COMMENTARY: "Judge to decide if Mississippi should put Jeffrey Havard to death for a crime that never happened," by Bruce Fischer, published by Wrongful Conviction News on August 26, 2017.
The entire commentary can be found at:
GIST: "Jeffrey “Jeff” Havard currently sits
wrongfully convicted on death row in Mississippi for the sexual assault
and murder of his girlfriend’s six-month-old daughter, Chloe Britt.
Havard has stated from the beginning that the infant slipped from his
arms while lifting her from the tub, causing her head to hit a nearby
toilet. There is no evidence whatsoever to support a sexual assault
charge. Multiple experts currently support Havard’s claims that Chloe’s
death was the result of an accident. In May of 2016, the Mississippi Supreme
Court ordered an evidentiary hearing for Havard’s case based on defense
claims of new evidence due to changes in the science behind Shaken Baby
Syndrome (SBS). Last week, after nearly 15 years of incarceration on
death row, Havard finally had the opportunity to return to the courtroom
of Adams County Circuit Court Judge Forrest Johnson, with renewed hope
that the truth would finally be heard. Judge Johnson presided over Havard’s
trial in 2002. The trial was speedy to say the least. Within a matter of
two days, the court selected a jury, tried the case, received the
jury’s verdict, and sentenced Havard to death. The jury heard from only
one expert who testified for the prosecution. Havard asked for an expert
of his own but the request was denied by Judge Johnson based on
financial restraints of the county. At the time, indigent defendants
were expected to rely on the prosecution’s expert if they could not
personally afford their own. Havard’s 2002 trial was a sham. It is
not possible to properly try a death penalty case in two days. To put
things into perspective, last week’s evidentiary hearing took three
days. The judge listened to testimony from four experts who testified
for the defense, and also heard testimony from a pediatrician who
testified for the prosecution. Havard’s evidentiary hearing, which was
dedicated to a single topic, and provided no immediate decision, took
longer than the entire trial which landed Havard on death row in 2002. Havard’s evidentiary hearing began on
August 14, 2017 and concluded on August 16, 2017. The Adams County
Courthouse where the hearing took place is in Natchez, Mississippi, a
historic Mississippi River town bordering Louisiana. I was intrigued by
the small town feel of Natchez. Entering the courthouse for the first
time gave me the sense that I had somehow stepped back in time. The
courthouse is listed as the oldest in Mississippi, and is no doubt rich
in history. A history which the building now struggles to contain.........The hearing began with instructions from
Judge Johnson, laying out the guidelines set by the Mississippi Supreme
Court. The high court recognized that the cause of death in Havard’s
case warranted review but the high court did not grant the defense’s
additional request to review the charge of sexual assault, keeping on
par with their previous rulings on past appeals. The high court’s orders that Havard’s
evidentiary hearing could only review the charge of SBS, provided for
unique circumstances, because Havard sits on death row solely due to the
combination of charges. Without the charge of sexual assault being
tacked on, Havard’s case would have never been a death penalty case in
the first place. Havard’s lawyers refused to be deterred. The defense
made sure throughout the hearing to highlight on the record that there
are currently no experts who support the claim of sexual abuse. Every
expert who testified, as well as the prosecution’s pediatrician, all
stated under oath that there was no evidence of a sexual assault. The prosecution’s case in 2002 was built
primarily on the testimony provided by Dr. Steven Hayne and the ER
staff that was present on the night Chloe died. Hayne conducted the
autopsy on the infant. Hayne did not find evidence of sexual assault
while conducting the autopsy, even though he was told to look for it.
Hayne helped the prosecution when he testified that a contusion in the
infant’s anus could have resulted from penetration with an object. Hayne
also testified that the death was the result of SBS. Hayne has now
retracted those statements. There is not one single shred of
evidence that Chloe Britt was ever sexually assaulted, by Jeff Havard or
by anyone else. The sexual assault allegation was based on observations
of the ER staff that the infant’s anus was dilated. The ER staff was
not qualified to give an opinion regarding sexual abuse. Every single
staff member who provided a statement to police, made the same mistake
when misdiagnosing the condition of the infant’s anus. The court
furthered the damage when wrongly allowing the ER staff to testify as
experts at trial. Anal dilation has given rise to
suspicion of sexual abuse in other cases, and a clinical study was done
to clarify the subject. Researchers found that anal dilation is a common
artifact in accidental deaths involving severe brain injury. Havard’s defense filed several appeals
over the years citing expert evidence that no sexual assault had
occurred, but those appeals were all denied. After Havard’s conviction,
Mississippi’s post-conviction relief office obtained the services of
former Alabama state medical examiner Dr. James Lauridson to review the
autopsy findings of Hayne. Lauridson concluded that the evidence failed
to confirm that a sexual assault of any kind had taken place. There was
no sign of any tears or lacerations in the infant’s anus and it was not
out of the ordinary for dilation to occur naturally. Lauridson noted
that there was no trace of Havard’s DNA found on or inside the infant.
