The rejection itself was nothing new. Despite Hayne’s impossible workload (over about 20 years he performed on average 1,200 to 1,800 autopsies per year, by his own admission), his lack of board certification, and the fact that he has on multiple occasions given testimony that other medical examiners have said ranged from implausible to malpractice, to date no court has rejected Hayne as an expert witness. While some courts have overturned a handful of convictions that were based on his testimony, they’ve only done so in the most egregious instances. Where Hayne has given plausible testimony, or even implausible-but-not-completely-nutty testimony, the courts have generally refused to intervene.

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But if Hayne isn’t a credible witness, he isn’t a credible witness. If he has shown that he’s willing to say outrageous things in a few cases, has lied about his certification, and has been shown to be sloppy and unprofessional in his work, the cases in which he gave plausible but debatable testimony (and was opposed by a more competent medical examiner) should be seen just as tainted as those in which his testimony was transparently ridiculous.

So far, the courts haven’t agreed. But a two-word phrase makes last week’s ruling different than all of the others.

The evidence shows the witness for Louisiana, Dr. Steven Hayne, a now-discredited Mississippi coroner, lied about his qualifications as an expert and thus gave unreliable testimony about the cause of death.

To my knowledge, this is the first time a court has acknowledged that Hayne has been broadly “discredited.” The acknowledgment is significant because of what the panel does next. Under federal law, in order to obtain a new trial based on newly discovered evidence, a convicted person must show that the evidence is either new or could not have been discovered at trial, that had the evidence been available at trial the jury would likely have convicted, and must file his petition based on the new evidence within a year of when the evidence “could have been discovered through the exercise of due diligence.”

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The federal district court judge who first ruled on Koon’s petition determined that despite the evidence that Hayne has been discredited, Koon is not eligible for a new trial because the evidence about Hayne’s credibility problems became available several years prior to when Koon filed his claim: in July 2012. The Fifth Circuit panel agreed.

Koon’s claim is imprecise, but he states generally that Dr. Hayne was not properly certified or qualified to testify as an expert, and that he misrepresented certification in forensic pathology. Koon asserts he could not have known Dr. Hayne was unreliable until he received a report from the National Inmate Advocacy Program (NIAP) in September 2011.

The district court adopted the Magistrate Judge’s report and recommendation, which recommended that correspondence to Koon from the NIAP, its predecessor Review Case Research, and Koon’s trial counsel showed Koon had knowledge of Dr. Hayne’s unreliability and untruthfulness at least as early as June 2010. That adopted recommendation was not clearly erroneous. E.g., Wilson , 564 F.3d at 704. For example, the news media also severely criticized Dr. Hayne between 2006 and 2008; he filed a defamation action in 2009 against the Innocence Project, based on its criticisms of him; and a Mississippi Supreme Court Justice criticized Dr. Hayne as unqualified in 2007. Edmonds v. State , 955 So. 2d 787, 802-03 (Miss. 2007) (Diaz, P.J., concurring). Koon’s assertion that he could not have learned of Edmonds from information in the Louisiana State Penitentiary law library is both implausible and immaterial in the light of the public information about Dr. Hayne that was available for several years prior to July 2011. Koon discovered, or should have discovered, the factual predicate of his claim about Dr. Hayne more than a year before he filed the state habeas petition that would have tolled the limitation period. Because the limitation period expired before it was tolled, Koon’s petition is untimely.

Under a very precise reading of the federal law and relevant case law, this is all correct. It’s also incredibly unfair, and a stark illustration of just how ill-equipped the federal courts and federal law are to catch and correct flawed evidence disguised as expertise.

To be clear: I have no opinion about Koon’s guilt or innocence. I know nothing of the state’s case against him. But this ruling addresses only the matter of Hayne, and it finds that because Koon missed his deadline, it simply doesn’t matter that Hayne may not be a credible witness.

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To explain why this is so unjust, some background is in order: Since the onset of DNA testing in the 1990s, we’ve been slowly learning that our criminal justice system frequently comes up short when it comes to keeping junk science and quack experts out of the courtroom. The landmark 2009 National Academy of Sciences report on forensics was clear on this point. From bite mark matching to hair and fiber analysis to “shaken baby syndrome,” the courts have done a poor job of demanding that experts be qualified and credible, theories be grounded in science, and statements of certainty be verified with statistical sampling before allowing such expertise to be heard by a jury.

