A case study in expert testimony gone horribly wrong
In a remarkable capital murder case earlier this year, the Mississippi Supreme Court, by an 8-to-1 vote, tossed out the expert testimony of Steven Hayne. The defendant was Tyler Edmonds, a 13-year-old boy accused of killing his sister's husband. Hayne, Mississippi's quasi-official state medical examiner, had testified that the victim's bullet wounds supported the prosecution's theory that Edmonds and his sister had shot the man together, each putting a hand on the weapon and pulling the trigger at the same time.
"I would favor that a second party be involved in that positioning of the weapon," Hayne told the jury. "It would be consistent with two people involved. I can't exclude one, but I think that would be less likely."
Testifying that you can tell from an autopsy how many hands were on the gun that fired a bullet is like saying you can tell the color of a killer's eyes from a series of stab wounds. It's absurd. The Mississippi Supreme Court said Hayne's testimony was "scientifically unfounded" and should not have been admitted. Based on this and other errors, it ordered a new trial for Edmonds.
But it wasn't the doctor's dubious claim that made the case unusual. It's the fact that the court explicitly renounced his testimony. It was the first time that had happened to Hayne in hundreds of cases dating back nearly 20 years.
By any sane standard, the decision was long overdue. Hayne's career in court is an egregious example of what happens when the criminal justice system fails to adequately oversee expert testimony. He may be unusually careless, but he is not unique—not in Mississippi, and not in the United States.
During the last two decades, there have been more than a dozen high-profile cases in which dubious forensic witnesses conned state and federal courts, sometimes for many years and in hundreds of cases. The most famous example is probably the West Virginia crime lab worker Fred Zain, who from 1979 to 1989 tainted so many trials with false testimony about blood, semen, and hair evidence that the state's Supreme Court ordered a review of every case in which he'd ever testified. It turned out he had introduced deliberately falsified evidence in at least 134 cases.
Then there's the disgraced Texas medical examiner Ralph Erdmann. Profiled in Barry Scheck, Peter Neufeld, and Jim Dwyer's 2000 book Actual Innocence, Erdmann dubbed himself the "Quincy of the Panhandle," after the TV series about a peripatetic medical examiner. Erdmann claimed to perform around 400 autopsies per year, a number Scheck calls "astonishing." His workload was so heavy, he sometimes skipped doing autopsies altogether. He once delivered a body without a head. In another case, his report included the weight of the victim's spleen and gall bladder, which the victim's family found odd, since both had been removed while the victim was alive. After authorities caught on to him in 1992, Erdmann was found to have faked more than 100 autopsies.
More recently, Oklahoma City was forced to review nearly 1,200 cases after the FBI found significant flaws in forensic analysis done by the police chemist Joyce Gilchrist, including problems with her hair and fiber analysis, and court testimony she presented as fact that other experts say was clearly opinion. The investigation resulted in one man's release from death row; Gilchrist in turn was fired. Two more death row inmates were released after investigations found errors by other state forensic experts.
Such misbehavior and incompetence has persisted partly because of the complicated, highly specialized nature of the relevant fields. But Zain, Erdmann, and Gilchrist were at least eventually exposed. Hayne's highly questionable practices are well-known in Mississippi, in neighboring states, and to forensic experts across the country. Yet he has been working in Mississippi for 20 years, and he still does the vast majority of forensic autopsies in the state. (A forensic autopsy is done to determine if the deceased died as the result of a crime or negligence; other types of autopsies are done to determine if the deceased died of a pathogen, cancer, or other medical disorder.)
Hayne, 67, has a reputation for threatening to sue his detractors, which makes many of them reluctant to speak on the record. When reformers tried to make Mississippi abide by the professional standards of forensic pathology, Hayne and his allies sabotaged their efforts and, in some cases, effectively drove them out of the state. Hayne himself did not respond to multiple requests to be interviewed for this story. Phone and email queries to the Mississippi Department of Public Safety, which oversees the state medical examiner's office, and the Mississippi Attorney General's Office also went unreturned.
Still, several of Hayne's critics were willing to speak publicly about him. And what Hayne himself has conceded in trial testimony and at depositions is damning enough.
J.D. Sanders is a former Columbus, Mississippi, police chief who now works as an assistant police chief in Franklin, Tennessee. "There's no question in my mind that there are innocent people doing time at Parchman Penitentiary due to the testimony of Dr. Hayne," Sanders says. "There may even be some on death row."
Ken Winter, who was director of Mississippi's State Crime Lab from 2001 to 2004 and currently serves as executive director of the Mississippi Association of Chiefs of Police, observes that prosecutors think Hayne is an excellent witness. But there's a lot more about being a professional and doing a good job than being an "excellent witness." Leroy Riddick, a state medical examiner in Alabama who has testified in opposition to Hayne, adds, "All of the prosecutors in Mississippi know that if you want to be sure you get the autopsy results you want, you take the body to Dr. Hayne."
And that's the problem. The aim of expert testimony should be getting at the truth, not pleasing prosecutors. According to the standards set by the National Association of Medical Examiners (NAME), the field's pre-eminent professional organization, medical examiners "must investigate cooperatively with, but independent from, law enforcement and prosecutors. The parallel investigation promotes neutral and objective medical assessment of the cause and manner of death."
That isn't happening in Mississippi.
The Casebook of Dr. Steven Hayne
According to NAME, a single medical examiner should perform no more than 250 autopsies per year. At 325, the group considers a doctor to have a "Phase II deficiency"; at that point, it will not accredit a practice, regardless of any other criteria.
