Juliette: 0:00

Hi, my name is Juliette Selgren and this is my podcast. The Great Antidote. This podcast is brought to you by the center for growth and opportunity at Utah state university. To learn more, visit www.thecgo.org. Welcome back. It is my pleasure to welcome our guests 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: 1:29

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

Juliette: 2:20

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 Mark 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: 3:11

Well, it really, it really depends on the kind of forensic science, uh, that you're talking about. So if we look at DNA testing, for example, um, you know, DNA testing, if you've got, you know, one drop of, of saliva or one hair at a crime scene, and you have one, you know, suspect who claims that he was never there and the DNA matches the suspect's DNA, then you know, that the suspect, you know, was lying. That, that the suspect must've been there at some point, um, unless there's some other explanation, um, and DNA testing, you know, was developed in the world of science. Um, but a lot of the other forensic disciplines that you mentioned, bite marks, especially bite marks, um, uh, things like fiber matching, which is different from DNA, um, tire tread analysis. Um, 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. Um, so if you look at something like fingerprint analysis, um, which, you know, everybody thinks is, is kind of the gold standard in, in forensics. Um, the problem is that we actually don't know how unique fingerprints are. Nobody's tried to, you know, look at fingerprints over the, uh, over the entire human population, determine how, what the odds are that somebody might have, um, the same set of fingerprints as somebody else, or more likely what you get is, is these partial prints where, you know, you may match somebody else on two or three or four, um, different aspects of a fingerprint. Um, so what these pattern matching disciplines kind of boil down to is you have, uh, a forensic specialist looks at them, you know, it looks at a hair fiber or carpet fiber or bite Mark, uh, and they compare it to another hair fiber or a car fi or, um, uh, carpet fiber or bite Mark. And they just kind of eyeball it. And they T they, they say whether they match or not. And what we found is that, you know, a lot of these forensic experts are getting things wrong. Um, they're getting things wrong in cases where, you know, they said that a bite Mark was, uh, you know, a match to the suspect to a scientific certainty or a high degree of scientific certainty. And then we found out later that went through DNA testing, but that that person couldn't have possibly committed that crime. So, you know, what's interesting is, 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, you know, just sort of eyeballing two things and declaring them a match or not, you know, the, the scientific discipline is showing that the less scientific disciplines have been getting it wrong. Um, and, you know, anytime you're, you're using, um, you know, sort of human judgment on something, um, there's a high degree of, of subjectivity to it and it makes it, um, you know, 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, and from the crime scene, and here's, you know, the dental mold from our, our, our chief suspect, uh, we need you to tell them, 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, no, there's just not enough evidence for me to say, whether it's a match or not, you know, 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. Um, and so there's this incentive, uh, for some of these experts to tell police and prosecutors what they want to hear. Um, and what we're finding is that, that hasn't always been in the best interest of justice.

Juliette: 7:15

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 elaborate a little, could you elaborate a little bit more and give us some more information regarding either of these,

Radley Balko: 7:44

You know, in a lot of these cases, if you look at blood spatter, for example, you know, you can't really, you can't have, it's really hard to test your expertise in that area because, you know, we can't set up a fake, um, cyst, a fake, we can't take a human being and say, slashed their neck to see how their blood spatters against the law, so that we can then test you on your competency with that. Right. Um, cause that would, that would kill someone or at least, you know, greatly injure them. Um, and so, you know, 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, um, general statements that you can make about a blood spatter pattern, um, based on, you know, how the droplets hit a wall or what, you know, what kind of a pattern they make on the wall. Um, but you know, you can also with bite marks, you can say, well, if there's a clear bite Mark left on, on the victim and the chiefs, the police chief suspect, uh, 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. Um, there are general things you can say. The problem is with a lot of these, these, these areas of, um, especially reality, um, the, the forensics people are saying much more than the evidence suggests and there, and they're, they're offering their opinions with much more certainty than science would allow. And, you know, the problem that is a jury is find them very convincing. Um, there, you know, this is, this is kind of the central problem. I think 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 sound is science, right? In fact, it's, it's often the opposite. Um, 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. Um, but usually the science doesn't let you say that. It can only say, you know, I can eliminate this person as, as a possible suspect, uh, or, you know, there's a likelihood that this person did it. Uh, whereas, um, you know, that, that kind of, uh, uncertainty and ambiguity, juries don't like it, they don't tend to find it convincing. Uh, they like that. The, the expert, who's going to say things with certainty, even though the science may not allow that

