May 13, 2012: Death row appeal rejected
by Jerry Mitchell
The state Supreme Court has unanimously denied an appeal from death row inmate Jeffrey Havard, moving him one step closer to execution.
Justices last week rejected the 33-year-old inmate's appeal, writing, "There is no merit to Havard's claim that newly discovered evidence exists that supports his innocence. This issue is procedurally barred by time."
On Feb. 21, 2002, 6-month-old Chloe Britt died, and prosecutors say Havard sexually abused and killed her. Havard was convicted of capital murder. He admits accidentally dropping her but denies sexually abusing and killing her.
Chloe's mother, Rebecca Britt, who is convinced of Havard's guilt, expressed gratitude Monday. "There wasn't any doubt in my mind that was going to happen," she said.
One of Havard's attorneys on appeal, Graham Carner of Jackson, said they may seek a rehearing. "We're considering doing it," he said.
Havard's case is also before U.S. District Judge Keith Starrett, where Havard is challenging his conviction on constitutional grounds.
The case before Starrett was stayed, pending the final decision by the state Supreme Court.
In looking through the records of the case, Havard's attorneys on appeal noticed a reference to a videotaped statement by Rebecca Britt.
After repeated requests, they finally obtained the tape and believed her initial statement to authorities differed in tone and substance from the testimony she gave at trial.
In her initial statement, she told authorities Havard "loved Chloe," that Havard changed her diapers and gave her bottles, and didn't seem surprised Havard gave her daughter a bath.
But during the trial, she testified Havard never changed Chloe's diapers and never bathed the child.
Havard's attorneys allege his trial counsel was ineffective because they failed to use the statement to challenge Rebecca's credibility.
Justices disagreed, saying Havard failed to explain how the statement would support his defense. "There is no reasonable likelihood that Britt's testimony, if false, affected the judgment of the jury," they wrote. "Havard cannot demonstrate how he was prejudiced."
When Chloe was brought to the emergency room at Natchez Community Hospital, she was blue, and her eyes were fixed and dilated, according to medical reports. A nurse noticed her anus was dilated to the size of a quarter, and law enforcement was contacted.
At trial, pathologist Dr. Steven Hayne, who performed the autopsy, testified the death was a homicide, consistent with shaken baby syndrome, and that an anal contusion was "consistent with penetration of the rectum with an object."
But Hayne has since acknowledged to Havard's attorneys the contusion was found in an area easily injured and a rectal thermometer like the one used in the emergency room to check Chloe's temperature could cause such a contusion but that he did not think it was likely.
Hayne also said he could not exclude that possibility.
Hayne found no anal tearing and said dilated anal sphincters also may be seen on people without significant brain function and that the contusion was not sufficient to determine a sexual assault occurred. A rape kit conducted at the time found no evidence of semen.
At The Clarion-Ledger's request, world-renowned pathologist Dr. Michael Baden examined Hayne's autopsy report and photographs and concluded there was no evidence of sexual abuse - or even of a homicide.
The injuries described at autopsy were consistent with "the baby being accidentally dropped and striking her head on the toilet tank as the father described," Baden said.
The anal abrasion described in the autopsy can be the result of common causes, such as constipation, diarrhea, toilet paper or even rubbing against a diaper, he said.
Justices agreed anal dilation alone does not suggest sexual abuse. "However, as the state points out, Chloe's dilated anal sphincter was discovered while Chloe was in the emergency room and still alive."
The high court concluded the defense argument was procedurally barred, and even if it weren't, "the issue is without merit."
Jennifer Luttman, 30, of Pisgah, Ala., who dated Havard in 2001, is convinced Havard is innocent. "This is not in his demeanor to do something like this," she said.
She praised his attentiveness to her son, Ryan, then less than a year old, even getting on the floor and playing.
Since Havard's conviction, she has decided to pursue a career as a paralegal, she said. "My main reason for studying law is to help him."