. Hayne has been found to have given testimony completely unsupported by science, regularly worked with known charlatans like the discredited “bite mark expert” Michael West, and has been sharply criticized by colleagues for his improbable workload, sloppy practices, and dubious testimony. He has also been shown to have perjured himself about his qualifications. Despite all of this, and despite the fact that there are literally thousands of people in prison due in part or mostly to Hayne’s autopsies and testimony, neither state nor federal courts have shown any interest in determining just how much damage Hayne may have done to the criminal justice system of Mississippi (and to a lesser extent Louisiana). The Mississippi legislature hasn’t shown much interest. And state attorney general Jim Hood continues to defend Hayne. (Hood often used Hayne during his time as a district attorney.)

In past cases, Hayne has included in his autopsy report the weight of a man’s spleen, and made comments about its appearance, even though 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 one murder case, Hayne documented removing and examining the victim’s ovaries and uterus even though the victim was male.

The latest example of Hayne-related villainy comes from a petition filed by the Mississippi Innocence Project in the case of Christopher Brandon, convicted  in 2009 of depraved-heart murder in the death of his girlfriend’s 15-month-old son. Brandon’s conviction was due in large part to Hayne’s testimony and diagnosis that the child had died of Shaken Baby Syndrome (SBS). I’ve pointed this out before, but one thing I’ve noticed over nearly a decade of reporting on this story is that when babies die in Mississippi, particularly poor babies, there aren’t any accidents. Someone must always pay. Hayne has been a vital part of enforcing that philosophy.

SBS is already a controversial diagnosis. For a long time, the conventional wisdom was that if a deceased infant had bleeding at the back of the eyes, bleeding in the protective area of the brain, and brain swelling, the only possible cause of death was violent shaking. It’s a convenient diagnosis that provides cause of death, manner of death, and even implicates a suspect (the last person to be alone with the child). The diagnosis has since come under criticism, as research has shown that other circumstances can produce the same symptoms, and that shaking alone (without an impact to the head) actually rarely produces all three symptoms.

By the time of Brandon’s trial in 2009, the SBS pushback was already well under way. Yet Brandon’s trial judge refused to give him funding to hire his own expert to contradict Hayne’s testimony. The only medical testimony the jury heard came from Hayne, an emergency doctor who had no SBS expertise, and a pediatrician from Memphis who offered the conventional wisdom on SBS. All testified for the prosecution.

Brandon’s story is that the infant fell from the bed and hit his head on a toy. Bruises on the child’s head support his story. There is disagreement in the medical community about whether a fall alone could cause the injuries normally associated with SBS. And the bruises could also work against Brandon — if there was an impact to the child’s head, then the criticism of SBS that the symptoms can’t be caused by shaking alone (without any signs of impact) wouldn’t apply to his case. But the infant also showed no signs of neck trauma, which some specialists say should be present after a fatal episode of violent shaking. The problem isn’t that the evidence here absolutely vindicates Brandon, it’s that the jury was presented with a horrendously lopsided interpretation of the evidence that exists.

And it’s here that Hayne’s testimony is particularly problematic. From the Mississippi Innocence Project petition:

During Brandon’s trial, Brandon’s trial counsel attempted to impeach Dr. Hayne’s SBS diagnosis by cross-examining Dr. Hayne about “Fatal Pediatric Head Injuries Caused by Short-Distance Falls,” a journal article published by John Plunkett in the American Journal of Forensic Medicine and Pathology. The article, which is one of the preeminent pieces of scholarship on the subject of SBS and pediatric-closed-head injuries, argues that a relatively short fall – the distance between a plastic play set and a cement floor – can cause the injuries typically blamed on SBS. When Brandon’s attorney confronted Dr.Hayne about this prominent journal article, the following interaction occurred:
Q. Are you familiar with the Plunkett study which was published in the American Journal of . . . Forensic Medicine and Pathology, which indicates that this type of injury can occur in a . . . short distance fall?
A. That would be in disagreement with the vast preponderance of the literature.
Q. My question to you is . . . have you reviewed that report?
A. I have seen the article.
Q. And, his report studies a couple of feet falls that resulted in this type of injury, did it not?
A.  Yes, counselor.  That has been roundly argued against that position by that particular physician. I think the . . . most important article that has come out recently, [is] the Alperi study by Harvard University in the Mass General, and they disavow that position.

As the Mississippi Innocence Project points out, the study Hayne cites here does’t seem to exist.

There is, in fact, no such thing as the “Alperi study by Harvard University in the Mass General.”  A search through databases dedicated to SBS scholarship, as well as the entirety of the Westlaw and Lexis Nexis databases of literature devoted to SBS, reveals that no such study exists. Furthermore, undersigned counsel have consulted with both legal and medical experts in the field of SBS who have never heard of the “Alperi study by Harvard University” or anything approximating it. In short, the circumstances suggest that Dr. Hayne simply conjured up a scholarly journal article upon cross-examination in order to contradict the Plunkett study and, by extension, Brandon’s theory of defense.