Juliette: 10:08

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: 10:29

This, kind of touches back on something I mentioned earlier, which is that you have, um, 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, you know, at the end of the you or your, your job performance, um, is going to be done, your performance review is going to be done by somebody who works with the police department. And, you know, inevitably they're going to judge your performance, not, you know, based on how well you followed the science or how scientific your, um, your, uh, judgements where your, your determinations were, but you know, how often you helped the police solve cases. Uh, and that's not what we want scientists to do, right? We want them to, to go where the science goes. We don't want them to be held to see themselves as part of, uh, the law enforcement team with law enforcement side of things. And so what we've seen is, you know, when a lot of States, um, if you get accused of a crime and the crime lab has to do some sort of analysis, uh, to help determine your guilt, whether it let's say 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, you know, some powder they found in your trunk is cocaine, uh, or, or, you know, something more serious, like, uh, you know, they're, they're doing a DNA test or a hair fiber analysis, um, and a lot of parts of the country, if you, uh, are convicted, uh, you have to play, pay a fee that goes to the crime lab, uh, to reimburse them for doing those tests. If the charges are dropped, or if you're acquitted, uh, 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. Um, 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 get con getting convicted, uh, they get money, money goes to their lab and helps pay their salaries and helps, you know, 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 a really all over the country, uh, every year there's, you know, about a half dozen or more scandals where a crime lab or a crime analyst was caught faking the results for these tests. Um, and, you know, we, it's kind of the same brain that, you know, I say about police officers and prosecutors, you know, we need to, our system needs to treat them as if they're human beings who are capable of being corrupt, uh, or corrupted. Um, it's not that all crime lab analysts are corrupt or that police officers are all corrupt or all brutal it's that, you know, they're human. Uh, 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, uh, susceptible to bias, uh, to mistakes and even to corruption.

Juliette: 13:38

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'm 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's 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: 14:35

Well, I think, I think one thing that I think a lot in a lot of these cases, it's not that they knew the person was innocent and they fake the data to make them guilty. And a lot of cases, you know, they may not have just, they may just not have done the test at all. And just said that the was positive. Right. Um, a lot of times, you know, they may have thought, you know, you know, a lot of times these people, they probably think that police do their job well and you know, their hunches are correct. And they probably got the right person. And so they don't need to do the test or maybe, you know, 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, you know, 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, you know, 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, you know, much less sort of egregious than that. But, but, you know, the end result is still that this person did not get a fair crack, get a fair trial. And in some cases it results in the convictions of innocent people.

Juliette: 15:44

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

Radley Balko: 15:52

So, yeah, so there are a lot of ideas. Um, I think one is just the crime lab should never be a pure, bureaucratic rate. It should never be under the control of, of law enforcement, of a police department of prosecutor's office. Um, it should be independent, uh, have, uh, sort of its own independent entity or under some other government sort of umbrella that has nothing to do with, you know, the, the enforcement and prosecution of cases. Um, another thing, and I think this is a really good idea that, that no one has really tried yet, um, that, uh, the sky Roger Copple came up with, uh, and the idea it's called rivalrous redundancy and what it means basically is that, so right now the incentive for these analysts, you know, is, is to help the prosecution win their case. Right. Even if it's a very subtle pressure even would have, has nothing to do with those fees, you know, they're just sort of seeing, or being part of the prosecutions team, um, and that can creep into their work, even if you're a really conscientious analyst, you know, that that can subtly sort of creep into your work. So one thing you could do is, um, every four or five or six cases, um, you would send the evidence to an independent crime lab, uh, for, to do their own analysis, right. And the people who work at the official crime lab would never know when their work is being double-checked right. So any case you work on, there's always a potential that it could be one of those, you know, 20% or so that, that scent crew, another lab for analysis. Well now, you know, 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, right. To not be caught. Um, you don't want to be the person who, uh, gets is in that 20%, uh, who get double-checked and to have this independent crime lab show that you screwed up because going to be embarrassing for you and it's going to hurt your career. Um, and so the idea is you would have somebody who's called an evidence handler in every case. Uh, and there would be the person who takes the evidence from the crime scene or from the police to the crime lab. And then every again, w every four or five cases, they would also take that evidence, a portion of that evidence to an independent line lab for verification, um, and, you know, uh, the cost of this would seem to be pretty minimal. And I think Roger Copple, um, did the, the, the crunch, the numbers, and found that, you know, for the cost of one wrongful conviction, when you consider, you know, 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, um, you could fund a system like this for 15 or 20 years. So, you know, it's really not that expensive in the grand scheme of things. And, and frankly, I mean, you know, if it's something that would guard against, uh, putting innocent people in prison, uh, and make it much, much less likely, which I think it would, um, it's well worth the cost.

