5th Circuit Confers Immunity On Hayne And West

Radley Balko has spent an enormous amount of time and effort destroying the myth around two “expert” witnesses, Drs. Steven Hayne and Michael West, who are responsible for destroying a great many innocent lives by testifying to whatever nonsensical crap was needed for the government to get a conviction. Their stories are the subject of his upcoming book,
Dr. Death and the Country Dentist: A True Story of Corruption and Injustice in the American South.

Two of their victims, Levon Brooks and Kennedy Brewer, after being exonerated, tried to fight back.

In 1992, Plaintiff Levon Brooks was convicted of the murder of three- year-old Courtney Smith. In 1995, Plaintiff Kennedy Brewer was convicted of the murder of three-year-old Christine Jackson. When one Justin Albert Johnson later confessed to both crimes, the convictions of Brooks and Brewer were vacated. Each then sued Dr. Steven Hayne and Dr. Michael West, asserting claims under 42 U.S.C. § 1983, alleging that the forensic consultants violated their constitutional rights under the Fourth and Fourteenth Amendments when, as retained government experts, they provided investigators with—and later testified to—baseless findings regarding bite marks on the victims’ bodies; that they knew that the evidence was baseless or at least acted with reckless disregard of that reality.

Bite marks. Just to be absolutely clear, bite marks identification evidence is complete, total junk science. It doesn’t work, which is how Hayne and West became the leading “experts” in bite mark evidence. And we know that because subsequent DNA evidence conclusively precluded Brewer from being the perpetrator, but matched another man who confessed to the crime.

While trial testimony is immunized from civil suit, were the pre-trial investigatory reports of Haynes and West fair game? After all, but for their “scientific” identifications, the innocent men wouldn’t have been prosecuted, convicted and imprisoned.

The government argued that these two private “experts,” Haynes and West, should be protected by qualified immunity, as if they were cops. The Fifth Circuit bit, in an opinion by Judge Patrick Higginbotham.

In determining whether a private individual performing a government function is entitled to qualified immunity, we consider whether the service performed was of the type protected at common law at the time § 1983 was passed in 1871 and whether granting immunity in a given case is consistent with the policies underlying § 1983.

Plaintiffs point to McCullum v. Tepe, a Sixth Circuit case holding that a part-time prison psychiatrist was not entitled to assert qualified immunity because there was “no common-law tradition of immunity for a private doctor working for a public institution.” But Defendants here, though calling on their medical training, were performing a role that more closely parallels criminal investigation—“a core government activity” traditionally protected at common law by immunity. . . . We are persuaded that Defendants, as consulting forensic experts, were engaged in the criminal investigative functions of the state protected at common law and are here entitled to assert qualified immunity.

While there is a significant question as to whether qualified immunity, a wholly-judicially manufactured defense in facial defiance of § 1983,* should exist at all, the Fifth Circuit not only took it for granted, but extended it beyond the limits of law enforcement to the function of independent and, theoretically, neutral outside experts. This is an astounding conflation of their respective roles (assuming, of course, that they were, indeed, actual “experts” and not mere shills for the prosecution).

The Circuit characterized the role of doctors, “calling on their medical training,” as “more closely parallel[ing] criminal investigation.” Are they suggesting that anyone who provides assistance to the police in the course of the investigation becomes a cop for the purposes of qualified immunity? Apparently so. After all, criminal investigation is a “core government activity.”

Except Haynes and West were not sworn officers, subject to the oath or constraints otherwise placed on law enforcement. They were just two docs who the cops co-opted, for a fee, to their cause of providing the appearance of legitimacy to the prosecution of innocent guys. It conflates their purpose as putative experts with the law enforcement focus on proving their targets were, in fact, the perpetrators of the crime.

In other words, medical experts aren’t hired to mouth the words the cops need for conviction, but to express honest, legitimate, expert opinion based on actual science. Anything less promotes the government’s ability to find some compliant sycophant to sell his medical degree and “opinion” to the government to “get” whoever it is the government wants to get. They’re not experts, but paid shills with some letters after their name.

It’s one thing for cops to believe their own nonsense too much, embracing their certainty as to who committed the crime and then putting their effort into proving that guy was, in fact, the perpetrator. It’s another thing entirely to be able to buy some experts for sale to create the evidence to nail the innocent.

By conferring qualified immunity on private, theoretically independent experts who facilitate wrongful convictions, the Circuit severely confuses the respective responsibilities of law enforcement, and the core investigatory function, with experts, who are supposed to be dedicated to providing a neutral and scientifically-based opinion. They are the guys who are just as likely to tell the cops “no” as “yes,” or we don’t know because science doesn’t work that way. What they are not supposed to do, as experts qualified to render an expert opinion, is use their credentials to provide the cops with the shiny documentation to bolster the false evidence needed for conviction.

If experts, like Hayne and West, are able to dodge responsibility for the exercise of their professional judgment, then they are just cogs in the law enforcement machine, capable of rendering any opinion that furthers their paymaster’s purposes. That’s fine, if they’re just part of the prosecution, but then, they can’t simultaneously be offered as medical experts if they’re so closely aligned to the cops that they will do whatever they have to do to convict. That’s not what experts do, and not why experts are permitted to render an opinion.

The Fifth Circuit can’t have it both ways.  Either docs are experts or they’re “like” cops. But if they’re going to get qualified immunity for serving their police masters, then they don’t get to render reports, or take the stand, as if they’re just neutral experts.

*If Congress wanted there to be qualified immunity, it would have included it in the statute. It didn’t. The Supreme Court superimposed it over the statute. It is one of the most brazen examples of judge-made law there is.

12 thoughts on “5th Circuit Confers Immunity On Hayne And West

  1. Patrick Maupin

    The fifth circuit love them some federal QI. Local Barney Fifes working with the FBI get it, too. Not too surprising, though — when’s the last time a jailhouse snitch got in trouble, and why should honest, upstanding citizens be treated worse than that?

  2. Robert McReynolds

    Is the fact that the two doctors were acting as private, expert witnesses for the state the reason for this not qualifying as a sovereign immunity case? Is qualified immunity a subset of sovereign immunity? I know that when contractors perform tasks under a government contract, they can be immune, but I am not aware of any special carve out for state witnesses.

    (I just completed my first year of law school, so forgive my ignorance if this is an elementary topic.)

    1. SHG Post author

      Great questions. Awaiting receipt of your tuition check to SJ Law School, Tier 39.

      Section 1983 provides the cause of action for state agents that would otherwise be precluded by sovereign immunity. For federal actors, it would be Bivens, as 1983 doesn’t apply to the feds. So sovereign immunity has been somewhat vitiated by statute.

    2. Billy Bob

      Drop out now, while the ABA is not looking. Do not continue unless you have a working wife and/or a sizeable trust fund and/or inheritance. It’s a lost cause and an exercise in frusteration, I’m warnin’ you. You will remember these words of warning!
      P.S., Ignorance of the Law is no excuse?!? You have a lot to learn, mate. However, we trust you can do it, if the flesh is willing and mind is nimble.

  3. Boffin

    Animals in authority shall be punished for misbehavior if acting with malicious intention.

    Surely comrades, you don’t want Mr. Jones back!

  4. bacchys

    The Fifth Circuit will have it both ways. Bite mark evidence still gets accepted in courts across the country. The entirety of forensics is junk science, but they’ll still pretend it’s scientifically valid.

    No, no, don’t point to DNA. DNA analysis was developed by actual scientists, so it’s different in that respect, but it’s application as a forensic tool isn’t what the scientists developed and the forensic technicians have long since left what the scientists figured out behind. At this point, they’re not much different than the guys matching hairs or fingerprints, only they have fancier and more expensive toys to do it with.

    1. SHG Post author

      If a guy uses legally accepted junk science, then how could he possibly be liable? One offsets the other.

  5. John Barleycorn

    Who said judges judging judges from Louisiana, Texas, and Mississippi can’t measure units of pressure used to quantify internal stress?

    Must have something to do with their own
    tensile strength…

    P.S. Don’t blame Blaise Pascal

  6. B. McLeod

    The bizarre thing is that the lesson never quite seems to take. Even as the old “science” is debunked, the new “science” is launching.

  7. Pingback: No Justice for Two Wrongfully Convicted Men - Legal Reader

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