Correction to My Previous Post on Dr. Hayne

Radley Balko | September 9, 2008

I explained on Sunday evening that I've come across several documents showing that there were concerns about embattled Mississippi medical examiner Dr. Steven Hayne going back to the early 1990s.  Before I get into the first few pages of the file I found on Dr. Hayne that was compiled by one of his rivals, I need to make a correction to my previous post.  Referring to Mississippi's last official state medical examiner, Dr. Emily Ward, I wrote:

Ward's predecessor, Dr. Lloyd White—who was also chased out by the good ol' boys—had explained how when he would tell a district attorney that his autopsy didn't support the DA's case , the DA would merely take the body to Hayne, who would then give the prosecutor the diagnosis he was looking for.  When they would do this to Dr. Ward, she would infuriate the state's prosecutors by calling up the defense counsel and offering to testify for them. 

Dr. Ward emailed me to say that while her detractors accused her of reaching out to defense counsel in such cases (and I have letters where they have made those accusations), she never actually did so.  She says reaching out to defense counsel in such a way would have been "very unprofessional."  Dr. Ward has worked with defense counsel on occasion, but she emphasizes that she didn't initiate the contact in those cases.

I'm happy to correct the post, and I apologize to Dr. Ward for mischaracterizing how she came to work with defense lawyers.

But here's my question:  Why would it be considered unprofessional for a state medical examiner to reach out to defense counsel under the circumstances above?  If your job as state medical examiner is to make sure autopsies are science-based and accurate (as opposed to say, merely trying to help the state accumulate convictions), and you know that the state is about to prosecute a case based on faulty forensic evidence provided by a hack doctor, I'd like to think you'd feel obligated to let the defense and the court know what's going on.

I guess don't understand what possible prevailing ethic would render such action "unprofessional."

Comments

JMR|9.9.08 @ 10:06AM|#

And consider a reverse-but-similar case, where unethical hypothetical defense counsel clearly tried to slant forensic science & mislead the court. Would she stand by and say nothing unless asked about it?

The Extispicator|9.9.08 @ 10:13AM|#

Radley,

I agree with you. The only perspective I can offer as an attorney is that the legal system has hung onto this fiction that expert witnesses are not advocates but impartial testifiers. Therefore, they are supposed to refrain from anything that appears to advocate for one side or the other. Reaching out to one side is supposed to be "unprofessional" because it makes the expert less "neutral."

Scare quotes because experts in most cases are anything but neutral.

|9.9.08 @ 10:15AM|#

it's unprofessional *if* the M.E. is considered part of the state, working alongside the police and the district attorney's office to win convictions. And that's obviously how they are seen and funded, right?

|9.9.08 @ 10:17AM|#

I guess don't understand what possible prevailing ethic would render such action "unprofessional."

The prosecutorial ethics of "obtain convictions to further my career at all costs". Duh.

|9.9.08 @ 10:22AM|#

The Extispicator,

aren't medical examiners who work in the area where the murder took place usually public employees who work closely with the police and prosecutors from the beginning? if they're a default expert witness for the prosecution, which it seems they are, then I can see how it WOULD be unethical for them to get paid to go over to the other side. of course, this is why they should be independent, impartial, and available to both sides, since obviously the facts they discover could prove either side's case. maybe that's too idealistic...

great handle by the way.

|9.9.08 @ 10:22AM|#

substitute "death" for "murder" in the above

Radley Balko|9.9.08 @ 10:27AM|#

I should add here that I have a high opinion of Dr. Ward, and that she did all she could to change Mississippi's autopsy system for the better.

When she says reaching out to defense counsel would be "unprofessional" I'm sure she's reflecting a widely-shared sentiment among her peers and colleagues.

I guess I just don't see the reason for that sentiment.

|9.9.08 @ 10:31AM|#

I guess I just don't see the reason for that sentiment.

Snark aside, Radley, I would guarantee you that this is a sentiment specifically cultivated by the prosecution to make things easier for them. How else can you explain it?

Abdul|9.9.08 @ 10:34AM|#

I think it has to do with the ME's role as the house expert witness, which embroils the ME in the DA's legal ethical guidelines. For better or worse, our system of justice is advesarial in nature and requires each part of the system to stay in its defined role.

