GIST: "In 2002, Jeffrey Havard was convicted in Mississippi of sexually abusing and killing Chloe Britt, the 6-month-old daughter of Rebecca Britt, his girlfriend. He was sentenced to death. In the years since his conviction, multiple expert witnesses have sharply criticized the evidence used to convict him. Most notably, the medical examiner whose trial testimony put Havard on death row has since renounced one of his most damning claims and has contradicted another. On Sept. 14, Adams County Circuit Judge Forrest A. Johnson ordered a new sentencing trial for Havard. But Johnson’s opinion didn’t go nearly far enough. It was sloppily written, wrong on the law and in many ways a cop-out. But it was also merely the latest of more than 15 years of court opinions that have failed Havard. For a full summary of the case, check out a piece that Tucker Carrington and I wrote for Reason, which is adapted from our recent book. But for the purposes of this post, and to understand why Johnson’s opinion is so misbegotten, here’s what you need to know: According to Havard, on the night of Feb. 21, 2002, Rebecca Britt went out to get dinner for the two of them, leaving Chloe in Havard’s care. After the infant spit up on her clothes, Havard gave her a bath. As he lifted her from the tub to dry her off, Chloe slipped from his hands. She hit her head on the toilet on the way down. Havard admits that he initially lied to Britt and to emergency room doctors about dropping Chloe, claiming that he didn’t know what had caused her injuries. For that, he arguably should have faced a lesser criminal charge. Instead, he was charged with capital murder, convicted and sentenced to death.
To convict Havard of murder, Mississippi officials relied on the testimony of medical examiner Steven Hayne, has since been barred from doing autopsies by Mississippi prosecutors and declared “discredited” by the U.S. Court of Appeals for the 6th Circuit. (He is also the subject of our book.) Hayne testified that Chloe had the telltale symptoms of Shaken Baby Syndrome (SBS). The scientific validity of SBS and diagnoses of the condition have increasingly been called into question scientists and forensic analysts in recent years. But for Havard to receive a death sentence, prosecutors had to show aggravating circumstances, beyond the murder. For this they again turned to Hayne, who testified that he found injuries to Chloe that were consistent with “penetration of the rectum by an object.” Prosecutors also put on testimony from the county coroner and emergency room personnel, some of whom gave graphic testimony about bleeding and tearing of the infant’s rectum. Over the years, much of this evidence against Havard has withered away. As noted, Shaken Baby Syndrome has become a highly contested diagnosis in the medical world, and based on the symptoms Hayne observed, it would no longer be considered a valid diagnosis. Three other medical examiners and a mechanical engineer who has studied SBS have submitted affidavits on Havard’s behalf, and all have stated that the injuries Hayne described and photographed in his autopsy report were consistent with Havard’s story. In fact, Hayne himself now says he was wrong to attribute the child’s injuries to SBS. It was for this reason that the Mississippi Supreme Court gave Havard permission to ask the trial court that convicted him for an evidentiary hearing on SBS. That’s the hearing that resulted in Johnson’s Sept. 14 opinion. But the other evidence against Havard has also come under fire. Three medical examiners — the well-known New York forensic pathologist Michael Baden, former Alabama state medical examiner James Lauridson and pediatric forensic pathologist Janice Ophoven — have all submitted affidavits stating that, based on Hayne’s autopsy report for Chloe, they saw no evidence of sexual abuse. What about the coroner and ER personnel who claimed to have seen the baby’s injuries firsthand? All speculated that they may have mistaken dilation of the anus — a common phenomenon in infants and young children shortly after death — for an injury caused by sexual abuse.  The memories of the ER staff and coroner may also have been distorted by the fact that police and prosecutors had declared Havard a child abuser. Whatever the reason for their testimony, three separate reputable, accredited forensic pathologists submitted affidavits with unequivocal conclusions — there was no evidence that Chloe Britt had been sexually abused. For more than a decade, Mississippi appeals courts rejected those opinions in favor of the discredited Hayne’s assessment. But in 2012, Hayne too came out and said he didn’t believe Chloe had been sexually abused. Two years later, he gave an even stronger statement, declaring that he not only didn’t believe she’d been abused, but also had told prosecutors as much before the trial. There’s good reason to doubt that this was true, not least of which is Hayne’s own testimony at trial. But the fact remains: Hayne has said for a number of years that he no longer believes Chloe was sexually abused.