He also noted that a thermometer inserted into the infant’s anus at the
emergency room could have caused the small one centimeter bruise noted
by Hayne. Lauridson’s report refuted the prosecution’s claim of a sexual
assault. Interestingly, Lauridson’s expert opinion had no bearing on
appeal. After Judge Johnson finished addressing
the court, the defense called Dr. Steven Hayne to the stand. Hayne poses
many problems for the state of Mississippi. Hayne has a shady past that
involves thousands of autopsies, and countless legal cases. Hayne was
presented by prosecutors as a primary expert in criminal trials for a
period of decades in Mississippi. Investigative journalist Radley Balko has been reporting on Hayne’s questionable conduct for years. The SBS issue may open the door for the
state of Mississippi to resolve their issues with Hayne in this case,
and may explain why the evidentiary hearing was limited to the
discussion of SBS. Challenges against the sexual assault charge work to
directly attack Hayne’s credibility. If Hayne is fully discredited, that
revelation could open a can of worms which could impact countless other
cases in Mississippi. If Havard’s innocence is determined based on
changes in science, then everyone is off the hook. The State could claim
that it was merely following the science available in 2002 when they
convicted Havard. No blame for anyone. Simply an advance in science. Of
course, those who have closely followed this case may have a far
different outlook on who deserves blame. Hayne’s history shows that he has been
willing to provide testimony favorable to the prosecution regardless of
the facts. Havard’s case is no exception. Hayne testified in 2002 that
he saw a one-inch contusion in the infant’s anus during autopsy. It was
discovered after trial that the contusion was only one centimeter, which
is quite different than one inch. Hayne claimed in an affidavit that he
misspoke during the trial when providing the measurement. At trial,
regardless of the size, Hayne testified that the contusion was most
likely the result of penetration of an object. On the surface, Hayne’s
description must have sounded a lot like sexual assault to the jury. Fast forward to 2014. Hayne stated in a
2014 affidavit that he specifically told prosecutors on more than one
occasion prior to trial that he could not support a finding a sexual
abuse. This information was withheld from the defense, which is a Brady
violation. Most shockingly, the defense learned in
January of 2014, 12 years after the conviction, that Hayne had looked at
tissue sections under a microscope and found definitively that there
was no evidence of sexual assault. In a case where suspicion of sexual
assault only arose when ER doctors and nurses noticed what they believed
to be physical evidence of sexual abuse. Hayne’s microscopic findings
were clearly exculpatory, and would have positively shown that the
doctors and nurses had misinterpreted what they saw. The state withheld
this evidence from the defense as well and failed to tell the doctors
and nurses about it before they testified. Why didn’t Hayne testify at trial in
2002 that there was no evidence of a sexual assault? Because no one
asked him. Prosecutors stood before the court during opening statements
and told the jury that Hayne had, “confirmed the nurses and doctors
worst fear, that this child had been sexually abused.” The prosecution
knew that Hayne had done no such thing; in fact, he had done just the
opposite. The prosecution lied to the jury. When Hayne took the stand,
they were careful not to ask specific questions about sexual abuse, and
Hayne was sure to only respond directly to questions asked. The defense
had their hands tied. They could not possibly ask a question they did
not know the answer to. If they had asked Hayne if the infant had been
sexually assaulted and his answer was anything other than no, they would
have instantly buried their client. The prosecution knew the defense
would never take the chance. The lies told during opening and closing
arguments by the prosecution were left unchallenged, and a wrongful
conviction was the result. Hayne’s statements in his affidavits
which were reiterated during the evidentiary hearing state that he does
not support a claim of sexual assault and that he no longer believes
that Chloe died by shaking alone. He now believes that impact had to be a
factor. Meaning that the infant could have died from a short fall.
Hayne bases his current beliefs on changes in science related to SBS.