If Brandon’s defense team had been able to hire its own expert witness to testify, it seems likely that he or she would have picked up on this, and been able to refute Hayne later in the trial. Or perhaps had he known that a defense expert was in the courtroom, Hayne wouldn’t have tried to sneak this testimony through in the first place. Instead, the jury heard only Hayne’s citation of the study — and no refutation of it from Brandon’s defense.

Given all the problems with Hayne, even when a defendant is able to procure his own expert, the jury is presented only with the facade of contradictory testimony from two credible witnesses. When two expert witnesses contradict one another, the jury is left to determine which expert seems more credible. But the ability to appear credible in front of a jury is an entirely different skill than actually being credible. In fact, the two are often contradictory. A truly credible forensic witness will shy away from definitive statements, and instead use words like “likely” or “probable.” That’s because unless you’re dealing with DNA matching, forensic analysis isn’t a certain science. (As currently practiced, most forensic specialties aren’t scientists at all.) But that can make a truly credible forensic witness seem wishy-washy to a jury. A witness who speaks in absolutes will seem much more sure of himself, even if the specialty of forensics in which he’s testifying doesn’t allow for that sort of certainty. Of course, this particular problem applies to both defense and prosecution witnesses. But juries also typically see prosecution experts as public servants, but often view defense experts as hired guns. All of which is why it’s so important that the courts police expert forensic witnesses carefully, and fulfill their obligation to keep bad science and corrupted experts off the witness stand.

But this case (and plenty of others involving Hayne) is even worse, because the defense wasn’t even permitted to hire his own witness to contradict Hayne. So there wasn’t even a false balance. There was no balance at all. And that phantom study wasn’t the only problem with Hayne’s testimony. From the trial transcript:

Q. . . . [T]he reason that there is so much research and study about this area of Shaken Baby Syndrome is because it’s disputed.  There’s a big dispute as to whether or not these kinds of injuries that you found in the baby . . . are always caused by shaken baby or if there are other circumstances that can result in the same type of injury.  Isn’t that true?
A.  There are certain types of injuries that produce shaken baby like symptoms . . . . There are disagreements in the field.  There are studies by biomechanical engineers and the like.  There’s a difference between the Europeans and the Americans on this particular issue. But, the standard text, Damaio [sic] and Damaio [sic], they list shaken baby syndrome as a cause of death[,] and they go into the explanation of the different variables that constitute shaken baby syndrome. So the preponderance of the experts in this country do believe an injury like this to be shaken baby.

Hayne is correct that Vincent Di Maio is a renowned forensic pathologist, and his textbooks are considered the standard in the field. The odd thing about Hayne’s citation of Di Maio (which he has done in other cases) is that Di Maio himself has been quite critical of Hayne. I interviewed Di Maio  for a 2007 report on Hayne. Of Hayne’s remarkable 1,500 to 1,800 autopsies per year, Di Maio said, “You can’t do it. After 250 [forensic] autopsies, you start making small mistakes. At 300, you’re going to get mental and physical strains on your body. Over 350, and you’re talking about major fatigue and major mistakes.”

I also asked Di Maio about how Hayne was able to monopolize Mississippi’s autopsy referrals from prosecutors. He replied, “The Mississippi medical examiner system doesn’t exist, except in name only,” concludes DiMaio, the forensic expert and textbook author. “This man provides a service—and at a discount. You’re not going to get any change in a system where all the people in power are happy.”

As for this specific case, it turns out that Hayne completely butchered what Di Maio wrote in his textbook. Again from the Mississippi Innocence Project brief:  

{W}hen defense counsel questioned Dr. Hayne about controversy in the field of SBS, Dr. Hayne responded that, “{t}he preponderance of the experts in this country do believe an injury like this to be shaken baby” because “the standard text, Damio {sic} and Damio {sic}, they list shaken baby syndrome as a cause of death{,} and they go into the explanation of the different variables that constitute shaken baby syndrome.” Forensic Pathology, a treatise written by Drs. Vincent and Dominic DiMaio, is, in fact, the leading treatise in the field of forensic pathology. However, in contrast to Dr. Hayne’s claims, the treatise does not in any way support SBS as a diagnosis, nor does it endorse the conclusion that “{t}he preponderance of the experts in this country do believe an injury like this to be shaken baby.” {…}
Ultimately, the authors conclude that:
The authors [of Forensic Pathology] have grave reservations as to the existence of SBS. This was expressed in the first edition of this book. Since then, we have no reason to change this opinion but rather to solidify it. There is just no conclusive evidence that this entity exists. The authors feel that the head injury ascribed to shaking is due to impact of the head.
Instead of Dr. Hayne’s claim – that “[t]he preponderance of the experts in this country do believe an injury like this to be shaken baby” – the premier forensic pathology text actually attacks the diagnosis as illegitimate.

