Havard files federal petition, claims trial was flawed

Published 12:08 am Tuesday, April 9, 2013

NATCHEZ — More than 10 years after he was convicted of killing a 6-month-old child, death row inmate Jeffrey Havard has filed a petition in federal court asking for relief of his conviction and sentence.

Havard maintains he’s innocent and that his initial trial in Adams County was flawed.

The case began Feb. 21, 2002, at Havard’s residence, which he shared with his girlfriend, Rebecca Britt, and her infant daughter, Chloe.

Email newsletter signup

In Havard’s court filing, he claims that while he was giving the baby a bath, she was slippery and that he dropped the baby with her head hitting a toilet in the bathroom. When the baby appeared to be in shock, Havard shook her in a panic to revive her, and he stopped and began to comfort her after she began to cry. Dressing her after becoming convinced she was OK, he placed the baby in her bed.

Later, Rebecca would find Chloe blue and not breathing, and the two drove her to Natchez Community Hospital.

While medical personnel were trying to revive the baby, a nurse seeking to take her temperature using a rectal thermometer noticed Chloe’s anus was dilated, and law enforcement was called on the suspicion that sexual abuse had occurred.

An autopsy by the former state pathologist, Steven Hayne, concluded that Chloe had died of a “a combination of closed head injury and changes consistent with Shaken Baby Syndrome.”

Havard was tried and convicted in December 2002 on charges of capital murder during the course of sexual battery.

Now, Havard alleges the way the trial was structured — he says it was in part based around investigators and prosecutors asking him to explain the dilation on the child’s body — should not have happened.

“The burden was improperly placed on me to explain their predicate for why they thought there was sexual battery,” Havard said in an interview from Mississippi State Penitentiary.

“As a layperson, how am I supposed to explain something that I have no clue (about)? State law, federal law — all applicable law — and the medical field say child sexual abuse is a specialized field.

“I don’t know how I could have explained something as a layman that medical literature and (the) law states only an expert can do.”

Havard likewise said that he would not have been convicted if Chloe’s autopsy had been published to the jury. The autopsy notes a one-centimeter contusion on Chloe’s anus, but doesn’t mention a suspicion of sexual battery.

In a November 2010 deposition about the case, Hayne told questioners, “There was one injury that I indicated would be consistent with the penetration of the anal area, but that, in and of itself, I didn’t feel was enough to come to a conclusion that there was a sexual assault in this particular death.”

The hospital personnel who treated Chloe did, however, testify at trial that they saw “rips and tears” on the baby’s body. Havard said the hospital personnel were not qualified under the law to speak about the specialized field of sexual abuse, and if they were they were not properly tendered as such during the proceedings.

“The (emergency room) staffs were allowed to say things that were expert opinions. The only person who was tendered to give expert opinion — (Hayne) — was never asked to give his opinion.”

District Six District Attorney Ronnie Harper said the autopsy was never published to the jury because the defense would have likely objected and prevailed against its introduction.

“(The autopsy) is like a police report,” Harper said. “You call the witness, but you can’t introduce the police report. “

And while the hospital personnel who testified at the trial were not tendered expert witnesses, Harper said they weren’t giving expert testimony.

“I think that what they testified to would be admissible,” he said. “They were testifying to their own personal observations.”

The district attorney said he intended call the same witnesses again if the matter is given a second trial.

“If the court takes the position that they couldn’t testify about certain matters, that certainly would be controlling, but I don’t necessarily agree that would be a problem,” Harper said.

Since Havard’s trial, Hayne’s work and testimony in a myriad of Mississippi court cases have come under scrutiny. Hayne was removed from the state’s list of approved pathologists in 2008, and a number of inmates have since filed petitions claiming they were wrongfully convicted on his testimony.

In the amended filing, Havard included a report written in mid-March by forensic pathologist Michael Baden, the former pathologist for New York City. In the report, Baden states that he reviewed Chloe’s medical records and autopsy and the testimony that was given at trial. Baden’s conclusion is that Chloe’s death was “entirely consistent with a short fall and not with an abusive shaking” and that “there is little evidence to support that Chloe sustained a severe, violent, abusive shaking.”

Baden’s report also states that the testimony about the anal injuries were “premature.”

“The anus can dilate in a coma or after death, and any anal abrasion could be due to innocent causes, such as constipation or diarrhea,” Baden wrote. “If the child was deceased prior to arriving at the hospital, the anal dilation seen by doctors at the hospital and in the autopsy could have been natural changes in the body upon death.”

Baden concluded, “From my analysis, Chloe was not sexually assaulted, and she died of injuries consistent with an accidental drop.”

Beyond the evidence and claims of improper prosecution, Havard said he was given ineffective legal representation at trial.

Harper said his office is optimistic and confident there were no errors in the case, and the federal courts will see that.

“We understand that there are no givens in this business, so we are prepared whatever the outcome,” he said.