The Great Antidote – Radley Balko

On this episode of The Great Antidote podcast with Juliette Sellgren, she is joined by guest Radley Balko. In their discussion, Juliette and Radley cover the U.S. criminal justice system, the problems with crime labs, the militarization of the police, and the future of enforcement.

 

Guest Bio

Radley Balko is a journalist, blogger, speaker and author based in Nashville, Tennessee. He specializes in reporting on criminal justice, civil liberties and the war on drugs. The American journalist writes columns in The Washington Post. He started a personal blog called ‘The Agitator’. He also blogs at the site ‘Reason Hit and Run’. Radley Balko’s articles have been published in Forbes, The Los Angeles Times, The Wall Street Journal, National Post in Canada, Worth, Reason, the Chicago Tribune and TIME.

Radley was born on the 19th of April in 1975. He has a Bachelor of Arts in Journalism & Political Science. He is an alumnus of Indiana University. He graduated in 1997. He is a self-proclaimed atheist. Balko is the author of “The Cadaver King and the Country Dentist”, “The Rise of the Warrior Cop” and Overkill: The Rise of Paramilitary Police Raids in America. The latter was his first book published by CATO Institute. “The Cadaver King and the Country Dentist New York” and “The Rise of the Warrior Cop” were published by PublicAffairs.

Radley writes opinion columns for the Washington Post. His writings have covered the excessive use of SWAT and increasing paramilitary raids across the country. Such writings have featured in leading newspapers and media including the New York Times. His writings have been praised by many journalists, writers, civil rights activists, human rights organizations and others. His fact based reporting has been cited more than once in Supreme Court judgments or dissent notes. Very few journalists have had as much of an impact on real cases in a court of law and have become a topic of discussion in the larger public discourse over the years. Radley Balko is one of these few investigative reporters and journalists.

Balko’s investigative and factual reporting was mentioned in the dissent note of Supreme Court Justice Stephen Breyer in the Hudson v. Michigan case. He brought national attention to the Cory Maye case. Balko had reported about the police raid at the house of Cory Maye and published his findings in Reason. The feature highlighted the case of a black man on death row in the state of Mississippi. He was charged with murdering a white cop during the raid. Balko’s feature in Reason was used as an opinion in the Supreme Court of Mississippi. His coverage of the Cory Maye case was profiled by National Journal and another investigative report by him about Steven Hayne, a medical examiner in Mississippi, was accorded the second prize in the category of investigative reporting at the Los Angeles Press Club Awards for 2007.

Radley Balko is a former policy analyst. He worked at the Cato Institute. His stints over the decades include senior editor with Reason, a columnist with FoxNews.com, a correspondent for ESPN, and associations with the Wall Street Journal, BBC, MSNBC, CNBC, CNN, NPR and Fox News Channel. He has worked with the Huffington Post as an investigative reporter and senior writer. He has extensively written about drug policy, civil liberties, police misconduct, tobacco, alcohol and obesity. He has also written about trade, globalization, culture and politics.

Balko is one of the most persistent American journalists who have constantly raised important issues. His consistent writings about “no-knock” drug raids have been published in several newspapers, journals and magazines. He wrote extensively about a raid on the residence of Cheye Calvo, which was later referred to as the case of Ryan Frederick. Balko has taken strong stands on many issues, including criminalization of drunk driving. He has routinely advocated that the punishable act must be that of violating rules of the road and being the cause of an accident rather than the factor or issue leading to the offence. He has pointed out that isolating alcohol consumption and resulting impairment for additional punishment becomes more punitive rather than being about road safety or making roads safer.

The investigative report of Radley Balko about expert witness fraud in a case of death penalty case in the state of Louisiana had bagged the 2009 Western Publication Association’s Maggie Award. He was a finalist for the Opinion Columnist of The Week in 2011. He was the Best of Show Journalist for the year 2011 by the Los Angeles Press Club. Balko is known for his groundbreaking reporting. His fact-finding, breaking of stories and extensive coverage of serious issues have had actual impacts. His features and opinions often compel readers and society at large to think about real problems and his works actually have a consequence. His works have often propelled people and organizations to act.

Radley Balko won the Best News Story Award of Western Publications in 2010, was ranked first for Online Commentary by the MD-DC-DE Press Association in 2014, receive the Innocence Project Journalism Award in 2015, the Champion of Justice Award of NACDL in 2016 and the Bastiat Prize for Journalism in 2017.

Balko has written three books. Two of them are about the increasing militarization of the police forces around the country. He wrote about the militarization in Rise of the Warrior Cop. He has written about the increasing paramilitary raids across America in Overkill. The book cites how the number of raids by SWAT teams was around three hundred in a year through the 1970s and has increased to as many as a hundred and fifty per day in the year 2005. His third book with coauthor Tucker Carrington about a true story of injustice in the south is The Cadaver King and the Country Dentist.

Radley Balko continues to write about the criminal justice system in the country, the war on drugs, issues affecting civil liberties and occasionally blogs about culture & music of Nashville. His books are available for sale online. His appears on television and writes columns regularly. He is active on Twitter and can be followed @radleybalko. He has over seventy eight thousand followers.

 

Episode Transcript

Juliette: Welcome back. It is my pleasure to welcome our guest this week. Radley Balko. He is a columnist for the Washington Post and basically inspector Javert from Les Misérables when it comes to police misconduct. He is reported tirelessly for years and years about the problems with our criminal justice system. And he’s almost directly responsible for freeing an innocent man from jail, from the death penalty, reading his work is mind-blowing and often quite infuriating, but also incredibly important. Welcome, Bradley. The first question I want to ask you is a question that I ask all my guests, which is what is the most important thing that people my age or my generation should know, but we don’t?

