Jeffrey Havard, now on Mississippi's death row, insists he accidentally dropped the baby, Chloe Madison Britt, and that she hit her head on a toilet. A hearing in court on Aug. 14 will determine if Havard will receive a new trial in the 2002 crime.
Jeffrey Havard has spent nearly 16 years behind bars on Mississippi's death row for a crime the state's then-pathologist didn't believe took place.
On Friday, Adams County Circuit Judge Forrest A. Johnson ordered Havard off death row after questions arose regarding whether 6-month-old Chloe Madison Britt actually died of shaken baby syndrome (SBS).
"While the evidence presented by the (defense) is not sufficient to undermine this Court's confidence in the conviction," Johnson wrote, "there is a cautious disturbance in confidence of the sentence, even if slight."
Johnson vacated the death sentence and ordered a new sentencing hearing for Havard before a jury, which would decide between the death penalty and a life without parole.
"With all due respect, we think the court got it wrong," said defense lawyer Graham Carner, who is representing Havard with Mark Jicka. "We are disappointed, but we are not done."
Carner said he wants a jury to hear all of the evidence in the case "and not evidence that is unquestionably false and based on bad science. We have been fighting for Jeffrey for 10 years, and we will continue to do so."
Havard has spent most of his adult life behind bars and will celebrate his 40th birthday in November.
At the 2002 trial, the state's then-pathologist Dr. Steven Hayne testified that Chloe died of shaken baby syndrome, comparing it to a motor vehicle crash or a fall from a significant height.
But Hayne later backed off that conclusion, telling the Clarion Ledger there was "growing evidence" his shaken baby diagnosis was "probably not correct" because shaking alone couldn't generate enough force to cause such injuries.
After questions were raised about the case, the state Supreme Court in 2014 gave Havard permission to seek an evidentiary hearing.
For decades, shaken baby syndrome was widely accepted, diagnosed through a triad of symptoms: subdural bleeding (blood collecting between the brain and the skull), retinal bleeding (bleeding in the back of the eye) and brain swelling.
In the years since, medical belief that these symptoms provided ironclad proof of homicide began to crumble after a series of studies began to raise doubts.
In 2009, the American Academy of Pediatrics recommended that the syndrome diagnosis be discarded and replaced with "abusive head trauma."
At the request of the Clarion Ledger, New York pathologist Dr. Michael Baden studied the autopsy report and other materials in Britt's death.
He found no support for the shaken baby conclusion, pointing to a lack of neck or chest injuries or spine or rib fractures that suggest such abusive shaking.
At a hearing last year, Hayne testified that the term he would use now would be "abusive head trauma" to describe the injuries to Chloe, which he said included bruises on the forehead, scalp, back of head and mouth as well as bleeding between the skull and brain.
He said he still believed her death was a homicide - and Johnson came to the same conclusion in his ruling Friday.
The judge cited Havard's initial statement to authorities that he didn't know what happened to Britt.
The morning after Chloe's death, Havard told authorities that he dropped the baby accidentally after getting her out of the bathtub and that she hit her head on the porcelain toilet.
Hayne acknowledged that "tremendous G forces can be generated in a short fall. If it's straight to the head, then it could cause serious injury."
Baden testified that the problem with the "abusive head trauma" conclusion is that it's impossible to tell whether a person accidentally fell down the stairs or someone pushed that person.
He said he disagreed with a prosecution expert from the 2002 trial who claimed Britt's retinal hemorrhages proved that this baby had been shaken.
"It's my opinion that shaking had nothing to do with the death," Baden said. "It's my opinion that all of the injuries are consistent with blunt force impact."
The baby's injuries are consistent with the fall that Havard described, Baden said. "With short falls, you can have fatal injuries."
Last year's hearing did not include a discussion about evidence about the alleged sexual abuse, the underlying felony, which qualified the case for the death penalty.
"I didn't think there was a sexual assault," Hayne told the Clarion Ledger. "I didn't see any evidence of sexual assault."
At trial, several emergency room nurses and doctors testified there was unquestionable evidence of sexual assault, saying they saw tears and rips in the child's anus.
"Maybe they were looking at folds and thought they were tears," Hayne told the Clarion Ledger. "We were very careful, and we also took sections."
A rape kit also found no semen or foreign DNA, and he examined those sections under a microscope.
He said the anal contusion he did could have been consistent with the child passing a harder stool.
But jurors never heard that evidence, and they convicted Havard of capital murder.
Baden said when doctors overstate the case, such as with shaken baby syndrome, "innocent people can get convicted."
Source: clarionledger.com, Jerry Mitchell, September 14, 2018
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