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Judge to decide if Mississippi should put Jeffrey Havard to death for a crime that never happened

Photo by Cain Madden from the Natchez Democrat. This image was presented in Madden’s article: “How did baby Britt die? Shaken baby syndrome at center of hearing in 2002 death penalty case.” Click on image to view Madden’s article.

Jeffrey “Jeff” Havard currently sits wrongfully convicted on death row in Mississippi for the sexual assault and murder of his girlfriend’s six-month-old daughter, Chloe Britt. Havard has stated from the beginning that the infant slipped from his arms while lifting her from the tub, causing her head to hit a nearby toilet. There is no evidence whatsoever to support a sexual assault charge. Multiple experts currently support Havard’s claims that Chloe’s death was the result of an accident.

In May of 2016, the Mississippi Supreme Court ordered an evidentiary hearing for Havard’s case based on defense claims of new evidence due to changes in the science behind Shaken Baby Syndrome (SBS). Last week, after nearly 15 years of incarceration on death row, Havard finally had the opportunity to return to the courtroom of Adams County Circuit Court Judge Forrest Johnson, with renewed hope that the truth would finally be heard.

Judge Johnson presided over Havard’s trial in 2002. The trial was speedy to say the least. Within a matter of two days, the court selected a jury, tried the case, received the jury’s verdict, and sentenced Havard to death. The jury heard from only one expert who testified for the prosecution. Havard asked for an expert of his own but the request was denied by Judge Johnson based on financial restraints of the county. At the time, indigent defendants were expected to rely on the prosecution’s expert if they could not personally afford their own.

Havard’s 2002 trial was a sham. It is not possible to properly try a death penalty case in two days. To put things into perspective, last week’s evidentiary hearing took three days. The judge listened to testimony from four experts who testified for the defense, and from a pediatrician who testified for the prosecution. Havard’s evidentiary hearing, which was dedicated to a single topic, and provided no immediate decision, took longer than the entire trial which landed Havard on death row in 2002.

Havard’s evidentiary hearing began on August 14, 2017 and concluded on August 16, 2017. The Adams County Courthouse where the hearing took place is in Natchez, Mississippi, a historic Mississippi River town bordering Louisiana. I was intrigued by the small town feel of Natchez. Entering the courthouse for the first time gave me the sense that I had somehow stepped back in time. The courthouse is listed as the oldest in Mississippi, and is no doubt rich in history. A history which the building now struggles to contain. The public hallways are lined with file cabinets overflowing with paperwork, with cardboard bankers boxes stacked on top which are also being tested to their limits of capacity, as loose paperwork can be seen stacked about.

The courthouse works as a multi-functional building. The first floor has a clerk’s office where people file in to pay various fees, taxes, and fines. The second floor contains courtrooms and judge’s chambers. Each morning when I arrived, I walked past a line of people waiting to see the clerk, wondering if any of them were aware of the fact, that in the very same building, just up the stairs and down the hall, a man was fighting for his life. It was a stark reminder that people are swallowed up by our justice system. Once convicted, the incarcerated are all but forgotten by society, minus those close to any case. For some, this may not garner much sympathy for those who are guilty of the crimes they are convicted of, but it certainly provides a painful reality for those who currently sit in cages for crimes they did not commit.

The Sheriff’s deputies working at the courthouse were courteous and professional throughout the hearing. They went above and beyond to try and accommodate Havard’s family as much as they could. Havard was allowed to shake hands with supporters, and most importantly, he was allowed to hug those closest to him. Human contact is something Havard has not experienced for the past 15 years, so it was no surprise to see the heartfelt display of emotions from those involved.

Judge Forrest Johnson listens to testimony from Dr. Michael Baden. This still image comes from a video provided by Jerry Mitchell from the Clarion Ledger in an article titled: “Pathologist backs off shaken baby ruling in death penalty case.” Click on image to view Mitchell’s article.

The hearing began with instructions from Judge Johnson, laying out the guidelines set by the Mississippi Supreme Court. The high court recognized that the cause of death in Havard’s case warranted review but the high court did not grant the defense’s additional request to review the charge of sexual assault, keeping on par with their previous rulings on past appeals.

The high court’s orders that Havard’s evidentiary hearing could only review the charge of SBS, provided for unique circumstances, because Havard sits on death row solely due to the combination of charges. Without the charge of sexual assault being tacked on, Havard’s case would have never been a death penalty case in the first place. Havard’s lawyers refused to be deterred. The defense made sure throughout the hearing to highlight on the record that there are currently no experts who support the claim of sexual abuse. Every expert who testified, as well as the prosecution’s pediatrician, all stated under oath that there was no evidence of a sexual assault.