Radley Balko:  You emailed me this question. That’s a good, really good question. I think I tried to think of a really good answer but the best I can come up with is don’t be afraid to fail at things. I think we often are reluctant to try new things or to kind of put ourselves out there, take risks because we’re afraid of failing, but failing in itself I think is good for us. It makes us stronger. It sets our expectations. It can motivate. I would say,  if I could sort of go back to your age and start over again, I would have tried a lot more new things. I would have put myself out there a lot more.

Juliette: That’s a really good response. I definitely will be keeping that in mind. Jumping right in – I want to talk to you a little bit about forensic labs. People who like to watch TV shows like CSI bones or Law and Order probably have the impression that forensic labs that work with the police do so to help them solve crimes and are amazingly precise all the time. Also very fast. The scientists and medical examiners are also depicted as being devoted to searching for truth and justice as a result, many believe like I used to that end fibers left behind any bitemark, drop of saliva, blood spatter or anything like that could land criminals in jail. So my first question is how precise is forensic science?

Radley Balko: Well, it really, it really depends on the kind of forensic science that you’re talking about. So if we look at DNA testing, for example , DNA testing, if you’ve got one drop of, saliva or one hair at a crime scene, and you have one suspect who claims that he was never there and the DNA matches the suspect’s DNA, then , that the suspect was lying. That the suspect must’ve been there at some point unless there’s some other explanation. And DNA testing was developed in the world of science. But a lot of the other forensic disciplines that you mentioned, bite marks, especially bite marks things like fiber matching, which is different from DNA tire tread analysis. All of these are, are what we call pattern matching areas of forensics. And these weren’t developed in scientific laboratories. In fact, when scientists have looked at them, they found that they’re not really all that accurate. In fact, they can’t, a lot of times they can’t even say how accurate they are because there’s no margin for error. So if you look at something like fingerprint analysis which everybody thinks is kind of the gold standard in forensics. The problem is that we actually don’t know how unique fingerprints are. Nobody’s tried to look at fingerprints over the over the entire human population, determine how, what the odds are that somebody might have the same set of fingerprints as somebody else, or more likely what you get is, is these partial prints where you may match somebody else on two or three or four different aspects of a fingerprint. So what these pattern-matching disciplines kind of boil down to is you have a forensic specialist looks at them it looks at a hair fiber or carpet fiber or bite mark and they compare it to another hair fiber or a carpet fiber or bite mark. And they just kind of eyeball it. And they say whether they match or not. And what we found is that a lot of these forensic experts are getting things wrong. They’re getting things wrong in cases where they said that a bite mark was , a match to the suspect to a scientific certainty or a high degree of scientific certainty. And then we found out later that through DNA testing, that person couldn’t have possibly committed that crime. So what’s interesting is the, the area of forensics that actually was developed in a scientific laboratory that does have scientific standards, it does have a margin for error that we can calculate is showing us that all of these other areas of forensics that are more about sort of matching patterns and somebody just sort of eyeballing two things and declaring them a match or not the, the scientific discipline is showing that the less scientific disciplines have been getting it wrong. And anytime you’re, using , sort of human judgment on something there’s a high degree of, of subjectivity to it and it makes it , the bias can creep in, right? If you’re a, if you’re a bite Mark expert and the police come to you and they say, we have this bite mark, and from the crime scene, and here’s the dental mold from our chief suspect we need you to tell us that they’re a match. And you say, I can’t tell you they’re a match. They’re not a match or more likely, there’s just not enough evidence for me to say, whether it’s a match or not. They’re going to be kind of mad at you, and they’re going to go and try to find somebody who is going to tell them what they want so that they can solve the case or what they think is solved the case. And so there’s this incentive for some of these experts to tell police and prosecutors what they want to hear. And what we’re finding is that, that hasn’t always been in the best interest of justice.

Juliette: You’ve written a lot about how contrary to popular belief, many blood spatter specialists aren’t as good as Dexter Morgan as he’s portrayed in his show Dexter, or how bite mark specialist’s insight should be taken with a grain of salt. You already spoke on this a little bit, but could you elaborate a little bit more and give us some more information regarding either of these?

Radley Balko: In a lot of these cases, if you look at blood spatter, for example it’s really hard to test your expertise in that area because we can’t set up a fake system. We can’t take a human being and say, slash their neck to see how their blood spatters against the wall, so that we can then test you on your competency with that. Right. cause that would, that would kill someone or at least gravely injure them. Blood spatter is another one of those where yes, I mean, there, there are physics to the way liquids sort of fly through the air and, and there may be some kind of broad general statements that you can make about a blood spatter pattern based on how the droplets hit a wall or what what kind of a pattern they make on the wall. But you can also with bite marks, you can say, well, if there’s a clear bite mark left on, on the victim and the police chief suspect doesn’t have any teeth, then you can say that person probably didn’t commit that crime, or at least didn’t leave that bite mark. There are general things you can say. The problem is with a lot of these areas of specialty the forensics people are saying much more than the evidence suggests and they’re, offering their opinions with much more certainty than science would allow. And the problem that is a jury is find them very convincing. This is kind of the central problem with these kinds of subjective areas of forensics where the person that the jury is going to believe is not necessarily the person who’s using the soundest science, right? In fact, it’s often the opposite. Juries like to hear people who say things with certainty. They like to hear people say, “this is the person that did it”, or “this isn’t the person that did it.” But usually the science doesn’t let you say that. It can only say “I can eliminate this person as a possible suspect” or “there’s a likelihood that this person did it.” Whereas that kind of uncertainty and ambiguity, juries don’t like it, they don’t tend to find it convincing. They like the expert who’s going to say things with certainty, even though the science may not allow that.

Juliette: Your work has also brought to light the fact that law enforcement manages crime labs and the doctors and scientists that work for them face poor incentives that make their independence from the influence of law enforcement, nearly impossible. Some of them also suffer from high levels of corruption. Can you give us a little bit more detail about these things?

