January 12, 2023
From The Real News Network
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Former Maryland state medical examiner Dr. David Fowler testified at the trial of police officer Derek Chauvin in 2021 that the cause of George Floyd’s death ought to be ruled “undetermined.” Hundreds of doctors across the country repudiated Fowler’s testimony and called for his previous rulings to be investigated. After an independent review of Fowler’s handling of 1300 cases of deaths in police custody, the State of Maryland is now reinvestigating 100 of these deaths. The 2018 death of Anton Black, a 19-year-old African American man, is included in the cases to be reviewed. Fowler ruled Black’s death an accident in spite of video footage showing three white police officers and one vigilante chasing the teen, tasering him, and pinning him to the ground for six minutes until he stopped breathing. In the latest episode of Land of the Unsolved, journalists Taya Graham, Stephen Janis, and Jayne Miller dig deeper into Dr. Fowler’s disturbing record, and the patterns it reflects in police killings across the nation.

Post-Production: Stephen Janis


Transcript

Stephen Janis: Anyone who watches crime dramas could reasonably conclude that when someone is murdered, barring bizarre and extenuating circumstances, the case is solved. That is through high-tech forensics, moral resolve, or simply the near mythic competence of American law enforcement, killers are ultimately sent to jail. But as an investigative reporter, who has worked in one of the most violent cities in the country for nearly 15 years, I can tell you this is not true.

Taya Graham: And that is the point of this podcast, because unsolved killings represent more than just statistics. It’s a psychic toll of stories untold that infects an entire community, the final violent moments of a victim’s life that remain shrouded in mystery.

Stephen Janis: I’m Stephen Janis.

Taya Graham: I’m Taya Graham.

Stephen Janis: And we are investigative reporters who live in Baltimore City.

Taya Graham: Welcome to the Land of the Unsolved.

Taya Graham: Hello, my name is Taya Graham, and welcome to the Land of the Unsolved, the podcast that explores both the consequences and politics of unsolved murders. Today, we’re going to be examining, not a specific case, but a person who works behind the scenes at a critical role, a juncture between the body on the street, and a murder investigation. It’s an often overlooked back office position that, actually, in Maryland, has become the center of controversy, which we will recap today along with my co-host, Stephen Janis and Jayne Miller, we’ll talk about the person who occupied this position here for roughly two decades. We’ll examine why how he ruled on cases is under intense scrutiny now. We will also explore some of his odd practices in the past that may have foreshadowed the future concerns that are now front and center, all that coming up on Land of the Unsolved. So Jayne, let’s start with you. What is a medical examiner and what role do they play in death? Investigations?

Jayne Miller: Well, they’re a critical element of a death investigation. A medical examiner performs an autopsy, and an autopsy is used to determine both cause of death and manner of death. So when you have a suspicious or questionable death, it’s up to the autopsy determine what were the factors that contributed to the death of an individual, and then was it suicide? Was it an accident? Was it homicide? And oftentimes, we see a finding of undetermined, which means there’s not enough information that the medical examiner could see or find to lead to a specific conclusion. But there is no question that an autopsy will guide an investigation. It will be the force as to whether it is a homicide investigation or if it is kind of close the book because the finding is suicide.

Taya Graham: So Jayne, I’m glad you brought up the manner of death. Because Stephen, I want to know, is there a difference between the cause of death versus the manner of death? And why is that so important?

Stephen Janis: Well, yes, there is. For example, just a good example. The medical examiner can cite something as a cause of death being a gunshot, but is that gunshot a suicide, self-inflicted, or is it a homicide? And so critical to these cases is the manner, because the manner, as Jayne said, will determine. So there are five manners of death, as Jayne said, undetermined, suicide, accident, natural and homicide. If a medical examiner, as Jayne points out, decides to rule something undetermined, for example, where they say, “Hey, we can’t determine what happened.” It pretty much can kill a case for a homicide detective or anyone investigating it, and there are many cases that we’ll get to that have had that sort of problem. But it gives the medical examiner the manner of death, gives him medical examiner tremendous power because that ruling, that final determination can really make, in the case of a lot of police involved, killings, make it impossible for prosecutors to move forward, so those five manners of death are critically important and that’s really where the rubber meets the road with the medical examiner.