Until the trial occurs, an ME isn't privy to how a prosecutor will present certain evidence (or even if it will be presented). ME's don't know the rules of evidence, aren't briefed on what evidentiary stipulations have been arranged by the lawyers in the case, etc. For an ME to make a subjective judgment about how a prosecutor might use some evidence and to talk to opposing counsel about it oversteps the role of the ME. If prosecutors had to worry about whether the ME would talk with opposing counsel, it would inhibit the free flow of information between the DA and the ME which is necessary to conduct a full and fair investigation.

A quick example, what if one of the defense attorneys' clients knows he's factually guilty of the crime and is seeking the most favorable plea bargain he can get. All of a sudden, the ME calls the defense attorney and says they think some of the autopsy evidence is weak. The DA's bargaining position is torpedoed.

Finally, as expert witnesses, the ME is an agent of the district attorney, and much of their work is protected by attorney privileges and confidentiality. Simply because some investigations were corrupted doesn't mean that solution is to stop protecting the relationship between a lawyer and his expert.

All that being said, if an ME knows that a DA has allowed perjury on the stand, they probably have a moral duty to report this to the state bar association.

|9.9.08 @ 10:36AM|#

I think this is another one of those areas where the public and the state are operation from very different assumptions. The public views medical examiners, forensic labs as unbiased scientists who provide the police with cold hard facts to solve the case( I blame Gil Grissom for this). The police and prosecutors on the other hand think of them as part of the team who exist provide evidence to bolster a case that they've already solved. Apparently, this is how the Medical Examiners view themselves, as well.

Even though I shouldn't be at this point, I'm still surprised at how unethical "professional" behavior can be. How can these people let an innocent person be convicted just so as not to step on a co-workers dick?

|9.9.08 @ 10:51AM|#

I guess don't understand what possible prevailing ethic would render such action "unprofessional."

Exactly what part of not "doing her part as part of the prosecution's team" don't you understand? Maybe it's the part where the ME is part of the prosecution's team. You might think the ME was meant to be impartial and unbeholding to either prosecution or defense. Aperently, you would be wrong.

|9.9.08 @ 10:56AM|#

David,

Step on a co-worker's dick, spend a night in the box.

johnl|9.9.08 @ 11:25AM|#

Radley this seems like a good thing to talk to your contacts at the society about.

The Extispicator|9.9.08 @ 11:46AM|#

The ME is supposed to be available to either side and an impartial witness. The (perceived) unprofessional part of it relates to taking the initiative to reach out to defense counsel - i.e. take the first step. Again, I don't agree with it, but that's where it comes from.

|9.9.08 @ 12:12PM|#

The DA's bargaining position is torpedoed.

You might think the ME was meant to be impartial and unbeholding to either prosecution or defense. Apparently, you would be wrong.

I would assume that she has some sort of Oath of Office and/or Professional Code of Conduct that would demand that she report a DA's intention to [get] the diagnosis he was looking for contrary to what her professional opinion lead her to believe. The proper process may not be to go to the defense, but it certainly is not to sit idly by.

Dagny T.|9.9.08 @ 12:20PM|#

this is a sentiment specifically cultivated by the prosecution to make things easier for them.

My bet is that it's widely shared by the DAs, public defenders, etc. From what I hear from the people I know in this profession, it's much less adversarial than we'd like to believe. These are all coworkers, after all, and it's in their individual interests to play nice, exchange favors, and generally make their workday go smoothly.

|9.9.08 @ 12:32PM|#

Wouldn't the prosecutor be obligated to inform the defense about the exculpatory evidence represented by the dissenting Medical Examiner? What about the prosecutor's ethical obligations here?

|9.9.08 @ 12:32PM|#

These are all coworkers, after all, and it's in their individual interests to play nice, exchange favors, and generally make their workday go smoothly

Excellent point. I remember sitting in court watching my lawyer yuk it up with the prosecutor who was trying to pwn me, and going "WTF?!?". It's all in a day's work for them.

|9.9.08 @ 12:58PM|#

This has nothing to do with whether or not a Medical Examiner works for the prosecution. The point is that I wouldn't call ANY attorney and offer to testify for her/him. It's the difference between being available, if reqested, to give an opinion and soliciting that opportunity. Most MEs talk to both DAs and defense attorneys, if requested. I tell them that I will say the same thing to both sides, and I frequently talk to both attorneys before the trial begins. I'm just not the one to initiate the contact.

