That isn't what I meant, your honor

When the courts cite your work, but for all the wrong reasons

(Photo by Bob Riha, Jr./Getty Images)

Last week, I had a piece in the Atlantic about the frustration of learning that a court has cited my work, but for all the wrong reasons.

I had originally submitted a longer piece that discussed several cases, but the magazine’s editors asked me to focus on just one. That case was a decision about bitemark evidence from the Nevada Supreme Court published in December 2022.

So I thought I’d write an accompanying post looking at some of the others.

Here’s my introduction to the Atlantic piece:

A little while ago, a reader sent me a Nevada Supreme Court ruling. In the unanimous opinion, the justices cited my work from the mid-2000s criticizing the use of bite-mark identification in criminal trials. For a journalist who writes and reports on the criminal-justice system, getting cited in a court opinion can be gratifying. You want to feel like your work matters; you aren’t shouting into a void.

Even so, a citation isn’t always a win. Of the dozen-odd times I’ve seen my work cited by a court, all but a few were either in a dissenting opinion or in the majority but followed by a nevertheless—a minor concession en route to an opinion that comes down the other way. That’s frustrating, but not surprising. My beat is reporting on flaws in the criminal-justice system, and it’s an institution that can be reluctant to admit its mistakes.

One of the most egregious examples of this sort of thing is Hudson v. Michigan, the 2006 case in which the court ruled 5-4 that the Exclusionary Rule would not apply when police violate the knock-and-announce rule before serving a search warrant. My work was cited in that case, but in the dissent. In his majority opinion, Justice Antonin Scalia also cited the work of criminologist Sam Walker. Scalia claimed that Walker had demonstrated how police departments had become more professionalized in recent decades and that, therefore, the Exclusionary Rule was no longer necessary.

Walker did not agree. He was so livid at how Scalia misappropriated his work that he took to the pages of the L.A. Times. He pointed out that what his work actually showed was that police departments had improved because of accountability policies like the Exclusionary Rule. In the years since Hudson, I think the evidence has been pretty overwhelming that Scalia was wrong, and those of us who predicted that the decision would result in law enforcement disregard for the knock-and-announce rule were proven correct.

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One of the more egregious examples of a judge misusing my own work is this 2017 opinion from U.S. District Court Judge James O. Browning of New Mexico. The citation of my work didn’t directly affect the outcome, but appeared in a section where Browning discussed a proposal that federal judges directly ask prosecutors if they have followed their obligation under Brady v. Maryland to disclose exculpatory evidence. The state argued that such questioning would be insulting and demeaning to prosecutors.

In his ruling, Browning cites a piece I wrote for the Washington Post under the headline, “Judge Says Prosecutors Should Follow Law. Prosecutors Revolt.” The article was about a South Carolina judge who was fed up with prosecutors failing to fulfill their Brady obligations, and warned them that there would be consequences if they continued to violate the law. The judge cited the prosecutor’s office in one judicial district who had a particularly awful record of misconduct. Prosecutors across the state responded with humility and grace, and promised to reacquaint themselves with their constitutional obligations.

Just kidding! They responded like petulant children, demanding the judge recuse himself from all criminal cases.

Given all that, you’d think Browning would have cited my article in support of the proposition that judges remind prosecutors of their Brady obligations. Nope. He cites it as evidence for the other side. Here’s the footnote:

See Radley Balko, Judge Says Prosecutors [*130]  Should Follow Law. Prosecutors Revolt., Wash. Post. (March 7, 2014), http://www.washingtonpost.com/news/the-watch/wp/2014/03/07/judge-says-prosecutors-should-follow-the-law-prosecutors-revolt (describing how a prosecutor opposed the Arizona Supreme Court's recommendation that Arizona adopt an ethical rule to ensure that prosecutors disclose new evidence of a potential wrongful conviction, in part because he was insulted by the suggestion that an ethical guideline was needed to encourage him to do what he said he would do as a matter of course). Kreag concedes that "some prosecutors might be insulted by having to answer these or similar questions from the court, believing that the questions themselves amount to an accusation." The Court agrees with this assessment. The Court has known many of these lawyers for years; there is no need to insult them with questions about whether they have complied with their ethical duties that it does not ask of defense lawyers or civil lawyers.

