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The Jeffrey Havard Case Will Undermine Support for Capital Punishment

    Jeffrey Havard was convicted of murdering an infant in Mississippi and is now on death row.  His conviction depends in part upon a finding of a sexual assault and rests heavily upon the forensic testimony of Dr. Hayne, who performed the autopsy on the infant.  Hayne’s testimony alleged that the baby died due to shaken baby syndrome and that there was an unexplained small anal contusion.  This, and the testimony of hospital personnel that the baby’s anus was diluted, became the basis for Havard’s conviction. There was no forensic testimony presented by the defense.  

  Since the trial, at least two highly regarded forensic experts, Dr. James Lauridson and Dr. Michael Baden, have come forward and sworn that no evidence of the alleged sexual molestation was present and that the baby’s injuries are consistent with the baby being dropped consistent with Mr. Havard’s version of events . Dr. Hayne has also executed a post trial affidavit which casts doubt on the results of the trial.

  Dr. Hayne is a somewhat controversial figure in Mississippi where he has performed an enormous number of autopsies and regularly testifies for the prosecution in criminal cases. Allegations of bias and lack of proper credentials have been made against him and there is a suspicion that his testimony may often tend to be biased in favor of prosecution.

  Even if Dr. Hayne were a Nobel Laureate with an angelic sense of fairness, as a trial lawyer I cannot imagine how Jeff Havard could possibly get a fair trial without access to an expert witness on the defense side. The Mississippi Supreme Court denied Havard’s appeal of his conviction opining that the decision whether or not to approve the expense of a defense expert was within the discretion of the trial court.  I can almost hear the water dripping from their hands.

  The analysis of this case should be simple.  Havard could not conceivably get a fair trial in a case like this without the assistance of an expert.  An expert is essential to the preparation of effective cross-examination of the other side’s expert.  In addition, an expert can testify before the jury pointing out deficiencies in the other side’s expert testimony.  My father (an insurance executive) used to ask my college friends planning to go to medical school whether they were planning to go to “plaintiff’s medical school” or “defendant’s medical school” because, in personal injury cases, the testimony of the experts retained by each side were so widely apart on issues like the extent and cause of the injury. This is the way the adversary process works; each side’s expert tries to present his testimony in as “helpful” a manner as possible and the truth can be found only after a thorough examination of both side’s witnesses.  The very knowledge that the other side has an expert will tend to lead an expert witness to “trim his sails” with respect to his testimony so that he is not discredited for obvious mistakes or exaggerations.  To put it in context, if this were a case involving a dispute between two corporations with a lot of money at stake, each side would have had a deep bench of expert consultants on every issue on which expert testimony could be directed.  In this case, it was only Mr. Havard’s life that was at stake, so the State of Mississippi apparently decided that such expense was not worthwhile. 

  If Havard’s lawyer didn’t frame the request for funds to retain an expert properly, then Havard was denied effective assistance of counsel. If he did, then the trial court erred in denying the request. In either case, Havard is absolutely entitled to a new and fair trial. No American should be imprisoned, much less executed, under these circumstances.  The continued presence of Havard on Death Row and his pending execution are atrocities that are unworthy of our great Republic.

  I have been a strong supporter of the death penalty but cases like this one are starting to make me waiver.  Some of us really believe that it is important not to inflict capital punishment upon innocent defendants.  A reading of the opinion of the Mississippi Supreme Court in this case does not give me confidence that those charged with the weighty responsibility of deciding who should be executed share that concern.  There is all too much reliance on procedural obfuscation and arguments that Mr. Havard is introducing evidence too late in the process or that he has come to the wrong window asking for relief.  What the opinion does not give the reader is any sense at all of whether or not Mr. Havard is actually guilty of the crime for which he is about to be put to death.       

  If, after a new trial conducted in a fair manner, Mr. Havard is adjudged to be guilty, then the chips will fall where they may.  But there is simply no excuse for failing to “get this right” by conducting a fair trial in which the forensic issues, which are now clearly in dispute,  can be resolved through a fair adversary process.