According to the A.P., the Mississippi Supreme Court is now considering post-conviction appeals from Jeffrey Havard and Devin Bennett, two cases in which a man was convicted and sentenced to death for killing a child in his care. Both men were convicted thanks in large part to the testimony of Dr. Steven Hayne, the prolific Mississippi medical examiner I wrote about last October, and who has come under fire from the national and Mississippi chapters of the Innocence Project for his role in the recent exonerations of Kennedy Brewer and Levon Brooks.

Neither Bennett's nor Havard's case involves DNA the state could test to conclusively prove either man's guilt or innocence. In both cases, a child died in while in the care of the accused. There were no other witnesses to the childrens' deaths, and in each case, the men say the deaths were accidents. In both cases, the state heavily relied on Dr. Hayne's autopsy and testimony to establish that the deaths were intentional, and to win a conviction and a death sentence. Finally, in both cases reputable, board-certified medical professionals have come forward to challenge Dr. Hayne's conclusions, thus far to no effect.

I've written about the Havard case before. Here's a summary from my article last fall:

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.

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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.

As for Devin Bennett, he was convicted of killing his son by (according to Hayne) shaking and/or slamming the boy's head against a wall or the floor. Bennett says the child was sleeping in a car-seat cradle, and died when Bennett inadvertently kicked the seat off the bed during his sleep. Bennett and his ex-wife (the mother of the child) both testified that Bennett tends to kick violently in his sleep. Unlike Havard, Bennett was also able to find an expert testify in his defense, Dr. Emily Ward.

Ward was Mississippi's last official state medical examiner. When she took office, Ward was shocked at Dr. Hayne's prolific autopsy output, and at the way coroners and prosecutors were using him to win convictions.  She tried to institute reforms to add some oversight and credibility to the system.  Like her predecessor, Dr. Lloyd White, she didn't last long.  Ward resigned in 1995 after the state's coroners and prosecutors rose up against her and circulated a petition calling for her ouster. The man who headed up that petition? None other than Dr. Michael West. You can read a PDF of the petition here.

Again, from my article last fall:

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.

Given her tumultuous time as the state medical examiner, Ward was reluctant to review Hayne's work in the Bennett case. But Bennett's lawyer persisted, even threatening to get a court order. Ward finally agreed, performed a second autopsy, and found that the child's injuries were more consistent with Bennett's story than with the testimony of Dr. Hayne. Incredibly, during a particularly contentious cross examination, the prosecutor actually brought up Ward's time as state medical examiner, and talked about how West and the state's coroners rose up against her. He was trying to paint her as an outsider and a troublemaker in order to malign her credibility with the jury.

This same prosecutor who was relying on Dr. Hayne then went on to question Dr. Ward's methods and practices (Ward currently works in Alabama and, unlike Hayne, is generally well-regarded by her peers). During his questioning, the prosecutor read from the text of Forensic Pathology, considered the premiere text book in the field, written by the renowned medical examiner Dr. Vincent DiMaio. The prosecutor badgered Ward, mangling her testimony with out-of-context quotes from DiMaio's book to actually make Ward look like the incompetent physician.

But I actually interviewed Dr. DiMaio for my article on Hayne. Here are the relevant excerpts:

Vincent DiMaio, author of Forensic Pathology, widely considered the profession’s guiding textbook, says of Hayne’s remarkable annual output: “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.” That isn’t even a quarter of the number of forensic autopsies Hayne has said he performs each year.

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“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.”

It's rather perverse that a book written by the man who gave the quotes above was used by a prosecutor before a jury to not only validate Dr. Hayne's conclusions, but to impugn the opinions of a more competent doctor questioning his conclusions.

But it worked. The jury apparently found Hayne more credible than Ward, and convicted Bennett of killing his son. The Mississippi State Supreme Court has already ruled once on this case. The court upheld Bennett's conviction, and unfortunately found nothing untoward about the prosecutor's questioning of Ward. Ward told me last fall that she believes Bennett is innocent. Former Alabama state medical examiner Dr. James Lauridson has also since joined in Bennett's defense.

Obviously no one but Jeffrey Havard and Devin Bennett truly knows whether the deaths of the children in their care were accidents or homicides. Both men may well be guilty. Bennett seemed to have trouble keeping his story straight when talking to authorities. His defense chalked that up to trauma and adrenalin. But each man is due to be executed in large part because of the testimony of Hayne, a doctor whose credibility and objectivity have, to put it mildly, been called into question. These aren't your typical cases where a reputable prosecution witness was challenged by a defense expert "gun for hire." They're cases in which respected, credible medical examiners have questioned the conclusions of a prosecution witness who doesn't abide by the standards of his profession, whose credibility has been attacked by his peers and colleagues, and who played a role in the convictions of at least two men who were objectively innocent.

The Mississippi Supreme Court has said it will rule on both cases based solely on the briefs filed by prosecutors and defense attorneys, and will not hear oral arguments.

It would be a tragic injustice for the state of Mississippi to execute either of these men without a new trial—preferably one in which Dr. Hayne isn't permitted to testify.