The prosecution’s case in 2002 was built primarily on the testimony provided by Dr. Steven Hayne and the ER staff that was present on the night Chloe died. Hayne conducted the autopsy on the infant. Hayne did not find evidence of sexual assault while conducting the autopsy, even though he was told to look for it. Hayne helped the prosecution when he testified that a contusion in the infant’s anus could have resulted from penetration with an object. Hayne also testified that the death was the result of SBS. Hayne has now retracted those statements.

There is not one single shred of evidence that Chloe Britt was ever sexually assaulted, by Jeff Havard or by anyone else. The sexual assault allegation was based on observations of the ER staff that the infant’s anus was dilated. The ER staff was not qualified to give an opinion regarding sexual abuse. Every single staff member who provided a statement to police, made the same mistake when misdiagnosing the condition of the infant’s anus. The court furthered the damage when wrongly allowing the ER staff to testify as experts at trial.

Anal dilation has given rise to suspicion of sexual abuse in other cases, and a clinical study was done to clarify the subject. Researchers found that anal dilation is a common artifact in accidental deaths involving severe brain injury.

Havard’s defense filed several appeals over the years citing expert evidence that no sexual assault had occurred, but those appeals were all denied. After Havard’s conviction, Mississippi’s post-conviction relief office obtained the services of former Alabama state medical examiner Dr. James Lauridson to review the autopsy findings of Hayne. Lauridson concluded that the evidence failed to confirm that a sexual assault of any kind had taken place. There was no sign of any tears or lacerations in the infant’s anus and it was not out of the ordinary for dilation to occur naturally. Lauridson noted that there was no trace of Havard’s DNA found on or inside the infant. He also noted that a thermometer inserted into the infant’s anus at the emergency room could have caused the small one centimeter bruise noted by Hayne. Lauridson’s report refuted the prosecution’s claim of a sexual assault. Interestingly, Lauridson’s expert opinion had no bearing on appeal.

After Judge Johnson finished addressing the court, the defense called Dr. Steven Hayne to the stand. Hayne poses many problems for the state of Mississippi. Hayne has a shady past that involves thousands of autopsies, and countless legal cases. Hayne was presented by prosecutors as a primary expert in criminal trials for a period of decades in Mississippi. Investigative journalist Radley Balko has been reporting on Hayne’s questionable conduct for years.

The SBS issue may open the door for the state of Mississippi to resolve their issues with Hayne in this case, and may explain why the evidentiary hearing was limited to the discussion of SBS. Challenges against the sexual assault charge work to directly attack Hayne’s credibility. If Hayne is fully discredited, that revelation could open a can of worms which could impact countless other cases in Mississippi. If Havard’s innocence is determined based on changes in science, then everyone is off the hook. The State could claim that it was merely following the science available in 2002 when they convicted Havard. No blame for anyone. Simply an advance in science. Of course, those who have closely followed this case may have a far different outlook on who deserves blame.

Hayne’s history shows that he has been willing to provide testimony favorable to the prosecution regardless of the facts. Havard’s case is no exception. Hayne testified in 2002 that he saw a one-inch contusion in the infant’s anus during autopsy. It was discovered after trial that the contusion was only one centimeter, which is quite different than one inch. Hayne claimed in an affidavit that he misspoke during the trial when providing the measurement. At trial, regardless of the size, Hayne testified that the contusion was most likely the result of penetration of an object. On the surface, Hayne’s description must have sounded a lot like sexual assault to the jury.

Fast forward to 2014. Hayne stated in a 2014 affidavit that he specifically told prosecutors on more than one occasion prior to trial that he could not support a finding a sexual abuse. This information was withheld from the defense, which is a Brady violation.

Most shockingly, the defense learned in January of 2014, 12 years after the conviction, that Hayne had looked at tissue sections under a microscope and found definitively that there was no evidence of sexual assault. In a case where suspicion of sexual assault only arose when ER doctors and nurses noticed what they believed to be physical evidence of sexual abuse. Hayne’s microscopic findings were clearly exculpatory, and would have positively shown that the doctors and nurses had misinterpreted what they saw. The state withheld this evidence from the defense as well and failed to tell the doctors and nurses about it before they testified.

Why didn’t Hayne testify at trail in 2002 that there was no evidence of a sexual assault? Because no one asked him. Prosecutors stood before the court during opening statements and told the jury that Hayne had, “confirmed the nurses and doctors worst fear, that this child had been sexually abused.” The prosecution knew that Hayne had done no such thing; in fact, he had done just the opposite. The prosecution lied to the jury. When Hayne took the stand, they were careful not to ask specific questions about sexual abuse, and Hayne was sure to only respond directly to questions asked. The defense had their hands tied. They could not possibly ask a question they did not know the answer to. If they had asked Hayne if the infant had been sexually assaulted and his answer was anything other than no, they would have instantly buried their client. The prosecution knew the defense would never take the chance. The lies told during opening and closing arguments by the prosecution were left unchallenged, and a wrongful conviction was the result.