Juliette: 18:54

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 happened in jail

Radley Balko: 19:15

Things? Yeah. I mean, you know, it wouldn't be free, but it would be, you know, you'd basically be paying the cost of this, this evidence handler position. Um, you'd probably need several people like that. So, you know, 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, um, you know, uh, Roger Copple, uh, crunched the numbers and found that, um, you know, in the, in this, when you weigh that against the cost of, of convicting an innocent person, um, it's relatively inexpensive.

Juliette: 19:46

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: 20:40

Well, he was a medical examiner in Mississippi for about 20 years and did about 80% of the autopsy in Mississippi, that period. And, you know, this was one of those systems where, when there was a, uh, a suspicious death, the coroner and the prosecutor got together and they hired a doctor to do the autopsy on a, on a case-by-case basis. And Hain came to dominate that system because he told, uh, prosecutors and police chiefs and coroners what they wanted to hear. He gave them what they needed to prosecute people in places. Um, and so, you know, 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 that even that's pretty cutting, 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, you know, that's, that's doing more than one a day and I'll talk to these are, are really difficult work. Um, he was doing 15 1800, even over 2000 per year in Mississippi, which is just crazy. I mean, it's, it was like a, uh, an assembly line basically. Um, and so he was cutting all the corners, he was getting things wrong. And then he was also just giving testimony that, um, wasn't really backed up by any science. And he was stating things, uh, that he had no business, you know, stating in court. Um, when talking about sort of the trajectories of Bullard, when talking about the marks that various, you know, murder weapons leave on bodies. Um, and then he had this sidekick Michael West, um, who often worked with him, who was a dentist and West was a PR proclaimed to be an expert in all kinds of crazy things. He claimed that he could find, you know, indentations on your hands that would show that you had been, you know, that you would use a, a knife to stab someone two weeks earlier, you know, um, but he also, you know, claimed to be an expert on bite marks. And, um, in this case, you know, w my, um, a guy named Tucker Carrington, I wrote a book about this, uh, Hain in West together helped convict these two innocent men in Mississippi, in the early nineties of the rape and murder of two little girls. Uh, and they both, you know, spent decades in prison and, um, you know, it's a terrible, terrible story, but in the, in, 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, um, a mold of the teeth of the suspect and pushes it into the body of the victim and actually creates the bite marks, uh, using the suspect's teeth or a mold of them, uh, creates the bite marks that he would then later say in court. Uh, we're let you know that the suspect had inflicted on the person when actually West himself had inflicted them. And, you know, it's crazy that we found these videos and, you know, in one of those cases, the guy is still on death row in Louisiana. Um, they still hadn't been overturned and frankly, I mean, West should be arrested for that. I mean, that's, you know, you're desecrating a body, but you're also manufacturing evidence to convict someone. Uh, and, you know, in at least a couple cases, we know that the, that those people turned out to be innocent. Um, so, you know, basically, um, you know, it's a terrible story. Um, Hayne was eventually Dr. Hayne was eventually fired, but, uh, you know, there's still hundreds, probably thousands of cases where his testimony was very questionable, uh, in 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, uh, to try to get a court, to reopen them. And that's not what should happen when you're, when somebody like that is shown to be willing to lie and to give, you know, uh, testimony that isn't backed by clients. It should really be up to the state, uh, to, to figure out how much damage is done and to try to find people who are victims of that and to, you know, second free or try to make them whole for the damage that's been done. Uh, Mississippi has had shown no interest in that whatsoever. Um, I guess just the, the party probably concluding thought about that as Dr. Hayne actually died a few months ago, um, West is still alive though. He doesn't, he doesn't, he doesn't testify in court anymore. Um, but you know, these guys, um, did a heck of a lot of damage in Mississippi and, and we really don't know, you know, and I don't think we'll ever know exactly how much damage they did.

