Patterico's Pontifications

10/6/2007

Balko’s WSJ Op-Ed Fails to Disclose the Main Reason He Wrote It

Filed under: General — Patterico @ 8:14 pm

Radley Balko has an op-ed in today’s Wall Street Journal about a Mississippi medical examiner named Steven Hayne. Balko argues that Hayne is an incompetent and unqualified medical examiner who has no business testifying in criminal cases.

The average reader of Balko’s op-ed is likely to conclude that Balko is simply a disinterested journalist writing about a questionable medical examiner. That’s because Wall Street Journal readers weren’t told that Radley Balko has an ulterior motive to discredit Dr. Hayne.

Specifically, Dr. Hayne was one of the most critical witnesses in the trial of Cory Maye, a Mississippi inmate whose efforts to overturn his murder conviction have been a central focus of Balko’s professional life for some time. In short, although he writes about many topics, Balko is known primarily for his work done on behalf of Cory Maye.

Despite the centrality of Dr. Hayne’s testimony to the Cory Maye case, Balko does not mention one word about Cory Maye in today’s op-ed. This omission gives Balko’s piece a false veneer of extra credibility, because it appears to be the work of a neutral journalist, rather than what it actually is: a piece by an activist with a longstanding and well-established point of view regarding Dr. Hayne.

The omission is very curious, because Cory Maye is the only reason Balko ever became interested in Steven Hayne. And Balko has told readers that he wants to see Dr. Hayne discredited because that will help Cory Maye. But the readers of today’s piece are told none of this.

Balko’s initial interest in Dr. Hayne was wholly due to the fact that Dr. Hayne testified against Maye. Indeed, Balko has made it clear that he first began investigating Dr. Hayne because of the importance of Dr. Hayne’s testimony in the Maye trial. In December 2005, Balko wrote:

Hayne’s testimony was crucial in securing Maye’s conviction. His testimony about the trajectory of the bullet found in Jones’ body cast doubt on Maye’s version of how the raid transpired. Maye’s current lawyer, Bob Evans, thinks jurors dismissed just about everything Cory Maye said after hearing Hayne’s testimony.

In that same post, Balko first mentioned Dr. Hayne’s questionable testimony in an unrelated case — testimony that Balko discusses in today’s op-ed. The post makes it clear that Balko became interested in that testimony because it might have some relevance to the Cory Maye case.

Thereafter, Balko continued to write about Dr. Hayne in connection with the Maye case. For example, in October 2006, Balko wrote a lengthy article about the Cory Maye case — and devoted considerable space to attacking Dr. Hayne’s credentials. Indeed, in the Mississippi Supreme Court case discussed in Balko’s WSJ op-ed, a concurring opinion quoted from the portion of Balko’s article discussing Dr. Hayne. In January of this year, Balko noted that fact on his blog, and wrote that he hoped it might be positive news for Maye:

Here’s hoping Hayne gets continued scrutiny from the state’s supreme court going forward, including when they sit to hear Cory’s case.

And just a few days ago, Balko touted his upcoming Reason article on Dr. Hayne (which today’s op-ed is based on) and again mentioned the fact that Dr. Hayne did the autopsy in the Maye case.

Yet not one word concerning Maye made its way into today’s op-ed. Indeed, in the concluding paragraph of the op-ed, Balko writes:

The state [of Mississippi] needs to revisit every criminal case in which Dr. Hayne has testified.

But Balko doesn’t mention that one of those criminal cases is the Maye case — a case in which Balko has personally championed the defendant’s innocence.

That’s something that WSJ readers should have been told.

Regardless of whether this information was omitted by Balko or by an editor, it was important information that should have appeared in the article. After all, a reader may well respond differently to an article if the reader knows the author is an admitted activist, rather than a neutral journalist.

For example: Balko pointedly says in his op-ed that “Dr. Hayne declined repeated requests from me to comment.” That might sound vaguely suspicious to a reader who thinks Balko came to the story without preconceived notions. The reader might have a very different view if he knew that Balko has openly questioned Hayne’s credibility for months, on a case that has been very important to Balko’s career.

Similarly, as I show in a companion post, Balko’s zeal on behalf of Maye has led him to (I assume unintentionally) misstate the facts of a critical court precedent. A reader might be more skeptical of his facts in this piece, knowing that Balko’s bias has affected the accuracy of his assertions in other contexts.

By the way, I am not drawing any conclusions regarding the accuracy of the allegations in Balko’s op-ed. I simply don’t know enough about Dr. Hayne to comment.

Nor am I in any way disparaging Mr. Balko’s decision to work on behalf of Maye. I am most certainly not arguing that it is somehow improper for someone like Balko to become an activist on behalf of someone like Cory Maye. Quite to the contrary, I have explicitly approved of the involvement of committed activists working on behalf of convicted defendants. Very often it is only through the efforts of such activists that an inmate’s innocence comes to light, and I respect very much any person who devotes their time to such work, if they truly believe that they may be helping a genuinely innocent person.

