Patterico's Pontifications

10/8/2007

How Could That Medical Examiner Have Testified Two People Held That Gun?

Filed under: General — Patterico @ 12:01 am



In his Wall Street Journal op-ed, Radley Balko wrote:

The medical examiner in the case, Dr. Steven Hayne, had testified under oath that he could tell from the bullet wounds in the body that Edmonds and his sister simultaneously held the gun to fire the fatal shot. Of course, as the court concluded, it is impossible to make such a determination from examining bullet wounds.

Many of Balko’s fans have screamed that this testimony is ludicrous and unjustified.

But there are some facts missing from this explication — facts that I find fairly significant.

Namely, the defendant in the case confessed on videotape that he and his sister had both held the gun at or near the time it was fired. The defendant also claimed in his confession that he hadn’t aimed the gun. Yet the autopsy indicated that the victim was shot almost in the center of the back of the head, suggesting that someone did indeed aim the gun.

If the defendant was telling the truth, and he didn’t aim the gun, then someone might well have helped him aim it. This suggests the involvement of a second person — a conclusion that is consistent with the defendant’s videotaped confession that he did the crime with a second person helping him. The location of the wound, which a medical examiner can testify to, tended to show that someone had aimed the gun.

It was in this context — when specifically asked about the defendant’s version of events that he gave on videotape — that Dr. Hayne testified that he would favor the idea that two people were involved. Let me quote extensively from the Court of Appeals opinion, with my emphasis in places. Let’s start with some of the basic facts:

¶ 5. On Friday, May 9, 2003, Kristi Fulgham picked up her half-brother, Tyler Edmonds, to take him to her home in the Longview community as she did every other weekend. She and Edmonds have the same father, Danny Edmonds.

¶ 6. According to Edmonds’s videotaped confession, after arriving at Kristi and [her husband] Joey’s home, Edmonds and Kristi went out for Subway sandwiches for dinner. After dinner, Joey went to bed, while Kristi stayed up and used the computer. Edmonds fell asleep on the floor next to Kristi, and during the night, she woke him up and put him in one of her children’s beds.

¶ 7. Between three-thirty and four o’clock the alarm clock went off, waking Edmonds. He then went into the bedroom where Joey slept and, with Kristi’s help, shot Joey in the back of the head with a .22 caliber rifle that Edmonds had brought with him at Kristi’s request.

¶ 8. Kristi and Edmonds then loaded her three children into the car and took the computer and her jewelry, which, according to Edmonds, was to make it look as if there had been a robbery. Edmonds said he also thought Kristi took Joey’s wallet. They then traveled to Jackson. The gun was never found.

Discussing Dr. Hayne’s testimony, the Court of Appeals rejects as “disingenuous” a description of Dr. Hayne’s testimony that sounds a lot like Balko’s description:

¶ 45. In framing his argument under this issue, Edmonds is a bit disingenuous. He contends that Dr. Hayne’s opinion was that two persons (Edmonds and Kristi) simultaneously pulled the trigger of the gun that fired the shot that killed Joey. Before delving into our discussion of this issue, it is helpful to put into context how the matter of the two-person-trigger-pulling matter arose.

The Court of Appeals next quotes from some of Dr. Hayne’s testimony. In that testimony, he was specifically asked about the videotaped confession, and was asked whether his findings were consistent with the videotaped confession. The Court of Appeals opined that Dr. Hayne’s responses were appropriate when read in context:

¶ 49. In considering Dr. Hayne’s testimony in context, it is critical to remember that in [defendant] Edmond’s confession, Edmonds — despite saying at one point that Kristi’s hand was on the trigger — made it clear during further questioning that he was unsure of the location of either of Kristi’s hands when the fatal shot was fired, although he thought her right hand was on his stomach. Of equal importance is Edmonds’s statement that he “was just holding the gun” and “wasn’t really aiming at anything,” that he “was just pointing it somewhere at [that] time.”

¶ 50. It is not debatable that Joey was shot almost in the center of the back of his head. For that to happen, someone had to aim or point the gun toward Joey’s head. If Edmonds did not do the aiming, then Kristi did. On these facts, we do not find Dr. Hayne’s testimony problematic for two reasons.

¶ 51. First, it was the defense, not the State, that asked the question regarding the two-person-trigger-firing scenario. Second, it is clear that the point which Dr. Hayne was attempting to make is that, given Edmonds’s testimony that Edmonds did not aim the weapon at anything, it was more likely than not that another person assisted. This interpretation is clearly borne out by Dr. Hayne’s answer to the following hypothetical question asked by the defense attorney: “And let’s suppose if one person had fired that shot, would your opinion be the same?” Dr. Hayne’s answer was, “I could not exclude that; however, I would favor that a second party be involved in that positioning of the weapon.” Had Edmonds not stated in his confession that he did not aim the weapon, there would not have been any basis for Dr. Hayne to answer as he did. Dr. Hayne is a well-respected forensic pathologist who has performed many autopsies in this state and has given in-court expert testimony numerous times. He knows that you cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously. The record does not bear out Edmonds’s contention that that was Dr. Hayne’s testimony in this case.

How did the state’s Supreme Court opinion address this analysis? It really didn’t. Instead, the Supreme Court took the second-to-last sentence in the quoted paragraph, and chopped it up to make it mean something completely different from what it meant.

The sentence written by the Court of Appeals was this:

He knows that you cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously.

The Court of Appeals then said that Dr. Hayne was not testifying to that. But the bolded sentence was quoted by the Supreme Court in this way:

Tyler’[s] attorney objected to the testimony and requested a Daubert hearing, arguing that such testimony was beyond Dr. Hayne’s area of expertise. The circuit court denied the request, but the Court of Appeals recognized that such testimony was scientifically unfounded: “You cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously.” Edmonds at ¶ 51. We agree.