Juliette: 25:19

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, 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, um, 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: 26:15

There was an infant and yeah, and Hain said that he had expected the ovaries and it was actually a male and another case. Um, uh, you know, Hayne talked about how he weighed, um, the spleen and carefully noted the, you know, gave, it, offered a description of what the spleen looked like. They talked about how it was healthy and looked normal. And the guy had actually had a spleen removed, you know, 15 years before he died. Um, so, you know, it was, again, I, you, some of this I think was, um, intentional and they were trying to lie and, and, and basically they were just trying to help police and prosecutors close these cases. Uh, and they, you know, they also wanted to continue to get their business. Uh, in some Queens, it was just sloppiness. They were just doing so many autopsies that, uh, inevitably, you know, they were going to make mistakes.

Juliette: 27:05

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, how is it that the justice system is involved in this entire process?

Radley Balko: 27:32

Well, so they are, you know, uh, they are, I guess, technically part of the justice system and that they, um, you know, they did autopsies official autopsies for the state. Um, but you know, the, the other places that the justice system is implicated here is that, you know, the prosecutors shouldn't have been using them, uh, to do these autopsies. They should've been seeking out more credible, um, uh, doctors and specialists, um, you know, Mississippi is supposed to have a state medical examiner or a qualified board certified, um, uh, forensic pathologist administers the autopsies in the state, either doesn't him or herself, or have staff to do them, or, you know, helps 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, still going on in Mississippi. Um, so they deserve a lot of blame. Um, but also the courts, um, you know, in our book, we interviewed the chief justice of the Mississippi Supreme court, uh, who was the chief justice for most of this period where Hayne was there. And, you know, today he says that he screwed up. He says it was a huge mistake that they should have been much more, um, uh, much less, um, reverent toward Hain and West. They should have been, you know, they should have applied some scrutiny to them. They should have been more suspicious of, of what they were claiming. Uh, and they just didn't. And he says, you know, it's a huge, huge regret and a huge mistake in his career, but it isn't just him and that court right on the Mississippi appellate courts must be circuit courts. And the federal courts, the federal courts have also failed, you know, in their duty. Uh, well, let me back up a little bit. The us Supreme court has basically said when it comes to, to, um, science in the courtroom and determining what is legitimate science and what isn't, that they're just going to trust judges, uh, to, to do that. And, you know, the problem with that is that judges aren't scientists, right, judges are trained to do legal analysis, not scientific analysis. And they've done a really bad job of, of keeping bad science on the courtroom. Partly because when they're asked to do these analyses, they, they approach, 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, um, but science doesn't work that way, right? Science is always changing. Um, 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. Um, but the courts look backward where a science explored. And so judges have done a really bad job at, at, um, keeping bad science out of the courtroom. And I, and I'll say with Hanan West, I mean, you know, in a lot of these cases, you know, the science is difficult and, and it's, it's complicated. And, you know, when you look at like DNA, like I said, when you have one, you know, one piece of one source of DNA and one suspect, you know, you can say whether or not that's a match pretty much, it's pretty much foolproof, but what happens when you have four or five or six different sources of DNA and one suspect, then the question becomes sort of, you know, you have to start weighing them. And, and that gets really complicated. And, and, you know, 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. Um, but we're pulling in West. It really wasn't that complicated. I mean, we don't have to be a scientist to know that, um, if there's a video of a guy using a dental mold from the suspect to create bite marks on, you know, the corpse of a victim that, that isn't science, right. That's, that's manufacturing evidence. Uh, and yet the courts just refuse to sort of intervene and refuse to, um, hold these guys accountable. And, and, and, you know, as a result we have, you know, uh, basically a generations worth of cases in Mississippi that I think are tainted because these guys testified, uh, at the time

Juliette: 31:39

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. Um, 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: 32:22

