Patterico's Pontifications


The Answer Is No

Filed under: Dog Trainer,Humor — Patterico @ 7:37 pm

The Los Angeles Dog Trainer sent us another free copy of the paper yesterday.

Which we didn’t ask for.

Do the stalking laws apply to newspapers?

Jan Crawford Greenburg on Justice Thomas and Precedent

Jan Crawford Greenburg has a post on Justice Thomas and precedent. With me, she’s preaching to the choir, and telling me little I don’t know. But I’m a lawyer who follows this stuff closely. I think more Americans need to hear about his theory of judging, so here’s a taste:

[Thomas] suggests he sees real limits on the kind of cases he would seek to overturn–even if he believed they were wrongly decided under the Constitution.

But there’s no question, he says, he’s much more willing to go back to the precedent and reexamine it.

“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.

“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”

That willingness to “think it through” separates Thomas from Scalia in a number of cases.

One of the examples is the medicinal marijuana case. For a review of how Justice Thomas differed from Justice Scalia in that case, I commend to you my post on the case, which opened by saying:

I have read Gonzales v. Raich. And I’m not happy, either with the decision, or with my (usual) hero Antonin Scalia, who wrote an unconvincing concurrence. But I’m more and more impressed with Clarence Thomas.

I still feel that way.

A Second Amendment Case of First Impression

Filed under: Second Amendment — DRJ @ 6:45 pm

[Guest post by DRJ]

A pistol-packing teacher from Oregon is suing to bring her gun to school …


Balko’s Reason Piece on Dr. Hayne

Filed under: General — Patterico @ 11:48 am

Radley Balko’s piece at Reason on Dr. Hayne is up, here. I wish it had been written by someone I trusted more, because if half the stuff in there is true, this doctor is a menace. Here’s something that will get your attention:

People who have visited Hayne’s practice during an autopsy session have described seeing as many as 15 bodies opened at once, with Hayne and his assistants smoking cigars, sometimes even eating sandwiches, as they go from one body to the next.

Again, that’s a complete disaster . . . if true. And there’s much, much more.

Unfortunately, it’s hard for me to know what to believe and what not to believe. Balko opens his piece with the same story he told in his Wall Street Journal piece:

In a remarkable capital murder case earlier this year, the Mississippi Supreme Court, by an 8-to-1 vote, tossed out the expert testimony of Steven Hayne. The defendant was Tyler Edmonds, a 13-year-old boy accused of killing his sister’s husband. Hayne, Mississippi’s quasi-official state medical examiner, had testified that the victim’s bullet wounds supported the prosecution’s theory that Edmonds and his sister had shot the man together, each putting a hand on the weapon and pulling the trigger at the same time.

“I would favor that a second party be involved in that positioning of the weapon,” Hayne told the jury. “It would be consistent with two people involved. I can’t exclude one, but I think that would be less likely.”

Testifying that you can tell from an autopsy how many hands were on the gun that fired a bullet is like saying you can tell the color of a killer’s eyes from a series of stab wounds. It’s absurd. The Mississippi Supreme Court said Hayne’s testimony was “scientifically unfounded” and should not have been admitted. Based on this and other errors, it ordered a new trial for Edmonds.

As I detailed in this post, there is some critical context left out of the story.

Read all of Balko’s piece. But with more than a grain of salt. In fact, I’d keep the shaker handy.

But I’d say this certainly merits further investigation. If state officials don’t at least look into this medical examiner, there’s something really wrong going on in the state of Mississippi.

New Hot Air Post: L.A. Times Gives Hillary a Big, Sloppy, Wet Kiss

Filed under: 2008 Election,Dog Trainer,General — Patterico @ 11:12 am

I have said for years that Hillary is our next president. And people have always said the same thing: “Not with those negatives!”

But these people weren’t counting on the cooperation of the news media in helping Hillary out. Cooperation like we see in this morning’s puff piece on Hillary in the L.A. Times.

I have a new post about it at Hot Air, here.

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.

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