The Washington PostDemocracy Dies in Darkness

Opinion Federal court rejects appeal of man convicted by absurd ‘death mask’ testimony

Joseph Osborne moved to Meridian, Mississippi, in October of 2002 to live with his girlfriend, Cindy Hopkins and her two sons, five-year-old Charlie and three-year-old Sam. Shortly after Osborne moved in, the family was hit with a stomach virus. First the boys, then Cindy Hopkins fell ill as well. One afternoon in early November, Hopkins asked Osborne if he could watch the boys so she could get some rest. Osborne called up Kimble Frazier, a friend of his known to Hopkins and the boys. Frazier came over and the two of them spent the afternoon with the kids. Later that evening, Osborne made the boys dinner, bathed them, and put them to bed.

Cindy Hopkins woke up about 10:30 p.m. and checked on the boys. All was fine. At around 1:30 a.m., she checked on them again. Both times, she observed Charlie sleeping soundly on his back. Frazier, who had decided to stay over, also checked on the boys twice during the night.

The next morning at around 8, 3-year-old Sam woke his mother. Osborne was still asleep. At about 10 a.m., Hopkins discovered her son Charlie face-down on the bed. There were Zyrtec pills on the floor and the bed. Frazier woke Osborne, who called 911. The fire department arrived a short while later. Law enforcement investigators and Hopkins’s family initially believed that Charlie died of a drug overdose. But medical examiner Steven Hayne’s autopsy determined that Charlie died of suffocation. After extensive interviews of Hopkins, Osborne, Frazier and Sam, the police were still unable to identify a suspect.

A few weeks later, Sam and his mother visited his grandmother and aunt. Sam was told it was time for bed. He replied, “Charlie wouldn’t go to bed that night.” Fearing that Sam’s remark may have had something to do with his brother’s death, Hopkins contacted the Meridian Police Department, who then interviewed Sam. The resulting 45-minute interview produced very little. Sam was still unresponsive about the circumstances surrounding Charlie’s death.

On April 9, 2003, five months after Charlie’s death, police officers interviewed Sam a second time. This time, in between talk about Spiderman and climbing trees, Sam told the police that Osborne had spanked Charlie and then, later, re-entered the boys’ bedroom and “took [Charlie’s] breath away.” According to police, Sam said he watched from his own bed with one eye open. Osborne was arrested and charged with Charlie’s murder.

As a direct result of Sam’s interview, Steven Hayne asked that Charlie’s body be exhumed. He then had a plaster cast made of Charlie’s face — a “death mask,” as he’d later call it. Hayne then compared the mask to his previous notes from his autopsy diagram. From this, he claimed he was able to determine the approximate size of the hand that inflicted Charlie’s injuries.

At Osborne’s trial, the prosecution introduced the “death mask” into evidence. Haynetestified that Charlie was suffocated, and that his injuries were consistent with an adult person having covered the child’s nose and mouth with a hand. More specifically, he testified that the death mask marks “would be consistent with a person placing their hand over the child’s face, and the injuries located to the right side of the head would be consistent in part with fingernail injuries to the child’s right side of the face.” He added that in his opinion a “large hand,” which he said would “favor a male’s hand,” caused the child’s injuries.

The prosecution characterized Hayne’s opinions as convincing evidence of Osborne’s guilt. One prosecutor told the jury during closing arguments, “The hand that was used, according to Dr. Hayne, was a large hand; it was a male hand.”

The entire charade was absurd. A few years ago the New York Times asked Dr. Andrew M. Baker, at the time the president of the National Association of Medical Examiners, about the use of a “death mask.” He replied, “I saw a very similar case like that on ‘Law & Order: SVU.’ I’ve never heard of it in real life.” Baker added that only was Hayne’s technique unheard of in the annals of forensic pathology, but so too was Hayne’s claimed ability, as the Times wrote, “to speculate from those sorts of wounds about hand size or gender.”

The state also offered no motive. The only evidence against Osborne were statements from a three-year-old recalled five months after his brother’s death, and the conclusions of a medical examiner based on a bizarre experiment with no real basis in science.

It didn’t matter. After six hours of deliberation, the jury found Osborne guilty of depraved heart murder. He was sentenced to life in prison. The conviction and sentence were then affirmed by the state’s appellate courts.