The Court of Appeals clearly indicated its belief that Dr. Hayne was not testifying to the notion that the shape of the bullet wound could show whether one person or two pulled the trigger. Yet the Supreme Court implied that the Court of Appeals had accused Dr. Hayne of testifying to exactly that. In order to maintain that suggestion, the Supreme Court chopped off the first three words of the Court of Appeals’s sentence, and capitalized the “y” in “you” to make it look like the beginning of the sentence.

Now, which interpretation of Dr. Hayne’s testimony is correct? I have no idea. Let me say that again, because it will be ignored: I have no idea whether the Court of Appeals’ interpretation of Dr. Hayne’s testimony is right or wrong. I haven’t read the trial transcripts. And the courts have only selected quotations from the trial.

Legally, the Supreme Court’s opinion is what matters. But that doesn’t mean it is necessarily factually correct. Courts get things wrong at times.

Now, this post will inevitably be portrayed as a “defense” of Dr. Hayne. So I need to say clearly that it is not. I am not arguing in this post that Dr. Hayne is a great guy, or even a competent doctor. Nothing in this post addresses Balko’s claims that Hayne does (or claims to do) far too many autopsies, or fails to meet minimum professional standards, or whatever complaints Balko may have about Hayne. This is a discussion of only one of Hayne’s cases; Balko has made it clear that he has concerns about many more cases. For all I know, all of those concerns are perfectly valid.

I know, 100% for a fact, that Balko will claim that I am defending, and even covering up for, Dr. Hayne. He’s already sent me an e-mail telling me that. If Balko writes a post saying I am trying to cover up for a bad apple because I am obsessed with Balko, let me say now that Balko will be telling a lie. If this doctor is dirty, or incompetent, I want him out. I don’t want him performing autopsies. I don’t want him testifying. I don’t want anything to do with him.

But I am not taking Radley Balko’s word for it. Period.

And so the point of this post is simply this: that there is another side to the story Radley Balko told about the Edmonds case. It is expressed quite clearly in a Court of Appeals opinion — but it is not mentioned in Balko’s Wall Street Journal op-ed. Instead, Balko flatly states, as an undisputed factual matter, that Dr. Hayne “testified under oath that he could tell from the bullet wounds in the body that Edmonds and his sister simultaneously held the gun to fire the fatal shot.”

Maybe that was the import of his testimony. Or maybe it wasn’t.

From what I’ve seen, there is some question.

And I’m not just taking Radley Balko’s word for it.

Previous posts on this issue here, here, and here — including all relevant disclosures regarding my acrimious history with Balko and my position as a prosecutor.

P.S. I have already written here about the fallacy I expect Balko and his commenters to use to attack me over this post. The idea is that if Dr. Hayne is a bad guy — and he may be — then it’s okay to say whatever you like about him, whether it’s true or not. Because if I have the audacity to point out any inaccuracies, or lack of disclosure, then I am “defending him” — which makes me the bad guy, even if everything I say is absolutely true.

UPDATE: More here, including a response from Balko, and my response to that.

55 Responses to “How Could That Medical Examiner Have Testified Two People Held That Gun?”

  1. You’ve explained this problem with Balko’s op-ed and the Supreme Court’s truncating the Court of Appeals decision very well. Balko’s characterization was a stretch not born out by what the Court of Appeals said. He cherry-picked what the Supreme Court said and, as you point out, in law is correct, but the omission of both the context of Hayne’s testimony and the learned Appeals Court Justices take on it is troubling.

    Like a lot of advocates, he’s telling things from one point of view. Which while understandable, weakens his credibility even while he makes many excellent points about Hayne’s credibility with his workload, second job(s), and the above average number of autopsies Hayne claims to perform in a year.

    I will say I found Hayne’s contention that two people’s hands must have been on the gun very uncompelling for a lot of reasons, one of which is it’s based on Edwards’ testimony. But Hayne did not claim to be certain and it’s factually untrue — and unfair — for Balko to imply he testified that he was.

    Christoph (92b8f7)

  2. Balko has written me to alert me to this language that he claims shows I am wrong. It’s language quoted in the Supreme Court dissenting opinion. Thing is, it’s also quoted in the Court of Appeal opinion — and with the context I have explained in the post (that the defendant confessed, said two people were involved, and claimed not to aim the gun), the Court of Appeals did NOT see it the way Balko sees it.

    Still, I know he is going to claim that the existence of this language shows I am wrong, and that I am hiding it from all of you, so here it is:

    Page 65
    65
    Q:
    Dr. Hayne, you testified earlier that the defendant’s statement that you
    saw was consistent with how the gunshot wound occurred?
    A:
    It would be consistent with the physical findings that I observed and the
    information provided to me by opposite side counsel.
    Q;
    And do you understand that the evidence is that two people fired that
    shot?
    A:
    That was essentially the summary of the information given to me and
    seen on the video.
    Q:
    And let’s suppose if one person had fired that shot, would your opinion
    be the same?
    A:
    I could not exclude that; however, I would favor that a second party
    be [sic] involved in that positioning of the weapon.
    Q:
    And what would be the distance of the shot?
    A:
    The distance?
    Q:
    Based on the fact that if one person had done this?
    A:
    The distance of the shot, if you’re addressing the muzzle of the weapon
    to the back of the head, all I can tell you it’s at least two to three inches
    away. If you are talking about the relative position of the weapon,
    then I would indicate that the weapon was placed much more towards
    the bed and that would be consistent with one person assisting another
    person to achieve that trajectory, the aiming of the weapon. Since it
    would be past the center line of the decedent’s head when fired, 20
    degrees past the center line of the head, so, therefore, it would be
    consistent with two people involved. I can’t exclude one, but I think
    that would be less likely

    Here’s what the Court of Appeal said about it:

    ¶ 46. As can be seen from the quoted passages, the State did not ask Dr. Hayne whether his autopsical findings were consistent with two people pulling the trigger. Moreover, Dr. Hayne did not testify to such a finding. The precise question asked by the State that drew the objection was this:

    Based on the path of the projectile and everything that you viewed, do you have an opinion as to whether or not the defendant’s version of the events is consistent with what you found in Mr. Fulgham?