And while the criminal justice system can’t seem to keep bad science out of its courtrooms during trial, once someone has been convicted, the same system then puts a premium on the “finality” of a guilty verdict. It’s a point Congress and past presidents have hammered home over the years by revising the federal criminal code to limit habeas appeals in federal court. In order to get relief from a federal court in post-conviction, a convicted person today not only needs overwhelming evidence of innocence, they must also show that this evidence is either new or was undiscoverable at the time of trial, and they must file their petition for within a year of the new evidence becoming available.

The problem with these laws with respect to bad scientific evidence is that science doesn’t operate on deadlines. Science is a process. Most forensic specialties aren’t actually sciences at all, but disciplines that were developed in police agencies and crime labs — not in the interest of pursuing knowledge, but in the interest of helping police solve crimes. Many fields of forensics, especially pattern-matching disciplines like fingerprinting, ballistics, and fiber matching, can’t calculate a statistical margin for error. That doesn’t mean they have no evidentiary value at all (although that’s true of some of these fields). It just means that they’ve never been subjected to scientific inquiry. Their underlying assumptions have never been tested. But these assumptions and the conclusions upon which the analysts base them are often presented to juries as science. The practitioners in these fields also often give testimony that expresses levels of certainty for which there is no statistical support. That is also a problem.

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By contrast, DNA testing is steeped in science. DNA profiling was developed by scientists, with extensive scientific review. You’ll rarely if ever see two analysts disagree over a DNA profile the way you’ll often see, say, two bite mark experts or blood spatter analysts disagree over crime scene photos. Because we know how DNA markers are distributed over the human population, DNA analysis has a quantifiable margin for error. Barring tainted evidence or human manipulation, that margin is very, very small, though it’s still there, and it’s still acknowledged. A bad forensic analyst will often testify about his or her certainty about a match. A DNA analyst will testify about probabilities. Consequently, DNA evidence is one of the few ways the courts will let a wrongly convicted person get over the high barriers to a new trial or exoneration once a case is in post-conviction.

But DNA testing is also why we now know that many of those forensic specialties are flawed. It has shown that defendants were actually innocent in cases in which a bite mark expert or blood spatter expert or hair analysis expert said without equivocation that the defendant was guilty. Unfortunately, this has not been enough to get the federal courts to reconsider convictions in cases for which the primary evidence was from one of those same fields (or a disturbing number of cases, from the same expert), but for which DNA wasn’t a factor.

These forensics fields have largely avoided seeking out scientific validity for their claims because once the courts began accepting the analysts as experts, there wasn’t much incentive for them to do so. Again, the purpose of forensics is to solve crimes. The end game is to testify in court and persuade a jury. Once you’ve accomplished that, you’ve won. Subjecting your methods and analysis to scientific scrutiny won’t get you any farther. It can really only hurt you.

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Because these forensic fields haven’t sought out scientific validation, science has been slow to look into their claims. That began to change when we started to encounter the first DNA exonerations in the early 1990s. But full-on scientific scrutiny of forensics really didn’t get going until the last decade or so. (Here too, the process has been marred by politics and posturing.) And it’s worth emphasizing again that science is a process. It moves slowly. A study will get submitted for peer-review. It might then be published. Other studies will verify or contradict that study, or distinguish it in some way. There is no set point in time at which science will officially declare a theory to be proven or disproven. It’s about the process itself. It’s a gradual accumulation of knowledge.

Courts operate differently. Statutes of limitations toll. Procedural rules impose deadlines. The courts and the people who operate in them seem to feel that the integrity of the system demands the preservation of verdicts. Institutionally, the legal system and the system of scientific inquiry operate in fundamentally different ways. And we haven’t yet figured out how to reconcile the differences.

Let’s say someone who was convicted due to an expert’s diagnosis of “shaken baby syndrome” wants to file a post-conviction petition based on the growing consensus that the theory is flawed. At what point does that year-long window to file the petition begin to start? Is it after the first critical study? The second? Is it once the scientific community has reached a consensus? What defines a “consensus?” How do you define the field of scientists among which a consensus must arise?