And, yes, I had a moral and ethical obligation to try to prevent erroneous testimony. That's why I resigned the position in Mississippi in 1995.

|9.9.08 @ 1:26PM|#

Ms. Ward,
Thank you for contributing directly to our discussion. I believe I understand your position of not initiating contact with either side and being available for both.

I would like some more elaboration on the ME's "moral and ethical obligation to try to prevent erroneous testimony". Resignation strikes me as the last act, when faced with a corrupt system that repeatedly presents erroneous testimony to the courts. However, I would think that prior to resigning, one would try to correct the situation. What actions, if any did you take prior to resigning. Would you grant that in such a situation, it might not be "unprofessional" for an ME to initiate contact with the defense in order to correct erroneous testimony?

Thank you

|9.9.08 @ 1:31PM|#

OOPS
After I posted, I realized that Radley has already described the battle Dr. Ward waged prior to resigning. So I guess my question just reduces down to Balko's.

At any rate, I again extend my appreciation to Dr Ward for her comments.

robc|9.9.08 @ 2:02PM|#

Dr Ward,

Thanks for your comment. We often get these situations where there is back and forth trying to understand a situation we dont deal with day to day. It is rare for ther person being discussed to step in and fill in the details we are missing. Thanks again for doing that.

Also, mucho thanks for doing the right thing. Too many people just go along to keep their job. I dont know how much kudos from a random internet asshole are worth to you, but you have them anyway.

|9.9.08 @ 2:02PM|#

Dr Ward: Unprofessional, or not, thanks for your bravery and ongoing commitment to fact-based medicine.

Radley: Thanks, as always, for fighting the good fight. Glad to see you back on your normal beat.

|9.9.08 @ 11:06PM|#

As the Chief ME for the neighboring state of TN, I would like to state that Dr. Ward was totally correct in her actions as State ME in MS.

Medical examiners should be, and almost always are, independent of the district attorney. Not only are we ethically bound to present the evidence "as it is," but DA's also have an ethical obligation to the truth. If the allegations of DA's shopping through pathologists for the desired opinion are true, it is a tragedy for both the criminal justice and death investigation systems.

Sometimes we are perceived as the prosecutor's expert because they call us to the stand, even though nothing could be further from the truth. The DA's call us to the stand because we were the ones who examined the body and can provide the court with the required evidence of the death and the cause/manner of the death. WIthout that testimony there is no case.

As Dr. Ward stated, we regularly meet with both sides in a criminal prosecution. It not only serves the needs of justice, but also our purposes as the medical examiner. I have found that when I have the opportunity to meet with both the DA and defense before the trial and provide both sides with my opinions on the death, then my testimony proceeds smoothly. In those cases the jury has the best opportunity to understand the medicine/science and reach a good verdict.

Both the death investigation and criminal justice systems are best served when the medical examiner is independent to freely express their medical/scientific opinion about the cause and manner of death without interference. The public's confidence in the rulings and opinions of the ME are based on that independence. With the public's confidence intact, the DA's can be assured that our testimony will be not only accurate, but accepted by the courts in trial and on appeal.

It is truly a win-win situation. Thanks!

Bruce Levy, M.D.
Chief Medical Examiner
State of Tennessee

perilisk|9.9.08 @ 11:50PM|#

@Dr. Levy,

While an independent ME is important, if the prosecution or law enforcement have any significant influence over the selection of ME for a particular case, direct or indirect, the ME is no longer truly independent. Moreover, it introduces moral hazard into the system -- forensic specialists are rewarded not for producing the most accurate results, but by most often producing results that favor the prosecution. Even an ethical person could find themselves subtly biased by that pressure. The very possibility of "shopping" corrupts the system.

Given what seems to be a steady increase in the importance of forensic expertise to the outcome of criminal trials, providing poorer defendants with state-subsidized forensic expertise (the same way they are provided with state-subsidized legal expertise) seems to be the only way to tip the scales back in the favor of impartiality.