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On Death Row
Hayne’s testimony hasn’t just sent people to prison. In more than one case, it has helped someone land on death row.
Consider Jeffrey Havard, convicted in 2002 of killing his then-girlfriend’s six-month-old daughter. Havard claims he was bathing the child when she slipped from his hands and hit her head on the toilet. But Hayne testified at Havard’s trial that bruises, scratches, and cranial bleeding indicated a case of shaken baby syndrome. Hayne also testified that the child’s anus was dilated, indicating sexual abuse. The DNA evidence was inconclusive: Havard’s DNA was not found on the baby, but both his DNA and hers were found on a sheet from the bed where she had gone to sleep that night, which was also the bed Havard shared with his girlfriend.
Because there were no witnesses to the incident, the evidence of sexual abuse was key to securing Havard’s conviction and death sentence; the charge was “murder in the commission of sexual battery.” Havard, who had no money, was assigned a public defender. His lawyer was suspicious of Hayne’s conclusions and at trial asked the court for funds to hire an independent pathologist to review Hayne’s findings. The judge refused, ruling that Hayne, the prosecution’s witness, was qualified and sufficient.
After Havard was convicted, attorneys from Mississippi’s post-conviction relief office, which represents indigent defendants in their appeals, were able to get James Lauridson, Alabama’s former state medical examiner, to review Hayne’s work in the Havard case. According to an affidavit he filed with the Mississippi Supreme Court in 2004, Lauridson found significant problems with Hayne’s testimony. Most notably, factors not related to abuse—e.g., rigor mortis—can often cause the anus to dilate after death.
In February 2006 the Mississippi State Supreme Court nevertheless upheld Havard’s conviction. It refused even to consider Lauridson’s review of Hayne’s work, ruling that any expert testimony refuting Hayne’s conclusions had to have been introduced at trial. Havard’s attorney had tried to do that, of course, but the trial judge denied him the necessary money.
As unfair as this sounds, it isn’t at all out of the ordinary. Indigent defendants by definition can’t afford to hire their own experts. (This is one reason it’s important that state medical examiners and forensic experts retain their independence from prosecutors’ offices.) Post-conviction relief offices, which are usually established at the state level and are better funded, sometimes have the money to hire independent experts, but these offices typically don’t take a case until it’s already in the appeals phase. At that point, courts are extremely reluctant to consider new evidence, particularly expert testimony.
The Havard case is now entering a second round of appeals. Lauridson and Havard’s lawyers wouldn’t discuss the case for this article, citing the ongoing appeal (though Lauridson did call it “a miscarriage of justice”). But according to the court clerk, at press time the case was being delayed because Hayne wouldn’t turn his autopsy records over to Havard’s defense team for review.
According to his curriculum vitae, Hayne attended medical school at Brown University from 1974 to 1976 and completed his medical internship in 1976 at the Letterman Army Medical Center in San Francisco. After practicing medicine in California, Kentucky, and Alabama, he came to Mississippi in 1987. He began doing autopsies for the state’s county coroners, elected officials who are not necessarily physicians, shortly thereafter.
Hayne briefly served as Mississippi’s interim state medical examiner in 1987 and 1988 but was forced to step down because he wasn’t qualified for the job. Under Mississippi law, the state medical examiner must be certified in forensic pathology by the American Board of Pathology, the standard certifying organization in the profession. Though Hayne routinely testifies under oath that he is “board certified” in “forensic pathology,” he isn’t, at least as the phrase is understood by most of his peers. Instead, Hayne says he’s certified by other organizations that are considerably less reputable.
“When you say you’re ‘certified,’ it means the American Board of Pathology,” says Joseph Prahlow, NAME’s president. Told that Hayne routinely testifies that he is “certified” even though he never passed the American Board of Pathology exam, Prahlow replies, “That is very disturbing to me. There’s definitely a problem with that.”
Hayne has testified that he did attempt to take the American Board of Pathology’s certification test in the 1980s but failed the exam after walking out in the middle of it. (He said the questions were “absurd.”) So he can’t serve as state medical examiner because he failed the certification exam, but he has spent the last 20 years doing most of the state’s forensic autopsies anyway.
One of the groups Hayne lists on his C.V., the American Academy of Forensic Examiners, doesn’t seem to exist. Some forensic experts interviewed for this article say it is an alternate name for the American College of Forensic Examiners, which has been criticized by legal experts as a mail-order outfit where the only necessary qualification is a check. Consistent with that reputation, Hayne has testified that the American Academy of Forensic Examiners “grandfathered” him into certification without an exam.
In the past Hayne has listed another certifying group, the American Academy of Neurological and Orthopaedic Surgeons. It no longer offers specialty certifications in forensic pathology. The forensic experts I interviewed for this article had never even heard of it. The doctor the group sent to proctor Hayne’s exam for the organization has since been indicted on felony charges and no longer practices medicine.
An Absence of Oversight
In Mississippi, as in many states, elected county coroners are in charge of death investigations. Traditionally such systems include a state medical examiner’s office to make sure the coroners are referring bodies to reputable, board-certified forensic pathologists. But while Mississippi law calls for a board-certified state medical examiner to oversee the process, the office has been vacant since 1995. The legislature refuses to fund it. Autopsy fees come from individual counties, not the state treasury. So there’s no one at the state level assessing the quality of the autopsies done in Mississippi.
With so little oversight, underqualified Mississippi coroners and politically driven district attorneys can shop autopsies and the fees that come with them to their favorite medical examiners, such as Hayne. Hayne charges about $550 per autopsy. According to several sources, Hayne receives fees for other services, such as drawing fluids or sending tissue to a lab for testing. He then gets $195 per hour for trial preparation and testimony. That’s just for state cases. If a county coroner brings a body to him at the request of a plaintiff’s attorney for a private tort action, Hayne has said in depositions, he charges $1,500 or more, plus $375 per hour for trial preparation and testimony.