Patterico's Pontifications

8/24/2006

Why Would I Say Radley Balko Isn’t Always Accurate? Because He Isn’t.

Filed under: General — Patterico @ 6:01 am



Radley Balko, the “Agitator,” is agitated that I said:

When I hear the name Radley Balko, I check, and check again.

He figures I said it because I am a prosecutor and he is a libertarian, ergo I don’t like him. Then he makes a few dark insinuations about how I do my job. I do my job well and I resent Balko bringing my employment into the discussion, which he did simply because a) I disagree with him and b) I have caught him on inaccuracies in the past that he has refused to correct.

Sorry, Radley. I don’t willy-nilly accuse every libertarian of being inaccurate — just the ones who are. Balko has made at least one misstatement that he didn’t bother to correct even after I called him on it. In arguing for jury nullification, Balko claimed that a quote favorable to his position was from a Supreme Court decision, when I discovered that it was in fact from a mere Court of Appeals opinion. I blogged the error here, and wrote Balko an e-mail about it, and he never wrote me back or corrected the piece.

Xrlq has caught Balko on other distortions (see here and here).

P.S. As to the specific case in question, I simply felt that Xrlq and (to a lesser degree, Balko) had oversimplified (and understated) the facts underlying the decision. Read this Xrlq post and this comment of mine to see what I mean. That doesn’t mean I necessarily agree with the decision — just that I want to see it portrayed accurately.

UPDATE: Balko says he will correct the error. I’m pleased to see that.

39 Responses to “Why Would I Say Radley Balko Isn’t Always Accurate? Because He Isn’t.”

  1. RB posted a correction. He claims that he was unaware of you email (says it was his fault) and that he’ll publish a correction in his next column. He also says that the error doesn’t invalidate his major point.

    I’m not an expert on the details of this particular forfeiture case, but in general it seems very wrong to me that the government can take my property without charging me with a crime.

    [I think there are valid questions there. I am glad Balko is finally correcting the record on his earlier mistake; however, I did e-mail him about it the first time. That’s why I expressed skepticism about his accuracy earlier. — P]

    joe (066362)

  2. Joe, I agree. Why Patterico defends this monstrosity, I echo Balko in asking Patterico here.

    Mona (d26965)

  3. It would sure help to understand this if there was an overview of the case itself.

    [Check Wikipedia for O.J. Simpson murder trial. Or read Petrocelli’s summation, which I link and quote from generously tomorrow. — P]

    CraigC (9cd021)

  4. The guy has been blogging nearly every day for the past 4 years and the best you can come up with is that he got the authority of a case wrong…once. Seems like a stretch to damn someone’s credibility for that. I am sure you have never made a mistake prosecuting a case…

    [People make mistakes all the time. That’s no big deal. What annoyed me is that I *told* him about the mistake and he never (until today, apparently) corrected it. I don’t read his blog regularly so I’m sure he’s made other mistakes, as have I. The key to credibility is not failing to make mistakes, but correcting them when you do. I’m glad to hear he has finally corrected this one. — P]

    Bryan (809506)

  5. I hear you Patterico, and there’s something just wrong about the insinuations Balko is making.

    Balko seems to miss the point that the evidence required for seizure is a preponderance of the evidence not beyond a reasonable doubt, as a result there is a good (very good) basis to not charge the person with a crime in this case, but to seize the property. Now, I agree with your assessment of withholding judgment, but you were very right to point out that something just doesn’t seem right.

    To people who say we should be free to drive around with $150,000 in cash, sure I agree, but at the same time, doesn’t that peak our suspicions quite substantially? That the rest of the situation seemed quite off too is certainly suggestive.

    As an aside, I know when I often comment on here, it can be to nitpick, I hope it isn’t too obnoxious, you do a great job on this blog. Thanks for all the hard work.

    Joel B. (31d860)

  6. I read your post, Mona, and the comments. I thought libertarians were in favor of a) legalizing and taxing the drug trade and b) making every highway a toll road. It seems to me that the opinion is a big step in both those directions. (I wish the dog had been called in as a witness and cross-examined though.) 😉

    nk (5e5670)

  7. Joel,

    I think Radley doesn’t miss that point; in his description of the case, he even makes fun of the form of cases which sue the money rather than the person who may or may not have committed a crime. I interpret his acknoledging this, if only to make fun of it, as showing he knows it.

    I think Radley mixes up two distinct points he’s trying to make: 1) The appeals court may have missed the mark on the preponderance of evidence standard (and others have suggested that the appeals court made inappropriate findings of fact, which is sort of what Radley is saying, though not entirely), and 2) even if the appeals court found correctly, such a law is unjust, and does a great disservice to the society of the United States.

