Jerry Mitchell

The Clarion-Ledger

The state Supreme Court has ordered a new trial for a Mississippi man convicted by testimony citing the now-disputed Shaken Baby Syndrome.

Justices concluded the trial judge wrongly denied LeeVester Brown's request for the funds to hire an expert to review the autopsy conducted by Dr. Steven Hayne, who concluded the child's death was a homicide consistent with the syndrome. Brown is now serving a life without parole sentence.

It's the second case the high court has tossed in recent months involving the Shaken Baby Syndrome. Since 2000, at least 11 Mississippians have been convicted in such cases with two of them sitting on death row.

One of them is Jeffrey Havard, who was convicted in 2002 after Hayne told jurors the death of 6-month-old Chloe Britt was a homicide and that her injuries were consistent with her being shaken to death — a claim he now doubts.

"This case does fundamentally recognize if you don't have an expert, your hands are tied," said Havard's lawyer, Graham Carner of Jackson. "The science has changed."

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 iron-clad proof of homicide has begun to crumble with several studies raising doubts.

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

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

Like Brown, Havard sought funds for an expert in his case.

"This case is a trend nationwide and in Mississippi with Shaken Baby Syndrome being placed under the microscope," Carner said. "The question is how do you handle forensic science in shaken baby cases?"

Last week, the state Supreme Court threw out Brown's 2006 conviction in Coahoma County because the judge failed to provide him funds to hire an expert.

Lawyers for the state of Mississippi had argued Brown was too late to challenge the Shaken Baby Syndrome because he failed to bring it up at trial.

Justices disagreed, saying Brown "is arguing that the Shaken Baby Syndrome theory is invalid, and he argues he simply had no way to challenge that theory without his own expert."

In 2002, Brown and Shirley Myles married and had a son, Le'Anthony, who was born six weeks' premature.

On March 28, 2003, Myles gave their 6-month-old son a bottle containing milk and cereal at 1:25 p.m. before returning to work.

About 10 minutes later, she testified she got a call from Brown, telling her to return home because Le'Anthony had choked on some milk, was having trouble breathing, and they needed to take him to the emergency room.

A helicopter arrived at the Clarksdale hospital at 5:40 p.m. to transport the baby by helicopter to University of Mississippi Medical Center. A minute after taking off, the child went into cardiac arrest and died.

Hospital personnel let Brown hold Le'Anthony. Myles came in later and held him, too.

Hayne conducted the autopsy, concluding the death was a homicide, and police questioned Brown.

"I don't know what happened," he told them. "I know I didn't do nothing to him. I didn't harm him in no kind of way — no kind of way at all. When they come up with this shaken, I don't know. The only thing I know, I did not harm him."

When detectives told Brown his story didn't "match up" with what happened to Le'Anthony, he replied that he didn't care what they said, he did not harm his son.

The police handcuffed Brown and took him to jail. He was unable to attend his son's funeral.

With the help of family and friends, he finally posted $75,000 bond and was able to hire a lawyer.

But he said he still couldn't afford to hire an expert pathologist to examine the autopsy.

Prosecutors called the defense's request a "fishing expedition," and the judge denied it.

At trial, the emergency room physician said she did not notice any bruises, abrasions, scars or anything else abnormal.

Myles testified she never saw any evidence of abuse or Brown "getting rough" with Le'Anthony.

Hayne told jurors the child's death was a homicide and that it "would take the violent shaking of a child to produce these types of injuries."

But he also noted no trauma, no "cuts, scrapes, no scratches or other types of injuries" on the child.

At trial, Brown told jurors he was innocent, saying he freely spoke to police "because I didn't have nothing to hide because I know I didn't do anything to hurt my baby."

During deliberations, the jury sent out a note, asking the judge if their "only option" was capital murder.

The judge sent back a note to jurors that they could either find Brown "guilty of capital murder" or "not guilty."

The jury returned with a guilty verdict.

In a concurring opinion, Justice James W. Kitchens decried how Brown's 2006 appeal filings in Coahoma County Circuit Court went unanswered for six years.

"Brown was left to languish in prison, stuck in appellate limbo with no one — not his attorney, and not the trial court — taking the steps necessary to the progress of his appeal," Kitchens wrote. "Now he has been incarcerated for more than eight years for a conviction that this Court unanimously decrees cannot stand. Such rank unfairness speaks for itself."

Although a new trial is taking place, Kitchens wrote that "all of us who bear responsibility for the reliable and timely functioning of our state's criminal justice system should be ashamed of the systemic failure which occurred in the case of LeeVester Brown, so much so that we rededicate ourselves to a resolute determination that such a thing will never happen again."

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