Hayne’s statements in his affidavits which were reiterated during the evidentiary hearing state that he does not support a claim of sexual assault and that he no longer believes that Chloe died by shaking alone. He now believes that impact had to be a factor. Meaning that the infant could have died from a short fall. Hayne bases his current beliefs on changes in science related to SBS. Hayne attempted to save face by saying that he still believes the death was the result of a homicide, but he offered not valid theory to support that belief. Hayne’s demeanor in court was a bit questionable. During breaks, he appeared to wander about, willing to chat with anyone who would provide an ear. At one point, he sat down next to Havard’s stepfather, engaging him with stick figure drawings he had sketched on a pad in an apparent attempt to form new theories.

After Hayne’s testimony was concluded, the defense called Dr. Michael Baden to the stand. Baden is a physician and board-certified forensic pathologist. Baden is the former Chief Medical Examiner of New York City and is the former chief forensic pathologist for the New York State Police. Baden is well respected worldwide for his work in this field.

Dr. Michael Baden testifies at Jeff Havard’s evidentiary hearing.

Baden testified that he believed Chloe’s death had nothing to do with shaking. Per Baden, it is no longer accepted in the field of science that shaking alone is enough to cause fatal injury in children. Impact is now considered a requirement to produce fatal injuries, if other factors such as neck or rib injuries are not observed. Baden went on further to say that caution needs to be used to assure that injuries which were once thought to be caused from shaking alone, are not currently being automatically re-categorized as shaking with impact simply to meet the new criteria. In cases of head injuries from short falls, shaking is not required and should be eliminated if there is no supportive evidence of shaking.

Baden stated that the injuries observed during autopsy were entirely consistent with a blunt force impact which would have resulted from a short fall as described by Havard. Baden stated that the infant had no signs of injury to the neck or ribs, which would have been present had the infant been violently shaken. He went on to say that autopsy findings which are found to be consistent with early statements given from a person who was present show that those statements carry more weight. He said it is difficult to tell a story that later matches up with an autopsy report if you are not telling the truth.

The ER staff testified at trial in 2002 that retinal hemorrhages were present when Chloe arrived to the ER. The jury was told that retinal hemorrhages could only be caused by shaking. Meaning that the jury was told that the only possible cause of death was SBS.

Baden stated that there are multiple causes of retinal hemorrhages. Any suggestion that retinal hemorrhages are only caused by SBS is false. Baden stated that short falls were a cause of retinal hemorrhages. Everyone who testified after Baden agreed with his assessment, including the pediatrician who testified for the prosecution. Unfortunately, this expert evidence was not available at Havard’s trial, leaving the jury to decide his fate based on unqualified witness testimony.

Baden told the court that pathologists are more qualified than other specialties to diagnose cause of death. Per Baden, ER doctors and pediatricians specialize in the treatment of living patients. Pathologists have the task of looking beneath the surface of non-living bodies to properly determine cause of death. Evidence exists after death that his not available to doctors who are treating living patients.

Dr. Janice Ophoven was next to testify for the defense. Ophoven is a pediatric forensic pathologist with over 30 years of clinical, administrative and quality improvement experience. Ophoven is trained in pediatrics and is board certified in pathology and forensic pathology. Ophoven’s practice is focused on understanding child abuse and injury to children.

Ophoven stated that no evidence exists to show that Chloe’s death was the result of child abuse. She reiterated Baden’s testimony that violent shaking alone was no longer an accepted cause of death in infants. Ophoven told the court that it was a common belief in the scientific world back in 2002 that short falls could not cause fatal injuries in children. She went on to say that the scientific community no longer believes that to be true. She made it clear that there have been significant changes in science regarding infant head injuries and SBS since the time of Havard’s trial. She also refuted the 2002 retinal hemorrhage trial testimony, stating that it is well known in the medical community that retinal hemorrhages can be caused by short falls.

Ophoven concluded that the infant’s death was the result of a short fall as described by Havard. She also reiterated Baden’s statement that pathologists are more qualified to determine cause of death than ER doctors and pediatricians.

Dr. Chris Van Ee was the final expert called by the defense. Van Ee holds a Ph.D. in Biomedical Engineering from Duke University and is a licensed Professional Engineer. Van Ee has specific expertise in the analysis and risk assessment of head injury in the infant and adult populations.

Van Ee testified that a short fall was the most logical scientific reason for the death of Chloe Britt. Van Ee told the court that short falls are now known to cause injuries which were once thought to be caused only by violent shaking. Per Van Ee, a one-foot fall onto a carpeted surface head first has a higher chance of producing a head injury to a child than violent shaking. Van Ee testified that he reviewed photographs of the bathroom in Havard’s trailer and determined that the fall described by Havard could have caused fatal head trauma. Tests conducted by Van Ee using crash-test-dummies, concluded that a short fall from three-feet onto a hard surface such as a porcelain toilet could generate forces similar to a car accident which could lead to the death of a six-month-old infant.