Taya Graham: So Stephen, despite the fact that the Office of the Medical Examiner is normally not highlighted in our political conversations, our former medical examiner here in Maryland has been in the spotlight. Can you talk about why and who it was?

Stephen Janis: So his name is Dr. David Fowler, and he, I think, became Medical Examiner of Maryland. Now just a brief overview. There are two types of coroner medical examiner people that perform autopsies. One is elected, which is a coroner, which doesn’t really have to be a doctor. And then, in our state of Maryland has a medical examiner system, which is a person who’s appointed to supervise all autopsies for cases that require autopsies. So Dr. David Fowler was the head of that here for about 17 or 18 years in Maryland, and he really was worked behind the scenes. I don’t think he really… I mean, Jayne, would you say he became controversial in a broad sense, I think, it was more just for people like us who would push back on him.

Jayne Miller: Yeah, exactly. Reporters had more dealings with that office than the average person. But certainly, his testimony that would come in the George Floyd case is really what put him on the map in terms of his rulings.

Taya Graham: So Jayne, why don’t you tell me about some of the cases where Dr. Fowler’s rulings were found suspect, a great deal of those involved police in custody deaths?

Jayne Miller: There are questions about some of the rulings in Maryland. There’s a particular finding of, what’s called excited delirium. I did some stories related to this particular finding and the controversy around that finding and those cases in particular, which involve individuals who died in police custody, and these are not cases that involve a gunshot or something like that. Generally, we’re talking about people who died as a result of or during restraint. I’ll tell you about a case in particular that I actually uncovered in just a couple of years, like a year ago was a case that actually occurred in 2001 of an individual who was restrained by five or six police officers who essentially sat on him and according to their own reports, and he died. The ruling from the medical examiner’s office in Maryland was that it was a cocaine induced excited delirium, oftentimes excited delirium has that attachment of some kind of drug use at the same time, and the manner of death was left undetermined. So in that case, that means the case just kind of sits there.

I went back to that case in 2021 to really take a look at it and had Dr. Zerweck, who’s a pretty well known pathologist, take a look at it. Based on the autopsy, he said, this is positional asphyxia, and that is oftentimes, in these cases that are controversial with medical examiner rulings, what is overlooked? Is that a good way to put it or not written down or not found? Well that, and that I think becomes the question and why we are at this situation, at this juncture in Maryland where we have rulings from the medical examiner’s office during the tenure of David Fowler that are now under question.

Taya Graham: So I really appreciate that you mentioned excited delirium. Stephen, can you talk a little bit about what excited delirium is? I think it’s known as a state of mental and physical agitation where supposedly, a person is insensitive to cold, to pain or to even instruction. Can you describe what excited delirium is and what the science is behind this?

Stephen Janis: First of all, not to jump to the conclusion, but there is really no science. But to explain that. Let me paint a little picture about how my encounters with excited delirium.

During the OTS, there were a lot of taser related deaths for people who don’t know what tasers are, they’re sort of stunt guns, I guess, would be the best description, where they put a tremendous amount of voltage through your nervous system and kind of shut it down. During that time, I would head down to the medical examiner’s office. At that point, around University of Baltimore, it was kind of this black sort of building with blacked out where it was kind of eerie, actually. But the weird thing about it was that Dr. Fowler was kind of accessible. I don’t know, Jayne, if you ever had experience, but I could just walk in and knock on the door and I would get into, let’s call them debates, but with arguments with Dr. Fowler. Now, one thing people should know about him is he’s an interesting guy because he’s kind of got this Afrikaner accent. He’s from South Africa.

So he would come out and kind of give you these lofty statements, and I found it confusing. So one of my first debates with him was about this idea of excited delirium because he was ruling in these taser cases, the underlying cause. As we said before, the cause was cardiac arrhythmia. But then he would say, “But that’s only secondary to excited delirium.” And the point to me was that, I think, and Jayne, you can talk about this if you want, but I think the point was to kind of say that it wasn’t the taser that was responsible, and that’s why I got into fights with him about cardiac arrhythmia. So one day, I come in and I’m arguing with him about it and he says, “Here, Stephen. Here’s a book, and it was a book called Excited Delirium.”

