If you’ve been reading The Watch with any frequency, you’ll know the name Steven Hayne. But here’s a quick summary:

Hayne is the controversial medical examiner in Mississippi who for the better part of two decades performed an ungodly number of autopsies in that state — as many as 1,800 per year, according to his own testimony. Several convictions won in part or mostly due to Hayne’s testimony have since been overturned due to questions about the validity of his testimony. Additionally, two men once convicted of rape and murder due to testimony from Hayne and bite mark specialist Michael West were exonerated and released after serving nearly 20 years in prison each. One of those men was nearly executed. Hayne was able to monopolize the state’s autopsy referrals even though he was never board-certified in forensic pathology by the American Board of Pathology, nearly universally recognized as the only legitimate certifying organization in that field (including under Mississippi law).

In 2008, a new directive from the Mississippi Department of Public Safety effectively prevented Hayne doing any more autopsies for state prosecutors. But it didn’t prevent him from testifying in cases for which he’d already done the autopsy (a backlog well into the hundreds), or cases in which he testified for which an appeals court had ordered a new trial. It also didn’t prevent him from testifying in civil cases or for the defense in criminal cases.

When the DPS order basically stopped Hayne from doing any more autopsies for prosecutors, Mississippi Attorney General Jim Hood got together with the state’s prosecutors and coroners and attempted to reinterpret an anachronistic state law in a way that would have allowed Hayne to come back. In doing so, Hood repeatedly vouched for Hayne’s credibility, both in public statements and in court documents. That effort was eventually thwarted by the state legislature. But in the years since, Hood’s office has continued to defend challenges to Hayne’s credibility in appeals and post-conviction petitions. Hood himself has also continued to defend Hayne in the media, and he has steadfastly refused to conduct a review of the thousands of cases in which Hayne has testified to look for possible wrongful convictions, despite pleas from the state’s former DPS director, several members of the state legislature, two former state supreme court justices, and the executive director of the Mississippi Association of Chiefs of Police.

But as noted, while the 2008 order barred Hayne from doing any more autopsies for Mississippi prosecutors, he could still testify for the defense. I’ve been reporting on this story for nearly 10 years, and I can think of only a couple of occasions prior to that order in which Hayne had testified for the defense, but he has done so several times since the order.

One such case was the 2013 murder trial of Shannon Rayner, accused of killing his wife in 2011, first by striking her in the head with an object, then setting fire to her house. He was convicted of the murder, although the arson charge was dropped. The Mississippi Court of Appeals just upheld the conviction on Tuesday.

In hiring Hayne on as an expert witness, Rayner’s attorneys set up a surreal situation in which Hayne, the longtime favorite witness of Mississippi prosecutors, would not only be testifying against the state, but also he’d be directly contradicting the physicians in the state medical examiner’s office. Hayne had wanted that job but was barred by his lack of certification. Instead, Mississippi officials simply left the office vacant, allowing Hayne to become the state’s de facto medical examiner, even though he wasn’t qualified to hold the title. Now, he’d be trying to undermine the state’s case by testifying in opposition to physicians working in the office he wasn’t qualified to fill.

The state’s medical examiner testified that Rayner’s wife died of blunt force trauma to the head. Hayne claimed that she died of a drug overdose, a combination of alcohol and an anti-depressant.

The interesting part came during the state’s cross examination of Hayne. From the ruling:

During the State’s cross-examination of Dr. Hayne, the prosecutor asked Dr. Hayne: “You told me during lunch the reason you have to carry around that big notebook with you is you have to defend yourself nowadays for all the reversals you’ve had in the Mississippi Supreme Court; is that correct?” Rayner objected to the relevancy and improper questioning of Dr. Hayne; however, the trial court overruled the objection, finding that the question related to Dr. Hayne’s credibility, and allowed the prosecutor to proceed with his line of cross-examination questioning.

After presenting his case to the jury, Rayner renewed his all of his previous motions, especially for a directed verdict/judgment of acquittal. The trial court overruled Rayner’s motions. During closing arguments, the State, on rebuttal, made the following comment: “Then you go to Dr. Hayne, a discredited doctor in the State of Mississippi.” Rayner objected to the comment, and the trial court sustained the objection, instructing the jury to disregard the statement concerning Dr. Hayne’s character.

The prosecutor also questioned Hayne about the several convictions won based on his testimony that had been overturned, and that the state’s supreme court had explicitly found him to have testified outside his area of expertise.

Here you have a prosecutor for the state of Mississippi attacking not just Hayne’s testimony but also his core credibility as an expert witness. The prosecutor then refers to Hayne as “discredited” in his closing statement. Yet as he’s doing this, in other cases, the state of Mississippi is telling the state’s court of appeals and supreme court in brief after brief that Hayne is completely credible, and that the attacks on his credibility have no merit. They’ve made this argument so emphatically, in some briefs they nearly ridicule defendants for daring to question Hayne’s authority and credentials.

The Mississippi Court of Appeals upheld Rayner’s conviction, finding that the state’s questioning of Hayne was proper, and that the comment about him being discredited likely didn’t bias the jury. In other cases, this same court has also rejected challenges to Hayne’s credibility. I think those rulings were wrong, but they aren’t necessarily inconsistent with this one. This wasn’t a ruling on Hayne’s credibility, but on whether the state violated Rayner’s rights by attacking it.

The real problem here is with Jim Hood and his office, and the decision to defend this conviction after defending Hayne by defending all of those other convictions. Were Hood any other lawyer, or were he and his subordinates a law firm there attacking Hayne’s credibility in one case, then adamantly defending it in another wouldn’t be inherently problematic. (Provided they didn’t knowingly put an un-credible witness on the stand — and at this point, the evidence against Hayne’s credibility is overwhelming.) The obligation would be to the client.

But Hood is the attorney general. His client is the people of Mississippi. His job is not to win and protect convictions at any cost. It’s to pursue justice. As former Supreme Court justice George Sutherland once put it, while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” If Hood believes that Hayne is credible, then his office shouldn’t be defending Shannon Rayner’s conviction — as the ruling points out, Rayner’s conviction turned on which medical examiner the jurors found more credible. Hood should also then instruct the state’s prosecutors to refrain from attacking Hayne’s credentials when he testifies for other defendants. (Note: This particular argument is about policy and morality. I’ll address the legal ethics in a subsequent post.)

But if Hood believes Hayne isn’t credible, he shouldn’t be defending all those other convictions for which Hayne’s testimony was determinant. And he should start reviewing the thousands of cases in which Hayne has testified for possible wrongful convictions. (Hood’s reluctance to come around on this point probably has something to do with the fact that Hood himself used Hayne numerous times back when he was a district attorney. Thus he’d be forced to admit his own judgment was in error.)

Instead, we have the state of Mississippi arguing that Hayne both is and isn’t qualified and credible to testify as an expert witness — depending on whether he’s testifying for or against the prosecution.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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