Jerry Mitchell

The Clarion-Ledger

Jeffrey Havard has spent more than a decade on death row for a crime the state's pathologist doesn't believe took place.

His lawyers told the state Supreme Court that Havard deserves a court hearing because pathologist Dr. Steven Hayne made statements, first to The Clarion-Ledger and then to the defense, that he told prosecutors before Havard's 2002 trial he found no evidence of sexual abuse of 6-month-old Chloe Britt. The alleged sexual abuse, the underlying felony, qualified the case for the death penalty.

"I didn't think there was a sexual assault," Hayne told The Clarion-Ledger. "I didn't see any evidence of sexual assault."

But jurors never heard that, and they convicted Havard of capital murder, sentencing him to death.

"The prosecution hid this exculpatory evidence," wrote his lawyer, Graham Carner of Jackson. "Whether (defense) trial counsel sought it or not is of no consequence."

District Attorney Ronnie Harper told The Clarion-Ledger that Hayne was probably the weakest witness the prosecution had with regard to the sexual assault allegation.

But that didn't stop prosecutors from telling jurors in 2002 that Hayne would "come and testify for you about his findings and about how he confirmed the nurses' and doctors' worst fears this child had been abused and the child had been penetrated."

Several emergency room nurses and doctors testified there was unquestionable evidence of sexual assault, saying they saw tears and rips in the child's anus.

Hayne said these statements are contradicted by the autopsy he performed and that the anal contusion he did find could have been consistent with the child passing a harder stool.

"This disagreement would be powerful testimony for a jury to hear and could very likely have led to a different result," Carner wrote.

In 2007, defense pathologist Dr. James Lauridson examined Hayne's tissue slides and also found no evidence of injury or abuse.

At the time, Havard told authorities that he didn't abuse the baby and that he dropped her accidentally after getting her out of the bathtub.

The district attorney disputed Havard's claim, saying it was impossible for the injuries to have taken place as Havard described.

At trial, Hayne testified the child died of "shaken baby syndrome."

For decades, shaken baby syndrome was widely accepted, diagnosed through a triad of symptoms: subdural bleeding (blood collecting between the brain and the skull), retinal bleeding (bleeding in the back of the eye) and brain swelling.

In the years since, medical belief that these symptoms provided ironclad proof of homicide has begun to crumble with several studies raising doubts.

In 2009, the American Academy of Pediatrics recommended the syndrome diagnosis be discarded and replaced with "abusive head trauma."

At the request of The Clarion-Ledger, New York pathologist Dr. Michael Baden studied the autopsy report and other materials in the 2002 death of Chloe Britt.

He found no evidence for sexual abuse or support for the shaken baby conclusion, pointing to a lack of neck or chest injuries or spine or rib fractures that suggest such abusive shaking.

Hayne told The Clarion-Ledger there was "growing evidence" his shaken baby diagnosis was "probably not correct" because shaking alone isn't able to generate enough force to cause such injuries.

The state denied hiding anything.

Havard's claims are too late, wrote lawyers for the attorney general's office.

They pointed to the fact the defense had Hayne's autopsy report before the 2002 trial and could have questioned him then about his findings.

"Havard's claims are unsupported by facts," they wrote. "Havard is entitled to no relief."

Carner responded that time doesn't bar this claim because this is new evidence. "The state cannot fail to disclose evidence and then claim Havard is barred from presenting the claim because he was not aware of the information the state concealed," he wrote.

He is seeking an evidentiary hearing — something a three-judge panel for the state Supreme Court granted last week to Christopher Brandon, convicted in 2009 under shaken baby testimony.

Contact Jerry Mitchell at (601) 961-7064 or jmitchell@jackson.gannett.com. Follow @jmitchellnews at Twitter.