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From the prospective of the wrongly convicted, you can see the trap, here. File too soon, and the court may conclude that you haven’t presented enough evidence that the forensic theory upon which you were convicted has been discredited. If you then try to file more petitions as more evidence comes out to bolster your argument, you risk the court concluding that this is an issue you’ve already raised, you lost, and you’re therefore barred from raising it again.

Here’s a real-world example: Mississippi courts, prosecutors, and attorneys general continued to uphold and defend the credibility of the now notorious bite mark analyst Michael West well into the mid-2000s. This, despite the fact that West had been repeatedly exposed as a fraud going back to the mid-1990s. He had even been ostracized within the already controversial and scientifically suspect community of bite mark analysts. Mississippi Attorney General Jim Hood finally conceded only a couple of years ago that West wasn’t a credible witness. But while Hood’s office had by then stopped defending West’s credibility in court, the office continued to defend convictions won on West’s testimony. Hood’s staff did so by arguing that defendants who had already challenged West’s credibility at trial, on appeal, or in previous post-conviction petitions, and lost, were procedurally barred from raising that claim again. Thus, defendants are stuck: File too soon and you’ll lose on the merits and risk being barred from raising the claim when more evidence comes out. But if you wait for more evidence, you risk running afoul of the deadlines on newly discovered evidence.

So let’s get back to James Koon. Forensic pathology (the field practiced by medical examiners) is a particularly tricky area of forensics because it’s both objective and subjective. “There are four bullet holes in the victim’s heart” is an objective statement. You’ll rarely find two medical examiners arguing such a point. “The bullet’s trajectory suggests that the killer shot the victim while standing” is far more subjective. It may be true. But it’s confounded by variables, such as the body positions of the shooter and victim, the elevation of both, the angle at which the killer was holding the gun, and so on. How much stock the jury puts in a medical examiner’s testimony on such questions relies heavily on how credible the jury finds the medical examiner. This is particularly true if the defense has its own medical examiner with contradictory opinions. (Perversely, this is a system that rewards people who sound convincing to juries. A medical examiner who speaks in certainties will sometimes sound more persuasive to a jury than one who hedges his opinions and refuses to speak in absolutes, even though the latter is usually the more scientifically sound approach.)

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In some cases, forensic experts have been clearly exposed as frauds, such as cases in which a crime lab technician was shown to have faked test results. Here, there’s a clear time for the clock to start running on that window to file a petition. In other cases, such as Hayne, the information has come out in a stream, so it’s far less clear.

The Fifth Circuit has now apparently decided that Dr. Steven Hayne is no longer a credible witness. But when did the court reach that conclusion? And how was James Koons supposed to know?

Consider the following:

1. Mississippi Attorney General Jim Hood still defends Steven Hayne as a credible witness.

2. To this day, Hayne still testifies as an expert witness in Mississippi’s courts. He has effectively been barred from testifying for the state in new cases by a state law requiring such experts to be board-certified in forensic pathology. But he can still testify in retrials of old cases for which he performed the autopsy. He’s still defended as credible in state briefs. And he now sometimes testifies for the defense and in civil cases. (Bizarrely, this has led to situations — including the recent publicized trial of Pebbelz Da Model — in which the same state that has been defending Hayne in court briefs attempts to discredit him by using the same attacks on his credibility that it dismisses in those briefs.)

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3. It’s true that the Mississippi Supreme Court tossed Hayne’s testimony in the previously mentioned Tyler Edmonds case. One would think Hayne’s testimony in that case would have been enough to discredit him, and perhaps provide a point at which the click on new evidence could begin ticking. (Hayne preposterously claimed that he could tell by the bullet wounds in the victim that two people were holding the gun that fired those bullets — thus confirming the prosecution’s theory that a brother and sister simultaneously killed the sister’ husband in his sleep.) But in the same opinion, the court explicitly noted that its ruling applied only to that case, and that as far as the court was concerned, Hayne was still a credible witness.

4. In fact, just months after the Edmonds decision in 2007, a federal district court judge in the same Fifth District where the appeals court issued last week’s opinion made the same declaration.

