CSI: Mississippi

A case study in expert testimony gone horribly wrong

Radley Balko from the November 2007 issue

(Page 4 of 4)

Hayne’s efficient operation and reliable court appearances have allowed him to dominate the forensic autopsy business in Mississippi. A 1992 internal memo from the state’s Department of Public Safety estimated that Hayne performed 80 percent of all forensic autopsies performed in the state. Sources interviewed for this article say Hayne continues to do the vast majority of forensic autopsies in Mississippi.

“It’s a racket,” says Sanders, the former Columbus police chief. “Most states pay a [state] medical examiner $100,000, maybe $200,000 per year. Do the math. Fifteen hundred autopsies per year at $500 to $1,500 a pop. Hayne’s making millions.…Prosecutors love him because he’ll testify to whatever they need him to. Meanwhile, the state legislature saves money by not having to fund a full-time state medical examiner, office, and staff.”

Hayne’s relationship with Mississippi’s district attorneys is another cause for concern. As noted above, NAME standards call for forensic experts to be independent seekers of fact. But that doesn’t appear to be the case in Mississippi, where district attorneys expect medical examiners to be part of the prosecution team. In 1994, for example, John T. Kitchens, the district attorney for Rankin and Madison counties, wrote a letter to the state commissioner of public safety complaining that the state medical examiner at the time, Emily Ward, had “unnecessarily rendered aid to the defense of criminal defendants.” Kitchens warned that “public officials surrounding the criminal justice system must remain mindful of who they work for”; that prosecutors shouldn’t have to “bear the extra burden of wondering for which side the State Medical examiner [sic] is then employed”; and that the state examiner should never confer with defense counsel without the consent of the district attorney involved in the case. Defendants, Kitchens argued, can hire their own experts with private or public funding. In response, the Department of Public Safety sent Ward a memo that essentially agreed with Kitchens’ interpretation of the state medical examiner’s proper loyalties.

At several points during the last 30 years, Mississippi’s coroners and prosecutors have attempted to make the state medical examiner report directly to the state’s attorney general. George Washington University’s Starrs says the sentiment that experts work for the prosecution, though common, is inconsistent with a medical examiner’s duty to impartially investigate a death.

Contrary to Kitchens’ apparent assumption, most criminal defendants can’t hire their own experts, and public defenders and criminal defense attorneys with heavy caseloads don’t always have time to examine the credentials of every expert witness for the prosecution. In the case of Hayne, who has been certified as an expert by Mississippi’s courts thousands of times over the years, such an exercise seems futile. Moreover, trial courts aren’t always willing to allocate public funds for independent defense experts. With a few exceptions, the most vigorous examinations of Hayne have come during depositions in civil cases—medical malpractice suits, for example—where the opposing side could afford adequate representation and could hire independent experts to review his work.

“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.”

Frustrated Reformers
Those who have tried to effect changes anyway have met considerable resistance. Lloyd White served as state medical examiner from 1989 to 1993, under Democratic Gov. Ray Mabus. He is now a state medical examiner in Tarrant County, Texas. (He performed the autopsy on the slain Tejano pop star Selena.) Among other changes, White tried to require minimal competence tests and continuing training for Mississippi’s county coroners. Most of his suggestions are officially still part of the state’s regulations, but they’re ignored.

White was especially concerned about the cozy relationships between coroners, district attorneys, and private medical examiners like Hayne, relationships that the ad hoc autopsy system seemed to encourage. “There’s a tendency to slant things to favor the people you’re working for,” White says. “The politics and power could sometimes run roughshod over people’s civil rights.”

Julia James, now retired, worked for 27 years in the state’s crime lab and served as the lab’s interim director from 2004 to 2005. “A prosecutor would sometimes come back to us on a case and say something like ‘Can’t you go further?’ or ‘Are you sure it didn’t happen this way?’ Of course, the analysts I worked with always tried to maintain their neutrality.”

White left his position in 1992 with the election of a new governor. But he went out with a bang. Before leaving, he wrote a blistering public letter to Charles Tisdale, editor and publisher of the Jackson Advocate, a hard-hitting black paper sometimes called “the most firebombed newspaper in America.” Tisdale’s paper had been doggedly pursuing a series of suspicious suicides in Mississippi’s jails that many civil rights leaders believed to be homicides.

