This post is about whether the lead anecdote in Radley Balko’s recent Wall Street Journal and Reason pieces is accurate and fair.
Specifically, Balko opened both pieces with a startling anecdote about how Dr. Steven Hayne can magically divine how many people were holding a gun, just by looking at a wound track. I have pointed out that there is some dispute about whether Dr. Hayne’s testimony was as simplistic and laughable as Balko portrays it — given that the state Court of Appeals said that Hayne most certainly said no such thing.
I just saw that Balko has responded to my post pointing out the missing context from the Edmonds case, which was provided by the Court of Appeals. Balko argues that the Court of Appeals misanalyzed what Dr. Hayne really said, and supports his argument with a quote from the trial transcript.
Which is fine, except that Balko snips the quote precisely before the part that undermines his argument.
I’m assuming your familiarity with my previous post on the Edmonds Court of Appeals decision. Recall that, in that decision, the Court of Appeals held that — contrary to Balko’s claim — “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.” In other words, the Court of Appeals believed that Dr. Hayne’s testimony that a second person was involved was given entirely in the context of the defendant’s confession.
Balko tries to argue the opposite, and quotes language from the opinion to support his contention — which was front and center in both his Wall Street Journal op-ed and his Reason piece — that Hayne was testifying based on the wound track alone. To support his point, he gives an extensive quotation from Dr. Hayne’s testimony. But as we shall see, the quotation is surgically snipped just before the evidence that contradicts Balko’s argument.
The appeals court writes, referring to Hayne:
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.
Except that that is exactly what Hayne was saying. Consider this passage, from the trial transcript:
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.]
It would be consistent with the physical findings that I observed and the information provided to me by opposite side counsel.
And do you understand that the evidence is that two people fired that shot?
That was essentially the summary of the information given to me and seen on the video.
And let’s suppose if one person had fired that shot, would your opinion be the same?
I could not exclude that; however, I would favor that a second party be [sic] involved in that positioning of the weapon.
And what would be the distance of the shot?
Based on the fact that if one person had done this?
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.
That bold emphasis is Balko’s, and he jumps on the language to argue that Dr. Hayne had moved past the confession, and based his opinion entirely on the wound track and bullet trajectory:
In the emphasized passage, Hayne is very clearly claiming that based on the trajectory of the bullet in the victim’s head, he thinks it’s likely that two hands were on the gun that fired it. He has left Edmond’s confession, and is speculating now about where the gun was in relation to the bed, and about two hypothetical people assisting one another in positioning it–again based not on other evidence already presented, but on the where the bullet entered the victim’s head.
Hayne has “left Edmond’s confession,” eh? The Court of Appeals didn’t think so. I wonder why?
Maybe it’s because they read Dr. Hayne’s testimony past the place where it is snipped by Balko. If we do that, then lo and behold! we see that in the very next line Dr. Hayne makes an immediate reference to the “video” — meaning the defendant’s videotaped confession. Let’s pick it back up again with the bolded part quoted by Balko, and keep reading:
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[d] 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.
And so we see that, despite the fact that Balko claims Dr. Hayne has “left Edmonds’s confession,” the transcript testimony is to the contrary. In his very next answer, Dr. Hayne makes clear that he is basing his answer on “the video” — i.e., Edmonds’s videotaped confession, which Dr. Hayne had just been asked about a few questions earlier.
Now, Balko may have something of a point when he says that, when Dr. Hayne takes a confession into account in forming any kind of opinion, “this is no longer the expert opinion of a forensic pathologist. It’s weighing all of the evidence together, as a juror would, and coming to a conclusion.” But that’s a far cry from the far more incendiary claim that Dr. Hayne “can tell from an autopsy how many hands were on the gun that fired a bullet,” as Balko characterized Dr. Hayne’s testimony in his Reason piece.
But wait. Didn’t the Supreme Court overrule the Court of Appeals and take the position that Dr. Hayne testified to what Balko claimed he testified to? Indeed they did, as I acknowledged in my previous post — but they offered no analysis whatsoever. As I said in my previous post:
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 Supreme Court simply assumed away the issue, by deciding without analysis that Dr. Hayne had testified to what the Court of Appeals said he hadn’t testified to. As I said in my post: “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.”
Interestingly, Balko agrees that the Supreme Court misstated the Court of Appeals’ view. Balko says:
Patterico says the state supreme court misstated the appeals court’s argument. He’s right, here. They did.
He also agrees that the Supreme Court gave no analysis to justify its mischaracterization, saying of the Supreme Court’s misstatement: “I don’t know why they did [it].” Exactly. Because the Supreme Court doesn’t explain why it disagreed. They misquoted the Court of Appeals and assumed away the very issue to be decided.
Still, in the end, Balko says my criticism is “pretty cheap criticism” because the Supreme Court of Mississippi decided the case almost unanimously, even though it is conservative. The fact that the Supreme Court mischaracterized the lower court opinion and assumed away the issue doesn’t seem to bother him a bit. Balko seems to be saying: It’s the Supreme Court! . . . and when they agree with me, I accept their version of the facts as gospel, no matter how unreasoned and manipulative the decision is, even by my own admission.
That Radley Balko! Always speaking Truth to Power — except, that is, when Power happens to agree with him, in which case Power trumps minor things like Reasoning and Accurate Renditions of the Facts.
One imagines that if the Supreme Court of the United States had issued an opinion which seemed to misstate the facts of a case in a way he didn’t like, he wouldn’t be shrugging his shoulders and saying: “Sorry! It’s the Supreme Court! If you don’t like their analysis, keep your cheap criticism to yourself!”
Look, I said it before and I’ll say it again: I’m not defending this Dr. Hayne in general. I have previously said that, even given my severe reservations about Radley Balko’s ability to be fair, he has set forth so much evidence against Hayne that I think it’s worth a state investigation.
But it’s not hard to see why Balko is a fan of the Mississippi Supreme Court opinion in the Edmonds case. After all, the Supreme Court in that case snipped off relevant portions of critical quotations, with the effect of misrepresenting what the Court of Appeals said — just like Balko has done in his most recent post.
As long as it’s all in the name of Fighting the System, such tactics are okay. I know this is true — because Balko’s fans all tell me it’s so.