Before I get to Johnson’s short opinion, there are a few other things about Havard’s trial that are worth mentioning:
  • Havard’s attorneys asked the trial court for funding to hire an independent medical examiner to conduct a second autopsy. They were denied.
  • The prosecution called 16 witnesses. Havard’s defense attorneys called one. The prosecution’s case takes up 261 pages of trial transcripts. Havard’s defense takes up just three. So the jury heard 87 times more testimony from prosecution witnesses than from defense witnesses.
  • The entire trial — jury selection, trial, deliberation, verdict, sentencing trial, deliberation, verdict and death sentence — lasted just two days.
  • In his 2008 opinion denying Havard’s appeal, state Supreme Court Justice George Carlson wrote that Lauridson’s affidavit stated that “there is a possibility that Chloe Madison Brit [sic] was not sexually assaulted.” Carlson then wrote, “Taking this statement to its logical conclusion, this leaves open the possibility that she was.” In fact, the phrase “there is a possibility” doesn’t appear in Lauridson’s affidavit. Here’s what he actually wrote: “The conclusions that Chloe Britt suffered sexual abuse are not supported by objective evidence and are wrong.”
  • Only 1 out of 9 justices on the state Supreme Court dissented in 2008, and would have given Havard a new trial. When that justice later ran for reelection, he was attacked in television ads that portrayed him as a defender of a child rapist.
  • Carlson wrote in 2008 that Lauridson’s affidavit declaring there was no evidence of sexual abuse was “contrary” to Hayne’s testimony. But when Hayne then said in 2012 that he also did not believe there had been any abuse, the court again rejected Havard’s appeal, and Carlson again wrote the majority opinion. Incredibly, this time Carlson claimed that Hayne’s new declaration didn’t substantially differ from his trial testimony, and therefore wasn’t newly discovered evidence. Put another way, in 2008 Carlson cited Hayne’s trial testimony as convincing evidence of sexual abuse. Four years later, when Hayne signed an affidavit stating he didn’t believe there had been any sexual abuse, Carlson claimed that the affidavit didn’t contradict Hayne’s trial testimony. These two things can’t both be true.
  • It’s worth considering the plausibility of the state’s theory about the crime: On the night Chloe died, Havard gave Rebecca Britt $20 to run to the grocery store; he did this so he could rape her 6-month-old daughter. According to the state, in the time it took Britt to buy some burrito supplies, Havard anally raped the infant, orally raped her, shook her violently enough cause injuries that would later — but not immediately — kill her, then bathed and cleaned her, dressed her, and tucked her into bed as if nothing had happened. The bath also would had to have been thorough — none of Havard’s hair, skin cells or semen was found on or inside the girl.
When the Mississippi Supreme Court finally gave Havard permission in 2015 to ask for an evidentiary hearing from the same trial court where he had been convicted, the order included one important restriction: The hearing would only cover SBS. It would not re-litigate the sexual abuse allegations. Havard had already had his chance to challenge those. He had lost, thanks to Carlson’s odd logic. Havard was procedurally barred from raising them again. At the hearing on SBS in August 2017, Hayne and other experts testified that the diagnosis was no longer widely accepted in the scientific community and that in Havard’s case specifically it was inaccurate. It’s important to note that while Judge Johnson mentions in his recent opinion that Havard had at one time admitted to having anger issues, he had never previously been accused of any sort of child abuse. The only evidence contradicting Havard’s claim to have accidentally dropped the baby was Hayne’s testimony that her symptoms could not have been caused by a fall, only from “violent shaking,” a phrase Hayne and the prosecutor used seven times. In his opinion, Johnson doesn’t dispute that the SBS diagnosis has since been called into question. Instead, he adopts the state’s argument that even if the jury hadn’t heard Hayne’s testimony about it, they likely would have convicted Havard anyway. To support this contention, he cites the fact that Havard initially didn’t tell Britt or doctors that he had dropped Chloe. The judge cites Havard’s anger issues. And probably most important, he cites the evidence of sexual abuse — evidence that has also since been discredited, though Havard wasn’t permitted to mention that at this particular hearing. Johnson makes much of the fact that in one police interview, Havard himself admitted to lightly shaking Chloe, after she first fell and hit her head and was initially unresponsive. But none of the experts who offered opinions on the case, including Hayne, believe that any shaking, much less the light shaking Havard described, caused Chloe’s injuries. Despite acknowledging the consensus among the experts that SBS was in this case the wrong diagnosis, in even bringing this up Johnson reveals that he, a judge untrained in medicine, still believes it.