Hayne attempted to save face by saying that he still believes the death
was the result of a homicide, but he offered not valid theory to support
that belief. Hayne’s demeanor in court was a bit questionable. During
breaks, he appeared to wander about, willing to chat with anyone who
would provide an ear. At one point, he sat down next to Havard’s
stepfather, engaging him with stick figure drawings he had sketched on a
pad in an apparent attempt to form new theories. After Hayne’s testimony was concluded,
the defense called Dr. Michael Baden to the stand. Baden is a physician
and board-certified forensic pathologist. Baden is the former Chief
Medical Examiner of New York City and is the former chief forensic
pathologist for the New York State Police. Baden is well respected
worldwide for his work in this field. Baden testified that he believed Chloe’s
death had nothing to do with shaking. Per Baden, it is no longer
accepted in the field of science that shaking alone is enough to cause
fatal injury in children. Impact is now considered a requirement to
produce fatal injuries, if other factors such as neck or rib injuries
are not observed. Baden went on further to say that caution needs to be
used to assure that injuries which were once thought to be caused from
shaking alone, are not currently being automatically re-categorized as
shaking with impact simply to meet the new criteria. In cases of head
injuries from short falls, shaking is not required and should be
eliminated if there is no supportive evidence of shaking. Baden stated that the injuries observed
during autopsy were entirely consistent with a blunt force impact which
would have resulted from a short fall as described by Havard. Baden
stated that the infant had no signs of injury to the neck or ribs, which
would have been present had the infant been violently shaken. He went
on to say that autopsy findings which are found to be consistent with
early statements given from a person who was present show that those
statements carry more weight. He said it is difficult to tell a story
that later matches up with an autopsy report if you are not telling the
truth. The ER staff testified at trial in 2002
that retinal hemorrhages were present when Chloe arrived to the ER. The
jury was told that retinal hemorrhages could only be caused by shaking.
Meaning that the jury was told that the only possible cause of death was
SBS. Baden stated that there are multiple
causes of retinal hemorrhages. Any suggestion that retinal hemorrhages
are only caused by SBS is false. Baden stated that short falls were a
cause of retinal hemorrhages. Everyone who testified after Baden agreed
with his assessment, including the pediatrician who testified for the
prosecution. Unfortunately, this expert evidence was not available at
Havard’s trial, leaving the jury to decide his fate based on unqualified
witness testimony. Baden told the court that pathologists
are more qualified than other specialties to diagnose cause of death.
Per Baden, ER doctors and pediatricians specialize in the treatment of
living patients. Pathologists have the task of looking beneath the
surface of non-living bodies to properly determine cause of death.
Evidence exists after death that his not available to doctors who are
treating living patients. Dr. Janice Ophoven was next to testify
for the defense. Ophoven is a pediatric forensic pathologist with over
30 years of clinical, administrative and quality improvement experience.
Ophoven is trained in pediatrics and is board certified in pathology
and forensic pathology. Ophoven’s practice is focused on understanding
child abuse and injury to children. Ophoven stated that no evidence exists
to show that Chloe’s death was the result of child abuse. She reiterated
Baden’s testimony that violent shaking alone was no longer an accepted
cause of death in infants. Ophoven told the court that it was a common
belief in the scientific world back in 2002 that short falls could not
cause fatal injuries in children. She went on to say that the scientific
community no longer believes that to be true. She made it clear that
there have been significant changes in science regarding infant head
injuries and SBS since the time of Havard’s trial. She also refuted the
2002 retinal hemorrhage trial testimony, stating that it is well known
in the medical community that retinal hemorrhages can be caused by short
falls. Ophoven concluded that the infant’s
death was the result of a short fall as described by Havard. She also
reiterated Baden’s statement that pathologists are more qualified to
determine cause of death than ER doctors and pediatricians. Dr. Chris Van Ee was the final expert
called by the defense. Van Ee holds a Ph.D. in Biomedical Engineering
from Duke University and is a licensed Professional Engineer. Van Ee has
specific expertise in the analysis and risk assessment of head injury
in the infant and adult populations. Van Ee testified that a short fall was
the most logical scientific reason for the death of Chloe Britt. Van Ee
told the court that short falls are now known to cause injuries which
were once thought to be caused only by violent shaking. Per Van Ee, a
one-foot fall onto a carpeted surface head first has a higher chance of
producing a head injury to a child than violent shaking. Van Ee
testified that he reviewed photographs of the bathroom in Havard’s
trailer and determined that the fall described by Havard could have
caused fatal head trauma. Tests conducted by Van Ee using
crash-test-dummies, concluded that a short fall from three-feet onto a
hard surface such as a porcelain toilet could generate forces similar to
a car accident which could lead to the death of a six-month-old infant. On the final day of the hearing, the
prosecution called Dr. Scott Benton to the stand. Benton is the medical
director of the Children’s Justice Center and chief of the division of
forensic medicine at the University of Mississippi Medical Center. Benton’s qualifications as an expert on
issues of infant death were challenged by the defense because Benton is a
pediatrician, not a pathologist. Both Baden and Ophoven provided clear
reasoning in their testimony as to why pathologists are uniquely
qualified to analyze cause of death. Judge Johnson noted the defense
objection and said that he would take it into consideration when ruling
on the case. During questioning, Benton argued that
shaking alone could prove fatal for an infant. His testimony ignored
current scientific literature which states that shaking alone without
other signs of injury is not enough to cause fatal injuries in children. Benton also attempted to exaggerate the
severity of the small contusions found on the infant’s face, discounting
testimony from both Baden and Ophoven who said that the small bruises
were likely caused from the fall or during resuscitation attempts in the
ER. Per Ophoven, resuscitation attempts are not a gentle process and
are often frantic. She described the situations as a time of organized
chaos. On cross examination, it was discovered
that Benton was not contacted by the State to evaluate the case.
