Thursday, August 27, 2009

Dr. Hayne, George Phillips, and the creative use of language for fun and profit

Several weeks ago, I had the opportunity to speak with Dr. Steven Hayne at length and in an informal setting as we both waited out a docket call in Hinds County. During that conversation, we covered several of the disagreements we've had in the past, including the much discussed American Board of Pathology certification exam and his claim to the title "Chief State Pathologist."

With respect to the "Chief State Pathologist" claim, here's a little background: Several years ago, Dr. Hayne began testifying that he was "the chief state pathologist." This caused many people heartburn, including me, because it appeared that he was claiming a title that didn't exist, all in an effort to make himself seem more qualified to jurors. In Mississippi, the death investigation structure is created by statute. Specifically, Chapter 61 of Title 41 of the Code of 1972, known by its title, the "Mississippi Medical Examiner Act of 1986." Section 41-61-55 reads as follows:

There is hereby created the position of State Medical Examiner, to be established as herein provided under the appointment by and supervision of the Commissioner of Public Safety.
Each applicant for the position of State Medical Examiner shall, as a minimum, be a physician who is eligible for a license to practice medicine in Mississippi and be certified in forensic pathology by the American Board of Pathology.
The State Medical Examiner may be removed by the commissioner only for inefficiency or other good cause, after written notice and a hearing complying with due process of law.

The statute goes on to create medical examiners, designated pathologists, county medical examiner investigators, etc. But no "Chief State Pathologist."

In response to my concerns about his use of the title "Chief State Pathologist," Hayne claimed to have a contract with the Department of Public Safety giving him that title. I asked for a copy. He obliged me today by faxing over the contract in question. Simply put, it's fascinating.

The contract, between Dr. Hayne and then-DPS Director George Phillips, does in fact name Hayne the "Chief State Pathologist." It also gives the Chief State Pathologist certain duties that mirror the duties of the State Medical Examiner, except that it relieves Hayne of rulemaking responsibilities.

Here's what the statute says:

41-61-63. Duties of State Medical Examiner; completion of death certificate; medical examiner not to favor particular funeral homes.

(1) The State Medical Examiner shall:

(a) Provide assistance, consultation and training to county medical examiners, county medical examiner investigators and law enforcement officials.

(b) Keep complete records of all relevant information concerning deaths or crimes requiring investigation by the medical examiners.

(c) Promulgate rules and regulations regarding the manner and techniques to be employed while conducting autopsies; the nature, character and extent of investigations to be made into deaths affecting the public interest to allow a medical examiner to render a full and complete analysis and report; the format and matters to be contained in all reports rendered by the medical examiners; and all other things necessary to carry out the purposes of Sections 41-61-51 through 41-61-79. The State Medical Examiner shall make such amendments to these rules and regulations as may be necessary. All medical examiners, coroners and law enforcement officers shall be subject to such rules.

(d) Cooperate with the crime detection and medical examiner laboratories authorized by Section 45-1-17, the University of Mississippi Medical Center, the Attorney General, law enforcement agencies, the courts and the State of Mississippi.

The contract tracts the language of subpart (1)(a), slightly modifies the language of (1)(b), omits (1)(c), reproduces (1)(d) in full, and then requires Hayne to do two other things. First, he is to train new county medical examiner investigators and deputy county medical examiner investigators, as is required of the State Medical Examiner in Section 41-61-57. Second, Hayne is required to "review appeals of death rulings, conduct investigations, review findings and report conclusions in writing with recommendations made to appropriate parties," all of which is required of the State Medical Examiner by statute.

You may ask yourself, "Why all of the machinations?" And the answer is that Hayne's not qualified to be State Medical Examiner. In the first code section quote above, you'll note that the State Medical Examiner has to be board certified in forensic pathology by the American Board of Pathology. Of course, Hayne isn't, because he didn't pass that exam.

In addition to the grammatical gymnastics performed to install Hayne as the de facto State Medical Examiner, George Phillips allowed Hayne to perform private autopsies at the State Crime Lab for the nominal fee of $100 a pop, a fee that seems to me to be quite generous to someone performing private work with and on public property.

There are other interesting tidbits in this contract, so I encourage you to review it for yourself. Thoughts?


Rogen K, Chhabra said...

Ike, isn't this guy a literal playground for you during cross? Why would prosecutors want so bad to serve up a witness who seems so easily impeached? Maybe there is something about criminal law that is different, but in my line of work, we always endeavor to find middle of the road experts who favor neither side. Makes for a more reliable outcome in my view.

Matt Eichelberger said...

I agree with you, Rogen. And yes, voir dire of Dr. Hayne can be devastating for the prosecution if done well by the defense attorney. Which, I would think, would make it all the more important for the state to fully fund the medical examiner's office.

As for your question about why prosecutors would use Hayne, well, I think there are two reasons. First, for so long, he was the only game in town, so they're comfortable with him. Judges are, too. Second, some people want to take shortcuts, regardless of the outcome. It's just part of human nature.

By the way, here's a quick comparison: Arkansas has 5 board certified forensic pathologists working as state medical examiners. We have none.

Wedded Bliss said...

I have the same problem with a certain expert witness that is endlessly promoted in the chancery courts in Hattiesburg. I'm not going to say who, but his name rhymes with Gnat Malloway.