Um, so, you know, militarization of police, I think there are two sides or two aspects to it. One is, is, is stuff right? Gear and weapons. And we look at, you know, uh, 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. Um, they're being armed more like soldiers, right? They're getting picker, guns, and weapons, they're driving, uh, these, these militarized trucks that have, that are sort of designed to look intimidating. Um, they use, you know, flash grenades, uh, they use, um, you know, other kinds of, uh, explosive devices, crowd control devices, all kinds of stuff that's used, uh, or, or was originally designed to be used in a, uh, battle setting or, you know, in warfare. Um, and you know, that's one problem. Um, and 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. Um, you know, soldiers job is to kill people and break things it's to annihilate a foreign army, right, or enemy. Um, you know, ideally what we want police to do in a free society is to protect our rights, right? Their job is to, um, you know, to promote public safety while protecting the constitution. And those are two very, very different roles and two very different jobs. Uh, 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, you know, 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. Um, and you know, we also constantly tell them how dangerous their job is that there's danger looking around every corner. Uh, one actually believes policing has been getting safer for about a generation now. Um, and so what that does is it, it, it creates it 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, that everybody's a potential threat instead of, you know, how we want police officers to be thinking of us, which is that we are all citizens with rights and where people who, um, they work for and who they are supposed to be serving and protecting. Uh, and the result from that is I think that the two play on each other, right. Um, if you're dressed like a soldier and armed like a soldier and told you're fighting a war, uh, you're going to start to see yourself as a soldier and not as a, a peace officer. Uh, so the, I think the gear kind of feeds into the mindset. Um, and so the problem that is that them police, you know, 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, um, 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, uh, use deescalation or conflict resolution tactics. Um, you're going to basically resort to force and more force much earlier. Uh, and that's, I think where, you know, I think policing is heading, you know, people often ask me if, if police have gotten better or worse over the last whatever 20, 30, 40 years. And I think, you know, in some ways they've gotten better in the sense that, um, you know, rogue police officers don't are less likely to sort of beat people. I think on, on, in general, I think there's still a lot of racism in policing, but I think they're probably much less racist than they were, you know, in the 1950s or sixties or seventies or eighties even. But what, what has changed I think is the amount of force that they're, uh, that they're legally permitted to use, uh, and the number of situations in which they're legally permitted to use for us have, uh, expanded pretty dramatically. Um, you know, the fact that we, we use SWAT teams for all sorts of very low level crimes now, um, that's, I think what we should be worried about, it's not that necessarily policing police are more corrupt or more, um, sort of willing to break the rules or go rogue it's that, uh, the amount of force and violence that we've allowed police to use under the law and under police department policies has expanded. Um, and that I think is even more, probably even more worrisome than the other.