I’m like, “Okay, I’m going to read this book because this will be interesting. This will give me all I need to know about excited delirium.” I open it up, and it says, “The basic science was rooted in this condition that would happen to people in the 19th century at sanatoriums, where they would inexplicably become excited over a period of several weeks and then eventually die.” And that was in the book that he gave me, and I came back to Dr. Fowler and I said, this can’t be true. You can’t be using this as your basis. And he just refused to back down. And he especially refused back down.

Now, later, when I looked into the whole taser issue, what was very interesting was that I talked to American Association of Medical Examiners, and he told me the taser would sue medical examiners who ruled that the primary cause of death was a taser and so there was fear in the community. So that kind of showed you that people in Fowler’s position are being buffeted by a lot of different forces that we don’t see. So that was my experience with Excited Delirium. Is there any signs? I don’t think so. From my research and what I’ve read about it’s totally BS. It has nothing to do with anything. But it has become a very convenient way to put a buffer between things like tasers or police behavior and the actual cause of death, in my opinion.

Jayne Miller: I can add a little bit to that, but based on a statement I used from the National Library of Medicine when I did this story in 2021, on the death of an individual, “Excited or agitated delirium is characterized by agitation, aggression, acute distress, and sudden death. But it is not a currently recognized medical or psychiatric diagnosis.” And this gets to this debate about, as Stephen has said, its use in really important cases, obviously involving police custody deaths. Now, in Maryland, there were, at the time, as of last year, there were about two dozen cases that had been ruled excited delirium involving police and custody deaths.

Taya Graham: So I just wanted to add something here to emphasize how subjective the diagnosis of excited delirium really is. This isn’t a problem just in the state of Maryland, in Colorado, since 2018 to about mid 2020, medics in Colorado dosed 902 people with ketamine for suffering from excited delirium. And later, investigation showed that these EMTs were administering ketamine at the behest of police who were trying to control a suspect. So this case was highlighted by the death of Elijah McClain in Colorado in 2019. So excited delirium is very often cited in cases where police officers are forcibly restraining someone, and it’s not just a problem in Maryland. It’s also a problem throughout the United States, this diagnosis.

Stephen Janis: It’s amazing to think about how something, as Jayne pointed out, is not a scientific diagnosis or even psychiatric diagnoses, ends up in tons and dozens of autopsies as a primary cause of death. It’s not just there to add a little flavor, it’s the primary cause of death in many cases.

Jayne Miller: And like I said, the thing that an autopsy does is it really guides an investigation. It steers it, probably a better term, it steers it. We can look at these cases that… The reason we’re talking about this is because these cases are now under review is to what really went on in them, what else does the evidence show, and how did that finding come to be? And there were used not just on this particular finding, this is just one of the findings that has raised questions under the tenure of David Fowler.

Taya Graham: Okay, so let’s recap. We have a controversial but very influential medical examiner, a person who thrusts themselves into the spotlight by testifying at the George Floyd trial, and now someone who is facing even more scrutiny from a panel, which is reviewing critical cases. But of course, this is the Land of the Unsolved. And there is another reason we want to talk about Dr. Fowler and the Medical Examiner’s Office, specifically some of the history Stephen, you, and Jayne had with Dr. Fowler long before it hit the spotlight. So Stephen, let me start with you. Can you talk about some of your encounters with Dr. Fowler and why you had, let’s say, some run-ins with him over time?

Stephen Janis: Working as a reporter, I think Jayne can attest to this. Well, actually, I’ve seen this in Jayne more than me and I’ve never seen it so intense in a person, but when you see something anomalous, you start to question it. You know you ask questions, you’re like, why is this? So Maryland, and specifically, Baltimore has a high homicide rate, but also we had these huge number of deaths that were put in that classification that Jayne just talked about, undetermined. I just kind of found it troubling.

When I checked other cities, we had a higher proportion of undetermined death than any other city of the similar size, like in Pittsburgh, and it’s a category, as Jayne said, we’re the medical examiner kind of throws up their hands and says, “We just don’t know.” And then when I probe deeper into it, there were a lot of cases. Some were gunshots, some were strangulations. It was all sorts of stuff that really raised questions, and here’s this big haystack of cases where there’s no determination by the medical examiner. So basically these cases are in sort of a limbo, which is not a good thing, and when that came really to focus for me was when a young woman named Tyra McClary was found with her legs tied in underneath some trash and some leaves.

