Fifth Circuit Dismisses Challenge Of Conviction Based On The Testimony Of Discredited Mississippi Pathologist

SteveHayne2-300x168There is a decision by the United States Court of Appeals for the Fifth Circuit that captures the often impossible burden placed on convicted felons in seeking new trials after errors or unfair rulings. Tavares Flaggs is a Mississippi man serving a life sentence for murder. His trial featured the discredited medical examiner, Steven Hayne (left) who has been shown to have given flawed or false testimony, including testimony in death penalty cases. Hayne sought a new trial in a post-conviction 28 U.S.C. § 2254 application. The Fifth Circuit denied the motion in three paragraphs that is as short as it is dismissive in considering the underlying issues. The government effectively argued that its witness was so notorious that the defense should have raised his incompetency at trial. It succeeded. The entire decision is below.

GetImageBytes.asp.htmlFlaggs (right) was convicted of the murder in April 2005 of Derrick Wright. Wright was found dead in his apartment covered in blood with cut marks all over him and his hands up. Police followed blood marked and footmarks into the hallway. They found a a bloodstained towel in the garbage can and bloody knives. One of those knives had a fingerprint determined to belong to Flaggs. The key witness was Hayne who testified that the wounds on Wright’s body were defensive wounds and that this was a homicide. He specifically testified on the importance of the blood splatters to support this view. This testimony was the critical contradiction to the defense of self defense.

The problem is that Hayne is now viewed as entirely lacking credibility as a forensic witness. His alleged negligence were detailed in cases involving Cory Maye, Jimmie Duncan, and Tyler Edmonds. These cases raised concerns over thousands of cases since he performed about 80 to 90 percent of criminal autopsies in Mississippi — a reflection of a high-traffic office that itself was viewed as unacceptable and unprofessional. In the Maye case, experts rejected his testimony of a bullet trajectory as without basis. Notably, in the case of Edmonds, after a retrial without Hayne as a witness, he was acquitted.

In Flaggs’ case, a state appeal was based on Hayne’s lack of expertise on blood splatters. However, Court of Appeals of Mississippi noted that “[w]hile the State cites no authority supporting this proposition, we note that Dr. Hayne has been accepted in other cases as an expert in the analysis of blood spatter….Moreover, our supreme court has indicated that forensic pathologists are qualified to give opinions regarding blood spatter….Therefore, while there was no mention of blood spatter analysis during Dr. Hayne’s expert qualification, we cannot say under the circumstances of this case that the trial court erred in allowing Dr. Hayne to testify regarding blood spatter.”

The post-trial motion was based on the current controversies surrounding Flaggs in various cases. It was an important case because this is the first major federal appeal based on Hayne’s record. Prosecutors continued to use Hayne despite complaints from various defense lawyers that Hayne was valued solely because he blindly supported prosecutorial claims. When you consider the fact that he was performing between 1,200 and 1,800 autopsies per year, there was considerable doubt over any expert testimony derived from such a factory operation. He was denounced as unprofessional and sloppy. This included one case discussing the condition of a corpse’s spleen when the individual had previously had his spleen removed. There were serious questions over his licensing claims and the truth of prior testimony on his background.

Despite this horrific record and the importance of Hayne to the conviction, the Congress and courts have established a standard for post-trial motions that is exceptionally hard to satisfy. The defendant must show that the evidence is new and could not have been discovered at the time of his trial. Even if you can show that, you then have to show that, if that evidence was known to the jury, it would have been unlikely to convict. The Fifth Circuit, below, simply dismisses the claim and ignores the comprehensive denial of due process presented by such a flawed expert and testimony. Indeed, while presented with a detailed appeal, the Court mentions virtually nothing of the record. It simply says that the problems were discoverable: “Hayne had been widely and publicly criticized for several years before the 2012 deposition and certainly before the filing of Flaggs’s first § 2254 application in 2011.”

The dismissive ruling captures the problem with the current standard. No one reading this record could come away with anything but disgust for the handling of the prosecution. Flaggs may indeed be guilty but he is entitled to a fair trial without such a dubious and unreliable chief witness. It is predictable that there is no sympathy for defendants in such cases, but there should be concern for our system as a whole. This individual will serve a life sentence after the government presented a witness who was not only unqualified to give his testimony on blood splatters but lacking credibility. His being called was the responsibility of the government not the defendant. The government was then able to say that the unreliability of its own witness was so well known that it should have been raised.

Here is the decision:

No. 13-60896
Motion for an Order Authorizing
the United States District Court
for the Southern District of Mississippi
To Consider a Successive 28 U.S.C. § 2254 Application
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
Tavares Flaggs, Mississippi prisoner # M1616, is serving a life sentence for murder. He moves this court for authorization to file a second or successive 28 U.S.C. § 2254 application.