Juliette: 36:43

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: 37:11

Yeah, so the police were investigating an ex boyfriend of hers, a guy named Jamarcus Glover. And, um, here we were actually in custody at the time that they conducted the raid on Taylor's apartment. U m, so the police, u m, they, they, they get t here, t hey're d oing this investigation. She kind of gets sucked into the investigation basically because Jamarcus G lover had received some packages at her home. U m, and you know, it's true. She used to date him. She, she was trying to sort of get, get him out of her life. She was trying to, u m, you know, u h, keep, get rid of bad influences o n her life. She had, u h, started dating a guy named Kenneth Walker, u m, who, u h, you know, her family and friends thought was much better for her. U m, and so, you know, she gets sucked in h is investigation because she, she lets t o Jamarcus Glover get a couple of packages, u h, at o ur house. It turns out they were from Amazon, they were clothing, had nothing to do with drugs. Um, and yet the police didn't really look into that. And in fact, um, one of the officers on the affidavit for the search warrant claim that the, um, postal inspector in Louisville had told him that the packages were suspicious, uh, which we now know was a lie. Um, the post postal director said that that nobody in that office had ever said anything like that to a police officer. Um, any, in any case, you know, her, her former relationship with Jamarcus was clever. And the fact that she let him get a couple of packages at our house at mailed to her house, so enough to sort of make, bring her into this investigation. Um, the interesting thing is, you know, she was, she was deemed a low enough threat level threat that the SWAT team didn't even serve the warrant, um, SWAT teams or the warrant on Marcus Glover, a couple of other people, but she was determined to be, you know, a pretty low level threat. So instead, um, these narcotics officers, uh, who are not part of the SWAT team and are not trained like a SWAT team, uh, they ended up conducting the raid on Brianna Taylor's house. Uh, and, um, you know, by all accounts, uh, including the hound of Kenneth Walker who was home with Breonna Tana, when this happened, the police did knock, uh, they banged on the door for quite a while. I think it was 30 to 45 seconds. Um, but, but, uh, Walker says he didn't hear them announce. And, uh, 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 announced themselves. Uh, one neighbor, um, initially said a couple of times that he didn't hear them. And then on the third interview with police changed his mind and said, yeah, maybe he did hear them say believes, uh, from that, you know, the, the, the, the narrative that emerged from the police department and Kentucky's attorney general was that, uh, the police did knock and announce themselves and that therefore this was not a no-knock raid. Um, and I think that's wrong. Um, Kenneth Walker says he didn't hear the, the them announced that they were police. And so from his perspective, you know, it was even worse than an upgrade 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 he had every reason to be scared. And so what ends up happening is they take a battering Ram to the door flies, open Walker, uh, and Brianna Taylor, you know, wake up, they're terrified, Walker fires a couple of shots. Um, and depending one on a certain leg, uh, the other officers then open fire, uh, and the bullets hit Brown and Taylor and killer, you know, from argument from the police that this was not a no-knock raid, you know, the whole purpose of a, a knock and announce the knock and announce requirement that 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, uh, doesn't make any sense, right? I mean, there were no drugs in the house. Um, he had not done anything wrong. He does not have a criminal record. So in fact, he's, he, he's a registered gun owner and, you know, hardcore criminals tend not to register their guns with the police for pretty obvious reasons. Um, so, you know, you have to believe that this guy who was a registered gun owner, who, um, had not committed any crime, was not suspected of any crime. There are no drugs in the house just decided for no reason that he was gonna take on a, you know, a heavily armed police team that was raiding his girlfriend's home armed with only a handgun. Uh, and then he was going to shoot a couple of times and then immediately surrender, uh, you know, that does just doesn't make any sense. The, the far more plausible explanation is that he was scared and confused and didn't know that they were police. Uh, in fact, you know, that's bolstered by the fact that, uh, he knew about Regana Taylor's ex-boyfriend he knew that he was a drug dealer. He knew that he was a problem, and he knew that that DeMarcus 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, uh, was there to do him harm. And, and, you know, that's, that's really the problem with these rates. Um, there's a very low margin for error. Um, they're volatile, they're violent. Uh, if one thing goes wrong, you know, someone will have very, very high chance somebody's going to die. Uh, and so the do them for drug crimes, these crimes that are, um, nonviolent and consensual, uh, and that, uh, you know, the, that, that don't Of an eminent risk to somebody's life or safety, these crimes, uh, just doesn't make any sense. Um, these kinds of tactics are appropriate. If you have a situation where somebody is an eminent risk to harm somebody else. So, you know, a kidnapping or a hostage taking, or an active shooter situation, excuse me, because in that situation, you're using violence to diffuse an already violent situation. And you use these tactics to serve Lawrence for drug crimes. You're creating violence and confrontation, where there was none before. And not only that you're doing it for basically to investigate somebody who is still suspected of committing a non-violent consensual crime, um, you know, 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. Um, and so it's just a completely inappropriate tactic, uh, for that sort of crime. And, you know, Brianna Taylor is not at all the first person to die an innocent person to die in one of these trays. And she won't be the last, as long as they keep up.

Juliette: 43:58

This is just absolutely awful. He was using a licensed firearm and still she dies. And wasn't 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: 44:22

Yeah. That should have happened a long time ago. But yeah, so one officer who, 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. Uh, and you know, that's a crime and he should be charged of that. The other officer who was, is probably going to be fired, just the one who procured the warrant. And like I said, he lied, he lied on the affidavit. Uh, and that's, you know, 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, and that clearly never happened. So I think it's, I think it's entirely appropriate that the appropriate that those two officers be fired. And frankly, I think the other one should probably be charged with perjury as well.

Juliette: 45:01

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 place and in these circumstances and what are the consequences?