    Because of the intervening objection, this question was not answered. After the objection was overruled, the State then asked this question:

    Doctor, I had asked you regarding your examination of the victim, Joseph Fulgham, your examination of the photographs, the crime scene video, the location that Mr. Fulgham was found, and this defendant’s version of what happened and how he was killed, based on a medical degree of certainty or within a medical degree of certainty, do you have an opinion one way or another whether or not that is consistent?

    ¶ 47. Obviously, Dr. Hayne was competent to testify regarding the path of the projectile from the point it entered Joey’s body. Because the autopsy provided Dr. Hayne with knowledge of the angle that the projectile traveled after entering Joey’s body, Dr. Hayne also was competent to testify regarding the angle of the projectile prior to entering Joey’s body, for it would have continued to travel at that angle unless it was deflected by striking a bone or some other hard object in Joey’s body. There is nothing in Dr. Hayne’s answer to the State’s question which remotely suggests that he was opining about two people pulling the trigger of the murder weapon.

    ¶ 48. As is seen in the following exchange between Dr. Hayne and defense counsel, it was the defense which brought up the matter of the two-person firing the shot.

    Q. Dr. Hayne, You testified earlier that the defendant’s statement that you saw was consistent with how the gunshot wound occurred?

    A. It would be consistent with the physical findings that I observed and the information provided to me by opposite side counsel.

    Q. And do you understand that the evidence is that two people fired that shot?

    A. That was essentially the summary of the information given to me and seen on the video.

    Q. And let’s suppose if one person had fired that shot, would your opinion be the same?

    *885 A. I could not exclude that; however, I would favor that a second party be involved in that positioning of the weapon.

    Q. And what would be the distance of the shot?

    A. The distance?

    Q. Based on the fact that if one person had done this?

    A. The distance of the shot, if you’re addressing the muzzle of the weapon to the back of the head, all I can tell you it’s at least two or three inches away. If you are talking about the relative position of the weapon, then I would indicate that the weapon was placed much more towards the bed and that would be consistent with one person assisting another person to achieve that trajectory, the aiming of the weapon. Since it would be past the center line of the decedent’s head and fired, 20 degrees past the center line of the head, so, therefore, it would be consistent with two people involved. I can’t exclude one, but I think that would be less likely.

    Q. And of course, this was information provide to you by opposite counsel; isn’t that correct?

    A. Not all. It’s provided on video. Also, some of the information derived from the autopsy itself, and then also looking at the photographs of the scene.

    ¶ 49. In considering Dr. Hayne’s testimony in context, it is critical to remember that in Edmond’s confession, Edmonds-despite saying at one point that Kristi’s hand was on the trigger-made it clear during further questioning that he was unsure of the location of either of Kristi’s hands when the fatal shot was fired, although he thought her right hand was on his stomach. Of equal importance is Edmonds’s statement that he “was just holding the gun” and “wasn’t really aiming at anything,” that he “was just pointing it somewhere at [that] time.”

    ¶ 50. It is not debatable that Joey was shot almost in the center of the back of his head. For that to happen, someone had to aim or point the gun toward Joey’s head. If Edmonds did not do the aiming, then Kristi did. On these facts, we do not find Dr. Hayne’s testimony problematic for two reasons.

    ¶ 51. First, it was the defense, not the State, that asked the question regarding the two-person-trigger-firing scenario. Second, it is clear that the point which Dr. Hayne was attempting to make is that, given Edmonds’s testimony that Edmonds did not aim the weapon at anything, it was more likely than not that another person assisted. This interpretation is clearly borne out by Dr. Hayne’s answer to the following hypothetical question asked by the defense attorney: “And let’s suppose if one person had fired that shot, would your opinion be the same?” Dr. Hayne’s answer was, “I could not exclude that; however, I would favor that a second party be involved in that positioning of the weapon.” Had Edmonds not stated in his confession that he did not aim the weapon, there would not have been any basis for Dr. Hayne to answer as he did. Dr. Hayne is a well-respected forensic pathologist who has performed many autopsies in this state and has given in-court expert testimony numerous times. He knows that you cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously. The record does not bear out Edmonds’s contention that that was Dr. Hayne’s testimony in this case.

    That’s too much to have put in the post. But let it not be said that I tried to hide it from you.

    Patterico (bad89b)

  3. Jesus Patterico, did he run over your dog or something?

    Russell (a32796)

  4. With all the Balkobots whining “why are you defending this guy?” maybe it’s time to turn the tables and ask their lord and savior why he is trying so hard to defend all those evil criminals. After all, Balko’s complaint about Haynes boils down to the theory that Haynes does exactly what Balko himself does almost every time he opines on anything. And if it’s OK for Radley to twist the truth to get a bad apple off the court, why isn’t it just as OK for Hayne to do the same to keep violent criminals behind bars?

    I know the above sounds like a bratty school child saying “I know you are, but what am I,” but this is the case where I really do know “you” [Balko] are, and really would like to know what “I” [Hayne] am. Just because bratty school kids over-diagnose projection, that doesn’t mean there is no such thing as projection.

    Xrlq (6c2116)

  5. Possibly, Balko’s motivation for criticizing what certainly appear to be inappropriate convictions based on bogus expert testimony and police misbehavior is that he is opposed to bogus expert testimony and police misbehavior, and doesn’t always include every detail about a given case.

