GIST: "This week the controversial former Mississippi medical examiner Steven Hayne
testified at a hearing for Jeffrey Havard. Havard was convicted in 2002
of sexually assaulting and shaking to death Chloe Britt, the
6-month-old daughter of Havard’s live-in girlfriend. Havard has always
maintained that the infant hit her head on the toilet after he dropped
her while giving her a bath. But Havard made some mistakes. He
first failed to tell his girlfriend — and later doctors and
investigators — that he had dropped the girl. By the time he did, they
understandably no longer believed him. But the evidence against Havard
has always been thin. It has mostly consisted of testimony from Hayne
that Chloe Britt died from shaking, not from a blow to the head
consistent with Havard’s story. The symptoms Hayne cited to make that
diagnosis have since been called into question in the medical and
forensics communities. But the shaken baby syndrome (SBS) diagnosis
alone probably wouldn’t have allowed the state to seek the death
penalty. That’s perhaps why prosecutors also alleged the sexual assault.
By the time of Havard’s trial, doctors, ER nurses, the county sheriff
and the local county coroner all claimed to have seen significant damage
to Chloe Britt’s rectum, damage they testified was consistent with
abuse. Hayne, too, seemed to concur with the sexual abuse allegation. He
claimed at trial to have found a found a one-inch contusion on the
girl’s anus. When the prosecutor asked Hayne what could have caused the
contusion, he replied, “penetration of the rectum by an object.” But
Hayne’s autopsy on the girl showed no such abuse. The one-inch
contusion he claimed at trial was actually only one centimeter (he
claimed he misspoke). Since Havard’s conviction, multiple medical examiners and other experts have submitted affidavits on his behalf to dispute both the SBS diagnosis and the state’s claim of sexual abuse. The Mississippi Supreme Court hasn’t shown much interest. At
trial, Havard’s attorney requested funds to hire his own medical
examiner to review Hayne’s work. The judge turned him down. After the
conviction and death sentence, former Alabama state medical examiner Jim
Lauridson submitted an affidavit
on Havard’s behalf questioning Hayne’s conclusions about the sexual
abuse. Lauridson pointed out that what the doctors, nurses and law
enforcement officials likely saw during those frantic moments in the
emergency room was a dilated anus, which often occurs in young children
who are brain-dead, or shortly after death. Hayne’s own photos of the
girl’s body, taken after she was cleaned up, showed no signs of sexual
abuse. The
Mississippi Supreme Court at first refused to even consider Lauridson’s
affidavit. The court ruled that his critique of Hayne’s work was
evidence that should have been introduced at trial. Of course, that was
impossible, since the court refused to give Havard money to hire his own
expert witness. The court didn’t consider Lauridson’s affidavit until
Havard had exhausted his appeals and was in post-conviction — when such
claims are much more difficult to win. When the court did finally
consider Lauridson’s affidavit, in 2008, the court rejected it out of hand.
Justice George Carlson’s majority opinion badly misrepresented what
Lauridson wrote. To give just one example, Carlson wrote that Lauridson
stated in his affidavit that “there is a possibility that Chloe Madison
Britt was not sexually assaulted.’” Carlson then added, “Taking this
statement to its logical conclusion, this leaves open the possibility
that she was.” That of course is not the logical conclusion.
Worse, the phrase “there is a possibility” doesn’t appear anywhere in
Lauridson’s affidavit. Here’s what Lauridson did write: “The conclusions that Chloe Britt suffered sexual abuse are not supported by objective evidence and are wrong.” That
seems pretty definitive. The only wiggle room Lauridson left was that
he couldn’t completely rule out abuse until he saw the tissue slides
Hayne took from the girl. Hayne had yet to turn them over. When he did,
Lauridson found nothing in them to suggest sexual abuse. Nevertheless, the court voted 8-1 to uphold Havard’s conviction.
