But last week, the Mississippi Supreme Court overturned a conviction in a remarkably similar case that could be a good sign for Brandon. Leevester Brown was convicted in 2002 of killing his infant son. The conviction was based entirely on Hayne’s diagnosis of SBS. Brown, too, was denied funding to hire his own medical examiner to review Hayne’s work. (Hayne was hired by Coahama County Coroner Scotty Meredith. For more on Meredith, read the transcript of my amusing phone conversation with him from a few years ago.)
The court’s decision in the Brown case actually doesn’t turn on Hayne’s credibility or the validity of SBS. That’s because Brown didn’t challenge either at his trial, which generally bars him from raising either argument on appeal. (The state was somehow able to get Hayne’s autopsy stricken from the record in this case. That’s bizarre, given that it was the sole reason for Brown’s arrest.) Because it can’t entertain the argument that the SBS diagnosis is flawed, or that Hayne lacks credibility, the court also finds that there was sufficient evidence to convict Brown at trial.
Instead, the court overturned the conviction because the trial court denied funding for Brown to hire his own medical examiner (which, of course, made it nearly impossible for him to introduce those other issues in the first place). Prosecutors argued that because Brown hired his own attorney and paid his own bond, he couldn’t be deemed indigent, and therefore wasn’t eligible for funds to hire his own expert witnesses. The trial judge agreed. Of course, it costs a lot of money to defend against a murder charge. It’s entirely possible for a suspect to have the money to post bond and hire an attorney, and then be broke by the time he’d need to start hiring experts to review the state’s case. And in a case that turns specifically on the testimony of an already suspect expert witness, that part can be pretty important. The Mississippi Supreme Court agreed.
Brown argued in his motion that “the sole primary basis for [his capital murder charge] is the finding and anticipated testimony of the Pathologist, Dr. Steven [Hayne].” After carefully reviewing the trial transcript, we agree. We find that Brown was denied the “raw materials integral to the building of an effective defense,” as he had absolutely no way to counter the State’s sole evidence of the cause of death, or even to determine the proper questions to ask to challenge Dr. Hayne on cross . . . Dr. Hayne offered the only evidence on both the underlying felony of child abuse and the cause and manner of death, and Brown had no way to rebut it . . .
Brown swore in his affidavit attached to his motion that he was employed, but that he “[did] not earn enough to pay the estimated fee of $6,600 to hire and secure” an expert. He also swore that he had “no relatives or friends who [were] willing and or able to assist [him] with the funds necessary to hire an expert.” And on the first day of trial, when Brown renewed his motion, he testified that his family and friends had helped him pay for his defense counsel. He testified that he made $7.25 per hour at his job as a hotel houseperson at the Isle of Capri casino, and that he had been unable to raise any funds for an expert since his initial motion in 2004. And, of course, Brown has been in prison since the conclusion of his trial in 2006.
So the court ruled that fairness could mandate that a defendant be given funds to hire his own medical expert, even if he hasn’t been declared indigent in the context of needing a public defender. That’s significant. And though the court didn’t rule that the state must provide funding in all cases, it did suggest that judges give more deference to a defendant’s declaration that he can’t afford the cost of hiring an expert. That would seem to help someone like Brandon, as well as death row inmate Jeffrey Havard, who was also convicted due to Hayne’s testimony and an SBS diagnosis, and was also denied funds to hire his own medical examiner.
A couple of other points about last week’s opinion: First, though it didn’t specifically address it, the majority did excerpt a portion of Hayne’s testimony in which he again refers to a Harvard study on SBS that doesn’t appear to exist. He also mentioned the phantom study in his testimony in the Brandon case. When Brandon’s attorneys noted in their brief that the study appeared to have been made-up, the state pointed to a conference in which there was a presentation that could have fit the description Hayne provided in his testimony. The only problem: that conference took place after Brandon’s trial. So Hayne couldn’t possibly have been referring to it.
Finally, the concurring opinion by Justice Jim Kitchens in this most recent ruling brings up another issue:
I am compelled to write separately, and briefly, to note with dismay that this extremely serious case somehow escaped the attention and action of Mississippi’s judicial system for an extraordinary period of six years while two post-trial motions, filed on September 29, 2006, remained open and unheard in the Circuit Court of Coahoma County: a motion by Brown’s retained trial attorney requesting leave to withdraw, which stated that Brown wished “to have the Court appoint an attorney at the expense of Coahoma County, Mississippi to represent him on his appeal on the conviction for capital murder,” and a simultaneously filed motion in which Brown asked the trial court for permission to file an appeal in forma pauperis. The State responded to the attorney’s motion, arguing that he should be required to stay on as Brown’s counsel. The trial court never ruled on either motion, and Brown’s attorney never pursued a decision. Instead, Brown was left to languish in prison, stuck in appellate limbo with no one–not his attorney, and not the trial court–taking the steps necessary to the progress of his appeal.
After a couple of vain attempts at ineffectual filings without the benefit of a lawyer, Brown, in August of 2012–nearly six years after he was convicted and sentenced–succeeded in obtaining a hearing in the trial court on his Motion to Show Cause and Motion for Access to Records, which resulted in that court’s noting, inter alia, that “through no fault of his own, Brown has been denied a right to appeal his conviction.”
Brown’s trial counsel was permitted to withdraw; but the trial court, finding that it lacked jurisdiction to grant an out-of-time appeal, did give him permission to appeal in forma pauperis from its order denying that request and appointed appellate counsel for him from the Office of Indigent Appeals.
During the last two years, his appeal has taken its course, but approximately six years later than it should have. The familiar saying, “Justice delayed is justice denied,” comes to mind; and, in this case, it came to nightmarish fruition. Brown’s appeal had merit. The trial against him was not entirely fair. Now he has been incarcerated for more than eight years for a conviction that this Court unanimously decrees cannot stand. Such rank unfairness speaks for itself.
Defense attorneys in Mississippi often complain about the slowness with which the courts and prosecutors operate. (But don’t get caught missing deadlines if you’re a defendant.) See, for example, the case of Eddie Lee Howard, which was recently written up in the New York Times. Howard has been on death row since 1992. He was convicted due almost entirely to testimony from Hayne and West. The attorney general’s office recently filed for its third deadline extension to respond to the defense petition for a new trial in light of new results from DNA testing.
The state of Mississippi has so far refused to conduct a thorough review of cases that may have been tainted by Hayne and bite mark expert Michael West. That leaves it to groups like the Mississippi Innocence Project and attorneys who take post-conviction cases pro bono to seek out and attempt to overturn the convictions of people wrongly convicted by bad expert testimony. That’s bad enough. But the injustice is compounded when the lethargy of the Office of the Mississippi Attorney General and complicit courts leave the wrongly convicted to languish in prison.