Radley Balko: This kind of touches back on something I mentioned earlier, which is that if you’re a forensic specialist and let’s say, well, let’s look at what’s the case in a lot of the country, which is that the crime lab is part of the police department, right? So at the end of the year your job performance is going to be done, your performance review is going to be done by somebody who works with the police department. And inevitably they’re going to judge your performance, not based on how well you followed the science or how scientific your judgements were, or your determinations were, but, how often you helped the police solve cases. And that’s not what we want scientists to do, right? We want them to go where the science goes. We don’t want them to see themselves as part of the law enforcement team with law enforcement side of things. And so what we’ve seen is in lot of States if you get accused of a crime and the crime lab has to do some sort of analysis to help determine your guilt, whether it’s a blood alcohol test to see if you were drunk while you’re driving, or it’s a drug test to see if some powder they found in your trunk is cocaine. Or something more serious, like they’re doing a DNA test or a hair fiber analysis. In a lot of parts of the country, if you are convicted, you have to pay a fee that goes to the crime lab to reimburse them for doing those tests. If the charges are dropped, or if you’re acquitte of the crime, you don’t have to pay that fee, which is fair, right? Or you shouldn’t have to pay a fee for a crime you didn’t commit. But the problem is, if you look at that from the perspective of the people who work in the crime lab, every time they produce results from one of these tests that result in somebody getting convicted they get money. Money that goes to their lab and helps pay their salaries and helps keep the lab operating. Every time they produce results that get charges dropped or get someone acquitted, they don’t get any money for their salaries or to keep the crime lab going. So that’s a very strong incentive for them to produce results that help get convictions. And we’ve seen, really all over the country every year there’s about a half dozen or more scandals where a crime lab or a crime analyst was caught faking the results for these tests. It’s kind of the same thing that I say about police officers and prosecutors. Our system needs to treat them as if they’re human beings who are capable of being corrupt or corrupted. It’s not that all crime lab analysts are corrupt or that police officers are all corrupt or all brutal it’s that they’re human. And we have to have laws in a system that accounts for the fact that they are human, that they are fallible, that they are going to be susceptible to bias to mistakes, and even to corruption.

Juliette: And we’re going to get into faking results and kind of breezing through results shortly. I have a lot of questions about that because it’s kind of crazy. Before I do – I just want to say first that it’s insane that this sort of stuff happens. It’s nothing like I imagine, or that anyone I know has even imagined at all. I mean, I can see the intention behind those incentives of, “Oh, you have to pay the fee for what the lab has done if you are proven guilty.” But also, I mean, maybe this is just me looking in retrospect, but I see how it so easily could cause people in labs to fake data, or just not even do the test and just say that the result is positive because it benefits them in the long run. I don’t know, to me, it just seems obvious, but that’s also me looking back.

Radley Balko: Well, I think one thing that you should consider, I think in a lot of these cases, it’s not that they knew the person was innocent and they faked the data to make them guilty. And a lot of cases, they may just not have done the test at all and just said that the was positive. A lot of times these people, they probably think that police do their job well, and their hunches are correct, and they probably got the right person. So they don’t need to do the test, or maybe there’s a huge backlog, and they just don’t have time to do all the tests they need. And part of their job performance review is making sure that they get all these tests done. So they feel a lot of pressure. And so then there’s this incentive to maybe cut corners or take shortcuts. So, it’s not always, “I’m going to put this person – this innocent person in prison, because if I don’t, my lab doesn’t get any money.” It could be something much less sort of egregious than that. But , the end result is still that this person did not get a fair crack or a fair trial. And in some cases it results in the convictions of innocent people.

Juliette: So what reforms do you recommend to make crime labs more independent and also to guarantee that justice is better served?

Radley Balko: So there are a lot of ideas. I think one is just that a crime lab should never be bureaucratically under the control of, of law enforcement, of a police department or of prosecutor’s office. It should be independent. Sort of its own independent entity or under some other government sort of umbrella that has nothing to do with the enforcement and prosecution of cases. Another thing, and I think this is a really good idea, that no one has really tried yet is the guy Roger Koppl came up with. And the idea it’s called rivalrous redundancy, and what it means basically is that, so right now the incentive for these analysts, is to help the prosecution win their case. Right? Even if it’s a very subtle pressure, even if has nothing to do with those fees, they’re just sort of seeing, or being part of the prosecutions team, and that can creep into their work. Even if you’re a really conscientious analyst that can subtly sort of creep into your work.

So one thing you could do is every four or five or six cases you would send the evidence to an independent crime lab to do their own analysis. And the people who work at the official crime lab would never know when their work is being double-checked. So any case you work on, there’s always a potential that it could be one of those 20% or so that got sent to another lab for analysis. Well now the incentives are changed now that subtle incentive to sort of help the prosecution or help the police is overwhelmed by the incentive to not be proven wrong. To not be caught. You don’t want to be the person who gets in that 20% who gets double-checked and to have this independent crime lab show that you screwed up because its going to be embarrassing for you and it’s going to hurt your career. And so the idea is you would have somebody who’s called an evidence handler in every case. There would be the person who takes the evidence from the crime scene or from the police to the crime lab. And then every now and again, with every four or five cases, they would also take that evidence, or a portion of that evidence to an independent crime lab for verification. The cost of this would seem to be pretty minimal. And I think Roger Koppl crunched the numbers and found that for the cost of one wrongful conviction, when you consider the money that goes into prosecuting somebody defending that person, the appeals, and then compensating that person, when we realize we got the wrong guy you could fund a system like this for 15 or 20 years. So, it’s really not that expensive in the grand scheme of things. And frankly, if it’s something that would guard against putting innocent people in prison, and make it much, much less likely, which I think it would it’s well worth the cost.

Juliette: That sounds like such a good idea. And I mean, if it doesn’t cost anything, but easily could save lives, if someone is put on death row, that’s good. But also there’s also the problem of people’s time and their livelihood before they’ve been taken off death row. I mean, who knows what happens in jail?

Radley Balko: Yeah. I mean, it wouldn’t be free, but it would basically be paying the cost of this evidence handler position. You’d probably need several people like that. So, you’d be paying their salaries and benefits, and then you’d be paying these private labs for the cases that they analyze. But again Roger Koppl crunched the numbers and found that when you weigh that against the cost of convicting an innocent person it’s relatively inexpensive.

Juliette: So before we switch to talking about the militarization of the police, I wanted to ask you about falsifying data and things like that, and forensic labs by medical examiners. So single-handedly, there was something that you brought to everyone’s attention, which is Mississippi’s medical examiner, Steven Hayne. Can you tell us a little bit about him? His story’s so complex, but so – I don’t know, it seems outlandish, but it’s reality. I know there’s quite a lot. I mean, I spent hours reading all these different examples of the stuff he’s done, because he’s gone through so many autopsies and falsified results, or just gone too fast. And so many of them that there have been so many mistakes made. It’s crazy. Could you give us some of the craziest examples or just some examples of the mistakes he’s made?

Radley Balko: Yeah so he was a medical examiner in Mississippi for about 20 years and did about 80% of the autopsies in Mississippi, over that period. And this was one of those systems where, when there was a suspicious death, the coroner and the prosecutor got together and they hired a doctor to do the autopsy on a case-by-case basis. And Hayne came to dominate that system because he told prosecutors and police chiefs and coroners what they wanted to hear. He gave them what they needed to prosecute people in their cases. The problem with that is that one, he was doing an insane number of autopsies every year. I mean, you should do at the absolute maximum a medical examiner should do about 300 autopsies per year. And even that’s cutting it pretty close because we figured it out 365 days in a year. And you count for weekends and holidays and being sick and vacation that’s doing more than one a day and autopsies are really difficult work. He was doing 15 1800, even over 2000 per year in Mississippi, which is just crazy. I mean, it’s, it was like an assembly line basically. And so he was cutting a lot of corners, he was getting things wrong, and then he was also just giving testimony that wasn’t really backed up by any science. And he was stating things that he had no business stating in court when talking about sort of the trajectories of bullets, when talking about the marks that various murder weapons leave on bodies.

And then he had this sidekick Michael West, who often worked with him, who was a dentist and West proclaimed to be an expert in all kinds of crazy things. He claimed that he could find indentations on your hands that would show that you had been that you would use a knife to stab someone two weeks earlier. But he also claimed to be an expert on bite marks, and in this case -with a guy named Tucker Carrington – I wrote a book about this – Hayne and West together helped convict these two innocent men in Mississippi, in the early nineties of the rape and murder of two little girls. And they both spent decades in prison and it’s a terrible, terrible story, but in those cases, and then at least two other cases that we’ve found, we have video in which this Michael West, this dentist takes a mold of the teeth of the suspect and pushes it into the body of the victim and actually creates the bite marks using the suspect’s teeth or a mold of them, creates the bite marks that he would then later say in court where the suspect had inflicted on the person. When actually West himself who had inflicted them. And it’s crazy that we found these videos and in one of those cases, the guy is still on death row in Louisiana. It still hasn’t been overturned and frankly West should be arrested for that. I mean, you’re desecrating a body, but you’re also manufacturing evidence to convict someone. In at least a couple cases, we know that those people turned out to be innocent. It’s a terrible story. Dr. Hayne was eventually fired, but there’s still hundreds, probably thousands of cases where his testimony was very questionable and the state of Mississippi refuses to go back and look at those cases and reevaluate them. But it’s basically up to the people who are convicted in those cases to find a lawyer, and to try to get a court to reopen them. And that’s not what should happen when somebody like that is shown to be willing to lie and to give testimony that isn’t backed by clients. It should really be up to the state to figure out how much damage is done and to try to find people who are victims of that and set them free or try to make them whole for the damage that’s been done. Mississippi has shown no interest in that whatsoever. I guess just the concluding thought about that as Dr. Hayne actually died a few months ago. West is still alive though. He doesn’t testify in court anymore. These guys did a heck of a lot of damage in Mississippi and we really don’t know, and I don’t think we’ll ever know, exactly how much damage they did.

Juliette: This is insane for the longest time I couldn’t even wrap my head around it because just why to go so far as to manufacture evidence like that. And to think that all the people that were walking free or still walking free because of the wrong people being convicted, just because of this manufactured evidence or this autopsy that was performed the wrong way or under the wrong circumstances, it’s heartbreaking, but it’s also kind of scary. It was weird because as I was reading, I wanted to laugh, but I also couldn’t stop thinking about how awful it was. I mean, I’m pretty sure it was Hayne that said that a given suspect had, or might’ve been a victim and that he had inspected the ovaries, but it was actually a male. And that’s how he assessed the crime? It was just so crazy.

Radley Balko: There was an infant, and Hayne said that he had inspected the ovaries and it was actually a male. And in another case Hayne talked about how he weighed the spleen and carefully offered a description of what the spleen looked like. He talked about how it was healthy and looked normal. And the guy had actually had a spleen removed 15 years before he died. Some of this I think was intentional and they were trying to lie, and basically they were just trying to help police and prosecutors close these cases. They also wanted to continue to get their business. In some cases it was just sloppiness. They were just doing so many autopsies that inevitably they were going to make mistakes.

Juliette: So you kind of touched a little bit on this before, but how is the justice system involved in this process? Because, I mean, it seems kind of obvious looking at it that he kept testifying, even though he was discredited and he would cite studies that never actually happened. So how is it that the justice system is involved in this entire process?

Radley Balko: Well, so they are, I guess, technically part of the justice system in that they did official autopsies for the state. The other places that the justice system is implicated here is that the prosecutors shouldn’t have been using them to do these autopsies. They should’ve been seeking out more credible doctors and specialists. Mississippi is supposed to have a state medical examiner or a qualified board certified forensic pathologist administer the autopsies in the state, either does them him or herself, or have staff to do them, or help choose qualified doctors to do them. And for a long time, the state legislature just refuse to fund that office, or at least to funded adequately. In fact, that’s still going on in Mississippi. So they deserve a lot of blame. But also the courts. In our book, we interviewed the chief justice of the Mississippi Supreme court who was the chief justice for most of this period where Hayne was there. And today he says that he screwed up. He says it was a huge mistake that they should have been much less reverent toward Hayne and West. They should have applied some scrutiny to them. They should have been more suspicious of what they were claiming. And they just didn’t. And he says it’s a huge regret and a huge mistake in his career, but it isn’t just him in that court the Mississippi appellate courts must be circuit courts. And the federal courts, the federal courts have also failed in their duty. Well let me back up a little bit.

The U.S. Supreme court has basically said when it comes to science in the courtroom and determining what is legitimate science and what isn’t, that they’re just going to trust judges to do that. And the problem with that is that judges aren’t scientists. Judges are trained to do legal analysis, not scientific analysis. And they’ve done a really bad job of keeping bad science out of the courtroom. Partly because when they’re asked to do these analyses, they apply a legal framework instead of a scientific framework. And the legal framework is they basically say “have other courts allowed this in?” And if they have, then we’re going to allow it also. And that’s how the legal system works, right? We look at precedent and prior cases but science doesn’t work that way. Science is always changing. A lot of these areas of forensics weren’t, as I said, weren’t started in science laboratories or in the field of science. And science has just now gotten around to sort of testing them and showing that they’re inadequate. But the courts look backward where science looks forward. And so judges have done a really bad job at keeping bad science out of the courtroom. And I’ll say with Hayne and West – in a lot of these cases the science is difficult and its complicated. Like I said, when you have one piece of one source of DNA and one suspect you can say whether or not that’s a match. It’s pretty much foolproof. But what happens when you have four or five or six different sources of DNA and one suspect? Then you have to start weighing them. And, and that gets really complicated. Asking judges to do that, it’s a mistake to ask judges to do that kind of scientific analysis, because they’re just not qualified to do it. But with Hayne and West it really wasn’t that complicated. I mean, we don’t have to be a scientist to know that if there’s a video of a guy using a dental mold from the suspect to create bite marks on the corpse of a victim – that isn’t science. That’s manufacturing evidence. Yet the courts just refuse to sort of intervene and refuse to hold these guys accountable. As a result we have basically a generations worth of cases in Mississippi that I think are tainted because these guys testified at the time.

Juliette: We could obviously continue talking about this for really long time, because it goes so deep and there’s so much there, and there are so many aspects to this problem, but now I kind of want to move on and talk about the militarization of the police, because that’s also a really important aspect of this entire problem. It’s also another area where you’ve done a lot of work to tip the balance towards better justice. It’s a pretty vast topic also. So let’s start with the basics. In the United States, we’ve always thought of military and police as two separate entities. So what is the militarization of the police? When did it start and why did it start?

Radley Balko: So, the militarization of police, I think there are two sides or two aspects to it. One is stuff right? Gear and weapons. And we look at the police are increasingly sort of dressing like soldiers, they’re wearing camouflage, and they’re wearing these kind of uniforms that are more designed for a battlefield. They’re being armed more like soldiers, right? They’re getting bigger guns, and weapons. They’re driving these militarized trucks that are sort of designed to look intimidating. They use flash grenades they use other kinds of explosive devices, crowd control devices. All kinds of stuff that’s used or was originally designed to be used in a battle setting or in warfare. And that’s one problem. The other problem is I think what you might call the mindset problem, and that’s that police are increasingly sort of adopting the mindset of a soldier. A soldier’s job is to kill people and break things. It’s to annihilate a foreign army, or enemy. Ideally what we want police to do in a free society is to protect our rights, right? Their job is to promote public safety while protecting the constitution. And those are two very, very different roles and two very different jobs. They’re not interchangeable. And if you’re good at one that does not necessarily mean you’ll be good at the other, but I think we’ve increasingly in particularly in politics, we’ve increasingly asked the police to kind of act as soldiers. We tell them they’re fighting a war, whether it’s a war on crime or drugs or terrorism or Antifa or whoever. And we also constantly tell them how dangerous their job is that there’s danger looking around every corner.

One actually believes policing has been getting safer for about a generation now. And so what that does is it creates and instills this very sort of battlefield mentality among police officers. It makes them think that every interaction with the citizen could be their last, that everybody’s a potential threat instead of how we want police officers to be thinking of us, which is that we are all citizens with rights and where people who they work for and who they are supposed to be serving and protecting. And the result from that is, I think, that the two play on each other. If you’re dressed like a soldier and armed like a soldier and told you’re fighting a war you’re going to start to see yourself as a soldier and not as a peace officer. So the, I think the gear kind of feeds into the mindset. And so, the problem is that the police they’re more willing, they lose their tempers more quickly when you sort of see everybody as a potential threat. When you think that every interaction with citizen could be your last you’re going to be more willing to reach for a weapon sooner. You’re going to be less likely to sort of trust people. You’re going to be less likely to use de-escalation or conflict resolution tactics. You’re going to basically resort to force and more force much earlier. And that’s, I think, where policing is heading. People often ask me if police have gotten better or worse over the last whatever 20, 30, 40 years. And I think in some ways they’ve gotten better in the sense that rogue police officers don’t are less likely to sort of beat people. I think in general there’s still a lot of racism in policing, but I think they’re probably much less racist than they were in the 1950s or sixties or seventies or eighties even. But what has changed I think is the amount of force that they’re legally permitted to use and the number of situations in which they’re legally permitted to use for us have expanded pretty dramatically. The fact that we use SWAT teams for all sorts of very low-level crimes now? That’s, I think what we should be worried about, it’s not that necessarily policing police are more corrupt or more sort of willing to break the rules or go rogue it’s that the amount of force and violence that we’ve allowed police to use under the law and under police department policies has expanded. And that I think is probably even more worrisome than the other.

Juliette: So let’s dive into a recent example that demonstrates the consequences of the militarization of police. At this point, we’ve all heard about Breonna Taylor. A 26-year-old black woman who died in Louisville in a hail of bullets. When the police served a no-knock warrant on her home, there were no drugs in her house. She wasn’t the target of the investigation, but as a result, she died, can you give us a little bit of backstory on what happened?

Radley Balko: Yeah, so the police were investigating an ex-boyfriend of hers, a guy named Jamarcus Glover. And here we were actually in custody at the time that they conducted the raid on Taylor’s apartment. So the police, they get there, they’re doing this investigation. She kind of gets sucked into the investigation basically because Jamarcus Glover had received some packages at her home. It’s true she used to date him. She was trying to sort of get him out of her life. She was trying to get rid of bad influences on her life. She had started dating a guy named Kenneth Walker who her family and friends thought was much better for her. And so she gets sucked in his investigation because she lets Jamarcus Glover get a couple of packages sent to her house. It turns out they were from Amazon, they were clothing, had nothing to do with drugs. And yet the police didn’t really look into that. And in fact one of the officers on the affidavit for the search warrant claim that the postal inspector in Louisville had told him that the packages were suspicious which we now know was a lie. The postal director said that that nobody in that office had ever said anything like that to a police officer. In any case her, her former relationship with Jamarcus Glover, and the fact that she let him get a couple of packages at our house, so enough to sort of bring her into this investigation. The interesting thing is she was deemed a low enough level threat that the SWAT team didn’t even serve the warrant or the warrant on Marcus Glover, and a couple of other people, but she was determined to be a pretty low-level threat. So instead, these narcotics officers who are not part of the SWAT team and are not trained like a SWAT team they ended up conducting the raid on Brianna Taylor’s house. And , by all accounts including the account of Kenneth Walker who was home with Breonna Taylor, when this happened. The police did knock, they banged on the door for quite a while. I think it was 30 to 45 seconds. But Walker says he didn’t hear them announce. And about a dozen neighbors who lived in the same apartment complex or around it also said that they heard the knocking, but they didn’t hear the police announce themselves. One neighbor initially said a couple of times that he didn’t hear them. And then on the third interview with police, he changed his mind and said, yeah, maybe he did hear them announce. From that the narrative that emerged from the police department and Kentucky’s attorney general was that the police did knock and announce themselves and that therefore this was not a no-knock raid. And I think that’s wrong.

Kenneth Walker says he didn’t hear them announced that they were police. And so from his perspective, it was even worse than a no-knock raid. From his perspective, somebody was banging on the door violently in the middle of the night and not saying who they were. And so he, I think, had every reason to be scared. And so what ends up happening is they take a battering Ram to the door, it flies open, Walker and Brianna Taylor wake up, they’re terrified, Walker fires a couple of shots. Ends up hitting one officer in leg, the other officers then open fire and the bullets hit Brown and Taylor and her. The argument from the police that this was not a no-knock raid? The whole purpose of a knock and announce – the knock and announce requirement says the police have to knock and say who they are before they can break into your house. So it gives you the chance to realize that they’re the police to come to the door and to let them in peacefully and avoid violence. Right? Well, if Walker didn’t hear them, then that means they weren’t saying that they were police loud enough for him to hear and to claim that he should have heard them, or that he shot at them knowing that they were police doesn’t make any sense, right? There were no drugs in the house. He had not done anything wrong. He does not have a criminal record. So in fact, he’s a registered gun owner and hardcore criminals tend not to register their guns with the police for pretty obvious reasons. So, you have to believe that this guy who was a registered gun owner, who had not committed any crime, was not suspected of any crime. There are no drugs in the house – he just decided for no reason that he was gonna take on a heavily armed police team that was raiding his girlfriend’s home armed with only a handgun? And then he was going to shoot a couple of times and then immediately surrender? That does just doesn’t make any sense. The far more plausible explanation is that he was scared and confused and didn’t know that they were police. In fact, that’s bolstered by the fact that he knew about Taylor’s ex-boyfriend. He knew that he was a drug dealer. He knew that he was a problem, and he knew that that Jamarcus Glover was not happy about the fact that the two that were dating. So he had every reason to think that whoever was trying to break down that door was there to do him harm. And, and that’s really the problem with these raids. There’s a very low margin for error. They’re volatile, they’re violent. If one thing goes wrong someone will have a very high chance somebody’s going to die. And so, to do them for drug crimes, these crimes that are nonviolent and consensual and that don’t pose an eminent risk to somebody’s life or safety, these crimes just doesn’t make any sense. These kinds of tactics are appropriate if you have a situation where somebody is an eminent risk to harm somebody else. So, a kidnapping or a hostage taking, or an active shooter situation, because in that situation, you’re using violence to diffuse an already violent situation. And you use these tactics to serve warrants for drug crimes, you’re creating violence and confrontation, where there was none before. And not only that you’re doing it basically to investigate somebody who is still suspected of committing a non-violent consensual crime, with an active shooter, somebody is in the process of going into a crime. When you serve a drug warrant like this, you haven’t even charged the person yet. You’re still investigating. And so it’s just a completely inappropriate tactic for that sort of crime. And Breonna Taylor is not at all the first person to die, an innocent person to die, in one of these raids. And she won’t be the last, as long as they keep up.

Juliette: This is just absolutely awful. He was using a licensed firearm and still she dies. And wasn’t even the target. It just it’s depressing. It’s so sad. It’s just awful. This morning. I was reading actually that two officers involved in the shooting had received notice that they were to be fired.