Radley Balko: 45:21

Uh, well, that's, there's a lot there. Um, we're basically like any police, like any union, the policing, the job is to protect the interests of its members. Um, you know, the difference between a police union and say, you know, uh, uh, auto workers union is that when police union negotiates with the city, the city, you know, 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, of where those negotiations may go. So if I'm the CEO of Ford saying, I'm negotiating of a union, and I, I give the union, I give too much to the union, right? Um, well now for just going to suffer and that's going to be reflected in my, my, you know, my, 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, uh, 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, to try to strike that balance. Um, if I'm negotiating, if I'm a politician of mayor say, or member city council or city manager is negotiating with the police union on behalf of the city, um, they're real restrictions about, you know, first, first I'm negotiating with taxpayers' money, right. Uh, I'm also negotiating with public public safety. Um, and so what often happens is if, uh, a city can't give police what they want in terms of salary or benefits or pensions, they compensate by giving the police, uh, less accountability. They make it more difficult to fire bad officers. They make it more difficult to review, uh, officers for problem for red flags. Um, and generally what happens is, is when something goes wrong, you know, when a, 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, you know, more unjustified shootings, that sort of thing. Um, the person who negotiated that contract isn't an office anymore, uh, or even if they are voters tend not to blame, you know, uh, a, a mayor or city council, uh, for these types of things, they tend to blame, you know, the police chief or, or, um, you know, a lot of times the people who are doing the blaming, uh, tend to be a civil rights activist, racial justice, activists, uh, the people who, um, they're not people who genuinely sort of would've voted for the types of candidates that police union support in the first place. Uh, so is there a real, real problem with sort of who benefits from these contracts, um, who gets hurt by them? And the people get hurt by and tend to have very little political power, um, so pleasing to become extremely powerful. Um, you know, even people who, uh, even people who oppose most of what police unions for even people who are very pro lethal reform tend not to vote on those issues. Right? 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 and 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. Um, the people who do support the police union vote, you know, early and often. Uh, and so politicians are afraid of them. Uh, they're afraid to stand up to them because of that, that political power and, you know, the way that translates into things like militarization. I mean, one big way it does is, is in the mindset side of militarization. So police unions, you know, they have a strong incentive to, um, to enforce what's called the blue wall of silence. And this is the, the idea that police officers should never rat each other out. Uh, they should never testify against another officer. Uh, and there's a very strong incentive for police unions to enforce that culture, um, and to make sure, uh, because you know, their, their job is defend officers who were accused of wrongdoing. And if other officers are doing the accusing, uh, that makes things very difficult for the police union. Uh, so they have a strong incentive to enforce this idea of a blue, a blue wall of silence. Um, and I believe, I think they're, they're destructive. I think police unions have they, they are obstacles to reform of the defend bad officers. They made it more, make it more difficult to fire bad officers. Um, and as we're seeing in cities across the country, now that have, um, elected more kind of, um, reform oriented mayors who have been appointed reform oriented police chiefs, uh, the unions have been gone after those mayors and police chiefs, uh, and tried to get them, you know, either defeated at the polls or in the case of police chiefs removed from office. Uh, so they're, you know, they're a very, very entrenched political interest, uh, a barrier to reform. And I think, you know, 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. That just sounds absolutely awful. I mean, just awful.

Juliette: 50:28

I talked to Clark Neily at Cato too, about qualified immunity around the time of death of George Floyd. Um, 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 how your work helped to set him free?