The petitioner also claims that he has discovered new evidence that Dr. Hayne, who testified as an expert on behalf of the state at trial, should not have been allowed to testify as an expert in forensic pathology. The petitioner’s new evidence claim arises out of a recent state court decision, in which the state supreme court found that Dr. Hayne should not have been allowed to testify to a matter beyond his expertise-based on the facts in that case. The court did not however, conclude that Dr. Hayne was not an expert in the field of forensic pathology. Instead, the court found that the particular opinion offered by Dr. Hayne in the Edmonds case should not have been allowed without any scientific testing to support it. The petitioner refers to Justice Diaz’s concurring opinion in Edmonds-in which Justice Diaz stated his belief that Dr. Hayne should not have been qualified as an expert. This expressed belief by a single Mississippi Supreme Court Justice, however, was not the finding of the majority-and does not constitute ‘new evidence’ for purposes of § 2244(d)(1)(D). As such, the petitioner’s arguments in support of use of the factual predicate exception must fail.

5. In the 2009 case Brown v. Kelly, another federal district court judge from the Fifth Circuit considered the case against Hayne’s credibility, which by then had grown, and again found it lacking:

Petitioner argues that Dr. Haynes [sic ] was not qualified to provide expert testimony for three reasons: 1) he was not qualified to serve as the State Medical Examiner because he was not certified in forensic pathology; 2) he testified that he performed between 25,000 and 30,000 autopsies during his 25–year career, which Petitioner claims is “highly unrealistic”; and 3) he provided “questionable” testimony in another case, reported in a recent magazine article. Petitioner claims that his attorney was ineffective for failing to investigate Dr. Haynes’ qualifications (or alleged lack thereof) as an expert and that if he had, he would have been prepared to object to his testimony at trial . . . However, it seems clear to this court that based upon Dr . Haynes ‘ qualifications, he was amply qualified to provide expert testimony in the field of forensic pathology. Moreover, Plaintiff’s arguments regarding Dr . Haynes lack merit. First, the fact that Dr . Haynes was not qualified to serve as the State Medical Examiner has no bearing on whether he was qualified to provide expert testimony. Second, Petitioner’s claim that the number of autopsies performed by Dr . Haynes is “highly unrealistic” is pure speculation. Finally, the fact that Dr . Haynes may have been criticized in a magazine article does not establish that he was not qualified to render an expert opinion at Petitioner’s trial. In short, Petitioner has failed to establish that his attorney was ineffective in failing to investigate Dr . Haynes ‘ qualifications or to object to his testimony and, therefore, this claim for habeas relief should be dismissed.

(Note here that the judge repeatedly and incorrectly refers to Hayne as “Haynes.”)

6. In the 2011 case Council v. Bingham, a federal district judge in the same Fifth District again ruled that the growing media coverage (including my own) of Hayne and mounting questions about his credibility still didn’t undermine his status as an expert witness.

Council claims she is innocent of the charge based on new evidence that Dr . Hayne is not licensed and is a forensic fraud and wrongfully testified in her case . . . She further states that Dr . Hayne testified that the victim was stabbed six times but never stated how the wounds were inflicted. Id. Council attaches to her petition an article by Radley Balko, “CSI: Mississippi, A case study in expert testimony gone horribly wrong,” criticizing Dr. Hayne and his qualifications . . .

The fact that Dr . Hayne may have been criticized in a magazine article does not establish that he is a “forensic fraud” or that he wrongfully testified in Council’s case.

In a footnote, the court adds:

According to the magazine article, Dr . Hayne is not board certified in forensic pathology. See Petition [1–3] at 30. At trial, Dr. Hayne testified that he is a physician practicing in the fields of anatomic, clinical, and forensic pathology. He did not claim to be board certified in forensic pathology . . .

The article also references the Mississippi Supreme Court’s decision in Edmonds v. State . . . where the court reversed and remanded defendant’s murder conviction, holding in part that Dr. Hayne’s testimony pertaining to the two-shooter theory was improperly admitted, as the State made no proffer of any scientific testing performed to support the theory. However, as Respondent points out, the court did not find that Dr. Hayne was not qualified to proffer expert opinions in forensic pathology. Respondent further notes that since the Edmonds decision, Mississippi appellate courts have consistently found Dr. Hayne qualified to testify as an expert.