White himself suspected the deaths really were suicides. But he didn’t believe they were being properly investigated. In particular, he was troubled that the bodies were being sent to examiners like Hayne, who, experience taught him, couldn’t be trusted to give an unbiased conclusion. White’s letter called Hayne out by name, noting that despite his lack of credentials and poor practices, “Hayne continues to autopsy jail and prison deaths, as well as persons killed by police or sheriff’s deputies, and to generate hundreds of thousands of dollars in personal income as a result of his extremely cozy relations with…state employees and officials.”

White also cited a case in which he had performed an autopsy on a woman who’d been found dead in her bathtub. White concluded it wasn’t immediately possible to determine a cause of death; he needed to wait for the results of toxicology and microscopic tests. According to White’s letter, he soon received a phone call from Hayne, who told him the body had been taken to Hayne’s office for a second examination at the request of Forrest Allgood, the district attorney for Clay, Lowndes, Noxubee, and Oktibbeha counties. Although White was the state medical examiner at the time, he said the second autopsy was performed “surreptitiously, without my knowledge or permission.” Allgood already had a suspect he wanted to charge with the crime, White said, and “he was afraid my autopsy wouldn’t provide him with the evidence he needed.” (Allgood’s office did not respond to requests for an interview.)

According to White, Hayne told him he had concluded that the woman was strangled. White said Hayne then suggested it would be in White’s “best interest” to issue a report agreeing with him.

White’s successor, the last person to fill the job of Mississippi’s state medical examiner, was Emily Ward, appointed in 1993 by Republican Gov. Kirk Fordice. Her tenure was even more raucous than White’s. One of Ward’s first goals was to get the state medical examiner’s office accredited by NAME. She also proposed that the state office, which handled less than 10 percent of the forensic autopsies performed in Mississippi, take on more of the burden. It was a sensible move: The fees the counties were paying to private practitioners like Hayne could instead go to the state medical examiner’s general fund, making the office less dependent on the inadequate budget provided by the state legislature. It would also mean more autopsies would be performed by independent, board-certified forensic pathologists.

This proposal rankled Hayne and the county coroners, who stood to lose both power and income under the plan. “Dr. Ward came in here and tried to clean up the system,” says Andre de Gruy, who directs Mississippi’s Office of Capital Defense Counsel, the public defender office for death penalty cases. “Hayne and the coroners got together and chased her out.”

Two coroners with strong ties to Hayne emerged as Ward’s most vocal critics. One was Jimmy Roberts, the owner of the funeral home where, until recently, Hayne did most of his autopsies. The other was Michael West of Forrest County, a dentist who is frequently present at Hayne’s autopsies, whom Hayne has cited in depositions as a reference for his credibility, and who has collaborated with him on presentations and journal articles.

West, who declined to be interviewed for this article, has his own credibility problems. He claims to have perfected a method of identifying bite marks using laser light and orange goggles that he modestly calls “the West Phenomenon.” He has said his error rate in bite mark analysis is “something less” than the error rate of “my savior, Jesus Christ” and has compared his bite mark virtuosity with the musical talent of Itzhak Perlman. West once claimed he could trace the bite marks in a half-eaten bologna sandwich at a crime scene to a suspect. After exposés of West appeared on 60 Minutes and in Newsweek and The National Law Journal, prosecutors in Mississippi largely stopped using him, although there are still people in prison because of his testimony.

It was West who circulated a petition among the state’s county coroners calling for Ward’s resignation. Forty-two of the state’s 82 coroners signed the document, which accused Ward of failing to support the coroners, diminishing their authority, improperly assisting defense counsel in criminal cases, and attempting to “establish a political power base.” West told the Jackson Clarion-Ledger in 1995 that the state’s Department of Public Safety had “never been able to keep this woman under control.”

The Clarion-Ledger contacted 30 of the 42 signatories to West’s petition and learned that most of them sent their autopsies to Hayne. The paper also found that more than half of the signatories repeated hearsay about Ward they’d heard from other coroners, and could cite no personal grievances against her. The paper concluded that the petition was the result of a “power struggle” between Hayne and Ward.

Not all of Mississippi’s coroners agreed with West’s assessment of Ward. One told the paper the petition was “baseless” and “looked like a group of fifth-graders had written it.” Another lamented that “a small group of individuals for whatever reason—for personal gain or personal ego—have continued to badger Dr. Ward.”