Taya Graham: She was underneath trash and leaves found in an alley, partially disrobed with a trash bag tied around her ankles. This was a case that Dr. Fowler ruled was undetermined, as well as there was some evidence of possible strangulation.

Stephen Janis: That’s what really caught my attention, because in the autopsy, the medical examiner working for Dr. Fowler, who’d written, “Well, we can’t rule it out because there was a hemorrhage of the thyroid gland, there was a hemorrhage of one other gland…” Parietal, right. So they said, “You can’t rule out asphyxiation.” And I just thought to myself, how many cases are there like this? So I started probing into it, but of course, I ran into a lot of resistance because the Medical Examiner’s Office wouldn’t share with me, for example, the location of autopsies. So I couldn’t really track deaths. It was very hard to get an autopsy. I had to pay for it. My employer didn’t want to pay for a lot of autopsies. It was funny because at the time, I didn’t know Jayne, but the only other reporter who had reported on undetermined deaths that I could find in Baltimore was Jayne.

So he would come out with his Afrikaner accent and he would say, “These are mostly just drug addicts. It would be intellectually dishonest to say I knew exactly what happened because I don’t know how the drugs got into a person’s system.” Someone could have given them what’s known as a hotshot. So I’m not going to rule, I’m going to leave it open, even though the tradition was, throughout the country, was to actually say, “Hey, these are accidents because no one wants to die from doing drugs, and we’ll figure it out.”

Taya Graham: It seems like there was an unusually high number of undetermined deaths being found in Dr. Fowler’s office. Is it unusual to have so many, and what would be the motive behind finding these deaths as undetermined?

Stephen Janis: Yeah, I did a comparison with other cities across the country and it, Maryland and particularly Baltimore was huge. Baltimore would have 300 to 400 undetermined deaths a year during the year as reporting. So I developed a little bit of a theory, which I feel I can discuss here, which was that, the homicide rate in Baltimore is highly political, as Jayne can attest to many politicians, including the mayor then, Martin O’Malley, had based their reputation on reducing the homicide rate.

To me, looking at the case of Tyra McClary, in other cases, it was like Fowler had created this haystack into which to throw a couple needles. If you could shave a couple homicides off here and there, it was worth creating this big gray area of undetermined land, in which certain cases that were on the borderline could be shoved into undetermined. One famous one that both Jayne and I worked on was Ray Rivera, who was the subject of a Netflix series, the Unsolved Mysteries Season one. A man who supposedly jumped off the building at the Belvedere. But again, Fowler ruled it undetermined, leading to a lot of speculation.

Jayne Miller: And it sits there.

Stephen Janis: It sits there. And you know, Jayne, and you can talk about this, it not only sits there, but because it’s undetermined, it’s kind of open.

Jayne Miller: Undetermined open, right. You mean, the public information request is going to get denied. So yeah, there’s no ability to really go after the paper trail in the case, et cetera. That’s what it does. It just puts the case in limbo.

Stephen Janis: One thing people don’t understand behind the scenes in the Baltimore homicide unit, they’re working very hard to massage the stats, and these become, it’s not questionable, it’s pending. So any undetermined case where they found a body and their explanation goes into a pending file. If Fowler rules it undetermined, it stays in the pending file. Unless he rules it a homicide, it stays there and it doesn’t get added into the stats, even if they find a bullet written body, which I’m not saying has happened, but it creates a nice little buffer, I think.

Jayne Miller: Well, and these… We can get back to the issue that at hand here, which are specifically the police in custody deaths. When you rule them undetermined, the case that I covered just a year ago, et cetera, they just kind of go away. Nothing happens.

Taya Graham: I wanted to ask, because you’re mentioning the undetermined deaths, and I just have to go back to the Derek Chauvin trial for the death of George Floyd. Because Dr. Fowler asserted that George Floyd deaths should be ruled undetermined rather than a homicide and that prompted 431 doctors across the country to sign a letter questioning Fowler’s credibility and disputing his analysis. So fortunately, there’s going to be an audit to review at least a hundred of his autopsies. But Stephen, you were there with me as we watch Dr. Fowler speak to the nation and testify in this trial. Why don’t you share what we were both shocked by?

Stephen Janis: Well, it was a surreal moment because, for my whole life, I had been writing about the problems in the Medical Examiner’s Office and had gotten a lot of heat for it, to be honest with you, and kind of like you’re a crazy reporter. We had gone through the situation with Anton Black, the medical examiner’s office spokesperson tried to get us fired from a free gig because he didn’t like our reporting.