Having stated that he thinks the trial jury would have convicted Hayne even without the SBS diagnosis, Johnson then denies Havard’s request for a new trial. But then he does something curious. He writes:
While the evidence presented by Petitioner is not sufficient to undermine this Court’s confidence in the conviction, there is a cautious disturbance in confidence of the sentence of death, even if slight. Matters and arguments that would not reasonably have changed a juror’s vote on the question of guilt, could have, even if slight, as to the decision on the sentence of death.
Johnson then orders a new sentencing trial for Havard. At first glance, this might seem to make some sense. Johnson appears to have some doubt about Havard’s guilt. It isn’t enough doubt to merit a new trial, but it’s enough to make him jittery about an execution. The problem is that the hearing wasn’t granted to review the sentence, and this sort of compromise isn’t authorized under Mississippi law. In fact, in death penalty trials, defense attorneys are explicitly prohibited from appealing to lingering doubts jurors may have about a defendant’s guilt when asking them to spare that defendant’s life. (That prohibition is often ignored and sometimes laxly enforced, but it exists.) The Mississippi Supreme Court had ordered a hearing on the scientific validity of Shaken Baby Syndrome. Earlier testimony about SBS is what got Havard convicted. But the SBS testimony was not what got him sentenced to death — that was the testimony about sexual abuse. If Johnson believes the SBS testimony was wrong, the remedy is to give Havard a new trial. It is not to uphold the verdict, then pass the buck to a new jury to decide if he should live or die. The sentencing trial will start from the premise that Havard is already guilty. Since SBS evidence is why Havard was convicted and not why he received a death sentence, this means that the new jury likely won’t even get to hear the criticisms of SBS that gave Johnson enough pause to order a new sentencing trial in the first place. The ruling is short — just five pages. It’s also sloppy. Johnson misspells Hayne  as “Haynes” throughout. I’m the last person who ought to be a stickler about spelling errors, but this is an opinion from a hearing in a death penalty case. It doesn’t seem like too much to ask that the judge correctly spell the name of the state’s expert whose testimony is the entire reason that the hearing took place. Mostly, this was a gutless ruling. Johnson clearly has some doubt about Havard’s guilt. His legal options were to either act on that doubt by granting Havard a new trial, or to strongly justify his assertion that the jury would have convicted anyway. Instead, Johnson carved out a third way. He skirted the law to remove Havard’s fate from his own hands and put it in those of a jury. Had Johnson given Havard a new trial, the doctor who performed the autopsy on Chloe Britt would not testify that she had been shaken to death. Nor would that doctor support the state’s theory that she had been sexually assaulted. He would contradict it. If the state did manage to find an expert to make either claim, Havard would be able to call his own expert witnesses in rebuttal. Havard would also be able to call his own experts to testify that the baby’s injuries were entirely consistent with Havard’s story. At the very least, this time around, the defense would call more than one witness. Perhaps this theoretical new jury would convict Havard anyway, as Johnson seems to believe. But the trail would look a heck of a lot fairer than the one he received. And Mississippians could be more confident that this man their state wants to execute got a real crack at justice."

The entire post can be read at: