Innocence and the Internet
Citation: 100 Geo L.J. Online (2016)
To help inaugurate Ipsa Loquitur, I’ve been asked to write a bit about the law, the Internet, and my job as a criminal justice reporter.
I suppose I’ll start by telling you about the Internet’s role in what are probably the two biggest stories of my career. The first is the story of Cory Maye, a 21-year-old (at the time) black man who was sentenced to death for killing a white police officer during a botched drug raid on Maye’s home. I found the case while researching a paper for the Cato Institute on the increasing use of paramilitary police tactics in America.
I had reviewed hundreds of such raids by the time I read a short A.P. account of Maye’s case. A number of things didn’t seem right. Maye had no prior criminal record. He had only a burnt marijuana cigarette in his home, not the large stash of drugs police thought they’d find. His 18-month-old daughter was in the house with him when the raid happened. After firing three shots, he surrendered with bullets still left in his gun. All of these bits of information pointed to a guy who thought he was being robbed or invaded, not the sort of guy who would intentionally kill a cop.
I made some calls and discovered that Maye’s name wasn’t even on the search warrant, nor was the name of his girlfriend, with whom he shared the house. Moreover, the man who lived in the apartment next to Maye’s had drug charges pending against him from several months earlier. This had all the signs of other tragic, mistaken raids I had researched.
In December 2005 I posted Maye’s story on my blog. The post was immediately picked up by Glenn Reynolds of Instapundit and then spread across the blogosphere in a matter of hours. Conservatives saw Maye as a man defending his home. Liberals saw him as a victim of racial injustice and an example of the myriad problems with the death penalty. Libertarians saw both of those things, and a drug war injustice to boot.
Abe Pafford, at the time an associate at the D.C. law firm Covington & Burling read my coverage of Maye’s story through a link at National Review Online. Pafford had a daughter about the same age as Maye’s, and asked himself what he’d have done if he’d been in Maye’s position—that is, home with his daughter, awoken to the sound of men breaking into his home, and forced to decide in a panic whether to use lethal force. Within a few months, Pafford convinced his firm to take Maye’s case pro bono.
With Covington & Burling’s talented and well-funded representation, and with a savvy local defense attorney heading up his defense, Maye’s death sentence was thrown out a year later. Late last year, the Mississippi Supreme Court granted him a new trial. Earlier this summer, Maye’s attorneys and local prosecutors agreed to a plea bargain. Maye would plead guilty to manslaughter and be sentenced to time served. He came home to his family in July.
The second story came as a result of covering the Maye story, and the Internet also played a role. The doctor who performed the autopsy on the police officer Maye shot, Steven Hayne, gave some scientifically dubious testimony at Maye’s trial. Basically, Hayne testified that because the trajectory of the bullet in Officer Ron Jones’ body was downward, it seemed likely that Maye was standing when he shot Jones, not lying down as he claimed. The problem is that there are a number of variables that can affect a bullet’s trajectory, including (and most notably) the position of the victim. A bullet that travels upward through a crouched victim, for example (like, say, a police officer who had just run up three steps into an apartment), can appear to have traveled downward when the body is laid prostrate on an autopsy table.
I spoke to a couple other defense attorneys in Mississippi, and found that Hayne had given some questionable testimony in other cases. So I put up a post on my blog about him. One of my readers at the time was a med student, and sent the post to one of his professors, who happened to be a forensic pathologist. He sent the post to a listserv for medical examiners and, within a few hours, got responses from medical examiners all over the country who had encountered odd testimony and reviewed shoddy work from Hayne in other cases.
That led to several years of reporting on Hayne and the forensics system in Mississippi. Since then, two men convicted due to testimony from Hayne and his sidekick, the forensic bite mark specialist Michael West, have been exonerated by DNA testing. A 13-year-old boy convicted of murder because of questionable testimony from Hayne was also retried and acquitted. And in 2009, Hayne himself was terminated and barred from doing any more autopsies for Mississippi’s prosecutors.
The Web and the Crime Beat
Beyond those two cases, though, the web has become such a critical and central part of how I do my job it almost seems odd to write about how I use it. I can’t imagine not using it. I guess one thing I have noticed is that as I’ve developed a niche and received more exposure for my work, people now send me tips and leads—more leads than I could ever have time to check out. They come from defense attorneys, friends and relatives of convicts, activists, and sometimes the convicts themselves. So it has become necessary to develop a new set of skills. In addition to your proactive sniffing out stories by, say, looking through legal databases or developing sources, my job is increasingly about sifting through the leads people email me so I don’t waste time chasing empty stories. You learn to judge a story’s promise by the language someone uses when summarizing the case, or to prioritize emailed leads based on who sent them.
To give one example, I’ve found that a tip from a public defender about an injustice or wrongful conviction nearly always checks out. The reason I think is that most people public defenders represent are guilty. So a PD isn’t likely to waste his time and credibility trying to get a reporter interested in a story that isn’t a clear-cut case of injustice.
The Internet has influenced the legal debate in some other interesting ways. When Cato published my paper on police militarization in 2006, we also included a Google Maps application plotting police raids, including a description of what happened in each raid and cites to sources. You can now find similar interactive maps providing visual representations of criminal justice issues, including incidents of people who have been arrested recording police officers, or the near-encyclopedic catalog of police misconduct at the Injustice Everywhere site.
The proliferation of citizen-shot videos of alleged police abuse around the web is itself a fascinating development. Where the police narrative of an interaction with a citizen was once given deference by police and prosecutors, we’ve now seen a number of cases where a citizen-shot video directly contradicts what police officers have put in their reports. It’s a welcome bit of transparency, but it’s not without its costs. Police have reacted by seizing cameras, erasing videos, even arresting citizen videographers, usually illegally, and with little consequence for the cops.
But the proliferation of these videos has almost certainly shifted public opinion, both about the tendency of courts and prosecutors to defer to police narratives, and about the arrest of citizens who record cops. (And that police are arresting people who record them tends to reinforce the perception that maybe they aren’t always telling the truth.)
As a journalist, I obviously favor complete transparency, and I believe the right to record on-duty cops is protected by the First Amendment. As a libertarian, I also think it’s healthy that the public in general is becoming more skeptical of police and prosecutors. But it’s also important to be cognizant of the possibility that while the Internet is creating more awareness of police misconduct (unquestionably a good thing), it may also be creating the false impression that police misconduct is on the rise. In fact, most criminologists agree that police departments are more professional than ever, and misconduct is more likely than ever to be investigated. That doesn’t necessarily (and in my opinion, doesn’t) mean it is investigated often enough, or that misbehaving cops are always (or even frequently) appropriately disciplined, or that the infamous Blue Wall of Silence doesn’t still exist. It just means that it’s important not to mistake the web’s ability to expose misconduct—and the resulting increased awareness of misconduct—for an increase in the actual incidence of misconduct.
What Else Could Be Done?
There are other ways the web could be used to make the criminal justice system more transparent and accountable (and to make my job easier!). Perhaps the most obvious step is to free up access to court opinions. Since appellate court opinions carry the force of law, it’s rather astounding how difficult it can be to access them. It would be nice if courts started posting trial transcripts as well, but that would require quite a bit more bandwidth and manpower.
Just in general, more criminal justice records should be posted online. After a mistaken drug raid on a local mayor made national headlines, the state of Maryland passed a law—the only law of its kind in the country—requiring every police department in the state that has a SWAT team to issue a biannual report on how many times the SWAT team was deployed, under what circumstances, what was found, and whether any shots were fired. That information is available to the public and has been useful in looking at which jurisdictions use their SWAT teams more frequently and why.
Police personnel records should also be posted online. Police unions often argue that cops have a right to privacy while on the job, but given that the names of citizens who arrested are usually published in newspapers before they’re tried or convicted, it doesn’t seam unreasonable to allow public access to the names of cops who have been accused of misconduct—especially when you consider that police officers carry a gun and are authorized to use deadly force. The most obvious benefit here is to see if the same names turn up in multiple complaints, and whether the police agency that employs them has done anything about it. I can’t tell you how many times a cop who commits egregious misconduct that makes headlines is later found to have had multiple complaints against him that were swept under the rug.
It would also be nice to see the names of prosecutors and defense attorneys included in appeals court opinions, particularly opinions that find incidence of prosecutorial misconduct or ineffective assistance of counsel. There’s a practical reason for this beyond just shaming (which is a pretty good reason in itself). As it stands, there’s no easy way to search legal databases to see if a given prosecutor has been cited for misconduct on multiple occasions, or if a public defender has a history of successful ineffective assistance claims. Given that both are public employees entrusted with some incredibly important responsibility, it ought to be easy run a check to see how often an appeals court has found them lacking.
Generally speaking, unless there’s a compelling reason not to (like protecting the identities of undercover cops or confidential informants), the default position of police agencies, prosecutor’s offices, and courts should be to post all information online.
Radley Balko is a senior writer and investigative reporter for the Huffington Post, where he covers civil liberties and the criminal justice system. He also writes about music and culture in Nashville, Tennessee, where he lives.