    Possibly, Patterico’s attack on Balko isn’t because he doesn’t care much about bogus expert testimony and police misbehavior, but that his own experience is that imperfect but what he feels is generally useful expert testimony and imperfect but what he feels is generally acceptable police misbehavior can, in his opinion, be confused with the former, and he gets a bit defensive about it. (And, quite possibly, people who Xrlq chooses to dismiss as “Balkobots” thinks that what Balko reports on are serious matters, that require attention, and that until omniscient reporters write voluminous articles on such that the public will read and act on, Balko’s just about the best around on those subjects.)

    Any possibility that neither Balko nor Patterico is fundamentally dishonest and trying to pull something?

    Me, I think so.

    Joel Rosenberg (677e59)

  6. Wow. Talk abut ruining your credibility. Take a note Patterico, you don’t cite the Court of Appeals when you have a Supreme Court opinion in the same case. If that’s the best you can do, you would be laughed out of court.

    Bryan (4e8b85)

  7. Well, yesterday, I had more sympathy for Radley Balko’s position, and, frankly, I thought Patterico was being kind of a nudge. But Pat’s latest post was very enlightening.

    In a lot of murder trials, the medical examiner’s testimony is a formality, as in yessiree, members of the jury, this victim is really dead, and he didn’t die from an aneurysm at the same time the trigger was pulled. In a case where there was flight from the scene (evidencing consciousness of guilt) AND a confession, Tyler’s conviction didn’t turn on the medical examiner’s testimony. In fact, I seriously doubt the jurors even discussed it. Having been a juror in a murder trial, I know we didn’t.

    I’m impressed, Patterico. I guess it does pay to be picky. But I still hate it when my husband does it.

    lc (1401be)

  8. Anybody stop to think that it is impossible to have two fingers on a trigger at the same time. If the gun has a trigger guard, (almost all guns do) it would also be impossible to put one finger on top of the other. just sayin’

    Hazy (56a0a8)

  9. While I sympathize with Balko’s assertion that Hayne is willfully overextending himself to the point of undoubtedly detracting from his work quality, this nit from this case is a flat out stupid spot upon which to make a stand. I tend to support Balko’s work in the Maye case, and the other no-knock disasters. His Rack-n-Roll expose was also fascinating, great work. However, what is the point here? Did big sister help him aim the gun or not? This “two fingers on the trigger” is a bit of defense attorney desperation that actually worked? There are two guilty parties – one is a minor. The sister is more culpable, so what’s the beef? I wish he had been more clear on what his greater point is regarding THIS case, instead of being petulant. He can do a greater good by actually divesting himself of the emotional baggage of his work, instead of just pretending to when it is presumed convenient.

    rhodeymark (9904ea)

  10. Bryan –
    Did you somehow miss the sheer number of times Patterico made it perfectly clear that the issue is with the way the Supreme Court opinion cited the Court of Appeals opinion? In this case, failing to cite the Appeals opinion in order to show that the Supreme opinion contains an either negligent or willful mischaracterizing of the Appeals opinion would be the laughably bad action. Or does intellectual honesty somehow not sit well with you?

    On a side note, I’d like to introduce another fallacy to the table. We have situations where either one person’s hand or two persons’ hands were on the weapon. The truth, then, must be that we split the difference and arrive at one-and-a-half hands on the weapon.

    Rick Wilcox (a8f501)

  11. I know, 100% for a fact, that Balko will claim that I am defending, and even covering up for, Dr. Hayne.

    Since you know this, beyond any doubt, is it possible that you could point to where Balko, subsequent to your posting the above, did this? Is it possible that your antipathy toward Balko has led you into some overstatement?

    All in all, I think you’re both being honest, and fair, most of the time. I don’t think you’re defending Dr. Hayne; I don’t think that Balko is claiming Edmonds’ is innocent. I do wish, though, that you’d take a look at Dr. Hayne’s record, and decide what sort of expert witness you think he is; I do wish that Balko would decide, and state, if he thinks that Edmonds is likley another innocent wrongly convicted (like Maye), a guilty person improperly convicted, or if it’s just unknowable, from the information available to him.

    Joel Rosenberg (677e59)

  12. Side note: distractions aside, the issue of two persons’ hands on a weapon is a distinct issue from that of two persons’ fingers on a trigger.

    (Just yesterday, in fact, while conducting a bit of shooting instruction, there were two persons’ hands on the gun — my student’s, and mine — at the same time. It might have been, theoretically, possible, for both of our fingers to touch the trigger at the same time, but it would have been difficult, at best.)

    While not an expert of any sort, it does seem to me that a ballistics expert (which Dr. Hayne, like me, is not) could determine from the angle of a bullet that it would be unlikely for two person’s hands to be on the gun at the same time it were fired, but not the other way around. (Holding a gun so that another person can get his/her hands on it does restrict, rather than expand, the angles.)

    Joel Rosenberg (677e59)

  13. The key here is that it is clear from the Court of Appeals discussion of the testimony at issue, that Haynes was not being asked to conclude from his autopsy whether or not two people held the gun. He was asked by the defense to answer whether or not a hypothetical that consisted of his autopsy findings added together with hypothetical facts already in evidence were consistent.

    That is a completely different situation from Balko’s representations.

    Bryan, while in terms of legal effect a superseding opinion from a higher court removes precedential value from an opinion, that is not why Patterico is citing to the Court of Appeals opinion and so your comment is just silly.

    SPQR (6c18fd)

  14. Based on the information in this post, Dr. Hayne did not claim there were two person’s hands on the gun. Only that it was consistent with other evidence/testimony (including the accuracy of the shot). It is not apparent that Dr. Hayne determined two person’s hands were used based on examination of the wound.