Here, the ruling is correct: Appeals courts in Mississippi have consistently upheld Hayne’s status as an expert witness. The ruling lists two of them:

See Lima v. State, 7 So.3d 903, 907 (Miss. 2009) (holding that the trial court did not abuse its discretion when it accepted Dr. Hayne as an expert, despite defendant’s claim that Dr. Hayne was not qualified as an expert “because his work load was too heavy, he lacked reliability, his work lacked peer review, and he was not board-certified by the American Board of Pathology in forensic pathology”); Keys v. State, 33 So.3d 1143, 1150 (Miss. Ct. App. 2009) (finding that Dr. Hayne’s testimony as to the cause and manner of death of victim was permissible where the trial court accepted that Dr. Hayne was qualified as an expert in the area of forensic pathology without any objection or voir dire from defense counsel).

So it’s now 2011, and there’s still no reason for someone like Koon to believe that the courts have any problem with Hayne as a witness.

7. As I wrote in a post here at The Watch, just last January a separate panel from the very same U.S. Court of Appeals for the Fifth Circuit that denied Koon ruled in a separate case that the petitioner “[did] not show that Hayne’s testimony at trial was false or unreliable.” One federal judge, E. Grady Jolly, was actually on both panels.

8. As I mentioned in that same post, as well as in this report from a couple years ago, state officials in Mississippi have tried desperately to keep information about Hayne, his autopsies, and his arrangements with the state from becoming public. It seems unfair to then punish those he has helped convict because they couldn’t access that information sooner.

So as recently as last January, the same federal appeals court, including one of the same judges, found a petitioner’s claims about Hayne’s credibility to be without merit — and that decision is in addition to two other federal circuit court rulings and numerous court decisions from the Mississippi Court of Appeals and the Mississippi Supreme Court coming to the same conclusion since my first expose of Hayne in 2006 and the Tyler Edmonds ruling in 2007.

In fact, we’ve only really started to see court opinions expressing concern about Hayne’s general credibility in the the last couple of years. That has only happened in a handful of cases, and those opinions have been matched or exceeded by opinions still finding no problem with Hayne as a witness.

The Catch-22 for someone like Koon is compounded by the fact that Louisiana only offers post-conviction indigent defense services to those who have been sentenced to death. Since Koon was sentenced to life in prison, he hasn’t had an attorney since he lost his appeal. He filed his post-conviction petition himself. The court is saying here that, from his prison cell, an indigent defendant like Koon should not only have been keeping abreast on each revelation about Hayne’s credibility as it happened, he also should have known the precise moment when those revelations tipped the scales to make Hayne officially “discredited” in the eyes of the court — even though the court itself can’t or won’t say precisely when that occurred — and filed his petition within a year of that moment.

If you support the death penalty (I do not), there is an argument for imposing a deadline on claims based on newly discovered evidence in those cases. Hayne testified and helped convict people who turned out to have been innocent. But he has also helped convict a lot of people who were guilty. Without a deadline, when revelations come out about a prolific witness like Hayne, guilty death row inmates whom Hayne helped convict — but for whom there’s other ample evidence of guilt — could sit on the new revelations for years in order to buy themselves time.

But a deadline makes little sense when we’re talking about people serving long or life sentences. These people just want to get out. It’s hard to see how someone like Koon could game the system by waiting to file. At worst, he knew about the earlier revelations and held off because he wanted to wait until there was enough evidence to persuade a federal court. But that isn’t gaming the system, it’s understanding the high bar in getting a court to overturn a conviction. More likely, he just wasn’t aware of all that had come out about Hayne. If the court does indeed believe that Hayne is now discredited, then Koon deserves a new trial. Perhaps a different, more credible medical examiner would look at the photos and slides from Hayne’s autopsy and come to the same conclusion, and Koon would still be convicted. Perhaps, as has been the case in the past, Hayne’s autopsy report would prove to be too vague and lacking in detail for credible forensic pathologist to draw any conclusions. If that’s the case, then it would be the state’s mistake for entrusting the autopsy to Hayne, and Koon should be freed.