Hayne has repeatedly testified under oath that he performs more than 1,500 autopsies per year—a staggering number that dwarfs even the output of the prolific Dr. Erdmann. That's more than four per day, every day of the year, for the 20 years Hayne's been in Mississippi. In a 2002 deposition, Hayne put the estimate at 1,800.
What's more, for most of his career, Hayne also has held jobs as medical director of the Rankin Medical Center (a post he left last summer) and as director of the Renal Lab, a kidney and dialysis research center. These jobs, he has testified, would take up about 55 hours per week of his time, hours not spent performing the 30 to 35 autopsies he says he does each week. (A typical autopsy should take two to three hours, but sometimes takes an entire day, depending on the condition of the body and cause of death.) Hayne has said in depositions that he also testifies "two to three to four times per week," all across Mississippi and occasionally in Louisiana.
How does he find the time? In his testimony, Hayne has claimed he "commonly" works 18 to 20 hours per day. He says he doesn't take vacations, and works every weekend and every holiday.
Until recently, Hayne performed most of his autopsies not at the state lab in Jackson but at Mississippi Mortuary Services, a funeral home owned by Jimmy Roberts, the longtime Rankin County coroner. Hayne and a few trusted assistants do most of his autopsies late at night, and the operation has a gruesome reputation. People who have visited Hayne's practice during an autopsy session have described seeing as many as 15 bodies opened at once, with Hayne and his assistants smoking cigars, sometimes even eating sandwiches, as they go from one body to the next. Critics interviewed for this article, none of them particularly squeamish about autopsies performed under normal conditions, referred to Hayne's operation as a "slaughterhouse," a "sushi shop," and a "sausage factory."
Dwayne Wolf, a doctor who works for the Harris County Medical Examiner's Office in Houston, had occasion to review one of Hayne's autopsies when he was practicing in Alabama. "Dr. Hayne's deficiencies are glowingly obvious when you review his work," Wolf says. "There were a lot of things done in a substandard way."
Harry Bonnell, a medical examiner in private practice in San Diego who sits on NAME's ethics board, was asked by a defense attorney to review an autopsy Hayne performed in 2003 on a suspected murder victim. Bonnell was floored by Hayne's conclusions. Using unusually strong language, Bonnell said Hayne's conclusions were "near-total speculation," the quality of his report was "pathetic," and Hayne's failure to obtain specimens from the body and perform toxicology reports "borders on criminal negligence."
"Professionally, I think he does too many autopsies," says Winter. "Way too many to do them in the manner they should be done."
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.
Just a few of the ugly results:
The Case of the Forgotten Fingernails: In February 2006, Kenneth Chandler of Columbus, Mississippi, was the victim of a gruesome homicide, stabbed to death in his home. The body was sent to Hayne for an autopsy. According to sources at the Columbus Police Department, Hayne forgot to take scrapings from under the victim's fingernails. James Starrs, a well-respected author of several books on forensic pathology and a professor of law and forensics at George Washington University, says such an oversight is inexcusable. "You do scrapings in every autopsy," says Starrs, "especially in a homicide, and especially in a case"—such as this one—"where the victim has defensive wounds." Columbus police personnel had to rush to the funeral home to obtain the scrapings before the body was embalmed.
The Case of the Strangled Skeleton: In 1999 the body of Prentiss, Mississippi, resident Tanya Ward was found in a wooded area, completely skeletonized from the waist up due to decomposition and wild animals. At the trial of the accused killer, Hayne testified that Ward's remains showed signs that were consistent with strangulation—a conclusion other medical examiners say could not be reached unless there was muscle tissue to examine. After the local public defender subjected Hayne to a vigorous cross-examination, the defendant was acquitted.
The Case of the Naturally Bludgeoned Woman: In 1998, after a woman's body was found in the Mississippi Delta, Hayne concluded she had expired of natural causes. Because the woman was a resident of Alabama, that state's medical examiner asked Stephen Pustilnik, at that time a state medical examiner in Birmingham, to perform a second autopsy. Pustilnik found that Hayne hadn't even emptied the pockets of the woman's robe. Moreover, many of the internal organs Hayne claimed to have examined in the autopsy report hadn't been touched. The woman was later determined to have died from a blow to the head.
Pustilnik, who declined to comment more broadly on Hayne's practices, says that in this case Hayne's autopsy was "near complete malpractice." Starrs says such oversights are glaring. "Emptying the pockets of personal effects, taking pictures of everything on the deceased's person—these are really standard procedures," Starrs says. "It's a quintessential part of a standard autopsy."
The Case of the $37,000 Edit: Twice in 1997, years after he'd performed the autopsies, Hayne changed his diagnosis in two infant deaths from sudden infant death syndrome (SIDS) to asphyxiation. The abrupt change came after Hayne had been contacted by plaintiff's attorneys who wanted him to testify on their behalf in a suit against the manufacturer of an allegedly defective infant rocker. Questioned about the cases in subsequent depositions, Hayne testified that he had changed his diagnoses after reviewing medical literature but without re-examining the bodies. In one of the cases, Hayne's practice billed the plaintiff's attorneys $37,000 after making the alteration.
For Starrs, such an abrupt change in diagnosis is "troublesome." SIDS, Starrs says, is a "catch-all" diagnosis often used in infant deaths when other symptoms are lacking. "It would be very difficult to change from SIDS to asphyxiation," he explains, because the latter is a more specific diagnosis, one that would require the presences of symptoms Hayne should have noticed during the original autopsies.
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.
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."
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.