Benton’s participation was the result of his own eagerness to get
involved. Benton contacted Jerry Mitchell from the Clarion Ledger
because he had read a single article of Mitchell’s and had determined
that the case was a homicide. After an email exchange with Mitchell,
Benton’s further inquiries led to his eventual work on behalf of the
prosecution. It was also discovered on cross
examination that the Children’s Justice Center where Benton works is
experiencing financial difficulties due to a mismanagement of funds that
were received from grants. The medical center now looks to benefit
upwards of fifty thousand dollars for Benton’s testimony in this case.
Benton told the court that his involvement was in no way an attempt to
make money, and that his medical center was seeking private donations to
sustain their efforts to care for children. In closing, the defense argued that they
had met the burden of proof put forth by the Mississippi Supreme Court.
The defense was required by the high court to prove that new evidence
was available to show that the science behind SBS has changed since the
time of Havard’s trial. After hearing from the defense experts who
testified, and after witnessing the exhibits being entered, which
included up to date medical literature, there is no doubt that the
requirements for a new trial have been fully satisfied by the defense. In a perfect world, we would see
prosecutors who were willing to admit past errors. But we live in a far
different reality. In our current justice system, the clear majority of
prosecutors protect their office relentlessly at all costs. Sadly, the
prosecution in this case fits the typical mold. The prosecution’s main
argument during closing was not directed at challenging the legitimacy
of claims made by the defense. The Prosecution’s argument was that the
evidence presented was available at the time of Havard’s trial in 2002,
so it should not be allowed. Appellate laws are complicated and vary
depending on the type of case. In layman’s terms, for purposes of
describing the requirements for this case, the current laws state that
evidence based requests for new trials can only be made by use of new
evidence which was not available at trial. These laws may have good
intentions but in the end, they can have a devastating impact on
indigent defendants. If you are poor and you do not have the
means to hire experts at trial, you are in trouble. Once convicted, if
there is evidence to exonerate you that was available at the time of
your first trial, it is currently inadmissible because it is technically
not new. Meaning that details in medical journals that can possibly
exonerate defendants that are not found by public defenders, with
extremely limited budgets and no expert assistance, cannot be used in
future hearings because they were technically available at time of
trial. Let that sink in. Do these criteria work to assure fair
trials? Do these criteria show that prosecutors are working to seek
proper justice? Does suppression of exonerating evidence simply because
an indigent defendant’s public defender failed to find it in the first
trial truly work to seek real justice? Now, to be clear, the prosecution’s
argument is absurd because new evidence has clearly been proven to have
become available after Havard’s trial. Evidence which absolutely meets
the current requirements. This is irrefutable. The judge has no reason
to disagree based on current law. But I find it disturbing that any
state in our country would ever attempt to suppress valid evidence based
on the current criteria. Valid evidence should never be suppressed. Our
goal should always be to seek the truth. The truth in this case shows that the
state of Mississippi is trying to put an innocent man to death for a
crime that never happened. Current evidence, which goes far beyond the
topic of SBS alone, shows that there is no longer any viable case
against Jeff Havard. The original theory of the crime has been
disproven. There is no evidence to suggest that the death of Chloe Britt
was anything other than a tragic accident. If Judge Johnson rules in
favor of a new trial, the State will most likely decide not to retry the
case due to lack of evidence. Knowing this should give people pause. If
justice is truly the goal, why is the state of Mississippi trying so
hard to uphold a faulty verdict in a death penalty case? A ruling from Judge Johnson is expected to take 60 to 90 days. Injustice Anywhere advocates for Jeffrey Havard. Please visit www.freejeffreyhavard.org to keep up to date with updates on the case."
The entire commentary can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