Radley Balko: Yeah. That should have happened a long time ago. But yeah. So, one officer, the one who has also been criminally charged, he was charged for sort of wantonly firing into the house from the outside without knowing what he was shooting at. And that’s a crime and he should be charged for that. The other officer, the one who is probably going to be fired is the one who procured the warrant. And like I said, he lied, he lied on the affidavit. And that’s when you file an affidavit as police officer, it’s considered you’re under oath. And he claimed that the postal inspector had said that these packages were suspicious, and that clearly never happened. So I think it’s entirely appropriate that those two officers be fired. And frankly, I think the other one should probably be charged with perjury as well.

Juliette: And also something I was reading is that both of them now have the chance to contest these terminations under their contract with the police union. So what is the role of the police union in the militarization of the police and in these circumstances and what are the consequences?

Radley Balko: Well, that’s- there’s a lot there. Where basically like any union the job is to protect the interests of its members. The difference between a police union and say an auto workers union is that when police union negotiates with the city, the people who are negotiating on behalf of the city don’t really have a direct stake in the outcome or the unintended consequences of where those negotiations may go. So if I’m the CEO of Ford saying, I’m negotiating with a union, and I give the union- I give too much to the union, right? Well now Ford is just going to suffer and that’s going to be reflected in the way the board looks at how I’m doing my job. If I’m too stingy with the union, then maybe the workers go on strike, or maybe they’re unmotivated production slows down. And I get punished for that. So there’s a strong incentive for me to do things sort of properly and to try to strike that balance. If I’m negotiating, if I’m a politician, a mayor say, or member city council or city manager is negotiating with the police union on behalf of the city they’re real restrictions about- first, I’m negotiating with taxpayers’ money, right? I’m also negotiating with public safety. And so what often happens is if a city can’t give police what they want in terms of salary or benefits or pensions, they compensate by giving the police less accountability. They make it more difficult to fire bad officers. They make it more difficult to review officers for problem for red flags. And generally what happens is when something goes wrong when a union contract that lets bad cops off too easily start having the effects that you would expect it to have. Which means more police brutality more unjustified shootings, that sort of thing. The person who negotiated that contract isn’t an office anymore or even if they are voters tend not to blame a mayor or city council for these types of things. They tend to blame the police chief or a lot of times the people who are doing the blaming tend to be a civil rights activist, racial justice activists, they’re not people who genuinely sort of would’ve voted for the types of candidates that police union’s support in the first place.

So is there a real problem with who benefits from these contracts who gets hurt by them. And the people getting hurt tend to have very little political power. So, police unions have become extremely powerful. Even people who oppose most of what police unions are for, even people who are very pro lethal reform tend not to vote on those issues. Whereas police unions, that’s all they vote on and they have a lot of power. They have a lot of concentrated power. So the police union decides that they want to come after a politician or a city councilman, for example, they could turn out a lot of votes and they can hurt that person a lot, even if the position that the police union is taking isn’t supported by a large majority of voters. The people who do support the police union vote early and often. And so politicians are afraid of them. They’re afraid to stand up to them because of that political power and the way that translates into things like militarization. I mean, one big way it does is in the mindset side of militarization. So, police unions they have a strong incentive to enforce what’s called the blue wall of silence. And this is the idea that police officers should never rat each other out. They should never testify against another officer. And there’s a very strong incentive for police unions to enforce that culture and to make sure their job is to defend officers who were accused of wrongdoing. And if other officers are doing the accusing that makes things very difficult for the police union. So they have a strong incentive to enforce this idea of a blue wall of silence. And I believe, I think they’re destructive. I think police unions are obstacles to reform of the defend bad officers. They made it more difficult to fire bad officers. And as we’re seeing in cities across the country now that have elected more kind of reform oriented mayors who have been appointed reform oriented police chiefs the unions have been gone after those mayors and police chiefs and tried to get them either defeated at the polls or in the case of police chiefs removed from office. So, they’re a very entrenched political interest and a barrier to reform. And I think as long as they remain as powerful as they are, that’s going to be difficult to get a lot of police reforms pushed through.

Juliette: That just sounds absolutely awful. I mean, just awful. I talked to Clark Neily at Cato too, about qualified immunity around the time of death of George Floyd. It’s all been building up to something and there’s just such a need for change. I just think we really need to fix it and we need to fix it well. And ideally the first time we try to fix it. So really fast- I know we’re running out of time, but can you give us a short summary of the story of Cory Maye and how your work helped to set him free?

Radley Balko: Sure! So this actually touches on both of the issues we’ve been talking about. So Cory Maye (in 2004) was 21 at the time living with his girlfriend and their infant daughter or young 18 month old daughter in Mississippi. They lived in a duplex and on the other side of the duplex, there was a guy who was a known drug dealer. And the police had done a controlled buy from this guy using a confidential informant. And whether they didn’t realize it was a duplex or, or just didn’t care, they rated both sides of the duplex on I believe it was the day after Christmas in 2004. Cory woke up in the middle of the night. It’s about 12:30 AM. His daughter was on the bed. His girlfriend actually was working at the midnight shift at a factory. So she wasn’t home, but the police kicked down his door and Cory shot and fired, killed one police officer then immediately surrendered. They found a tiny bit of marijuana in his apartment. They were actually looking for cocaine. So, it’s clear that they had the wrong apartment or he shouldn’t have been raided but he was immediately arrested. Actually first, they beat him and then they arrested him and charged him with capital murder, which is the intentional killing of a police officer. He was eventually convicted and sentenced to death. I found his case in 2006 while I was working on a paper for the Cato Institute on police militarization and these SWAT raids or these drug raids in this case.