For authorization, Flaggs must show (1) that his proposed claims rely on a new rule of constitutional law that was previously unavailable and that was made retroactive to cases on collateral review by the Supreme Court, § 244(b)(2)(A); or (2) that the “factual predicate” of his proposed claims could not have been discovered previously through the exercise of due diligence and that those facts would establish by clear and convincing evidence that, but for constitutional error, no reasonable trier of fact would have convicted him of the offense. § 2244(b)(2)(B).

Flaggs does not rely on a new rule of law. Rather, he contends that the factual predicate for his claims about the unreliability of pathologist Steven Hayne could not have been discovered before Hayne’s deposition in a defamation suit Hayne filed against the Mississippi Innocence Project in response to the Innocence Project’s 2008 letter to the Mississippi State Board of Medical Licensure cataloguing evidence of Hayne’s malfeasance over the previous years. The evidence providing the factual predicate is not new. Hayne had been widely and publicly criticized for several years before the 2012 deposition and certainly before the filing of Flaggs’s first § 2254 application in 2011. Indeed, the deposition merely revisits the facts compiled in the Innocence Project’s letter.

Moreover, Flaggs does not show that Hayne’s testimony at trial was false or unreliable. Nor does he show by clear and convincing evidence that no jury would have convicted him but for the allegedly unconstitutional admission of Hayne’s opinion testimony. See § 2254(b)(2)(B)(ii). Flaggs does not satisfy the requirements of § 2244(b)(2)(B) under which we may authorize the filing of a successive § 2254 application.
The motion is DENIED.

38 thoughts on “Fifth Circuit Dismisses Challenge Of Conviction Based On The Testimony Of Discredited Mississippi Pathologist”

  1. I am fightibg for my life back now. I was convicted of manslaugter in 2005 by the same judge and court. The pathologist was on my case. A time of death was given and at that time i was honestly working and my employer signed a written affidavit stating i was under his direct supervision. The witness stated in open court that the only reason he picked me from the line up is because the detective told him to pick me. He told them he never saw anyone. Thats a violation of my constitutional rights. I can not be in two places at the same time. All my motions were denied by Judge Bobby Delaughter. My question now is how do i get my life back the way it was. Where can i get some help. The only evidence was a man who admitted being coached by a detective who only wanted to close a case. Not caring about sending an innocent man to prison. Is there anyone out there who can point me in the right direction. Call me at 6623412170

  2. The Fifth-Circuit sweeps Dr. Hayne under the rug closing the door even on IAC claims effectively saying Hayne may have been a fraud but all lawyers by 2010 should have known and raised it at trial: (but Judge Gardner said in his 2009 denial when Brett Jones raised IAC that NO lawyer, regardless of HOW good, could have possibly known of Dr. Hayne’s criticisms before 2007. So sometime between 2007 and 2010 there is a legitimate claim against Dr. Hayne when he wasn’t too notorious, but notorious enough. UGH! garbage absolute garbage)

    Although logically in a self-defense case wounds cannot be identified as “defensive” wounds but Dr. Hayne’s conclusions to that effect went unchallenged in Brett’s case. Of course this was a major part of the state’s proof and was very harmful to his self-defense claim and no doubt had a big influence on the jury.

    When Brett raised this issue on collateral review as part of an ineffective assistance of counsel claim, his counsel’s failure to question Dr. Hayne’s board certification as a forensic pathologist even stipulating to his qualifications and complete failure to challenge his false claim of expertise, Judge Gardner in 2009 shrugged it off saying he could not fault the attorneys for not knowing Dr. Hayne would be strongly criticized two years later in 2007 (Edmonds). He even had the audacity to say “the attorneys are good practitioners, but not that good”. (Anyone who knows anything about Brett’s court-appointed attorney Will Bristow and the kind of defense he afforded Brett knows this is laughable. )

    In the Fifth Circuit filing the state argued and won that Hayne’s fraud was too notorious by 2011 for any lawyer not to have been able to uncover it with due diligence. In other words, he was too notoriously bad for any lawyer to not raise the issue of his fraud, his secretive deal with the state, and his lack of certification among other things. The 5th Circuit said : “The evidence providing the factual predicate is not new. Hayne had been widely and publicly criticized for several years before the 2012 deposition and certainly before the filing of Flaggs’s first § 2254 application in 2011. Indeed, the deposition merely revisits the facts compiled in the Innocence Project’s letter.”

    Clearly, this is another attempt by the powers-that-be to sweep this immense fraud under the rug without any attempt at justice for those who were innocently caught in this web of deceit. The joke is Judge Gardner in 2009 told Brett that NO lawyer, no matter HOW good, could have possibly known to challenge Dr. Hayne’s expertise before 2007. But the 5th Circuit says, “several” years before 2012 (Webster’s defines several as more than 2 but less than many) which for the sake of argument’ we’ll say around 2009 or 2010 EVERYONE should have known about this notorious scandal and the man’s fraud on the courts.. So sometime after 2007 but before 2010, it’s possible that there is an IAC claim on Hayne. But that all depends on what other judges have said as to when a lawyer could or should have known about Hayne and when it wasn’t knowable or what the definition of “several” is, which could mean never. We’ll never know I’m afraid. How convenient.

