Patterico's Pontifications

10/6/2007

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.

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

  1. i’m biased in favor of cory maye too. an innocent man protecting his child shot someone who busted through his door. we learned from atlanta’s kathryn johnston case that when cops lie to get a warrant and kill the householder, it’s only manslaughter. the householder’s life is worth no less than the officer’s, and the loss of a small town mississippi cop who terrorized the occupants of the wrong house in his search for marijuana does not weigh heavily upon this liberty-loving oregonian. get the address right. double-check it, because if anybody in mississippi didn’t know before that busting through the wrong door can be fatal, well, they do now.

    assistant devil's advocate (ed804d)

  2. OK.

    But the post is about disclosure of bias and why it matters.

    Patterico (bad89b)

  3. I’ve got an idea. How about if we require every journalist in every article to cite all their past work by url, and to disclose all political contributions for the past year?

    Sadly, as silly as that is, it makes as much sense as worrying about this. I’m sorry you have so much free time and so few useful and constructive ways to spend it.

    Matthew (deaba2)

  4. Not every police agency orders uniforms from the same store LA cops do.

    The uniform for a deputy sheriff in San Patricio County Texas for example is a western cut shirt and slacks (I think pressed jeans are acceptable), with badge and gun worn in plain sight. In some precints in Hays County, Texas, the uniform worn by a constable is simply a visible gun belt and a badge.

    In rural Mississippi I’m sure there are places where a uniformed cop might be wearing what looks to you like civilian clothes.

    Gary Carson (c536f6)

  5. Nice try, Gary . . . but the opinion itself says the victim was wearing civilian clothes. I think the quote might be in the post above . . . did you read it.

    This isn’t about an L.A. blogger not knowing what Mississippi uniforms look like. It’s about Balko misreporting what the opinion said. (And then he misreported it again in his latest post, and appears now to be trying to sneal in a correction without acknowledging the error.)

    Patterico (41d869)

  6. Are you at home or still out, Patterico?

    Christoph (92b8f7)

  7. Matthew #3,

    I know you meant it sarcastically but your idea is a good one, especially regarding political contributions, and the Society of Professional Journalists agrees:

    “Contributing to a political cause clearly damages the credibility of anyone who professes to be a detached reporter of events,” said Andrew Schotz, SPJ’s National Ethics Committee chairman. “It’s less of an ethical violation for opinion writers, who can and should tell readers their allegiances.”

    Journalists should tell readers their allegiances.

    DRJ (d0ada6)

  8. DRJ, to whom was Balko’s “allegiance”? The already cleared Cory Maye or justice at large?

    Christoph (92b8f7)

  9. “The already cleared Cory Maye”??

    No wonder you thought Balko’s retort was “strong.”

    You have no idea what the facts are or what the problem is.

    Maye is off death row. He ain’t “cleared.”

    Balko *wants* him cleared.

    Now do you get it, Christoph?

    Patterico (2fd157)

  10. I read the trial was overturned (as I said above, I hadn’t heard of Maye before today), but obviously am not up to date on the current disposition of the case. So I’m in error.

    Regardless of my error and this one case, my main interest is of course whether Hayne’s testimony is worthwhile. Plus I’m also curious about the production of pathologists. It’s generally interesting.

    Yes, I now do get that Balko wants Maye cleared. And have agreed with you Balko should have disclosed his prior writing on Maye and Hayne.

    Christoph (92b8f7)

  11. DRJ,

    The idea is a good one, it’s just not the idea I mentioned in my post. Try to stay on point. Balko’s views are readily available to anyone who cared to do even the smallest search. When’s the last time you saw a journalist post his political predispositions and contributions in an article? The point was that a journalist’s politics inform all sorts of things from style to content, but to inisist on excessive disclaimers in any given article is, in fact, silly, no one does it, and it deserves sarcasm.

    Matthew (deaba2)

  12. Matthew,

    You are the one who raised the issue of journalists’ political contributions:

    “How about if we require every journalist in every article … to disclose all political contributions for the past year?”

    Political contributions, like advocacy interests (even unpaid ones), reveal allegiances.

    DRJ (d0ada6)

  13. DRJ,

    Yes, that is true but there are still some problems. First is that Patterico is insisting on a very stringent standard that no op-ed writer ever adheres too. Thus, we could make this complaint about just about every author of any op-ed article written. In short, the complaint, in the specific, is trivial.

    Second, like many op-ed writers Balko’s “allegiences and biases” are pretty obvious. He currently writes for Reason and before that the Cato Institute. Hence Balko’s “allegiences and biases” are generally readily known to his readers as are the “allegiences and biases” of other writers such as Robert Scheer.

    As for the connection to Corey Maye, what I find interesting is that in both the Reason article and the WSJ op-ed it doesn’t appear that Balko mention Maye. If Balko is trying to boost the case for freeing Maye via the articles on Hayne it strikes me as strange to at least not mention Maye.