    I am unable to judge (1), but I am sympathetic to point (2).

    – Gavin

    Gavin Peters (68f35a)

  8. Gavin,

    I see how you can come to that impression, and it is reasonable, to me it does seem like that he is trying to keep it hazy. A kind of misdirection “look over here insufficient evidence for a conviction etc.” While, on the other side, it kind of goes unmentioned that oh year the standard of proof is a preponderance. Which what goes also unmentioned is some idea of a prosecutor’s ethics, in how or who to charge (making it much more reasonable that the money would be seized but no crime charged).

    I agree that if we are discussing point 2, we are probably both somewhat sympathetic to it. But that of course is very different from the court actually doing something “wrong.”

    Joel B. (31d860)

  9. Gavin –

    Glad to see your clear description of the issues involved. In my opinion people often misunderstand this issue when posters say “Gee, isn’t it unfair that they took this man’s money when he was never charged with a crime?”

    There are two different issues involved with two different burden’s of proof. If the government wants to incarcerate the man for drug trafficking – beyond a reasonable doubt. If they want to seize the money because its proceeds of illegal activity or otherwise illicitly gained – preponderance of the evidence.

    It doesn’t seem so unfair to me. Preponderance of the evidence is a very common standard used in all kinds of disputes involving money. If there are innocent persons with legitimate claims to the money they can prove those claims and get the money back.

    I haven’t read the specific case so I can’t comment on the court’s findings of facts in that specific instance. But I am familiar with the general structure of asset forfeiture laws and they don’t strike me as being unfair.

    C Student (c949f7)

  10. To me it boils down to this:

    Prove that we (the state) shouldn’t take your money from you.

    That’s backwards.

    joe (066362)

  11. Here’s the thing on the legal standards, gang. Preponderance of the evidence is the legal standard for civil actions. Your dog bites me and I sue, I have to prove the injury, liability, and damages to a preponderance of the evidence. Beyond a reasonable doubt is the criminal standard because it has to do with the state taking life, liberty, and property. For no good reason, the law in forfeiture cases uses the standard appropriate for civil actions rather than criminal ones. You aren’t suing to get your $150,000 back. You’re penalizing the guy for . . . what we do not know. But the civil preponderance standard is the wrong one.

    DJZ (cf460d)

  12. It’s mighty white of Radley to finally offer to correct the court case now, more than a year after the fact, but implausible he did not know about it then. Radley commented on the post in question on July 29, 2005, the day after you posted it, albeit (I think) one day before you issued the second update identifying the case he had misattributed. On the 30th, you posted a comment noting that you’d emailed Balko and hoped to see a correction soon. I responded with a comment of my own urging you not to hold your breath, and describing Balko as a right-wing equivalent of Paul Krugman. Three days later, on August 2, Radley found my blog entry, and posted a snarky comment semi-responding to the comment I had left on your blog. Just to make sure everyone knew he’d seen my comment (and thus, had been made aware of his own screw-up in the non-Supreme Court case), he smugly signed his comment “Radley ‘Krugman of the Right’ Balko.”

    Xrlq (f52b4f)

  13. DJZ You got it 2/3 right. Beyond a reasonable doubt applies if the state wants to take life or liberty – not property. Civil Forfeiture has a very long history going back to the founding of this country. It has never required proof beyond a reasonable doubt.

    You say “you are penalizing the guy for . . what we do nbt know.” Again you are wrong. The government has to make an initial showing by probable cause that the property was the product of illicit activity.

    Joe – I think you’ve hit the issue on the head. I can see how reasonable people can differ on the claimant having the burden rather than the government. I’m not terribly troubled by it being this way. Innocent owners should be able to demonstrate that the property was obtained by legitimate means. Its appropriate that they have the burden because they are the party that would have the documentation / evidence / witnesses to show it – not the government. Traditionally when one party has access to the evidence its their burden to produce it. In forfeiture that party is the claimant.

    C Student (c949f7)

  14. Well here’s a mea culpa from me –

    I started to remember that the burden’s of proof may have been changed in forfeiture so I went and read the 8th Cir. case. In fact the Government, not the claimants had the burden of proof (preponderance) in that case. The standard was changed in 2000.

    So now I really don’t see the issue.

    The facts of the 8th Cir case were very consistent with patterns of trafficking of narcotics proceeds from large scale sales of narcotics. A dog trained in detecting narcotics alerted to the money the claimants were carrying – and didn’t alert to a separate stack of money that the troopers took from themselves and concealed as a control.

