Ellington

Steven Hayne may have built a name--and notoriety--for himself with prosecution-friendly autopsy testimony, but it was a defense request that may bring him into a Jackson murder case as an independent expert.

For two decades, Hayne was Mississippi's de facto state medical examiner, although the state Legislature never officially appointed him to that post. He handled thousands of autopsies and delivered prosecution-friendly findings--some later discredited--in many of them. In 2008, Public Safety Commissioner Steve Simpson finally removed him from a list of approved medical examiners following the exonerations of several men whom Hayne had implicated with his "expert testimony." The state then temporarily contracted with a Tennessee-based firm to provide forensic pathology services before hiring its first official medical examiner in November 2010.

Nevertheless, on Dec. 9, Hinds County Circuit Judge Swan Yerger granted Assistant Public Defender Alison Kelly's request for an independent autopsy review by Hayne. Kelly represents Darion Givens, 18, who faces murder charges in connection with the June 13 shooting death of his girlfriend, Falisha Miller, a Jim Hill High School student.

In court filings, Kelly argued that a second opinion of Miller's autopsy is necessary to examine inconsistencies in the first autopsy, conducted by Dr. Thomas Deering. Witnesses reported hearing a gunshot, while Deering's autopsy suggested that Miller's shooter had used a silencer. Kelly maintains that Jasper Bell, who is charged as an accessory after the fact, was the shooter.

Kelly said this week that for Givens' case, Hayne was the "best choice for defending [her] client in the most zealous manner." While aware of controversy surrounding Hayne, Kelly said that she had not thoroughly investigated criticism of his work. Kelly did not seek out a forensic pathologist from the state medical examiner's office because she wanted a second opinion on work performed by that office.

"In the state of Mississippi, Dr. Hayne is the only (forensic pathologist) that I know of, other than these people that the state is bringing into Mississippi to do their pathology work," Kelly said. "I'm limited. I can't use their pathologists to do my cross-examination of their reports."

While he no longer carries the Department of Public Safety's blessing, individual judges or prosecutors can still hire Hayne. In addition, as Reason Magazine's Radley Balko--who first uncovered Hayne's questionable cases--reported Dec. 6, Hayne must still appear in court regularly to discuss autopsies he performed before 2008. When Simpson removed him from the approved list in August 2008, Hayne had a backlog of 400 to 500 autopsy reports to complete in 90 days.

Balko also obtained a letter from earlier this year marketing Hayne to defense attorneys, indicating that prosecutors may be shying away from him.

"We are pleased to announce that Steven Hayne, M.D., will be available immediately to assist criminal defense attorneys in the State of Mississippi," the undated letter from Hayne's company, Madison-based Pathology Consultations Inc., read. The letter added that Hayne has testified in more than 4,500 court cases and repeated his misleading claim to be "board certified" in forensic pathology.

Hayne has previously claimed to be certified by the American Board of Forensic Pathology, an obscure organization that folded in the early 1990s. He failed the American Board of Pathology licensing examination, the widely accepted standard for certifying forensic pathologists.

House Bill 1456, passed by the Mississippi Legislature last March, implicitly targeted Hayne's lack of certification by mandating that county coroners may only hire medical examiners who are licensed doctors with American Board of Pathology certification. It does not cover judicial appointments for medical examiners in specific cases, however.

The bill was a response to news, publicized by Balko in August 2009, that some county coroners were planning to band together to hire medical examiners not on the DPS list of approved pathologists. A group of coroners obtained a legal opinion from Attorney General Jim Hood granting legitimacy to new "districts" of counties to contract with pathologists without state approval.

The Mississippi Innocence Project, which has successfully won exonerations for two men wrongfully convicted on Hayne's testimony, pushed for a bill preventing the tactic. Allowing county coroners to circumvent a state-approved list would have made reform of the state medical examiner's office difficult, Mississippi Innocence Project Executive Director Tucker Carrington said.

"There were plenty of problems with a (new) state medical examiner coming here, because of the history of how that office had been treated," Carrington said. "If you're a state medical examiner ... at the very least you'd like to think that the pathologist who you're overseeing was licensed by the governing body. That was our other thought--let's make it a more attractive job for people."