Taya Graham: It’s true. They called up our editors and tried to get us fired.

Stephen Janis: A friend of mine at the ACU said, “You know, Fowler’s testifying in the Chauvin case.” And I’m like the George Floyd case? I’m like, no, that can’t be true. I don’t believe it. But I never thought that he would go on national television in a case like this, and literally, to me, tell on himself in terms of…

Taya Graham: He’s the star witness for the defense.

Stephen Janis: I know.

Taya Graham: Now show his defense.

Stephen Janis: Come on. When you saw that, you must have been like, oh my God.

Taya Graham: Sure. Right. But I’m saying he was the star witness.

Stephen Janis: I know. As I was sitting there and he starts leading towards this undetermined conclusion, my jaw just dropped 10 floors.

Taya Graham: And part of that undetermined conclusion, if I remember correctly, was he was saying that it wasn’t the knee to the neck and the two other officers kneeling on George Floyd that contributed to his death, but it was actually the exhaust coming from the police car along with an underlying heart condition that perhaps caused the death. But because he could not say for sure, it had to be ruled undetermined. Jayne, what was your reaction?

Jayne Miller:

Well, first of all, everybody who was seeing the testimony of Fowler in the Chauvin trial, and to hear his explanation was like, “What?” And then this comes during defense testimony. So there’s already been extensive testimony on the State’s direct case from the coroner who did the autopsy, et cetera, and his cause of death and all of those factors. I can tell you that from the minute that the video of George Floyd being restrained on the pavement by those police officers became public, a very good police buddy of mine called me and said, “That is positional asphyxia. You never put somebody on their stomach like that.” And for a veteran forensic examiner coroner to testify under oath about his interpretation in the Chauvin case, I don’t think we should be surprised at what happened is that hundreds of medical examiners wrote a letter saying his work needs to be reviewed.

Stephen Janis: But I think the question is, Jayne, why? You and I reported about it, but he never really, even with cases that were controversial, for example, a young man named Tyrone West who died in police custody in 2013 and had become… Tawanda Jones had protesting for years. But there had been controversial cases, but Fowler never really rose to become a topic politically related.

Taya Graham: No, and not even in a reporting topic. There are only a few of us that were reporting on…

Stephen Janis: Absolutely.

Taya Graham: Cases that involved some of these rulings. Hey, look, he ruled in the Freddie Gray case. That was a homicide.

Stephen Janis: But he never really rose to the…

Jayne Miller: He did not testify in that case, but it was his office that ruled it a homicide.

Stephen Janis: But it never seemed like… It seemed like pretty much… What’s interesting about that position while we’re talking about today and talking about Fowler in particular, is that it’s an office that didn’t really come under scrutiny, no matter how controversial the rulings were, and particularly, we were talking about the Anton Black case, who was a young 19-year-old African-American male on the eastern shore, who was accosted by police, ran home, and then they laid on top of him during arrest, and again, Fowler was… 

Taya Graham: And also, I’m sorry to interrupt, but I believe they also put him in a chokehold as well.

Stephen Janis: Yes.

Taya Graham: While laying on top of him.

Stephen Janis: So it looked like a classic case of situation, but when Fowler ruled it an accident and all the media picked it up uncritically and said, this is an accident. I think the reason we’re talking about this is because it really took a national spotlight to have anybody question Fowler, which is where we are today, which is, we have a hundred cases basically at this point, roughly a hundred cases changed.

Jayne Miller: Right, and we don’t know what they are.

Stephen Janis: After this letter was written, the state came up with a list, actually, the medical examiner’s office of 1300 cases in police involved deaths, and that was sent to this panel. And now they’ve whittled it down to about a hundred cases, all of which include, or at least some include excited delirium, correct?

Jayne Miller: One would assume.

Stephen Janis: One would assume.

Jayne Miller: That would be exactly right. One would assume.

Stephen Janis: As Jayne points out, we don’t know which specific cases they have not released the lists. But yes, that would be it. But just to say, I think what’s extraordinary to me as a reporter is that Fowler didn’t receive any real attention until he went on national television.