    Millions of dollars of proceeds from narcotics sales are transported to Mexico (which is now the major source country for supplying narcotics to the US) like this every day.

    C Student (c949f7)

  15. XLRQ,

    Damn. You caught me. Real nice detective work.

    I may as well come clean. Yes. You’re right. I’ve known all along that I misattributed a 1972 court case from the D.C. cicuit as a Supreme Court case. In fact, I knew it as soon as I wrote it. It was part of my secret plan to advance my libertarian agenda via subtly misattributed court cases in online essays. Nefarious, eh?

    I’ve been desperately trying to keep this terrible fraud a secret for an entire year. And I would have gotten away with it were it not for your meddling ways. Thanks to your superb sleuthing, my giant lie has come tumbling down.

    I’m ruined!

    Does this mean you’re my nemesis, now? Because golly. I can only hope so. As far as nemeses go, a fella’ can’t do much better than a dim-witted, quick-tempered, angry douchebag that nobody reads.

    I’m sure I’ll hear from you soon.

    Yours,

    Radley Balko

    Radley Balko (cf460d)

  16. Radley, Are you also quoted by Senators?

    Good DAY to you sir!

    Joel B. (31d860)

  17. Radley, thanks for the laugh. You just made my sidebar, albeit as a mere doucheling, and not as biggest douche in the blogosphere. Jealous, much?

    Xrlq (f52b4f)

  18. Joel B. —

    No. But since you ask, I have been cited by the U.S. Supreme Court.

    Alas, it was by one of them “librul” judges.

    Take what you can get, I guess.

    Radley Balko (cf460d)

  19. Radley,

    Nice…
    Either way, nice to see it’s still all in sporting fun.

    Joel B. (31d860)

  20. XRLQ just got Pwned!!!!!

    Soriner (329cc6)

  21. HA! That was great! The internet is great for people getting angy over minor errors.

    As for lowering the burden of proof to take my stuff…I think it’s crap. I’m not saying it’s illeagle or unconstitutional. I just think that it should be both. Of course, i didn’t like the kelo decision either.

    joe (066362)

  22. It pains me to see Patterico and Balko feuding as I see them as mostly on the same side of most arguments.

    Gentlemen, please be civil, have a drink together and work together in the fight against leftoid big brothers. This douchebag talk between you is too Kos-ish for me.

    [There’s no douchebag talk between me and Balko. — P]

    BlacquesJacquesShellacques (83acf5)

  23. Patterico represents the government. Balko represents us folks out here who made the Constitution, and who gave the government its powers.

    We think the drug laws, plus human nature, have driven a wedge between the interests of us and the interests of our hired “guns”.

    [And I represent the government how, specifically? Oh: one more thing. If you don’t like the laws? Change them. That’s how we do it in a democracy. — P]

    RJN (e12f22)

  24. Patterico represents the government. Balko represents us folks out here who made the Constitution, and who gave the government its powers.

    Perhaps what you meant to say is that Balko represent the 8% of “us” who thing that every potentially bad thing to happen is the result of a nefarious government conspiracy perpetuated by neo and theocons while the liberals cover their eyes and ignore the dasterdly deeds.

    We think the drug laws, plus human nature, have driven a wedge between the interests of us and the interests of our hired “guns”.

    Because you know, this we you speak of hasn’t exactly gotten majority support to change the drug laws or asset forfeiture laws. And what of this “plus human nature” what the heck does that mean does that mean that we’re forever screwed or something? Or just that power corrupts and well prosecutors have power so uh they must be “corrupts” or some such nonsense.

    Patterico represents the government. True, the government that was elected and remains in power through the consent of the majority of us…not just “us.”

    Joel B. (9dd7cf)

  25. […] A while back I mentioned Jon Henke’s latest project, Inactivist. There is a lot going on over there, Mona is stirring things up as usual, and brings our attention to Radley Balko’s post on asset forfeiture. Xrlq weighs in at his own place as well as in Mona’s thread. The two of them are in agreement, and I’ll side with them, but the comments shed some light on various nuances and both sites allow them to strut their stuff on this issue. Unfortunately since Patterico feels the telling has been a bit one sided Mona can’t resist calling him an authoritarian, no, a hard-core authoritarian. Sigh. As The Libertarian World Turns is a never ending series. […]

    A Second Hand Conjecture » Inactivist (f55714)

  26. Yeah, yeah, Joel B.

    The human nature part is the part that makes legislators stay in office too long and make too many laws. The public sector grows and takes more in salary and benefits for itself, likes that, and looks for more laws to pass and more business to do to the public.