    In plain language blurring the distinction between “examination of the wound” and “accuracy of the shot” is being exploited in a deceitful way.

    boris (ad3d7f)

  15. In this case, I think what is most likely is that Balko found references to Haynes in court opinions and read just the Supreme Court opinion which is misleadingly terse about the testimony.

    The next step seems to have been made because it was too easy for Balko to conclude that Haynes did indeed testify to something silly. When he should have had a bit more skepticism about his conclusion.

    It is a shame that he didn’t delve further and with a more open mind.

    SPQR (6c18fd)

  16. Joel Rosenberg quoted me as saying:

    I know, 100% for a fact, that Balko will claim that I am defending, and even covering up for, Dr. Hayne.

    and responded:

    Since you know this, beyond any doubt, is it possible that you could point to where Balko, subsequent to your posting the above, did this? Is it possible that your antipathy toward Balko has led you into some overstatement?

    See, Joel, it’s like this. He’s already done it. Balko sent me an e-mail that is titled “Be careful.” telling me that I am getting the facts wrong (see comment 2 above for why I’m not) and saying in part:

    [I]t’s awfully risky of you, as a prosecutor, to start putting up posts defending this guy. If I’m even a little bit right (and I assure you, the article has been thoroughly fact checked), you’re helping with the cover-up a fraudulent expert, and helping to ensure that he continues to testify.

    Then he sends a follow-up e-mail which says in part:

    And yes, you are obsessive.

    I’m obsessive because I’ve been working on this story for six months, and I’m not about to let you sink it with your lame, petulant pedantics.

    Patterico (bad89b)

  17. Wow. Talk abut ruining your credibility. Take a note Patterico, you don’t cite the Court of Appeals when you have a Supreme Court opinion in the same case. If that’s the best you can do, you would be laughed out of court.

    Heh. These people are nothing if not predictable. I said last night in a comment:

    Oh, that will be the argument — how can I, a lawyer, be so stupid as to not know the Supreme Court trumps the Court of Appeals. Yada yada yada. I explicitly address that issue in the post — but since when does what I say in the post matter?

    Patterico (bad89b)

  18. Anyway, I have a hard time understanding why talking about facts should be “awfully risky” for me.

    Patterico (bad89b)

  19. Heck, Patterico. Don’t you know stare decisis? If the highest court said it, it’s conclusively so. (As you said….)

    Seriously, Radley has a very convincing expository style. His statement at first struck me as reasonable even in light of this post (to my shame). It took me a while to parse it and see that Dr. Hayne “had testified under oath” to no such thing.

    nk (6e4f93)

  20. Well, I don’t know whether he did or didn’t, nk. I would have to read the trial transcripts to know for sure. All I can say is that there appears to be a very real controversy over exactly what he did testify to — and that it’s not entirely clear to me even after reading two court opinions about it.

    But the idea that there is any question about what the medical examiner testified to . . . that’s something I didn’t know until I read the Court of Appeals opinion.

    Patterico (bad89b)

  21. So, I guess Balko is saying that he failed to uncover the Supreme Court’s mischaracterization of Hayne’s testimony after 6 months of work on the article, but you were able to dig it out in about an hour’s worth of work on a Sunday night.

    Reminds me of an old saying — “Those who can do legal research do it, and those who can’t become investigative journalists.”

    wls (fb8809)

  22. wls, I think what you’ve simply shown is that there’s a vast gap between “uncovering” and reporting.

    Christoph (92b8f7)

  23. I agree that you’re not defending Hayne. You’re attacking Balko.

    Perhaps you might do your readers the courtesy of conducting at least a cursory examination of Hayne’s career, and let us know your conclusions. Presuming you actually care more about the question of whether justice has been served than your pathetic blog fight, that is.

    brendanm98 (5b7774)

  24. I don’t have time to do a months-long retracing of what Balko has done. All I can do is what I have called for in my most recent post: a state investigation of this man. Maybe it can be spurred by journalism by someone I trust more than Balko.

    Why is it “attacking” Balko to question the accuracy of his assertions? Must we all uncritically accept what he says as long as we like the side he’s on?

    Patterico (bad89b)

  25. Ah, I see you’ve taken a step in that direction with your new post. Sincere thanks. I’m sure if you did further digging of your own we’d be interested to hear what you uncover, and whether it backs up Balko’s overall conclusion.

    brendanm98 (5b7774)

  26. Maybe it can be spurred by journalism by someone I trust more than Balko.

    Let me clarify. Obviously if an investigation happens it will probably be spurred by Balko’s journalism. Which is a good thing, whether you trust him or not.

    What I meant was that a state investigation is not the only way change can be effected. Other journalists (whom I might trust more) might also take up the cause.

    I said that because otherwise I’ll be accused of trying to bury everything by leaving the investigation up to the government. (I was accused of that in the Johnston case, even though those who, like Balko, confidently predicted that the government investigation would lead nowhere were wrong.)

    Patterico (bad89b)

  27. Patterico-

    That’s funny…because I could have sworn you confidently predicted she was a drug dealer.

    And I loved your apology after the fact. “I’m sorry to Mrs Johnson and her family for what I said………….. but they were just in the comments so I couldn’t think so much before I made them making me less culpable, plus if you look at my main point and the context, my comments weren’t that bad. [PARENTHETICAL UPDATE: Maybe I don’t need to be so sorry after all; please see UPDATE below]. Although I obviously am apologizing for jumping to conclusions regarding Mrs. Johnston, I vow to bravely continue to not jump to conclusions.

    Nice fucking apology.

    By the way, can you Pattericotards (see I can be dismissive of Patterico’s followers too!) imagine what Patterico’s reaction would have been had BALKO quoted an Appeals Court case when there was an overriding unanimous Supreme Court case above it?