A few years ago, Osborne’s case was taken up by the Mississippi Innocence Project. (Disclosure: the director of that organization, Tucker Carrington, and I are currently co-writing a book about death investigations in Mississippi.) Last year they filed a writ of habeas corpus with the U.S. District Court for the Southern District of Mississippi. Last week, a magistrate for the court issued his report and recommendation: Osborne was denied.

Regular readers of The Watch by now know Hayne’s name. He’s the Mississippi medical examiner who, for about 20 years, performed about 80 percent of the state’s autopsies. Hayne has conceded he performed about 1,700 autopsies per year. For context, the National Association of Medical Examiners recommends a forensic pathologist do no more than 250 autopsies in a year. Hayne pulled his astonishing workload while working two full-time jobs at local hospitals.

I began writing about Hayne in 2007 with an expose in Reason magazine. Hayne and his sidekick, the also-discredited dentist and bite mark specialist Michael West, helped convict two men of rape and murder who were later exonerated. Hayne himself also helped convict a 13-year-old boy of murder by delivering some preposterous testimony, in which he claimed that after examining the victim’s bullet wounds, he believed two people were holding the gun that fired the fatal shots. That conviction was also overturned. I’ve also written about cases in which Hayne has cited studies that don’t exist, come to impossible conclusions in areas well outside his area of expertise and lied about his credentials. 

The problem is that nine years after Hayne was effectively fired from doing any further autopsies for Mississippi prosecutors, the state has still yet to fully reckon with the damage he’s done. He has testified in thousands of cases. Mississippi Attorney General Jim Hood not only won’t set up a formal review of those cases, but he also continues to defend Hayne. The state has essentially left it up to pro bono attorneys and groups like the Innocence Project to find old Hayne cases and bring them before a court. And the above examples notwithstanding, the courts don’t seem to have much interest in overturning Hayne-tainted convictions, at least not without DNA. The appeals courts in Mississippi are both staffed entirely with elected judges. It’s understandable (if not justifiable) why those judges would be reluctant to issue rulings that could affect thousands of murder convictions.

The federal courts are a different matter. As I wrote here in 2014, the main problem is that both federal court precedent and the federal code value the finality of verdicts more than justice. Under the Antiterrorism and Effective Death Penalty Act of 1996, or AEDPA, in order for a defendant to get a new trial in federal court, he must show that he has new evidence; that the evidence he has could not have been discovered at the time of trial; that the new evidence would likely result in a different verdict; and — most importantly for this post — the defendant must file his claim based on the new evidence within one year of the time that evidence could reasonably have been discovered. This makes sense if we’re talking about, say, newly discovered DNA, or some exculpatory evidence that was never turned over to the defense. The rule is meant to prevent defendants from clogging up the system with new claims based on evidence that has been around for years.

But when we’re talking about bad science and bad forensics, the one-year rule puts defendants in an impossible bind. Traditionally, the actual scientific community has shied away from the criminal justice system. They are two fundamentally different fields, with different goals, processes and priorities. The courts use an adversarial trial system to arrive at a verdict. Once that verdict is issued, the criminal justice system seeks to preserve its integrity by putting a premium on finality — on preserving that verdict. Science, on the other hand, is a process. It’s an ever-evolving quest for truth through the use of hypothesis, blind testing and peer review. Over the last several years, the scientific community has finally begin to scrutinize forensics (a collection of disciplines mostly developed by law enforcement officials, not scientists). But scientists have been scrutinizing these fields as scientists. So the process has been long and deliberative. It has also been occasionally hijacked by political realities. For most fields of forensics, there will be no magical moment when they are declared “not scientifically credible.” (Even for those that are, the courts have been scandalously slow to follow along — see bite mark analysis.) It will be more about assessing claims made by individual analysts, or about particular methods or procedures.

This will be a nightmare for the courts, which have never been equipped to handle questions of science. If a trial court accepted bogus expert testimony that seemed sound at the time (or at least hadn’t yet been discredited), at what point does a defendant’s one-year clock to file a claim based on new evidence begin ticking? Here’s how I described the problem in 2014:

Is it after the first critical study? The second? Is it once the scientific community has reached a consensus? What defines a “consensus?” How do you define the field of scientists among which a consensus must arise?
From the prospective of the wrongly convicted, you can see the trap, here. File too soon, and the court may conclude that you haven’t presented enough evidence that the forensic theory upon which you were convicted has been discredited. If you then try to file more petitions as more evidence comes out to bolster your argument, you risk the court concluding that this is an issue you’ve already raised, you lost, and you’re therefore barred from raising it again.