I wrote about the case, it kind of caught on, went viral, and eventually a big law firm in DC called Covington Burling took up his case pro bono. They hired their own investigators, and one thing they found was that at Cory Maye’s trial the medical examiner, who did the autopsy on the officer who was killed, was Steven Hayne, of course, because he testified in all these cases. And he gave this testimony about basically saying that, Corey said that he was scared and he was on the floor and he fired up the officer and Hayne said that the trajectory of the bullets through the officer’s body didn’t support that. That they supported the idea that Corey was sort of laying in weight, basically sort of pounced on the officer. And it turns out that testimony was not supported by any science. The trajectory of the bullet could have been affected by any number of things. And so it should not have been portrayed in a way that impeached Cory’s testimony and his narrative of what happened. And basically that trial boiled down to whether or not the jury believed Cory, when he said that he didn’t know that this was a police officer that was breaking into his house. And it’s very similar to Kenneth Walker in the Breonna Taylor case. There’s one of two things happened that night, either Cory, a guy who was not a drug dealer had a tiny amount of marijuana in his house woke up, heard that there were cops breaking into his house and knew they were cops for whatever reason, decided to take on a raiding team of armed cops with just a handgun shot and killed just one of them, and then surrendered with bullets still left in it gun that’s one story. The other story is he woke up terrified, didn’t realize these were cops, thought he was being invaded, shot and killed an officer. And then as soon as the police announce that they’re police immediately realized what he had done and immediately surrendered and apologize, which he did. The second story made a hell of a lot more sense to me than the first one.

And so I started writing about it. Eventually he got the death sentence thrown out. He was resentenced to life in prison. And then I believe it was 2012, 2013, maybe. Mississippi Supreme court overturned his conviction said that that he should have been able to argue that he was defending his daughter’s life that night. And at that point Cory had been in prison for about over 10 years. And so the prosecutor has agreed to let him plea to a manslaughter, which is a felony, but if he agreed to plead guilty to that, that they would not retry him for murder and they would give him time served, meaning he would get out of prison. And so he got out and got to go home to his family and to his kids. But at that point he had been in prison for 10 years. He’ll still have a felony on his record for the rest of his life. And so that’s one of the -we sort of look at that as one of the just outcomes in these cases because he did get out and his conviction was overturned and he wasn’t executed. But I would argue that still isn’t justice. I mean, this guy lost 10 years of his life. He lost 10 years of his kids’ lives of being a father to his kids. And I think it was just another sort of example  of how the militarization of police, this idea that cops should just be able to sort of kick down doors in order to enforce drug laws of all things. It’s been tragic and it certainly affects the family of the officer who was killed. They’re never going to get him back. It certainly ruined Cory’s life. It affected the lives of his kids, his mother, his family and all because we think it’s so important to stop people from using drugs that we think we should be able to sort of break into their houses in the middle of the night with guns. It’s all really absurd.

Juliette: Those circumstances are just terrible because he can’t work. He can’t vote. I mean, he can work, but really it’s going to be way harder for him to get a job. So it kind of ruins his life. And maybe this is just because I’ve just finished applying to college and all of that stuff being a senior, but I was just thinking about it. And if he wanted to get into college, it would be more difficult for him because he would have to explain the entire story before they would even consider his application, which seems awful because really it was self-defense. He had no idea what was going on. He wasn’t really a target at all. Like he was involved for no reason and it’s ruined his life. So many people face the same thing that he faced. And many of them haven’t gotten their lives back or didn’t get their lives back in the end. They might not have gotten time back. He lost a lot of time. It’s all just awful. It sucks.

Radley Balko: Yeah. Well a lot of them are killed. Cory was lucky, I mean, you pull a gun on police breaking into into your house- it doesn’t even have to be a gun, it could just be something that it looks like a gun or that they think is a gun and you’re lucky to survive the next 20 seconds. So yeah, I mean, a lot of the people have been killed in those situations. And certainly, yeah, a lot of them who did manage to get a shot or two off ended up facing charges and going to prison.

Juliette: So I have one final question just to wrap up the discussion. What is something, one thing that you believed at one time in your life, but you later changed your position on and why?

Radley Balko: Yeah, there are so many of these. I grew up in a very conservative part of Indiana. And so my, my politics were much more traditional, conservative. Today I’m more of a libertarian, and the issues I think are more important are probably more to the left side of libertarianism. But I think one thing just kind of in general is the idea that that people in positions of authority got there for good reasons and that therefore we should always sort of defer to them whether that’s beliefs or prosecutors or judges. I think a lot of times who gets those positions has more to do with what family they were born into, or the color of their skin, or in some cases corruption gets people into higher offices. I think I stopped thinking this way probably in college, but the whole way I think about sort of what level of sort of deference and respect we owe to people in those positions has changed as I’ve learned more and more about how people get those positions. And, I’m not an anarchist and I don’t- I’m not trying to make a very simple kind of don’t trust anyone over 30 argument. It’s more just that I think we need to understand that besides you have respect the office I think is when you learn kind of how people obtain those offices. We should be much more skeptical and dubious of the people who hold those offices and why they make the decisions they do.

Juliette: I really like your response. I usually take the skeptical approach and consider myself actually very lucky that I’ve always kind of thought that instead of having to learn it, I think, I don’t know. I’m very skeptical about things. It’s a part of who I am. I think in a way it can be harder, but it can also be really helpful. Well, thank you very much for all the time that you spent talking to me, not just the time you spent talking to me, but all of the time that you’ve taken fighting for people and fighting for reform and informing people on these sorts of issues that really, without you talking about medical examiners and stuff, that wouldn’t even really be an issue. People were aware of people were thinking about me at least, and well, lots of people that I know. So again, thank you so much also, and to my listeners who go read his stuff because it’s so moving. I mean, it really just, it’s so descriptive and I don’t know, it’s so brutal. All of the stuff that he writes about that you will be shocked. Thank you for coming on today. I really enjoyed this conversation.

Radley Balko: Well, thank you. These are really great questions, probably the best questions I’ve ever had in a podcast. So, great work too.

CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.