Patterico's Pontifications


Radley Balko Mischaracterizes Court Decision

Filed under: General — Patterico @ 2:08 pm

Radley Balko:

A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit has rejected an Oregon man’s petition for habeas corpus relief (PDF). This despite acknowledging that the man has established actual innocence for the crimes for which he’s being imprisoned (sexual abuse and sodomy of a four-year-old). The reason: He was late filing his petition.

That is a very dramatic assertion. Not particularly accurate, but dramatic.

Balko would have you believe that there was new evidence presented after the trial that established the defendant’s innocence, and that the court “acknowledged” this to be the case. (If there was no new evidence, this would simply be a question of whether the evidence adduced at trial was sufficient to establish guilt.) But it is quite clear that the Ninth Circuit panel “acknowledged” no such thing. While a lower court apparently did make such a finding, the appellate court did not rule on the accuracy of this finding.

The decision is here. Let’s start with the concurring opinion, which is the only opinion that actually discusses what the “new” evidence was, and the lower court’s inadequacies in its analysis:

The district court does not discuss how any of this “new” evidence establishes, by clear and convincing evidence, the existence of a constitutional error resulting in Lee’s conviction.

. . . .

The district court primarily relied upon two pieces of new evidence: (1) expert testimony regarding the reliability of child witnesses and a critique of the techniques used in this case; and (2) additional details regarding Robert Nachand and the police’s investigation of Lee. Neither of these pieces of evidence truly appears to be “new.” The jury had evidence before it, at the time of rendering its verdict, that there existed a second molester and that the victim was experiencing some confusion between the second molester and Lee. Lee knew about the unreliability of child testimony and was allowed to explore through examination and argue in closing argument about the victim’s confusion between Richard Lee and Robert Nachand.

Further, while an Oregon court may have appropriately denied the request, it appears that Lee never even requested to call an expert witness on his behalf to support an argument that the victim’s testimony was unreliable. Lee’s later presentation of expert testimony to the federal district court does not constitute new evidence; instead, it was further development of existing evidence. See Griffin v. Johnson, 350 F.3d 956, 962-63 (9th Cir. 2003). Thus, the evidence upon which the district court relied in holding that the jury would have changed its verdict, was before the jury. Here, the jury had evidence of the victim’s confusion and the second molester before rendering its verdict. We presume the jury to have considered the evidence before it when rendering a verdict.

Therefore, the district court erred in holding that Lee was entitled to habeas relief on this ground.
It is not enough that the district court disagreed with the findings of the Oregon state courts.

Ah, I can hear Balko saying, but that is only a concurrence! Surely the other two judges who joined in th main opinion “acknowledged” that there was new evidence that showed the defendant was innocent?

Not so much. Instead, they didn’t even address this argument. Footnote 19 states:

Because we decide this case on statute of limitations grounds, we need not reach the state’s other arguments, including that the district court refused to give AEDPA deference to the state court findings and that Lee did not present any new evidence in the federal evidentiary hearing.

So, to be clear: the state argued that the defendant presented no new evidence in his habeas hearing, and the court didn’t address that in its majority opinion. A concurring judge said: I’ll address it: he didn’t present new evidence.

And that is characterized by Balko as the “three-judge panel acknowledged” that the defendant had established his innocence.

The panel addressed no such thing. Balko ought to acknowledge that.

That would be less dramatic, no doubt. But it would be more accurate.

BY THE WAY: I am very disturbed by a state of affairs that would use a deadline to deny a valid claim of actual innocence (which is not proven to be the case here). The issue is whether that should be fixed by Congress or by the courts. The current panel’s conclusion that it is an issue for Congress is hardly an outlier; as the opinion notes, several sister circuits have reached the same conclusion. I’d have to study the issue more to reach an opinion on the question of whether it’s a judicial or legislative issue, but it should be fixed regardless.

32 Responses to “Radley Balko Mischaracterizes Court Decision”

  1. Patterico – Prepare for another infestation of drug-crazed, machete-wielding, plague-infected, reading comprehension-challenged Balkobots.

    daleyrocks (1d0d98)

  2. And those are the intelligent ones!

    daleyrocks (1d0d98)

  3. I am shocked that Radley would mischaracterize the findings of a court…

    AD - RtR/OS! (a25bb4)

  4. In other news….
    Captain Renault is enjoying….

    AD - RtR/OS! (a25bb4)

  5. AD – The panel did use the word “evidence” in their opinion, so you have to give Radley some credit.

    daleyrocks (1d0d98)

  6. Yes, and I stayed at a Holiday Inn Express.

    AD - RtR/OS! (a25bb4)

  7. I agree with Patterico, there is no statute of limitations on innocence.

    That said, by what Frey wrote above the evidence presented post trial does appear to be inadequate to establish the defendant’s innocence in this case. Though I submit that had the defendant’s case been better presented there would have been a stronger case for reasonable doubt.