But if one of them writes an article directly relevant to their cause, they need to disclose that fact.

P.S. I am obviously not accusing Balko of any longstanding effort to hide the connection between Dr. Hayne and the Cory Maye case. As the links and quotes above show, Balko has discussed the connection explicitly on many occasions, and the involvement of Dr. Hayne is familiar to anyone who has closely followed the facts of the Maye case.

But Balko’s op-ed takes the issue of Dr. Hayne’s reputation to a wider audience, which likely includes many people who are unfamiliar with the minute details of the Cory Maye case. As such, they should have been told of the connections between the author, the subject of the piece, and an inmate on whose behalf the author has extensively worked.

UPDATE: Balko has responded here. My response is here.

UPDATE x2: As Balko makes clear in his post, which I linked in the first update, he and I have had public disagreements in the past. The overwhelming majority of my readers already know about these disagreements, and they are referenced in comments on this and related posts on this site. If I were publishing this post in the Wall Street Journal, though, I would be sure to mention these past disagreements. I would also mention that I am a prosecutor who puts medical examiners on the stand at trial — another fact that regular readers already know.

UPDATE x3: I initially wrote that “Balko’s interest in Dr. Hayne was wholly due to the fact that Dr. Hayne testified against Maye. Indeed, Balko has made it clear that he first began investigating Dr. Hayne because of the importance of Dr. Hayne’s testimony in the Maye trial.” When taken out of context, the first sentence could be read to imply that even now, Balko has no other interest in Hayne beyond Maye. I think it’s clear I don’t think that, but it’s best to be clear. So, I have changed the first sentence to read “Balko’s initial interest in Dr. Hayne was wholly due to the fact that Dr. Hayne testified against Maye.” That is what I meant to say, as the sentence following it (and the rest of my post) makes clear. Thanks to Christoph for pointing this out.

UPDATE x4: I have a new post which gives another possible interpretation for why Dr. Hayne might have testified the way he did in the Edmonds case cited by Balko.

UPDATE x5: I have read Balko’s Reason piece on Hayne. My reactions here.

UPDATE x6 2-23-09: Having had this controversy revisited by a Radley Balko comment on my blog recently, I have re-read this post. If I rewrote the post today, I would probably change one thing: instead of saying “the main reason” in the title, I would have said “an important reason.” Otherwise, I think it’s a pretty good post.

The Relevance of Balko’s Bias for Cory Maye: It Has Led Him to Misstate Facts in the Past

Filed under: General — Patterico @ 8:14 pm

This is a companion post to my post today about Radley Balko’s Wall Street Journal op-ed attacking the credibility of a Mississippi medical examiner. In that post, I noted that Balko’s op-ed failed to disclose that the medical examiner was a central witness against Cory Maye. This is important because Balko’s fame rests primarily on his work advocating Maye’s innocence.

In that post, I said that Balko’s bias towards Maye has led him to (I assume unintentionally) misrepresent the facts of a court precedent relevant to the Maye case. That’s what this post is about.

In an October 2006 blog post, Balko touted the importance to Maye’s case of a court precedent called Wheeler. In that case, a defendant’s conviction for killing a police officer was overturned, for an alleged lack of sufficient evidence that the defendant knew that the victim was a police officer. Balko argued that the Wheeler case “can’t be distinguished from the facts in Cory Maye’s case in any way that’s not favorable to Maye.” If Wheeler’s conviction was overturned, Balko argued, then surely Maye’s conviction should be as well.

Balko supported his argument with the assertion that the police officer in Wheeler was a uniformed officer. As Balko summarized the facts of Wheeler:

Mr. Wheeler [the defendant] resisted, and engaged in a struggle with two officers. During that struggle, he took possession of one of the officers’ sidearm. He then fired at a figure in the doorway, which happened to be a fourth, uniformed officer.

The argument that the victim in Wheeler was a “uniformed officer” was very important to Balko. Balko used that “fact” to bolster his argument that the defendant in Wheeler had even more reason than Cory Maye to believe that he was shooting at a police officer. After all, Balko argued, Maye’s victim “was wearing a dark vest, dark pants, and shirt that were unmarked, save for two small patches on the side of either shoulder.” By contrast, Balko claimed, the victim in Wheeler was a “uniformed officer”!

The only problem is, that’s not what the Wheeler opinion says. The victim in Wheeler, while she apparently had a badge, was in civilian clothes, not a uniform. Let me quote directly from the decision itself:

Even so, it must be remembered that Officer Sherrill [the shooting victim] was in civilian clothes during the incident. If the conviction for capital murder is to survive, there must be such evidence as to warrant the jury in believing beyond a reasonable doubt that Wheeler saw Officer Sherrill and realized that she was a police officer and not just a white girl. There simply is no such evidence in this record. The closest approach to it is the testimony that Officer Sherrill was wearing her badge and a holstered pistol. There was no unequivocal testimony that Wheeler saw either item in the mere seconds when she was visible to him. As to the pistol, even if he had seen it, it would not have supplied the necessary scienter; it is commonly known that in our society police are not the only people who carry firearms. As for the badge, there is certainly at least a reasonable doubt that Wheeler (who, be it remembered, was rolling around on the ground in a fight with three other men) saw and recognized so small an object

Now, there is still a strong argument that this is a good precedent for Maye. The defendant in Wheeler had already been confronted by uniformed officers at his front door, so it’s a logical conclusion that he knew he was shooting at an officer. As Balko argues: “In Wheeler, the defendant had ever[y] reason to suspect the figure he shot at was a police officer, given that he was already struggling with uniformed officers.”

