[Balko] Progress and Challenges in Mississippi

courtesy Radley Balko

by Radley Balko
March 29, 2009

Last week Mississippi Gov. Haley Barbour signed House Bill 1456, which would require anyone conducting autopsies in the state to be certified in forensic pathology by the American Board of Pathology. The bill was a response to an effort last year by the state's coroners to incorporate themselves into independent districts for the purpose of circumventing existing state law when it comes to death investigations. Specifically, several coroners and district attorneys wanted to bring back disgraced medical examiner Steven Hayne to begin performing autopsies for them again.

The state effectively fired Hayne in 2008. Department of Public Safety Commissioner Steve Simpson removed Hayne from the list of medical examiners permitted to do autopsies in the state after officials raised a series of troubling questions about his work. Police released the two men convicted of murder in part through Hayne's testimony after DNA testing in 2008. The Mississippi Supreme Court threw out Hayne's testimony in another murder case because it lacked any scientific merit. Both Reason and the Innocence Project have repeatedly documented Hayne's incredible workload, history of questionable testimony, and dubious reputation among colleagues.

Mississippi Attorney General Jim Hood vigorously opposed House Bill 1456 and circulated an e-mail to friendly legislators asking them to defeat it. In the message, Hood derisively referred to the legislation as an "Innocence Project bill," and incorrectly claimed it would reopen old cases involving Hayne (it won't--the bill only bars unqualified medical examiners from performing autopsies). Mississippi should review the thousands of cases in which Hayne (and his even more disreputable sidekick, bite mark specialist Michael West) have testified. But that isn't what is in the bill.
Hood's office also issued a legal opinion last year clearing the coroners to set up their independent, Hayne-enabling districts. The moment Hood's office issued the opinion, Hayne began circulating copies to friendly Mississippi coroners, along with the forms needed to create the new districts. The new bill also repeals the old law allowing adjacent counties to form new districts for the purpose of death investigations.

Hood's efforts to resuscitate Hayne's career aren't surprising. The attorney general is a former district attorney who has used Hayne's testimony to obtain convictions throughout his career. Earlier this month, Hood tried to dismiss criticism that Hayne has been a shill for prosecutors. The Sun Herald newspaper paraphrased Hood to say that Hayne "has also worked on the defense side of cases in which [Hood] was involved." In four years of reporting on Hayne and Mississippi's forensics system, I've yet to find a single case in which Hayne has testified for the defense. I contacted seven defense attorneys from around the state for this column and asked if they could remember any such cases, and just one recalled a single case from the early 1990s that did not involve Hood. I also contacted Hood's office to ask for a list of such cases, and his office didn't return my call.

Incredibly, even as the debate over the new certification bill played out over the last few weeks, and even after all that has come out about Hayne over the last two years, Hood's office this past month has been prosecuting yet another case in which Hayne was brought in to overrule the opinions of another medical examiner.
Last week, a Lamar County, Miss. jury acquitted Jennifer Wardle for the 2002 death of her then-boyfriend James Neal May. Louisiana-based medical examiner Paul McGarry had ruled May's death a suicide back in 2002. Hood's office intervened, had May's body exhumed, and brought Hayne in to take another look at the single gunshot wound to May's head. After Hayne deemed May's death a homicide, Hood's office indicted Wardle for murder, and then tried the case itself, unsuccessfully.

Hood's continuing obstinacy in this mess is particularly damaging given his position as Mississippi's chief law enforcement official. But the attorney general certainly isn't alone. Mississippi has yet to take an honest assessment of just how much harm Hayne, West, and their allies may have done to the state's justice system over the last 20 years. Perhaps that's because just about everyone who might have the power to push for such an investigation has their own complicity in the matter to worry about.
Most of the state's judges are former prosecutors, which means that most used Hayne's testimony to help them win convictions. Between the late 1980s and 2008, Hayne did 80 percent to 90 percent of the state's criminal autopsies. The state Legislature deserves blame, too. Even though state law requires the position to be filled, Mississippi hasn't had an official medical examiner since the last one resigned in 1995. Prior crime-lab directors have told me there were years when the Legislature didn't appropriate any money for the position, much less enough to actually hire a qualified candidate.

But there is some reason for optimism. The new law effectively bars Hayne from conducting any more autopsies, unless he manages to go back and pass his certification exam. The fact that the bill passed both houses of the legislature so overwhelmingly--by unanimous vote in the State Senate, and by 91-31 in the State House--and Barbour signed it is encouraging. Mississippi Department of Public Safety Commissioner Steve Simpson, the man who fired Hayne, has vocally opposed Hood's efforts to bring the examiner back, and seems determined to ensure that reputable doctors do the state's autopsies in accordance with the standards set forth by groups such as the National Association of Medical Examiners. (Simpson is also rumored to be considering a run for attorney general.)

The Mississippi media seems to be catching on, too. Last week Sid Salter, the op-ed editor of the Jackson Clarion-Ledger, wrote a strong column calling for the state to reform its death investigation system and to provide adequate counsel to indigent defendants. I've done a number of radio interviews about my reporting in the state over the last few years, and this most recent episode with Attorney General Hood seems to have nudged many of the state's conservative talk radio hosts toward a more skeptical view on Hayne, Hood, and the coroner system.
Mississippi at least appears to be close to stanching the bleeding. But this wound has been open for 20 years. The next step is going to be much more difficult.
The state first needs to review thousands of cases, criminal and civil, involving Steven Hayne and Michael West. That will be time consuming, expensive, and tedious. But even that won't be the hardest part. If Mississippi officials really want to get to the core of the problem, they'll take an honest look at the widespread and persistent institutional failures that allowed all of this to happen. Courts, DAs, coroners, the legislature, professional organizations, the local media, even the defense bar--just about everyone came up short. A thorough, no-holds-barred assessment will likely expose widespread and longstanding dysfunction in the state's justice system. But that assessment needs to happen. When rot like this festers and spreads for this long, often the only solution is to tear down the entire structure, then build it back up again.

Radley Balko is senior editor of Reason magazine where this column originally appeared. The JFP Daily features his column every Tuesday.

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