In other words, the Di Maio text states the precise opposite of what Hayne claimed in his testimony. I asked Di Maio in a phone interview this week if he thinks it’s possible that Hayne merely misread his text — if Hayne’s testimony might have been a good-faith error instead of something more malicious.

His response: “No, I don’t think it’s possible. Look, that passage SBS begins with a quote from Alice in Wonderland. You would think that would be a good indication that we are skeptical of the diagnosis. I don’t know how he could have honestly misread it.” I also asked Di Maio —who, again, Hayne himself acknowledges to be a preeminent authority in this area — if he had heard of the “Alperi study by Harvard University in the Mass General” Hayne mentioned. He answered: “Never heard of it.”

If all of that wren’t bad enough, the prosecutor then not only ran with Hayne’s testimony, he specifically cited the absence of any defense expert to refute Hayne’s testimony as evidence that Hayne’s testimony was irrefutable:

“Every doctor in the world says [Brandon’s story] is impossible, it’s impossible. We call [sic] them, it’s impossible. [Brandon’t defense] didn’t call anybody to say anything different. Why? Because it’s impossible.”

That was probably a pretty damning thing for the jury to hear. It’s also a complete lie. Brandon’s defense “didn’t call anybody to say anything different” because the court didn’t provide the funds for him to do so. But after his conviction, Dr. James Lauridson, who has previously served as the state medical examiner for Alabama, reviewed Hayne’s autopsy. Lauridson found that not only was Hayne’s SBS diagnosis incorrect, but the infant likely died from an advanced case of pneumonia.

Despite all of this, the Mississippi Court of Appeals denied Brandon’s request for a new trial. His attorneys at the Mississippi Innocence Project are now appealing to the state’s supreme court.

Panning back a bit, this case has some particularly relevance to the recent discussion about the death penalty. As I’ve written in a couple prior posts about the death penalty, DNA testing has shown us that the criminal justice system does sometimes make mistakes. But whatever flaws in the system that allowed those mistakes to happen will be present in all the other cases for which DNA testing isn’t relevant. So it’s a huge mistake to think we can simply rely on DNA testing to catch our mistakes.

You’d be hard-pressed to find an example more on-point than the Steven Hayne debacle. Back in 2008, DNA testing exonerated two men who had been convicted in the early 1990s of raping and murdering two little girls. The two men had been in prison for nearly 20 years. One of them was nearly executed. They were implicated almost exclusively because of testimony from Steven Hayne and Michael West. In fact, the same man committed both crimes. Had authorities not fixated on the wrong suspect in the first murder — and had Hayne and West not used fraudulent forensics to confirm the authorities’ hunch — the second murder might have never happened. (And that isn’t the only time the two have helped nab the wrong man, thus allowing a murderer go free.)

Yet as I wrote at the beginning of this post, since those exonerations, and after all that has come out about Hayne and West since, not only do Mississippi officials still refuse to go back and review all the cases in which these two have testified, but the office of Mississippi Attorney General Jim Hood continues to defend convictions won based mostly or exclusively because of testimony from one of both of these men. More perverse still, though he still defends Hayne, Hood has essentially admitted now that West isn’t a credible witness. But his office still defends convictions won on West’s testimony. Instead of arguing for West’s credibility in these cases, Hood’s office argues instead that these defendants have already exhausted or missed their chances to attack West’s credibility. In other words, Hood knows that there are people in prison because of West. Yet he’s still fighting to keep those people in prison, because years or decades ago, those defendants were unable to convince an appeals court of what Hood now concedes — that West is a charlatan.

Brandon was given a life sentence. But currently, there are two people currently on death row in Mississippi in cases similar his,— Jeffrey Havard and Devin Bennett. Both are cases in which an infant died in the defendant’s care. In both cases, the defendant claims the death was an accident. In both cases, Hayne’s testimony has been called into question by more reputable forensic pathologists. And both men are still on death row.

There’s another, similar case in Louisiana in which a young child died in the defendant’s care, and testimony from Hayne and West were the primary reason the defendant was convicted. Since then, more reputable forensic specialists have said their methods and testimony were preposterous, particularly the way West claimed to have found “bite marks” on the alleged victim’s body that he likely created himself. That defendant, Jimmie Duncan, is also still on death row.

Finally, there’s Eddie Lee Howard, another Mississippi man who was convicted due primarily to Hayne, West, and bite mark matching. DNA testing isn’t relevant in his case, either.

That’s (at least) four people currently awaiting execution due to testimony from Hayne, West, or both, despite the fact that DNA testing has shown that these  were responsible for two wrongful convictions.

I asked Vincent Di Maio why he thinks Mississippi has been so reluctant to assess the damage that may have been done by these two men. “This is a political problem, not a medical problem,” he said. “The government needs to do the right thing. But doing the right thing could hurt political careers, subject people to lawsuits, and force people to admit to making mistakes. Governments are made up of people. And people don’t like to put themselves in those positions.”

I didn’t ask Di Maio his position on capital punishment. But whether he intended it as such or not, I can’t think of a more powerful argument against the death penalty.