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.