Qualified medical examiners outside of Mississippi seemed to agree. Jamie Downs, who serves on NAME’s board of directors and now practices in Georgia, hired Ward to work for him when he was Alabama’s state medical examiner. “We knew what happened in Mississippi,” Downs says, referring to Ward’s experience in Jackson. “And I’ll just say that hiring Dr. Ward was a no-brainer. She’s a well-qualified, competent medical examiner. And that alone puts her in a completely different league than Dr. Hayne.”

Ward resigned her position in Mississippi in June 1995. The office has been vacant ever since.

Battered but Not Yet Beaten
When the Mississippi Supreme Court threw out Hayne’s testimony in the Tyler Edmonds case, it was an act long overdue. But the court didn’t go nearly far enough. In a concurring opinion Justice Oliver Diaz wrote that “there are serious concerns over Dr. Hayne’s qualifications to provide expert testimony.” Noting Hayne’s troublingly high number of autopsies and his lack of certification, Diaz concluded that the court should not “qualify Dr. Hayne as an expert in forensic pathology.” That understates what’s needed: a comprehensive review of every case in which Hayne has ever testified, the sort of review that has been conducted following other forensic expert scandals across the country.

Despite Diaz’s view, the majority in Edmonds upheld Hayne’s continued good standing as a certified forensic pathology expert in Mississippi. That means Hayne will continue his marathon all-night autopsy sessions. District attorneys will continue to send him bodies, knowing they can count on a supportive diagnosis. The state medical examiner’s office will remain vacant. And Hayne’s testimony will continue to put people in prison, even on death row.

The problems with forensic testimony extend beyond Mississippi. In March, Joseph Kopera,
a frequent prosecution witness in Maryland’s state courts and in federal courts on ballistics matters, committed suicide after he was confronted with evidence that he had lied in court about his academic credentials. Kopera had testified in hundreds of criminal trials before being exposed. Those cases will now be reviewed.

To its credit, the Maryland legislature responded by passing one of the most thorough laws in the country implementing oversight of forensic labs, establishing an independent oversight board, and codifying the standards and best practices recommended by professional organizations. Experts such as DiMaio say Mississippi could solve many of its problems through similar safeguards, such as requiring that any medical examiner certified by its courts meet NAME’s minimum standards.

A 2004 Chicago Tribune investigation of 200 DNA-based exonerations in Illinois found that more than a quarter involved faulty or fraudulent testimony by expert forensic witnesses. Hundreds of cases have been reviewed after deficient or fraudulent expert testimony was discovered in the Houston medical examiner’s office and in state crime labs in Washington state, Virginia, and Maryland. Even the FBI’s crime lab has come under scrutiny.

In those cases, the malefactors were identified and efforts were made to undo the damage they caused. Unfortunately, little has changed in Mississippi.

Ken Winter, who often worked with Hayne while running the state crime lab, thinks real change is unlikely unless the system’s shortcomings end up hurting someone with political influence. Asked why there haven’t been any serious reforms, he replies, “It sounds awful to say this, but it’s probably because the right person hasn’t been killed yet.”

Radley Balko is a senior editor at Reason.

Comments

Pingback| 10.26.09 @ 3:21PM

NMissCommentor » Radley Balko asks: Why don’t prosecutors pay for misconduct? links to this page. Here’s an excerpt:

…new trials and acquitted. Tyler Edmonds, who was 15 at the time he was charged, was convicted based on a confession Edmonds says was coerced and by implausible forensic testimony from disgraced Mississippi medical examiner Steven Hayne. Allgood also convicted 18-year-old Sabrina Butler, who is mentally challenged, of killing her infant son. Butler was sentenced to death. The state supreme court also tossed out her…

Pingback| 10.27.09 @ 12:11PM

A Year of Freedom for Tyler Edmonds | The Agitator links to this page. Here’s an excerpt:

…convicted the first time. He was sentenced to life without parole. In 2007, his conviction was tossed out by the Mississippi Supreme Court, in part due to unscientific testimony from controversial medical examiner Steven Hayne. Edmonds was tried again last year without Hayne’s objectionable testimony, and was acquitted. One year after he heard a jury say, “Not guilty,” Edmonds has made a new life for himself. He’s…