    Dude (7676e6)

  28. Okay, I’ll take the bait: yes, it’s okay to question Balko’s assertions, particularly if — as you appear to somewhat grudgingly do — when he points to the source of the smoke, you say something like, you know, it sure looks to me like there’s fire rather than mirrors there.

    As to “risky,” I dunno. I think the only thing at stake here is your personal, not professional, credibility, and fwiw I think it’s emerged with a few self-inflicted smudges, but generally intact.

    One of those smudges is your prediction about what Balko “will” do, which you (yet again) contend you support with what he has written to you.

    Nope. The way you establish that you were right, about what somebody “will” do, is to show that after the point in time at which you made that claim, he did it, not that he did it before you made that claim.

    Otherwise, the following is true — “I predict, with 100% certainty, Patterico will respond to this comment of mine” — even if you don’t.

    But, no, my prediction, above, isn’t accurate until and unless you actually, well, do respond to this comment . . . after I post this.

    Joel Rosenberg (677e59)

  29. Dude:

    By the way, can you Pattericotards (see I can be dismissive of Patterico’s followers too!) imagine what Patterico’s reaction would have been had BALKO quoted an Appeals Court case when there was an overriding unanimous Supreme Court case above it?

    I don’t think you understand the issue presented by the conflicting appeals court and supreme court opinions. No one, especially Patterico, argues with the principle that the Supreme Court decision trumps the appeals court decision on matters of law.

    The question Patterico has raised is which court recited the facts in the most complete and accurate manner. The best source of the facts would be the trial transcript but we don’t have access to that. Our only resources are the court opinions. The appeals court opinion provided more detail about the facts than the Supreme Court opinion did.

    The legal significance of facts can be interpreted differently but the facts are the facts – whether they come from the trial transcript, the appeals court opinion, or the Supreme Court opinion.

    DRJ (d0ada6)

  30. I have a prediction: I am 100% certain that DRJ will make a post accusing me of not understanding the issue.

    According to Patterico’s Guide for Predicting the Future, I am now Nostradamus-In-Chief.

    Further, I am 100% certain that Joel Rosenberg will make a post about taking the bait.

    WHO IS THE MAN?!!??!!?!? ME!!!!!!!!! I’m going to go play the lottery now!!!! Let me just look up last week’s numbers and Patterico will guarantee me a winner!!!!!

    Dude (7676e6)

  31. Guess what Dude, you’ve already shown that you don’t understand the purpose of citing to the Courts of Appeals opinion. Now do you have an actual contribution to the thread to make?

    SPQR (6c18fd)

  32. Joel Rosenberg,

    Maybe Balko’s desire to prove me wrong outweighs his desire to do another post that misrepresents my views. If so, my prediction — which is an obvious exaggeration, as you and I don’t even know whether the world will *exist* tomorrow — will have served a useful purpose. Because when someone misrepresents my writing, it’s aggravating.

    Between dealing with another dishonest Balko post about me, or dealing with a scold like you complaining that I’m predicting future events with absolute certainty when YOU KNOW NO SUCH THING IS POSSIBLE!!!!1!! — I’ll go with door number two, Monty.

    Patterico (b78a3f)

  33. Wow…the two of you are rather petty. Why do you even respond to one antoher. Balko doesn’t trust the justice system and you don’t trust Balko because he criticizes the justice system. That is about the only conclusion you can draw from all this nonsense. Our legal system isn’t going to collapse from a bit of scrutiny. Why on earth do you get so offended by him?

    goldhorder (b6af2e)

  34. See? I can predict the future with 100% certainty (well, some of the time); despite your tapdancing, it’s apparent that you can’t.

    Goldhorder: unfair. Balko doesn’t trust the justice system for good reason; he’s followed too many of the injusticies. Yup; that bias occasionally gets him to get from point A to point D without going through B and C, and sometimes that’s bad, because B and C don’t exist, and you can’t legitimately get to point D.

    Patterico has professional commitment to the justice system, and a distrust for Balko for good reason — he’s seen Balko do the above. Granted, some people [raises hand] thinks he takes his personal pique over the above to heights were it’s amazing he can still breathe, but, hey, some people are like that.

    Me, I’d rather he do more of seconding the seriousness of the real, horrendous abuses that Balko often points to, just as much of pointing out the occasional flaws in Balko’s pointing, and a lot less accusations of dishonesty (as opposed to error), but I don’t always get what I want.

    Hell, if I did, I wouldn’t have been called a “scold.” :)

    Joel Rosenberg (677e59)

  35. Joel,

    I figure most of the errors (if not all) are due to bias and not dishonesty. If I see dishonesty it’s in how the errors are dealt with: an acute reluctance to admit error.

    I just have a problem with the uncritical way people accept his recounting of the abuses. For example, one thing I think I never wrote about was his accounting of a drug operation in which a bunch of warrants were served. He said that the authorities claimed a lot of dope was found, but claimed it was from an unrelated traffic stop, which netted a huge amount of dope.

    I read every story I could find about the operation and couldn’t find a single one that affirmatively said it was unrelated. I’d bet the farm it was related; I’ve seen enough of these operations to know that when cops pull over a car in the middle of a huge warrant operation it’s usually because it was driving from the scene of a dope operation — especially if they just “happen” to recover a lot of dope. Gee, what a coicidence: a high-volume doper pulled over in the middle of a huge dope operation.

    Balko, I’m sure, just tossed in the word “unrelated” because he assumed it was unrelated, and no official and bulletproof connection was ever made.

    I wanted to follow up with the police department (I think it was Buffalo) but didn’t have the time to fight the bureaucracy to get to the right person and get them to open up.

    Still, everyone who read his site accepted uncritically that it was “unrelated.” And I didn’t write about it because I couldn’t prove otherwise.

    Stuff like that causes me not to trust him — but if I’m right about this example, is it “dishonesty”? Nah, it’s bias.