    This is beginning to look like a no win situation for everyone except Dr. Hayne and the state of Mississippi. Clearly, the decision-makers must think the people of Mississippi (and anyone else caught up in this fraud) are a bunch of bozos and actually believe this bullshit.

    I might add as well, the MS Supreme Court swept the whole thing under the rug on 1-31-14 when they denied Flagg’s paving the way for the Fifth-Circuit. They finished it off nicely.

  3. This is my uncle I miss him I doubt he killed any one he was not a perfect man but he doesn’t deserve life in prison

  4. This is simply another example of the perfect system that fails because of the human element. Unfortunately, prosecutors recognize that their opportunity to rise professionally is directly related to their ability to take bad guys off the street. As a result, their mantra is “Just win baby!” This win at all costs mentality can be found in any aspect of the system, whether in forensics pathology, or the judge who allows a perception that he or she is soft on crime to fail to suppress fruit of the poisonous tree. The human element is, and always will be, the variable that simply can’t be measured or, more importantly, eliminated.

  5. RE: J. Brian Harris, Ph.D., P.E., on March 7, 2014 at 2:52 pm

    …increasingly becoming enhanced by the deceptions of inescapably inherent in,…

    Was meant to be:
    …increasingly becoming enhanced by the deceptions of inescapably inherent in,…

  6. My being ineluctably in irreversible contempt of court as a mere consequence of my biological conception (my becoming a zygote, that is) in the manner of a profoundly autistic person, is ever more increasingly becoming enhanced by the deceptions of inescapably inherent in, and inescapably intrinsic to, adversarial law and jurisprudence.

    Perhaps the day will arrive when the human species will have sufficiently evolved as to have become capable of grasping the pragmatic significance of the social meaning of “the measurement problem” of theoretical and applied-theoretical quantum mechanics, and sometimey-tragic effects of non-understanding of the significance of “the measurement problem” in the making of human decisions.

    Methinks that, until then, chaotic human malfeasance will continue to reign as though supreme.

    1. J. Brian – I have, for much of my life, tried to grasp the nature and extent of governance as an element of society. We are taught as children that government is a necessity, as is taxation. Come to find out, that the books that taught us this were and have always been provided by the government or their agents.

      I cannot get past the notion, that an institution that is established by the legalization of the initiation of force and coercion, as its economic foundation, will provide both equality and justice.

      I however have not given up on the fight against human malfeasants. There much be a way. The Citizens must in some way, get direct input and oversight over the judiciary, that overrides their decisions by some other means than by political determination. I believe we must try to get others to think along these lines rather than work within the confining and manipulated elements of the body politic.

  7. This is a sad example of why folks don’t trust public defenders…..

  8. Why isn’t the U.S. Supreme Court and state supreme courts providing “judicial review” and deeming this legislation unconstitutional in every state? That is the top duty of judges and justices on constitutional issues.

  9. Sometimes, things in Mississippi are not as they seem. Take for example, Bobby Delaughter, the assistant DA in Hinds County who reopened the murder trial of Byron de la Beckwith for killing Medgar Evers, and got a conviction. Bobby was the hero of the day. Played by Alex Baldwin in Ghosts of Mississippi. Bobby later became Chief Circuit Judge when Judge Breland Hilburn retired. Breland was the judge who presided over the Beckwith case.

    In 2009, Bobby was convicted on obstruction of justice charges and went to prison for 18 months. The DA at the time of the Beckwith trial was Ed Peters (played by Craig T. Nelson in the movie). Along about the time Bobby was sentenced, Ed suddenly turned in his law license and retired. Word on the street is that Ed threw Bobby under the bus for his own personal damage control, and turning in his license was not exactly voluntary on his part.

    The “obstruction of justice” charge was based on accepting bribes from Dickie Scruggs.

    Only a couple of people came out of the Beckwith trial smelling good.

    First, there is my buddy Jackson Clarion-Ledger crime reporter Jerry Mitchell. I know Jerry well, and his wife taught my daughter second grade math. Jerry got a MacArthur Genius Grant.

    Jim Kitchens, who is also an old friend, defended Byron de la Beckwith. Jim is a former DA and now Associate Justice on the Miss. Supreme Court.

    I will say this. There is never a dull moment when the Mississippi Bar is involved.

  10. Raff,
    In 2008, the state legislature mandated that the state could only use Board Certified forensic pathologists. Hayne is not boarded as a forensic pathologist. Solution found, right? Wrong. Some District Attorneys started trying to find a way to tiptoe around the statute. DA James Powell wants him to resume autopsies in Humphries, Holmes and Yazoo Counties. This is a link to Tom Freeland’s blog. He is an attorney in Oxford.

  11. This guy is dirty and the appellate court failed in their duty to get to guarantee a fair trial for the defendant. As OS suggests, this guy is bought and sold.

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