There 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.
Flaggs (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:
In re: TAVARES ANTOINE FLAGGS,
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.