    To those who continually ask why I am not outraged at the abuses he points out, it’s because I won’t believe they are abuses unless they are independently verified. I’ve seen way too many examples of his sloppiness, bias, and reluctance to admit error to just uncritically accept something he writes about the criminal justice system.

    Patterico (bad89b)

  36. For an example of his reluctance to admit error: in his latest post he says I am “sort of” right about the error I pointed out. B.S. I was totally right, and even his correction is misleading, as Wheeler was not fighting with only uniformed officers, as he implies. He also initially said in this latest post that Wheeler was fighting with *three* uniformed officers, and sneakily changed it simply to “other” when I noted that he had gotten it wrong again.

    Patterico (bad89b)

  37. You’ll notice he’s not denied that last bit, even though he’s monitoring these comment threads and I’ve pointed it out twice already before this. I think he suspects that he can’t deny it.

    Patterico (bad89b)

  38. Now, which interpretation of Dr. Hayne’s testimony is correct? I have no idea. Let me say that again, because it will be ignored: I have no idea whether the Court of Appeals’ interpretation of Dr. Hayne’s testimony is right or wrong. I haven’t read the trial transcripts. And the courts have only selected quotations from the trial.

    It appears that Balko has posted some of the intial trial’s transcripts that deal with the issue of the gun and who was holding it, etc.

    Steve Verdon (94c667)

  39. Based on the information in this post, Dr. Hayne did not claim there were two person’s hands on the gun. Only that it was consistent with other evidence/testimony (including the accuracy of the shot).

    That’s not correct. That’s not “only” what he said. He said that it was “less likely” that one person fired it. If he’s basing that on his autopsy, he’s lying. If he’s basing it on something else, then he’s incompetent to testify on that point.

    The Court of Appeals is equally desperate to exonerate Hayne, when they write, “Second, it is clear that the point which Dr. Hayne was attempting to make is that, given Edmonds’s testimony that Edmonds did not aim the weapon at anything, it was more likely than not that another person assisted.”

    That may be a valid conclusion for the jury to draw, but not for Hayne. He has no professional expertise which enables him to determine, e.g., the difference between someone else aiming the gun or it being a lucky (or unlucky, depending on one’s perspective) shot. Purely on the science, those two look identical in an autopsy.

    David Nieporent (51a3d4)

  40. David, when you take Haynes’ answer outside the context of the hypothetical question he was asked, which assumed certain foundational factual assumptions in the hypothetical, you commit the same error Balko did and misrepresent what the Court of Appeals tells us about the testimony. The evidence that Haynes did observe and was testifying about appears in the excerpts we have to be about the angle of the wound. This is a key piece of information that both Balko and you omit. Now Balko’s omission I can understand given that I suspect he never searched out the lower appellate opinion.

    SPQR (6c18fd)

  41. SPQR, the part where he testified whether it was consistent was the part where he assumed the hypothetical foundational facts. That part is legitimate. The part where he decided what was “less likely” is not.

    David Nieporent (51a3d4)

  42. SPQR,

    Have you read the portion of testimony that Balko has posted. From what I can tell it is from the intial trial and near the end it does appear that Hayne (no ‘s’ by the way) was basing part of his beliefs on how many people held the gun on his autopsy findings.

    Steve Verdon (49796d)

  43. I’m doing a post on that right now, Steve. I just saw it.

    It’s fascinating where he snips the quote. Had he quoted the next question and answer, it would have totally undermined his argument.

    Another honest mistake that happens to favor his point of view.

    Patterico (bad89b)

  44. Just to make it easier here is the protion of the transcript that Balko posted.

    Q:

    Dr. Hayne, you testified earlier that the defendant’s statement that you saw was consistent with how the gunshot wound occurred?

    [Note: This would by Edmonds’ initial confession, later recanted, but now endorsed by the prosecution.]

    A:
    It would be consistent with the physical findings that I observed and the information provided to me by opposite side counsel.

    Q;
    And do you understand that the evidence is that two people fired that shot?

    A:
    That was essentially the summary of the information given to me and seen on the video.

    Q:
    And let’s suppose if one person had fired that shot, would your opinion be the same?

    A:
    I could not exclude that; however, I would favor that a second party be [sic] involved in that positioning of the weapon.

    Q:
    And what would be the distance of the shot?

    A:
    The distance?

    Q:
    Based on the fact that if one person had done this?

    A:
    The distance of the shot, if you’re addressing the muzzle of the weapon to the back of the head, all I can tell you it’s at least two to three inches away. If you are talking about the relative position of the weapon, then I would indicate that the weapon was placed much more towards the bed and that would be consistent with one person assisting another person to achieve that trajectory, the aiming of the weapon. Since it would be past the center line of the decedent’s head when fired, 20 degrees past the center line of the head, so, therefore, it would be consistent with two people involved. I can’t exclude one, but I think that would be less likely.

    Bold by Balko. Balko argues that the bolded section is where Hayne is making claims about how many people are holding the gun based on his autopsy results.

    Steve Verdon (49796d)

  45. Just to make it easier, I quoted all that in comment 2.

    I even have the next Q&A that he snipped out.

    Tell me, Steve. In that Q&A, when Dr. Hayne refers to “the video” — what is he talking about?

    If you can’t answer that without consulting a source, then you need to read up on this more before you conclude that Balko is right and the Court of Appeals was wrong.

    This will all be the subject of my upcoming post.

    Patterico (bad89b)

  46. David Nieporent, you might check out comment 2 as well.

    It is apparent you both have been relying on Balko for your quotes. Try consulting the original — or at least the fuller context that I already provided up top in comment 2.

    Patterico (bad89b)

  47. It’s fascinating where he snips the quote. Had he quoted the next question and answer, it would have totally undermined his argument.