The court found that, “Dr. Lauridson’s conclusion was not only contrary
to that of Dr. Hayne, it was contrary to the sworn testimony from
experienced emergency-room doctors and nurses.” The lone dissent was
from a justice named Oliver Diaz. Regular readers of The Watch might
recognize that name. When Diaz later ran for reelection to the court, an
outside interest group took out TV ads attacking Diaz for his vote in that case, accusing him of voting to free a child rapist and murderer. Havard
again petitioned the state Supreme Court in 2012. This time, he had an
affidavit from Hayne himself. “Based upon the autopsy evidence available
regarding the death of Chloe Britt,” Hayne wrote, “I cannot include or
exclude to a reasonable degree of medical certainty that she was
sexually assaulted.” That still wasn’t enough. ........Part
of the problem is that Hayne is incredibly slippery. It’s true that at
trial, he never explicitly said that Chloe Britt had been sexually
assaulted. He merely failed to object when prosecutors suggested it —
and he offered up that comment that her contusion was “consistent with”
penetration by an object. He undoubtedly knew the impact that would have
on the jury. In 2014, Hayne unleashed another bombshell. He told the Clarion-Ledger that
he never thought Britt had been sexually assaulted. He later told
Havard’s attorneys that he even told prosecutors his opinion before
trial, more than once. This is hard to believe. If true, it would
mean that the prosecutors moved forward with the sexual assault charge
despite the fact that the only expert witness qualified to offer that
conclusion didn’t believe it. That and the fact that Hayne’s alleged
statement to prosecutors was never turned over to Havard’s defense
attorneys would amount to some incredibly serious prosecutorial
misconduct. It isn’t that no prosecutor is capable of such
misconduct. We’ve seen it before. But Hayne’s statement is hard to
swallow because of Hayne’s own actions. If he never believed Britt was
sexually assaulted, why would he let the state argue precisely the
opposite at Havard’s trial? Why would he let it make that argument in
order to have Havard executed? Why didn’t he object when prosecutors
asked him leading questions that a reasonable person should have
concluded were designed to get the jury to believe something Hayne
didn’t believe was true? In
his opening statement, the prosecutor told jurors that Hayne
would “testify for you about his findings and about how he confirmed the
nurses’ and doctors’ worst fears this child had been abused and the
child had been penetrated.” Why didn’t Hayne speak up then? Why did he
let the prosecutor attribute opinions to him that he didn’t believe? And
why did he allow Jeffrey Havard to sit on death row for nine years before finally speaking up? The
more plausible explanation here is that Hayne changed his story. Why
would he change his story? It’s difficult to say. (Hayne has not
responded to my attempts to interview him over the years.) Perhaps he
had an attack of conscience. Perhaps, now that he’s no longer allowed to
do autopsies on behalf of prosecutors, he has decided he needs to
burnish his reputation with defense attorneys, who are still permitted
to hire him. Perhaps he has seen the lineup of medical examiners who
have said he was wrong about this case and is trying to salvage his
credibility. In any case, as of 2012, there hasn’t been a single
medical examiner who has looked at this case who thinks Chloe Britt was
sexually assaulted, including the one who testified for the prosecution.
And yet the Mississippi Supreme Court still denied Jeffrey Havard on his petition to throw out the sexual assault charge. In 2015, the court finally granted Havard permission
to seek an evidentiary hearing on the validity of the shaken baby
evidence. That’s the hearing that took place this week and in it, Hayne
testified that he no longer believes Chloe Britt was shaken to death. But according to the Clarion-Ledger,
the judge at the hearing noted that he could not allow Havard’s
attorneys to question the validity of the sexual assault evidence — the
state Supreme Court wouldn’t allow it. It may be hard to
comprehend why the court would give Havard relief on the shaken baby
evidence but deny him on the sexual abuse claim. But I have a theory: (Read on, at the link below, to access Balko's theory - and find out why he suspects that the court will ultimately find that there isn’t any
credible evidence that he shook Chloe Britt to death and that in the
meantime,the courts will stand by the allegation that Havard sexually
assaulted the girl, even though there isn’t a single medical examiner
who believes it.)"
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