Radley Balko: 51:02

Sure. So this actually, it touches on both of the issues we've, we've been talking about. Um, so Cory may was at, uh, in 2000, uh, man four, I believe, um, was 21 at the time living with his girlfriend and their, their infant daughter or young 18 month old daughter, Mississippi. Um, they lived in a duplex and on the other side of the duplex, there was a guy who was a known drug dealer. Uh, and the police had done a controlled buy from this guy was using a confidential informant. And, you know, whether they didn't realize it was a duplex or, or just didn't care, um, they rated both sides of the duplex on, um, I believe it was the day after Christmas, uh, in 2004, um, Corey woke up in the middle of the night. It's about 12:30 AM. His daughter was on the bed. His wife was, or girlfriend actually was working at, uh, uh, at the midnight shift at a factory. So she wasn't home, but the police kicked down his door and Corey shot and fired, killed one police officer then immediately surrendered. Um, they found a tiny bit of marijuana in his apartment. Uh, the, the, they were actually looking for cocaine. So it's clear that they didn't, you know, they had the wrong apartment or they, he, he shouldn't have been rated, uh, but he was immediately arrested actually first, they, they beat him and then they arrested him and charged him with capital murder, which is the intentional killing of a police officer. Uh, he was eventually convicted and sentenced to death. Um, I found this case in 2006 while I was working on a paper for the Cato Institute on police militarization and in these slot rates or these drug raids in this case, um, and, um, wrote about the case, uh, kind of caught on went viral, uh, eventually a big law firm in DC called Covington Burling took up his case, uh, pro bono hired their own investigators. Um, and you know, one thing they found was that that, you know, at, at Cory May's trial, um, the medical examiner, who did the autopsy on the officer who was killed was Steven Haynes, of course, because he testified in all these cases. And he gave this testimony about basically saying that, um, you know, Corey said that he was scared and he was on the floor and he fired up the officer and Hayens, the, the trajectory of the bullets through the officer's body didn't support, that, 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, was, um, not, not supported by any science. Um, the trajectory of the bullet could have been affected by any number of things. Uh, and so it should not have been portrayed in a way that sort of, that impeached Corey's testimony and his narrative of what happened. And, you know, basically that, that trial boiled down to whether whether or not the jury believed Corey, when he said that he didn't know that this was a police officer, uh, that was breaking into his house. And, you know, it's, it's very similar to Kenneth Walker in the Breonna Taylor case. And that, you know, you can, there's one of two things happened that night, either Corey, a guy who was not a drug dealer, you know, had a tiny amount of marijuana in his house, uh, woke up, heard that there were cops breaking into his house and knew they were cops for whatever reason, excited to take on a rating 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, you know, that's one story. The other story is he woke up terrified, didn't realize these were cops thought he was being invaded, um, shot and killed an officer. And then as soon as, uh, please announce that there police immediately realized what he had done and immediately surrendered and apologize, which he did. Um, you know, the second story made a hell of a lot more sense to me than the first one. Um, and so sort started writing about it. Um, eventually he got the, the death sentence was thrown out. He was recent and still life in prison. Um, and then, uh, I believe it was 2012, 2013, maybe, um, Mississippi Supreme court overturned. His conviction said that, um, that he should have been able to argue that he was defending his daughter's life that night. And at that point, you know, Corey had been in prison for, um, I dunno, I guess about, uh, over 10 years. Uh, and so the prosecutor has agreed to let him plea to a, uh, manslaughter, which is a felony, but if he agreed to plead guilty to that, that they would not try him on, you know, uh, retry him for murder and they would give him time, served me to get out of prison. And so he got out and got to go home to his family, um, and to his kids. But, you know, at that point he had been in prison for 10 years. Uh, he still has, you know, he'll have a felony, a felony on his record for the rest of your life. Um, and so, you know, that, that, that's one of the, you know, 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. Uh, but I would argue that, you know, that's still isn't justice. I mean, this guy lost 10 years of his life. He lost 10 years of his kids' lives of, of being a, you know, a father to his kids. Um, and, you know, I think it was just a, another sort of example of, of how, um, 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. Um, you know, it's been tragic, uh, and it, it affects, you know, it affects, certainly affects the family of the officer who was killed. Um, they're never going to get him back. Uh, it certainly ruined Cory's life. It affected the lives of his kids, his mother, his family, um, and all because, you know, we, we think it's so important to stop people from, uh, you know, using drugs that, that we think we should be able to sort of break into their houses in the middle of the night with, with guns. It's all really absurd.

Juliette: 56:43

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: 57:47

Yeah. Well, a lot of, you know, I mean, you know, if you, Corey was lucky, I mean, you pull up, gotten on polices to breaking into their, into your house and your doesn't even have to be gone. It could just be something that it looks like a gun or that they think is a gun and you're, you're, you know, you're lucky to survive the next 20 seconds. Um, so, uh, yeah, I mean, a lot of the people have been killed in those situations. Uh, and certainly, yeah, a lot of them who did manage to get a shot or two off, uh, ended up, um, you know, facing charges and going to prison.

Juliette: 58:18

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: 58:31

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

Juliette: 1:00:24

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. Um, 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. Um, thank you for coming on today. I really enjoyed this conversation.

Radley Balko: 1:01:43

Well, thank you. These are, these are really great questions, probably the best questions I've ever had in a podcast. So did great work too.