    Not sure I agree with that Patterico (I read your longer quote in one of the other posts just a few minutes ago). I agree that given the confession then concluding two people probably took part in the aiming of the weapon is fairly reasonable.

    However, part of Hayne’s beliefs to this effect are based on his autopsy findings. That part I find a bit hard to believe. Further, if Hayne is not a ballistics expert, and if his autopsy findings don’t tell us how many people were holding the gun, then he shouldn’t have answered the question the way he did.

    Think of it this way, if the probability that two people held the gun given Hayne’s autopsy information is the same as the probability that one person held the gun given Hanye’s autopsy inforamation, then upon hearing the confession Hayne goes back and says that the autopsy results confirm to some degree the confession, then Hayne is changing his autopsy findings based on the confession. Seems a bit dodgy to me initially this wasn’t the case.

    Steve Verdon (49796d)

  48. Patterico,

    The video presumably refers to Edmonds video-taped confession.

    Oh, and I haven’t concluded that Balko is right on this. In fact, I haven’t concluded you are right. Perhaps next time you should ask before putting words in my mouth. I was asking for SPQR’s view on that part of the testimony. I value his opinion.

    Steve Verdon (49796d)

  49. OK.

    I’m asking.

    Now that you have read the part Balko snipped out, does it appear to you that, as Balko claimed, Hayne had “left Edmond’s confession” when he gave the testimony cited by Balko?

    Patterico (bad89b)

  50. Given that even you acknowledge that he was referring to that confession in his very next answer?

    I’m thinking either you have to acknowledge that Balko got this wrong — meaning he possibly got the lead story in his WSJ and Reason piece wrong — or you have to start twisting yourself into a pretzel logically.

    I don’t want to put words in your mouth, so I await your answer.

    Patterico (bad89b)

  51. I’m really interested in your answer on this, Steve. You were pretty stand-up in your about-face the last time you aligned yourself with Balko and got burned as a result, so I know you’re capable of letting the facts guide you, regardless of initial knee-jerk allegiances.

    Patterico (bad89b)

  52. Patterico,

    I think that given all this information Balko should not have used that story to open his article in Reason or the WSJ. There appears to be sufficient muddiness in this that it both interpretations could be correct.

    Here is how I see this. If evidence is consistent with A and B, then the evidence provides little to no information as to whether A or B is more likely. When additional information is presented and then one goes back and says, “Oh yeah, that fits with the initial evidence that A was more likely than B,” then I don’t think one is thinking about the evidence correctly.

    Basically when I read this section of the testimony,

    Q. Dr. Hayne, You testified earlier that the defendant’s statement that you saw was consistent with how the gunshot wound occurred?

    A. It would be consistent with the physical findings that I observed and the information provided to me by opposite side counsel.

    Q. And do you understand that the evidence is that two people fired that shot?

    A. That was essentially the summary of the information given to me and seen on the video.

    Q. And let’s suppose if one person had fired that shot, would your opinion be the same?

    *885 A. I could not exclude that; however, I would favor that a second party be involved in that positioning of the weapon.

    To me this says the following:

    The probability that two people fired the gun, ginve the autopsy findings is higher than the probability that one person fired the gun given the autopsy findings. I find that a bit troublesome. It does appear to me that Hayne is saying, at least in part, that the physical evidence fits the two person theory better than the one person theory and that this would be so even absent Edmonds’ confession.

    As for things like the legal aspects, whether Edmonds is guilty or not, and so forth I don’t really care. To me this looks like an exercise in probabilistic reasoning, and I’m not convinced that Hayne’s reasoning is all that sound, whether it is a hypothetical or not.

    Steve Verdon (49796d)

  53. Steve,

    I salute you for acknowledging that this was a poor way for Balko to open his piece.

    I have a hard time believing that all the other scary crap he details has a similarly innocent explanation, which is why I have called for a state investigation of Hayne.

    But this story? I dunno.

    You say:

    It does appear to me that Hayne is saying, at least in part, that the physical evidence fits the two person theory better than the one person theory and that this would be so even absent Edmonds’ confession.

    I don’t see the basis for the bolded part of your statement.

    I think this is arguably inadmissible evidence, but I find it increasingly difficult to imagine that, had the confession not existed, Dr. Hayne would nevertheless have testified that two people held the gun. I think his testimony related back to the details of the confession at every point. I don’t see any evidence otherwise.

    I am publishing my full post on this in about an hour and a half and I hope you give it a full read.

    In any event, despite our past differences, I can see you have integrity.

    Patterico (bad89b)

  54. Patterico,

    I think this is arguably inadmissible evidence, but I find it increasingly difficult to imagine that, had the confession not existed, Dr. Hayne would nevertheless have testified that two people held the gun.

    But that is precisely my point here. If he wouldn’t have testified to this possibility in the absence of the confession, then the physical evidence didn’t support this possibility and he shouldn’t have used that phrase like he did in this part of the testimony,

    A. It would be consistent with the physical findings that I observed and the information provided to me by opposite side counsel.

    Now the problem for Balko is what exactly does “physical evidence” reference? The autopsy or something else. Here is where I think Hayne could, in this case, have wiggle room (either legitimately, or not). Same for the word ‘consistent’. Its meaning is ambigious and one can read it one way and another person the other.

    However, when he further indicates that hypothesis of one person holding the weapon is less likely it moves more in Balko’s favor. Not 100%, but I can definitely see both sides here.

    I am publishing my full post on this in about an hour and a half and I hope you give it a full read.

    Oh, I probably will, but most likely tomorrow. Even though we are both in/around Los Angeles, I’ve been staying up way too late for the past few nights.

    Steve Verdon (49796d)

  55. All of Patterico’s argument seems to hinge on the belief that the Edmond’s confession was true.

    There is good reason to believe that it was completely false. Absent the confession the whole picture looks different.

    Doug Todd (de158b)


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