In other words, I wrote a piece describing how prosecutors completely overreacted and tried to take down (you might even say “canceled”) a judge over some justified criticism over their failure to meet their ethical obligations. Browning cited my article to argue that formally reminding prosecutors of these ethical obligations would actually be insulting — and therefore unnecessary.

Browning used the same footnote in his ruling for another Brady case in 2020.

But the most aggravating cases are those like the Nevada decision I wrote about in the Atlantic, in which an appellate court rules against a prisoner challenging a conviction based on some bogus forensic practice — and cites some article I wrote 10 years ago to show why the claim was brought too late. It’s especially maddening because in many of these cases, the court is punishing a prisoner for failing to take notice of work that the court itself also failed to notice. Or in some cases, that the court flat-out rejected when other prisoners did raise the claim back when it would have been timely.

If you’ve been reading me for a while, you’ll probably recognize the name Steven Hayne. Back in the mid-2000s, I began investigating the longtime Mississippi medical examiner. For the better part of two decades, Hayne was the state's pathologist of choice in criminal cases. He performed an astonishing number of autopsies each year (1,500 to more than 2,000 at his peak), and testified in thousands of cases, offering opinions that ranged from fine, to unscientific, to just plain laughable. For years, criminal defendants challenged Hayne's credibility, and for years both state and federal courts regularly shot them down.

But in 2014, a panel of the U.S. Court of Appeals for the 5th Circuit finally ruled for the first time that Hayne was “now discredited.” That court, too, cited my work. But in the same opinion, that court simultaneously ruled that it was now too late for anyone to challenge Hayne, no matter how absurd his testimony.

It was a particularly cruel decision because the defendant in question, James Koon, was pro se. The ruling essentially faulted him for not being aware of my articles in Reason magazine from his prison cell at Angola, Louisiana’s maximum-security penitentiary.

Just 10 months earlier, a panel of the same court had ruled in favor of Hayne’s credibility. Incredibly, one judge — E. Grady Jolly — served on both panels. 

Since then, 5th Circuit courts have summarily rejected challenges to Hayne on the same grounds, again citing my work as evidence that defendants should have brought their claims much sooner. Some prisoners had credible innocence claims, such as John Ross, who was convicted of killing his wife. Ross claimed his wife’s death was a suicide. Hayne testified at Ross’s trial that suicide was unlikely because women tend not to shoot themselves in the face, a bit of misogynistic junk science that both isn’t true and should have had no bearing on an individual case.

Another prisoner, Joseph Osborne, was convicted of killing a boy originally thought to have died from an accidental drug overdose. Hayne had the body exhumed and created a plaster “death mask” of the boy’s face. He testified that he found marks on the mask “would be consistent with a person placing their hand over the child’s face,” and that in his opinion a “large hand,” which he said would “favor a male’s hand,” caused the injuries. It was a preposterous claim. Yet in 2017, a federal district court judge in Mississippi rejected Osborne’s post-conviction petition not on the merits, bur for untimeliness, citing in part articles I had written about Hayne for Reason in 2006 and 2007.

It has been 10 years since that Fifth Circuit declared Hayne “now discredited.” But the court’s change of posture did not prompt an official review Hayne’s work to see if he may have put other innocent people in prison. (At least five people that his testimony helped convict have since been exonerated.) It didn’t cause any alarm in the courts, from the state attorney general, or from any other authority in Mississippi. (Save for one Commissioner of Public Safety back in the early 2010s — he was mostly ignored, and then bounced from office.)

The only real impact of the Fifth Circuit’s determination that Hayne was “now discredited” was to time-bar the people he helped convict from getting any relief.

Last January, the Mississippi Court of Appeals did something courts almost never do. It not only reversed a conviction — it ordered an acquittal. It did so in part at the request of the state attorney general.

But this wasn’t a Hayne case. And it wasn’t your typical defendant. It was a police officer who had been convicted after slamming a man’s head to the pavement while looking for a suspect in a shooting (the man was not the shooter, and had done nothing wrong). Later that day, the man was rushed to the hospital with bleeding in his brain. He died several days later. A state medical examiner determined the man had died of blunt force trauma to the head. At the prodding of the state attorney general, the appeals determined there was insufficient evidence to link the man’s death to the cop slamming his head to the pavement. The cop is now expected to return to work.

After decades of defending dubious convictions won on quack, sometimes preposterous testimony from forensic “experts,” Mississippi courts and public officials finally found the rare opinion from a medical examiner that they were willing to second-guess.

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