Jayne Miller: And testified in that case. That is correct, and that now is causing this reflection on the work that he did over two decades. It’s an interesting kind of where we are. So now we have a hundred cases that are going to get extra scrutiny, then what? Are we going to reverse rulings? What are we going to do? I may have a whole bevy of investigations that have to start, because I can tell you the case that I did worked on. Nothing’s happened on the case.`

Taya Graham: Well, Jayne, like you said, we don’t know what’s going to happen and in the case of Anton Black’s family, they filed a lawsuit against several of the police officers and Eastern shore municipalities, and that was settled for 5 million. But what stands out to me is that a portion of the lawsuit alleges misconduct and conspiracy in the Office of the Medical Examiner. They mentioned that 57 autopsies of the people who died in police custody. In this lawsuit, it says, “They determined the death was not a homicide in 88% of the cases, despite the person having either been tasered, pepper sprayed, struck with a baton or placed in prone restraint.” So the allegations of misconduct and conspiracy to commit misconduct is incredibly troubling.

Jayne Miller: Well, the medical examiners in this country and the pathologists in the country who have been so critical of these kinds of rulings. That’s their concern is that it has cover up as a… That’s a very harsh term, but that’s exactly what they allege, is that they’re using some of these rulings that then divert from the attention on the police officer and the action of the police officer, and they stop our thorough investigation in its tracks, and that’s what I’m saying. We now have a hundred cases with the potential to cause full fledged investigations, some of them five, 10, 12 years old.

Stephen Janis: I mean, if you Google Anton Black cause of Death, you’ll see hundreds, dozens of headlines that it was an accident and that really changes the whole tenor of the case. I mean, people just accept it uncritically that it’s a medical examiner who ruled this, so it becomes part of the fabric of the narrative. Also, as James pointed out, just because it’s ruled a homicide, doesn’t necessarily mean it’s a crime, right?

Jayne Miller: That’s correct. It can be…

Stephen Janis: Homicide’s just death at the hands of another.

Jayne Miller: Could be justified. That’s correct, and we certainly have had those, obviously. Police officers shoot someone fatally, it’s a homicide. But it’s a justified homicide and I mean, that’s generally the ruling, right?

Stephen Janis: Yes. What’s troubling about that is that these cases, if it was ruled in accident, in Anton’s case, the investigation, if it’s a homicide, at least maybe we had hoped they would do more due diligence of investigating the case if they’re dealing with a homicide, because they have to justify it. Whereas if it’s an accident, or as Jayne has pointed out, the police don’t have to justify their actions in this case. So I don’t think coverup is too harsh a term, but I’m willing to use it. That’s what it seemed to me, that Fowler took his playbook at George Floyd and exposed it to the world and said, here’s how I do this. This is what I do, and it goes back to my early theory. I just saw enough doubt so that we can squeak through on these things.

Jayne Miller: It excuses behavior, that conduct. That’s what happens.

Taya Graham: I just want to emphasize, this issue of excited delirium is not localized just to Baltimore, Maryland, cases of excited delirium, Natasha McKenna died in Virginia in police custody. Daniel Prude died in Rochester in police custody. Elijah McClain died in Colorado in police custody and these were all cases, allegedly, of excited delirium. So this particular pseudoscience is being used to cover up police instances where force was used, and they don’t want to rule it a homicide.

Stephen Janis: I think we have to think about this for a second because, and this is a Land of the Unsolved, and our main primary focus is unsolved murders, because that is a real horrible stain and source of pain and trauma for a community when a case is not closed. But you should think about that you’re talking about bogus science that ends up being determinative in many cases of people who have died primarily through homicide at the hands of another.

How that gets into the system, just like when we talked about ketamine, how ketamine was being used extensively in Colorado, but with no real medical basis. How do you have a system that incorporates junk science as a way to justify a ruling on a death in police custody? Which in some sense is a much more serious case because it’s the government that killed the person, not some crazy criminal. So think about how a system incorporates that, and almost uncritically is able to use it, except for people like, Jayne, who report on it. But really, you were on your own on that too, and how does that happen? That gives you some sense of what kind of system we’re dealing with and some of the problems in terms of reform.

Taya Graham: So I want to thank my guests, Jayne Miller and Stephen Janis. My name is Taya Graham, and thank you for joining me for this episode of The Land of the Unsolved.




Source: Therealnews.com