Jeffrey Havard: Mississippi; (Part two): Pending decision by Mississippi Circuit Court Judge Forest "Al" Johnson; Radley Balko's insightful commentary on the role played by controversial former medical examiner Steven Hayne in the case; (Balko sheds light on the sexual assault issue in the case (in addition to the shaken baby syndrome issue)..."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."

PUBLISHER'S NOTE: "I have been following this case for years. Jeffrey Havard. On death row in Mississippi for the past 15 years. At the heart of the case, according to Circuit Court Judge Forrest  "Al" Johnson, is the now widely discredited so-called shaken-baby syndrome.  (Note the presence in the case of controversial former medical examiner Steven Hayne who has repudiated his initial opinion); Think of it, a man's life may be taken by the state of Mississippi because of a highly disputed theory on which experts are widely divided,  which has been repudiated by  the late British Dr. Norman Guthkelch, the pediatric neurosurgeon,  who propagated it in the first place. The good news is that Judge Johnson clearly recognizes the importance of this decision -  not just to Jeffrey Havard, whose life is in the balance. As Johnson is quoted: ""I don't anticipate sitting in this too long before I render a decision," Johnson said. "It's a pretty important case. It's a pretty big deal."  I will continue to monitor developments in this case closely.

Harold Levy: Publisher; The Charles Smith Blog.

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PASSAGE OF THE DAY: "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."

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COMMENTARY:  "Controversial medical examiner backs off ‘shaken baby’ claim in death penalty case," by Radley Balko, published on his Blog 'The Watch' by The Washington Post, on  August 16, 2017. Balko, co-author of the recently published book 'The coroner and the country dentist, ' knows of what he speaks.  (He has been investigating Steven Hayne and discredited dentist Michael West for years);  Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post and is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces." (Bravo Radley. Great commentary!  PS: It is too tightly written to reduce in size. HL).
 
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. The justices again voted to deny Havard’s petition. Justice Carlson again wrote the majority opinion. Incredibly, this time Carlson argued that Hayne’s affidavit was “duplicative” of his testimony at trial. But just four years earlier, Carlson wrote that Lauridson’s conclusion — which is basically the same conclusion Hayne finally came around to in 2012 — was “contrary” to Hayne’s testimony at trial. Both of these things can’t be true. And yet in the world of post-conviction litigation, they were. 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: They couldn’t take the risk of what such a hearing might reveal. I’ve been reporting on Hayne’s reign in Mississippi for more than a decade now. For nearly 20 years, he did about 80 percent of the autopsies in Mississippi. He testified in thousands of cases. For years, state and federal courts have rejected challenges to his credibility. (Havard was rejected in federal court, too.) Beginning in 2007, the courts began to throw out his testimony in a handful of cases. They really had no choice, due to the absurdity of his testimony in those cases. But in those cases, the courts were careful to limit their decisions to the case at hand. They were careful to note that they weren’t ruling on Hayne’s credibility in general. More recently, a panel for the U.S. Court of Appeals for the 5th Circuit wrote in an opinion that Hayne had been “discredited.” That was in an opinion in which the judges found that a defendant’s challenge to Hayne’s credibility hadn’t been filed within the one-year deadline of when the defendant should have known that Hayne was no longer credible. The perverse thing about that decision, as I noted here at the time, is that the same court had repeatedly upheld Hayne’s credibility, including in opinions issued less than a year prior to the ruling. For years the courts told defendants that Hayne was a credible witness. Then the highest court to date to hear a challenge to his credibility suddenly reversed course, but in a way that slammed shut any opportunity for any future defendants to get any relief. This case risked exposing all of that. Here, Hayne claimed to have told prosecutors before trial that he didn’t believe Chloe Britt had been sexually abused. To let Havard pursue that allegation would presumably pit Hayne against not only those prosecutors but also the state of Mississippi. It would force the office of Mississippi Attorney General Jim Hood — who has staunchly defended Hayne — to attack Hayne’s credibility. Its only real option here would be to argue that Hayne was lying about what he told Havard’s prosecutors. Once it admits that, what does it do with the thousands of other cases in which Hayne’s testimony helped prosecutors win a conviction? The SBS issue isn’t nearly as messy. Hayne can merely argue that he was relying on the research available at the time, and that the consensus in the forensics community was that the symptoms he saw in Chloe Britt were indicative of death by shaking. Since then, the consensus has changed. He was wrong, but so were a lot of other people. It was an innocent mistake. Even on the SBS issue, there are lingering questions. Hayne also testified to SBS in other cases. (It’s impossible to say how many.) Has he contacted the defendants in those cases to tell them he no longer believes in the diagnosis? In one 2009 case I wrote about here, Hayne claimed that critics of the SBS diagnosis were misinformed. To support that statement, he cited a study that doesn’t appear to exist, and cited a textbook whose author says that Hayne not only misquoted him, but also that Hayne gave jurors the precise opposite impression of what the textbook actually says, and that he believes Hayne could only have done so deliberately. How does Hayne address that? But the SBS issue is less threatening to the system than the sexual assault issue. If Havard gets a new trial on the SBS claim, it’s likely that Hood’s office won’t even bother to try him again. If they do, Hayne will likely explicitly testify that he does not believe Britt was sexually abused and that he no longer believes she was shaken to death. The state’s case will be weak, Havard will be acquitted, and justice will be served. At least for Havard. So it’s pretty clear why the Mississippi Supreme Court ruled the way it did. It’s just easier to take these cases one at a time, and to deflect from the larger problem. To grant Havard’s challenge to the sexual assault claims would force Mississippi officials to attack the credibility of the expert witness that most of the state’s prosecutors relied on for 20 years. It might expose the perverse incentives that propelled the state’s death investigation system from the late 1980s until the late 2000s and raise doubts about the  credibility of the state’s justice system. And it could show the courts’ complicity in it all — the Mississippi Supreme Court most of all. That’s all just too risky. Jeffrey Havard finally got his hearing, 15 years after he was sentenced to die. I suspect that the court will ultimately find that there isn’t any credible evidence that he shook Chloe Britt to death. Yet 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:

 https://www.washingtonpost.com/news/the-watch/wp/2017/08/16/controversial-medical-examiner-backs-off-shaken-baby-claim-in-death-penalty-case/?utm_term=.bb6ba91bec4b

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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog."