Pinocchio Law Keeps Jeffrey Havard on Death Row Despite His Innocence

[Havard] argues… “newly discovered evidence debunking shaken baby syndrome proves he is actually innocent of capital murder.”

[The state] disagrees.

“But first, [the state] would note that actual innocence does not entitle [Jeff Havard] to relief.  ‘Actual innocence is a gateway claim made by petitioners in order to receive review of an otherwise procedurally barred claim.’ Pruitt, 2013 WL3479422 at 2 (ND Miss. 2013). ‘Actual innocence has never been held to state a ground for federal habeas relief…‘ Id.”

– Quoted from the state of Mississippi’s objection.

I want to reflect on the story of Pinocchio as it relates to the wrongful conviction of Jeffrey Harvard. The metaphor is an apt caricature to a Pinocchio law and Pinocchio legal system, controlled by invisible strings and a growing wooden nose.

Since 2002, Havard has sat on death row in Mississippi for the sexual assault and murder of his girlfriend’s 6-month old daughter, Chloe Britt. Havard has always maintained his innocence. What really happened that night was Chloe slipped from his arms while he lifted her from the tub, causing her head to hit the toilet. In fact, new evidence strongly supports the claim that Chloe’s death was a tragic accident, not murder.

A recent decision passed by nine Supreme Court Judges shows divided opinions on whether ‘actual innocence’ matters for convicted prisoners like Jeffrey Havard. Under a 1996, federal statute called the Antiterrorism and Effective Death Penalty Act (or AEDPA); federal courts cannot grant habeas corpus relief unless the prisoner seeks that relief:

• Within a year after a conviction becomes final
• Within a year after uncovering new evidence

Apart from the audacity of a law that accepts the killing of an innocent man, the statute doesn’t account for a myriad of other obstacles that a convicted person may face from gaining access to scientific experts to getting a fair trial.

The Pinocchio Effect

The Italian children’s writer Carlo Collodi wrote Pinocchio in 1883. It’s a violent story about a wooden boy who is unruly, stubborn and must learn to behave. Once he murders (prosecutes) a talking cricket who becomes his ghostly companion (conscience), Pinocchio exhibits a profound lack of empathy and of right and wrong. When he lies, his nose grows until he tells the truth. He doesn’t want to hear the truth because admitting the truth, or doing what is right, seems to have less benefit and is a more difficult path to take.

Pinocchio’s stubborn and unfeeling (wooden) nature causes pain and destruction for the people around him. His nose is an external protrusion that turns “invisible” deceit into a visible marker of harm and failure. Curiously, researchers at the University of Granada in Spain recently discovered that when people lie, their noses and orbital muscles become hot, a condition they call the Pinocchio effect.

The lying effect is measured (or made visible) by using thermal image technology. As a metaphor for wrongful convictions, we could then say that Pinocchio’s nose has grown to over-heated proportions. If you are willing to use such a dubious method of detecting a lie, its visible measure would be a life-saving tool for Havard and many others who have been wrongfully convicted. But as we know, the use of questionable science has continued to poke its long and furtive nose for too long.

Pinocchio Testimony and Shaken Baby Syndrome

In a 2010 New York Times article by Deborah Tuerkheimer (author of Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice), we learn that more than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome (SBS).

In fact, since the early 1990s, hundreds of caregivers (including parents) have been imprisoned based on suspicion of murder by SBS. “The diagnosis,” she says, “is so rooted in the public consciousness that [in 2010], the Senate unanimously declared the third week of April, National Shaken Baby Syndrome Awareness Week.”

Yet, for many years, experts have questioned the scientific basis for the diagnosis. Increasingly, it appears that a good number of the people charged with and convicted of such a murder may be innocent. Jeffrey Havard is one of those people.

As the freejeffreyhavard.org site tells us, Havard’s life changed forever when he and his girlfriend Rebecca took Chloe to the hospital on the night of her fall. Chloe appeared to be okay when the accident first occurred. Her mother checked on her once again and she seemed fine. When she checked again, Chloe was having trouble breathing and was turning blue. They quickly took Chloe to the hospital. Several hospital workers who examined Chloe, noted in the emergency room and later testified in court that her anus was dilated, and erroneously assumed that the dilation indicated sexual abuse.

Pinocchio’s Nose Grows Enormous

The purported sexual abuse is one of the most disturbing aspects of this case, as well as the fact that the DA allowed staff to testify with “expert opinions” they were unqualified to give. Shaken baby convictions rarely result in the death penalty, which requires premeditation or other aggravating circumstances.

Interestingly, Mississippi Medical Examiner Dr. Steven Hayne never concluded in his autopsy that sexual abuse occurred. He simply reported to investigators (and not in the autopsy) that her anus was dilated, and noted a small contusion (1 cm) on her rectum. During trial he erroneously described the contusion as 1 inch, which the defence never corrected. The assumption of sexual abuse made by hospital workers is the window that gave the prosecution an opportunity to seek the death penalty (and for a jury to to convict). They advanced the theory that Havard had abused the girl, and then shook her to death.

After Havard’s conviction, former Alabama State Medical Examiner Jim Lauridson reviewed Hayne’s autopsy, and strongly concluded their was no physical evidence of sexual abuse. He said there were no tears or lacerations in the anus and that it was not out of the ordinary for dilation to occur naturally. Lauridson also noted that there was no trace of Havard’s DNA found on or inside Chloe and a thermometer inserted into her anus by hospital staff could have caused the small bruise. It is shocking that at Havard’s appeal, the Lauridson’s report was rejected by the Mississippi Supreme Court. They concluded that the analysis should have been presented at trial. It must have been a huge slap in the face for Havard considering his request for an independent expert during the trial was denied.

At the request of The Clarion-Ledger, Dr. Micheal Baden, a world respected physician and board-certified forensic pathologist, agreed to review the evidence against Havard. Baden reported that the anus can dilate in a coma or after death, and that anal abrasions can be innocently caused by constipation, diarrhoea or rubbing up against a diaper. According to Baden, Chloe’s injuries detailed in the autopsy were consistent with injuries caused by head trauma from an accidental drop — just as Havard had originally described. Baden concluded that Chloe “was not sexually assaulted and that she died of injuries consistent with an accidental drop.”

Cutting off a Nose to Spite a Face

In his paper, Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System, Canadian Justice Bruce A. MacFarlane, states that there are “some wrongful convictions that involve accidents where no crime has been committed.” Wrongful convictions in baby death cases are highly contentious because they can result in the re-victimization of a family and may questionably use SBS to convict caregivers in cases where babies die of sudden subdural brain bleeding and swelling when there is no external injuries.

For the past 30 years, doctors have diagnosed SBS based on two schools of thought — both of which require three key symptoms known as the “triad”: 1). retinal haemorrhages; 2). bleeding around the brain; 3). and brain swelling (or lack of any other cause of death except shaking).

Dr. Baden reported that when using SBS as a valid scientific theory, the presence of all three signs are required for establishing that a fatal injury to the brain was caused by forceful shaking. Although Dr. Hayne testified at trial to the presence of all three signs (based on the latter triad), his autopsy report only stated mild cerebral edema in Chloe meaning the triad never existed.

Scrutiny of the science involved in the diagnosis of SBS has revealed many shortcomings. For over a decade, most medical scientists know that symptoms associated with SBS may have other causes such as a fall, infection, illness like sickle-cell anemia or birth trauma.

In a blog post written by Sue Luttner, Flawed Convictions: Breaking Academic Ground, she points to Deborah Tuerkheimer, a previous New York child abuse prosecutor, who was “aware of the triad for SBS and its role in the courtroom when she heard of the successful appeal of the Audrey Edmunds conviction” in 2008. Luttner writes that “after studying both the legal arguments and medical references,” that Tuerkheimer concluded the court was correct in asserting the medical consensus that shaken baby syndrome had dissipated since the 1997 trial. She cites from the book:

“The criminal justice implications were staggering. The mainstream medical rethinking recognized by the court could not undermine this one conviction without undermining the convictions of others whose cases also depended on the triad.”

Luttner then points out that given the outcome of Edmunds’ appeal, that Teurkheimer “expected that the court’s decision would trigger ‘a massive institutional effort to correct the error.’” However, as Luttner explains, what she witnessed was a system not only ill-equipped to scrutinise medical testimony but one that seemed averse to changing its Pinocchio course:

“Throughout the process—from prosecutorial decisions, to evidentiary rulings, to judicial review—we see a drive to push forward rather than revisit. A diagnosis of SBS sets in motion systemic confirmation, first in the clinical realm, and then the legal. The course of injustice is almost immovable.”