    Steve Verdon (49796d)

  14. Steve Verdon,

    I can speculate on an answer to your last point (Why didn’t Balko mention Maye if he really wants to help him?) but I obviously don’t know what Balko was thinking. Perhaps he wanted to appear neutral in attacking Hayne. Perhaps he believes Maye will be helped if Hayne is discredited in any case(s). This has been discussed before by Patterico but that’s not really the issue.

    The issue is whether journalistic rules require disclosure of Balko’s advocacy interest in the Cory Maye case. I don’t know if disclosure is required because I’m not a journalist, nor do I know if op-ed authors do or don’t adhere to this standard. But if disclosure is appropriate and op-ed authors don’t comply, that doesn’t make it ethically acceptable.

    Finally, the fact that someone could investigate further and discover an author’s true allegiances is irrelevant. For journalism to be a profession, journalists must have standards that protect the integrity of their product. Disclosure is one of those standards.

    DRJ (d0ada6)

  15. Perhaps he wanted to appear neutral in attacking Hayne. Perhaps he believes Maye will be helped if Hayne is discredited in any case(s). This has been discussed before by Patterico but that’s not really the issue.

    It certainly was the issue of an entire post by Patterico.

    The issue is whether journalistic rules require disclosure of Balko’s advocacy interest in the Cory Maye case. I don’t know if disclosure is required because I’m not a journalist, nor do I know if op-ed authors do or don’t adhere to this standard. But if disclosure is appropriate and op-ed authors don’t comply, that doesn’t make it ethically acceptable.

    Maye was not part of either Hayne article and it seems pretty clear from having read both articles that Hayne merits such articles even if only a third of what is covered in the articles are true. Further, one would have to be following the Maye case pretty closely to note that Hayne was involved (and I’ll add I have read most of the stuff on the Maye case and intially I didn’t make the connection between Hayne and Maye so your arguments strike me as rather weak).

    Finally, the fact that someone could investigate further and discover an author’s true allegiances is irrelevant.

    You don’t have to do additional research, it says right at the bottom of the WSJ article where Balko works, a magazine with very strong libertarian views. And let me be clear on this. Reason is a magazine that “contributes” towards moving the political structures in this country towards libertarianism. This implies a strong skepticism of government and hence the articles on Maye, Hayne and even Dr. West, which Patterico for some reason ignores. In researching Maye, Balko found Hayne, in researching Hayne he found Dr. West and also wrote about him. Why? Why not level your charges at that article as well? Balko doesn’t mention Maye in his West article, IIRC, so your logic should work for this article as well. Of course, Dr. West wasn’t involved in the Maye case. So we have two possible theories here.

    1. Balko wrote about Hayne to benefit Maye, but doesn’t mention the Maye case at all in two articles on Hayne.
    2. Balko has found examples of corruption in the criminal justice system in Mississippi, which is part of the state government, and in fitting with his overall libertarian leanings writes about all three of them.

    Considering that the only evidence we have for one is Patterico’s imitation of the Amazing Kreskin, I think we should go with number 2.

    Frankly, the best argument for Balko to disclose the connection between Hayne and Maye is so that Patterico wouldn’t have been able to gin up this much ado about so little, and at the same time provide a nice distraction fromw what appears to be some pretty serious corruption of the criminal justice system.

    Steve Verdon (49796d)

  16. Steve Verdon (another Balko supporter whom I have slammed in the past for misrepresenting a case):

    It’s really very simple. Radley Balko is known for his work on Cory Maye. Dr. Hayne is one of the most critical witnesses against Cory Maye.

    These facts should have been disclosed in a Radley Balko piece attacking Dr. Hayne.

    Period.

    Show any honest media ethicist my original post and get their opinion.

    Patterico (bad89b)

  17. Btw, I recommend this comment I left on another thread for an interesting alternative interpretation of what Dr. Hayne was actually testifying to.

    Patterico (bad89b)

  18. My son is in prison because of Stephen Timothy Haynes testimony. Haynes is not legally qualified to do autopsies in the state of MS. Haynes failed the exam to be a board certified forensic pathologist with the American Board of Pathology which is a requirement in the state of MS. He failed this exam. He still testifies in court that he is “board certified.” But that’s a reference to his membership in the American Academy of Forensic Examiners, which he said certified him without requiring him to take an exam. He is a fake that makes approximately one million per year off of the state of MS being their “Yes man”.

    Barbara Black (054648)

  19. Barbara,

    What’s your son’s name?

    nk (669aab)

  20. NK, I’m sorry it took so long for me to respond to you. My son’s name is Henry C. Moses.

    Barbara Black (054648)

  21. Barbara Black,

    It’s my understanding that Haynes has been removed as Mississippi’s medical examiner. Do you think this will affect your son’s status?

    DRJ (a5243f)


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