On the final day of the hearing, the prosecution called Dr. Scott Benton to the stand. Benton is the medical director of the Children’s Justice Center and chief of the division of forensic medicine at the University of Mississippi Medical Center.

Benton’s qualifications as an expert on issues of infant death were challenged by the defense because Benton is a pediatrician, not a pathologist. Both Baden and Ophoven provided clear reasoning in their testimony as to why pathologists are uniquely qualified to analyze cause of death. Judge Johnson noted the defense objection and said that he would take it into consideration when ruling on the case.

During questioning, Benton argued that shaking alone could prove fatal for an infant. His testimony ignored current scientific literature which states that shaking alone without other signs of injury is not enough to cause fatal injuries in children.

Benton also attempted to exaggerate the severity of the small contusions found on the infant’s face, discounting testimony from both Baden and Ophoven who said that the small bruises were likely caused from the fall or during resuscitation attempts in the ER. Per Ophoven, resuscitation attempts are not a gentle process and are often frantic.  She described the situations as a time of organized chaos.

On cross examination, it was discovered that Benton was not contacted by the State to evaluate the case. Benton’s participation was the result of his own eagerness to get involved. Benton contacted Jerry Mitchell from the Clarion Ledger because he had read a single article of Mitchell’s and had determined that the case was a homicide. After an email exchange with Mitchell, Benton’s further inquiries led to his eventual work on behalf of the prosecution.

It was also discovered on cross examination that the Children’s Justice Center where Benton works is experiencing financial difficulties due to a mismanagement of funds that were received from grants. The medical center now looks to benefit upwards of fifty thousand dollars for Benton’s testimony in this case. Benton told the court that his involvement was in no way an attempt to make money, and that his medical center was seeking private donations to sustain their efforts to care for children.

In closing, the defense argued that they had met the burden of proof put forth by the Mississippi Supreme Court. The defense was required by the high court to prove that new evidence was available to show that the science behind SBS has changed since the time of Havard’s trial. After hearing from the defense experts who testified, and after witnessing the exhibits being entered, which included up to date medical literature, there is no doubt that the requirements for a new trial have been fully satisfied by the defense.

In a perfect world, we would see prosecutors who were willing to admit past errors. But we live in a far different reality. In our current justice system, the clear majority of prosecutors protect their office relentlessly at all costs. Sadly, the prosecution in this case fits the typical mold. The prosecution’s main argument during closing was not directed at challenging the legitimacy of claims made by the defense. The Prosecution’s argument was that the evidence presented was available at the time of Havard’s trial in 2002, so it should not be allowed.

Appellate laws are complicated and vary depending on the type of case. In layman’s terms, for purposes of describing the requirements for this case, the current laws state that evidence based requests for new trials can only be made by use of new evidence which was not available at trial. These laws may have good intentions but in the end, they can have a devastating impact on indigent defendants.

If you are poor and you do not have the means to hire experts at trial, you are in trouble. Once convicted, if there is evidence to exonerate you that was available at the time of your first trial, it is currently inadmissible because it is technically not new. Meaning that details in medical journals that can possibly exonerate defendants that are not found by public defenders, with extremely limited budgets and no expert assistance, cannot be used in future hearings because they were technically available at time of trial. Let that sink in.

Do these criteria work to assure fair trials? Do these criteria show that prosecutors are working to seek proper justice? Does suppression of exonerating evidence simply because an indigent defendant’s public defender failed to find it in the first trial truly work to seek real justice?

Now, to be clear, the prosecution’s argument is absurd because new evidence has clearly been proven to have become available after Havard’s trial. Evidence which absolutely meets the current requirements. This is irrefutable. The judge has no reason to disagree based on current law. But I find it disturbing that any state in our country would ever attempt to suppress valid evidence based on the current criteria. Valid evidence should never be suppressed. Our goal should always be to seek the truth.

The truth in this case shows that the state of Mississippi is trying to put an innocent man to death for a crime that never happened. Current evidence, which goes far beyond the topic of SBS alone, shows that there is no longer any viable case against Jeff Havard. The original theory of the crime has been disproven. There is no evidence to suggest that the death of Chloe Britt was anything other than a tragic accident. If Judge Johnson rules in favor of a new trial, the State will most likely decide not to retry the case due to lack of evidence. Knowing this should give people pause. If justice is truly the goal, why is the state of Mississippi trying so hard to uphold a faulty verdict in a death penalty case?

A ruling from Judge Johnson is expected to take 60 to 90 days.

Injustice Anywhere advocates for Jeffrey Havard. Please visit www.freejeffreyhavard.org to keep up to date with updates on the case.

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