Now, on one hand, that argument is actually an argument that Wheeler was just wrong. Which I believe it was. I think it’s absurd to argue that there was insufficient evidence that Wheeler knew he was shooting a police officer — for the reasons Balko states. But it’s true that Balko had a decent argument that, if the court is going to make an absurd decision in Wheeler, then it should make the same decision in Maye’s case.

But there is just no question that Balko got the facts wrong when he said that the victim in Wheeler was uniformed. It may not have been intentional — and I’m willing to give him the benefit of the doubt on that score — but his error certainly was related to his bias for Maye.

I understand that the victim in Wheeler had a badge and a holstered gun. But let’s pretend that I went to court and said to a judge: “Judge, the victim in Wheeler was a uniformed officer,” and the judge replied, “Doesn’t the Wheeler opinion say that the victim was in ‘civilian clothes’?” If I said: “Yeah, judge, but she had a badge and a holstered gun” . . . well, that judge is never going to completely trust another thing I say.

And you know what? Even if the judge doesn’t think I was deliberately lying, the judge will still be wary of my assertions in the future.

Balko has the same duty of candor to his readers that a lawyer has when addressing a judge. He got this one wrong. And he got it wrong because he is biased in favor of Cory Maye.

So I think he should be telling people when he has a piece that is intimately wrapped up with the Cory Maye case. Because it’s relevant.

UPDATE: Balko has responded here. My response is here.

Sports Talk: Texas Tech Coach Mike Leach

Filed under: Miscellaneous — DRJ @ 7:56 pm

[Guest post by DRJ]

My apologies to all you West Texans and other football fans who already know this story but it occurred to me that there may be some who read this blog who don’t know Texas Tech football Coach Mike Leach.

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Trinity Bright and the People who Love Her

Filed under: Miscellaneous — DRJ @ 1:12 pm

[Guest post by DRJ]

Seven-year-old Trinity Bright loves Halloween but since inoperable brain cancer made it unlikely she will go Trick-or-Treating this year, her parents and neighbors decided to do something about it.

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American Patriotism & the Idealism of Dissent

Filed under: Political Correctness — DRJ @ 12:09 pm

[Guest post by DRJ]

Thoughts on the intersection between American patriotism and dissent that I’ve added to my “I With I’d Thought of That” file …

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Education in America: The Vegan Art Teacher

Filed under: Education — DRJ @ 10:47 am

[Guest post by DRJ]

Dave Warwak, a 44-year-old Illinois middle school art teacher, became a vegan in January 2007. Apparently it was a life-altering experience for Warwak in more ways than diet.

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What Happened to the Andres Martinez Report?

Filed under: Dog Trainer,General — Patterico @ 7:49 am

Remember the big flap over former L.A. Times editorial page editor Andres Martinez? As you may remember, the paper publicly wrung its hands over the supposedly terrible, awful perception of undue influence — caused by the fact that Martinez’s main squeeze was tangentially connected with a producer that Martinez wanted to make editor-for-a-day.

Anyway, weren’t they going to do a report about that? Hang on while I Google around . . .

[Googles.]

Why, yes. They were!

Back in March, the L.A. Times reported that publisher David Hiller

appointed The Times’ reader’s representative, Jamie Gold, to determine whether personal or professional connections improperly influenced previous content in the editorial pages. [...]

Reader’s representative Gold said she would begin her review of past opinion-editorial decisions immediately. She said she was not sure how long her investigation would take.

Well, it’s been over six months . . .

Hiller said Gold would try to discern whether any undue influence had taken place.

“She will report to me and ultimately, if appropriate, to the readers, who are first and foremost our concern,” he said.

I guess they must have decided it wasn’t “appropriate,” because I never saw anything about it. Did I miss it?

You know, this would be a great question for Jamie Gold’s new blog, coming soon.

But I don’t want to wait. I’m e-mailing her now.

Regular readers may remember that I thought the Martinez flap was overblown. I would be very, very surprised to learn that Gold uncovered any improper influence — assuming she has finished the report. (By the way, if any of you readers at The Times have a copy, my e-mail address is patterico AT gmail DOT com!) So why wouldn’t that be an “appropriate” thing to report to readers?

How I Spent My Summer Vacation, Part 16

Filed under: General — Patterico @ 12:09 am

This is the last in the series. It is the family looking out over Lake Maggiore, Italy.

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