But if you file too late, you’ve missed your deadline. Sorry. Your conviction stands.

The impetus for that 2014 post was a short ruling from a panel of judges on the U.S. Court of Appeals for the Fifth Circuit in the case of James Koon. That too was a Hayne case. What was remarkable about the ruling, however, was that the court for the first time described Hayne as “discredited.” As far as I know, it’s the first time any court has described Hayne that way.

But not only did the court decide Hayne was discredited, it apparently also decided that he had already been “discredited” for at least a year, because the same panel also decided that Koon had missed the one-year deadline in which he was required to file his claim.

The court’s reasoning for this is similar to that of the magistrate in last week’s decision against Osborne. Basically, the argument is that my own reporting on Hayne dating back to 2007, the Innocence Project’s complaints about Hayne to the Mississippi medical board and the court rulings against Hayne noted above were all sufficient notice for defendants like Osborne and Koons to file their claims. Both men only filed their claims within the last few years, and these rulings conclude that’s well outside the one-year deadline laid out in AEDPA.

But these rulings are incredible unfair (though arguably within the law) — for a few reasons. First, these defendants were basically on their own. Like many states’, Mississippi’s public defense system is inadequate. Once he had exhausted his state appeals, Osborne didn’t have an attorney until the Mississippi Innocence Project took up his case a few years ago. Reason, where my first expose of Hayne was published, is a terrific magazine. But it isn’t nearly as well known as, say, Newsweek or the New Yorker. It seems completely unreasonable to expect an inmate in a Mississippi prison to have known about a 2007 Reason expose on Hayne. It seems wholly unreasonable to think an inmate in a Mississippi prison would know that the Innocence Project filed a complaint against Hayne with the Mississippi Board of Medical Licensure back in 2008, another example cited by these rulings.

At best, one might expect an inmate to be aware of state court decisions regarding Hayne, provided the inmate had access to a legal database at the prison. But even here, when the Mississippi Supreme Court threw out Hayne’s testimony in the two-hands-on-the-gun case, it explicitly noted that the ruling did not affect Hayne’s status as an expert witness, nor was the court calling into doubt his credibility in other cases. Yet both rulings cite that case as another example after which the deadline for Koon and Osborne might have started ticking.

Second, these rulings seem particularly unreasonable given that Mississippi officials have gone out of their way to block information about Hayne. After two men convicted based on testimony from Hayne and West were exonerated in 2008, the Innocence Project asked prosecutors across the state to send them a list of all recent cases which Hayne had testified. Every prosecutor refused. When advocates for death row inmate Jeffrey Havard finally succeeded in winning some press attention for his case a few years ago (a case in which Hayne’s testimony has since been questioned by several other medical examiners), Hood’s office asked a judge to put a gag order on the case. (The judge refused.) In short, the courts expect people convicted by Hayne’s testimony to keep up to date on all the latest information about him and his credibility issues even as state officials are doing all they to keep that information under wraps.

Finally, not only is it unfair to expect Osborne to have known that Hayne was discredited upon publication of those media investigations, but the courts and the state of Mississippi also continued to insist that Hayne was a credible witness. Hayne is still permitted to testify as an expert in Mississippi courts. He’s barred from doing any more autopsies for prosecutors, but he can (and has) testified for the defense and in civil cases. The Mississippi attorney general also still insists that Hayne is a credible expert witness.

And there’s more:

— In 2009, a district court judge in the Fifth Circuit ruled against a challenge to Hayne’s credibility.

— In 2011, another district court judge, also in the Fifth Circuit, considered another challenge, this time a challenge based specifically on my articles that the magistrate in last week’s case says Osborne should have known about. That judge dismissed the complaint, writing, “The fact that Dr. Hayne may have been criticized in a magazine article does not establish that he is a ‘forensic fraud’ or that he wrongfully testified in Council’s case.” That ruling also explicitly pointed out that both state and federal courts had continued to uphold Hayne’s status as an expert witness.

— In January 2014, a panel from the very same U.S. Court of Appeals for the Fifth Circuit shot down another challenge to Hayne’s credibility. Remember, the Koon decision came in November of 2014. One judge served on both panels. Somehow, Hayne was a credible witness in January of that year. But by November, 10 months later, not only was Hayne no longer credible: Somehow the one-year window within which defendants had to challenge Hayne’s credibility had already passed.