    RJN (e12f22)

  27. Oh, by the way P, Balko is doing exactly what you say. He is trying to change the laws by exposing how overbearing they have become.

    [Fine. But he’s also bitching about me, which I don’t appreciate. — P]

    RJN (e12f22)

  28. Nobody can bitch about you and be taken seriously.

    RJN (e12f22)

  29. RJN:

    Patterico represents the government. Balko represents us folks out here who made the Constitution, and who gave the government its powers.

    Err … no. The Constitution itself was made by government, in a much more real sense than Patterico or any other individual government employee embodies The Government. Perhaps you meant to say Balko represents those folks out there who are in the habit of constitutionalizing every political disagreement they have with the majority?

    Joel:

    Because you know, this we you speak of hasn’t exactly gotten majority support to change the drug laws or asset forfeiture laws.

    I don’t think there’s been huge popular support for reforming the drug laws, but I like to think most Americans oppose asset forfeitures based on a mere preponderance of evidence, if indeed they know this stuff is happening at all. Do you know of any polls purporting to show otherwise?

    Xrlq (f52b4f)

  30. Balko represents us folks out here who made the Constitution…

    Did we elect him, or was he appointed by someone we elected? Actually, I should say “they” as I am not 220 years old.

    Pablo (efa871)

  31. X-
    I don’t disagree with you. It might be nice to think that a majority would oppose asset forfeiture laws under a preponderance standard. At the same time I suspect a majority of respondents of such a poll would fall roughly between…huh? I don’t care to Eh sounds icky but whatever. The number of people who would change votes over asset forfeiture laws positions by legislators is probably very small. And is probably actually outnumbered by people who would vote against someone who took a position.

    Not that I disagree with you generally just that well the position that is “agitating” for such a change is probably a very small number.

    Joel B. (2051bb)

  32. If you folks don’t think that We The People didn’t make the Constitution go read the Constitution.

    “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America”

    We the folks of the various regions formed up as States granted powers to the government for people like our good host Patterico to administer.

    RJN (e12f22)

  33. RJN, thanks for the comic relief. Your next assignment, should you choose to accept it, is to explain why all self-described “people’s republics” must have been created not by the communist governments that controlled them over the years (or in some cases, still do today), but by the people themselves. It says “the people” right there in the constitution, and even in the name of the country! What more could you want?

    Xrlq (cbb016)

  34. Xrlq you don’t seem to understand squat. Establishing dictatorships, in the name of the people, would be something someone with your mindset would do.

    RJN (e12f22)

  35. Yup, RJN, you got me there. Establishing dictatorships is what I’m about. Moron.

    Xrlq (c70197)

  36. I don’t know X, I don’t exactly see a democratically run blog over at your site. It seems quite authoritarian at times. And very scary. Like fascist, conservative or something. I see very easily very easily how RJN could be totally confused.

    And after all, you don’t always seem super nice and kind to all the enlightened Randroids ahem, hardcore libertarians out there, and don’t you know…they’re just looking out for “THE PEOPLE!”

    Joel B. (9dd7cf)

  37. […] What I said was that I didn’t like his dragging my employment into the discussion in order to “make a few dark insinuations about how I do my job.” This is a cheap and sleazy tactic that he repeats in today’s screed, in which he talks about “some Prosecutor like Patterico” keeping confidential the identity of a lying informant. […]

    Patterico’s Pontifications » Balko Distorts the Facts In a Lengthy Screed About How He Doesn’t Distort the Facts (421107)

  38. “If you don’t like the laws, then change them. That’s what we do in a democracy.”

    What the hell country do you live in?

    This is the United States. Not a democratic country. WAKE UP!!

    Larry (c36902)

  39. […] I had originally planned a full-blown meta-fisking of JRM’s uncommonly silly fisking of Radley Balko’s recent Reason/Culture11 article on the war on drugs, but I see Radley himself has beat me to the punch and made most of the points I would have made (and some that I did make, namely that the mere fact of overall police shootings being down since 1996 is congruent with the overall drop in crime being down for the same period, not evidence for or against Radley’s premise). And Radley doesn’t need me to defend him; after all, he’s got the traffic while I’m just some dim-witted, quick-tempered, angry douchebag that nobody reads. […]

    damnum absque injuria » This Is Your Brain On Drugs. This Is Your Brain On Anti-Drug Hysteria. Any Questions? (490ac4)


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