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Big Wullie

Shaken Baby Conviction Overturned

http://www.washingtonpost.com/new...teven-hayne-shaken-baby-syndrome/

In May and July of this year, I wrote about the case Brandon v. Mississippi, in which defendant Christopher Brandon was convicted of killing his girlfriend’s 15-month-old son. The case involved dubious testimony from the discredited, longtime Mississippi medical examiner Steven Hayne as well as the controversial Shaken Baby Syndrome (SBS) diagnosis. Brandon was also denied funding to hire his own medical examiner. Over the summer, the state then filed a remarkable brief that would require one to believe that Hayne is capable of traveling through time. In August, the Mississippi Supreme Court ruled in Brandon’s favor on all of his claims but ordered an evidentiary hearing on Hayne’s credibility instead of granting him a new trial.

But last week, the Mississippi Supreme Court overturned a conviction in a remarkably similar case that could be a good sign for Brandon. Leevester Brown was convicted in 2002 of killing his infant son. The conviction was based entirely on Hayne’s diagnosis of SBS. Brown, too, was denied funding to hire his own medical examiner to review Hayne’s work. (Hayne was hired by Coahama County Coroner Scotty Meredith. For more on Meredith, read the transcript of my amusing phone conversation with him from a few years ago.)

The court’s decision in the Brown case actually doesn’t turn on Hayne’s credibility or the validity of SBS. That’s because Brown didn’t challenge either at his trial, which generally bars him from raising either argument on appeal. (The state was somehow able to get Hayne’s autopsy stricken from the record in this case. That’s bizarre, given that it was the sole reason for Brown’s arrest.) Because it can’t entertain the argument that the SBS diagnosis is flawed, or that Hayne lacks credibility, the court also finds that there was sufficient evidence to convict Brown at trial.

Instead, the court overturned the conviction because the trial court denied funding for Brown to hire his own medical examiner (which, of course, made it nearly impossible for him to introduce those other issues in the first place). Prosecutors argued that because Brown hired his own attorney and paid his own bond, he couldn’t be deemed indigent, and therefore wasn’t eligible for funds to hire his own expert witnesses. The trial judge agreed. Of course, it costs a lot of money to defend against a murder charge. It’s entirely possible for a suspect to have the money to post bond and hire an attorney, and then be broke by the time he’d need to start hiring experts to review the state’s case. And in a case that turns specifically on the testimony of an already suspect expert witness, that part can be pretty important. The Mississippi Supreme Court agreed.





Brown argued in his motion that “the sole primary basis for [his capital murder charge] is the finding and anticipated testimony of the Pathologist, Dr. Steven [Hayne].” After carefully reviewing the trial transcript, we agree. We find that Brown was denied the “raw materials integral to the building of an effective defense,” as he had absolutely no way to counter the State’s sole evidence of the cause of death, or even to determine the proper questions to ask to challenge Dr. Hayne on cross . . . Dr. Hayne offered the only evidence on both the underlying felony of child abuse and the cause and manner of death, and Brown had no way to rebut it . . .





Brown swore in his affidavit attached to his motion that he was employed, but that he “[did] not earn enough to pay the estimated fee of $6,600 to hire and secure” an expert. He also swore that he had “no relatives or friends who [were] willing and or able to assist [him] with the funds necessary to hire an expert.” And on the first day of trial, when Brown renewed his motion, he testified that his family and friends had helped him pay for his defense counsel. He testified that he made $7.25 per hour at his job as a hotel houseperson at the Isle of Capri casino, and that he had been unable to raise any funds for an expert since his initial motion in 2004. And, of course, Brown has been in prison since the conclusion of his trial in 2006.

So the court ruled that fairness could mandate that a defendant be given funds to hire his own medical expert, even if he hasn’t been declared indigent in the context of needing a public defender. That’s significant. And though the court didn’t rule that the state must provide funding in all cases, it did suggest that judges give more deference to a defendant’s declaration that he can’t afford the cost of hiring an expert. That would seem to help someone like Brandon, as well as death row inmate Jeffrey Havard, who was also convicted due to Hayne’s testimony and an SBS diagnosis, and was also denied funds to hire his own medical examiner.

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Sincere thanks to all those who have supported Shirley and challenged miscarriages of justice on this forum.