In an alternate universe, one in which Mississippi law enforcement officials behaved properly and addressed this scandal back when it first broke in 2007, Hayne’s testimony in Osborne’s case has already been reviewed and tossed out. Perhaps Osborne was freed, or perhaps he was tried again, and again convicted on the evidence that remained. Back in our universe, Mississippi officials shirked their duty to investigate the damage Hayne may have done to the state’s criminal justice system, likely because doing so would probably have implicated many of them. Because those officials neglected their duty to justice and fairness, the burden then fell on overworked public defenders, those attorneys willing to take on such cases pro bono, groups like the Innocence Project and of course the wrongly convicted themselves. Their burden was both to make the case that Hayne isn’t a credible witness (despite fierce protestations from state officials to the contrary), all the while carefully observing for the precise moment at which the courts would acknowledge their argument have merit, and to file all claims within a year thereafter.

The burden also fell on the courts to sort the whole mess out, despite being hamstrung by the aforementioned laws, precedent and inherent conflicts between law and science. That the courts have failed shouldn’t be surprising.

Getting back to the Osborne case, federal magistrate Robert H. Walker actually went back before Osborne’s 2003 trial, noting that medical professionals had raised concerns about Hayne dating back to the early 1990s. Walker notes old articles from the Jackson Clarion-Ledger describing how two previous Mississippi state medical examiners had clashed with Hayne over his workload and practices. Osborne apparently should have been aware of all this, too. What Walker doesn’t point out is that defense attorneys have raised these points in Mississippi courts countless times over the years. They’ve lost every single time. At what point does the effort seem futile? At what point is an overworked, underpaid defense attorney providing a disservice to his or her clients by spending time and resources on a fight every previous defense attorney has lost?

To understand just how callously Walker treats these problems, consider his treatment of Hayne’s lack of board certification in forensic pathology. Hayne took the certification exam in the late 1980s and failed it. Over the years, he has been questioned about that test dozens, perhaps even hundreds, of times. Every time, he has claimed he voluntarily walked out of the exam because he found the questions insulting. When asked for an example of an insulting question, he has cited a question that asked test-takers to rank a series of colors by their association with death. The courts have accepted this answer. Despite walking out on the test, Hayne has still claimed to be board certified. He has just cited various other, far less credible organizations. In 2012, we learned the real reason Hayne walked out of the exam: At the time he left, he was failing the exam. Worse, the question about ranking colors didn’t exist anywhere on the exam. Hayne had made it up.

Now read how easily Walker dispenses with all of this:

Similarly, the fact that Dr. Hayne failed the certification examination American Board of Pathology has been hammered home repeatedly. The only additional information provided by the 2012 documents is that Hayne was failing the exam when he walked out, allegedly because he was insulted by a question. As shown above, Hayne’s lack of certification has been publicly discussed for years … To the extent that any of Osborne’s claims are supported by Hayne’s lack of certification, the limitations began to run from the time that Osborne knew, or should have known through the use of due diligence, that Hayne was not board certified, not the time when he received additional evidence of his test performance.

You might think that Walker would at least express some concern over the fact that Hayne likely perjured himself in potentially hundreds of cases over two decades by blaming his failure of the exam on an “insulting” question that never existed. You might think he’d be concerned that Hayne was able to monopolize the state’s autopsy referrals by resting on credentials he never really had. You might think Walker would be concerned by the fact that when countless other defendants attempted to do precisely what he’s arguing Walker failed to do here — challenge Hayne on his certification at trial — Mississippi’s courts shot them down. Every single time. You might think Walker would at least be concerned about Hayne’s ridiculous “death mask” claims in this case, about the possibility that Osborne is innocent, or about the very real possibility that an expert witness willing to make such an outrageous claim in one case may have tainted lots of others.

In the process of documenting the body of media investigations and professional complaints about Hayne dating back to the early 1990s, you’d think Walker might at some point have had a thought to the effect of, “Wait a minute. Other medical examiners were raising red flags about this guy in the early 1990s? Two state medical examiners clashed with him and were sent packing because of it? There have now been numerous media exposes of this guy? He has helped convict several innocent people?” At some point, one would think that a magistrate interested in justice and the rule of law might stop, pause and ask, “What the hell is going on in Mississippi?”

If any of these concerns occurred to Walker, he doesn’t show it. He doesn’t bother addressing any of them. Once he concludes that Osborne has missed his deadline, that is that. The merits of the claim are moot. There is nothing more to discuss. It’s procedure over fairness. The integrity of the verdict trumps the truth. Finality conquers justice.