Proving Innocence in Pinocchio Land

In a quest to prove his innocence, Havard has recently submitted affidavits by three nationally renowned medical experts and one bio mechanical engineering expert. Each expert did an independent review of:

• Hayne’s autopsy report
• Trial testimony of the medical staff witnesses and the testimony of Dr. Hayne
• All of the Chloe’s hospital records from the night she died as well as her entire medical file and pediatric records from the time that she was born
• The results of the crime lab testing and serological results
• Inspected all of the autopsy photographs carefully

Each concluded that the evidence is not consistent with SBS, but is with an accidental drop. Additionally, in light of advances in medical and bio mechanical science, Hayne also submitted an affidavit that disputes his original testimony that Chloe died from SBS. Yet, despite debunking the evidence that convicted him, Harvard remains on death row.

In 2012, Journalist Radley Balko wrote the following about Hayne in an article for the Huffington Post:

“By the time Havard went to trial in 2002, Hayne’s credibility issues were well known in the state’s legal community and among his fellow medical examiners. Knowing of Hayne’s issues, Havard’s public defender asked the trial judge for funding so Havard could hire an independent medical examiner to evaluate Hayne’s autopsy. The judge turned down the request. Havard was convicted and sentenced to death, almost entirely because of Hayne’s testimony.

Shockingly, from the early 1990s until 2007, Hayne performed a majority of the autopsies in Mississippi (1,200 to 1,800 autopsies per year). According to Balko, The National Association of Medical Examiners suggests that MEs perform a maximum of 325 autopsies per year. Hayne’s critics have said that he monopolized the state autopsy referrals because he told prosecutors what they needed to know for convictions. Equally interesting is the fact that he was never a certified forensic pathologist – or at least, not by the American Board of Pathology. In fact, Hayne failed the exam in the 1980s. In 2008, the Commissioner of the Department of Public Safety took Hayne off the list of designated pathologists after the Legislature amended the statute where only MEs with board certification could perform State autopsies.

Pinocchio Law and Killing an Innocent Cricket

Havard’s attorneys recently filed a motion asking the federal court to stay or pause the federal proceedings to give the state court an opportunity to take a look at all of the new evidence. On March 17 2014, the state of Mississippi filed its objection. According to the statue of limitations and the State Mississippi Court, Havard has run out of time.

The state is arguing that all of the affidavits from the experts are not “new” evidence since the shaken baby syndrome has been considered invalid by experts even years prior to Havard’s conviction. So, since Havard didn’t raise or bring forward the evidence at trial (or petition within a year), that he is legally barred from raising the issue now. As we know, the court refused to give Havard the funds to hire an independent expert at the time of his trial. In that context, it shouldn’t matter what any of the experts thought back then since Havard couldn’t access an expert or even put one on the stand.

An innocent man, soon to be murdered for a crime that never existed, all because of a Pinocchio law and a Pinocchio legal system. That’s the real crime here.

As the story of Pinocchio teaches us, it can sometimes be difficult to accept, or even comprehend, a legal system that allows for wrongful convictions. Sometimes it’s easier to remain stubborn and convince ourselves that the conviction must have been justified.

Like Pinocchio, perhaps we are simply unwilling to empathize or identify with the wrongfully convicted because the truth is too painful or difficult for us to bear. Pinocchio himself would not have been able to extricate himself from his condition towards his own redemption, if the talking cricket had not guided and watched over him. He was Pinocchio’s Martin Luther King Jr., a man who would have wisely taught him that “our lives begin to end the day we become silent about things that matter.” And maybe even Immanuel Kant was a mentor too. The German philosopher who said that we are born with a sense of right and wrong, but some of us choose to ignore it. But this is not the time for ignoring the truth. An innocent man is standing at the precipice death. The State of Mississippi must stand up and do the right thing.

To support or learn more about Jeffrey Havard’s case please visit http://www.freejeffreyhavard.org or http://www.freejeffreyhavard.org/InjusticeAnywhere.html

A very special thank you to Jen Fitzgerald and Lori Howard for their generosity, time, guidance and expertise in the creation of this article. I couldn’t have done it without you both! Both have been brilliant lights, passionate supporters and outspoken advocates for Jeffrey Havard’s innocence and freedom.

Written by Lissa Robinson (aka @lissaredshoes)

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