By Radley Balko – Washinton Post – November 17, 2014

In a short opinion issued last week, a three-judge panel for the U.S. Court of Appeals for the Fifth Circuit unanimously upheld a federal district judge’s ruling against Louisiana prisoner James Koon, who in 1996 was convicted of killing an infant and sentenced to life in prison.

The medical examiner who testified against Koon was Steven Hayne, a controversial figure about whom has been the focus of many stories over the last eight or so years. The panel rejected Koon’s petition for a new trial based on what Koon claimed was newly discovered evidence that calls Hayne’s credibility into question.

Steven Hayne

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.

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.”

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.

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.