    I have to ask, was genetic material presented as evidence. since it was a case of sodomy, was the boy examined for penetration, if penetrated were samples of semen in the colon take an tested genetically. If so, was said material identified as the defendant’s

    With an unreliable witness it is my contention that without corroboration through forensic evidence any testimony by the witness can not be relied on and the case cannot go forward.

    I must also wonder if the boy was coerced by therapists to testify against the defendant, because the therapists were convinced of the defendant’s guilt, or because of collusion between therapists and police investigators.

    And what of the jury? Was the jury acting impartially, or allowing testimony to sway their judgment? Was it reason or emotion that decided their course? In a case such as this I’m tempted to think the latter, for the normal human response to a small child in pain is an emotional one.

    Were it my case to adjudicate I’d want to know a few things.

    1. How did the detectives come to the conclusion the defendant committed the crime? Was it solely based on the victim’s testimony? How was that testimony obtained?

    2. What do the forensics say? Are there any forensics that tie the defendant to the case?

    If there are no forensics, and the child’s testimony was obtained through coercion, then I would have to overturn the verdict, and declare prosecutoral misconduct. At the very least sanction the prosecutor for conduct unbecoming. In addition, I would have to bring charges against both police and therapist on the grounds of misconduct.

    But, that would be with full knowledge of the case. Without that knowledge than I can only abide by the jury’s decision. With that in mind I must note that I will have my doubts about this matter, for I have seen other cases where a person was falsely charged, and then falsely convicted based on emotion, bias, and unreliable testimony. Were it my case I would ask that a full investigation of the affair be undertaken, regardless of cost or repercussion. This is one of those situations were the decision of a jury can not be relied on as the conclusion. As long as there is any doubt, the matter is not settled, and there is too much doubt in this case.

    Alan Kellogg (599773)

  8. Re the aboveI know I had more than one paragraph in that comment, is there something wrong with the template?

    Alan Kellogg (599773)

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    Papa Ray

    Papa Ray (4091d1)

  10. Not sign of Balkobots, whatever that may be, but we do seem to have a spambot. Demon, avaunt!

    Back to the real topic. Balko may have overstated what the decision said, but his real point stands, and even you somewhat agree with him on that point: the court deemed the question of new evidence and possible innocence irrelevant. The statute of limitations was the only thing they were concerned with.

    Regarding your “By the way”–you’re right in principal, but what the Constitution calls for is not that courts determine the absolute truth, but that the defendant get due process–that he gets a chance to present his side of the case in a fair manner. He did get his chance, at the trial and up to the time that the statue of limitations kicks in. And you need a statute of limitations of some sort or else you’ll have endless relitigation.

    What shouldn’t have a statute of limitations (IMO) is a claim that the defendant didn’t get due process–that he was prevented from presenting evidence or something similar. And I don’t see that here.

    kishnevi (894e4f)

  11. Re the aboveI know I had more than one paragraph in that comment, is there something wrong with the template

    Reload or refresh the page, and your comment will show up the way you wanted it, together with any comments that were crossposted with yours.

    kishnevi (894e4f)

  12. “Not sign of Balkobots”

    kishnevi – Probably because the original date of Balko’s piece is July 7, but the day is still young and most of his commenters are allergic to sunlight.

    “the court deemed the question of new evidence and possible innocence irrelevant. The statute of limitations was the only thing they were concerned with.” New evidence is one of the four statutory exceptions to the one year statute of limitations. Lee did not claim an exception to the statute for new evidence in his filing so there was no reason for the court to address it. That is clear from the text of the opinion. Lee could have tolled the expiration of the statute had he uncovered and claimed genuine new evidence. Having a district court conclude he may actually be innocent and ordering the state to retry him is not an exception to a late filing under the current statute.

    daleyrocks (1d0d98)

  13. The difficulty is that courts of appeal are allowed to judge only on points of law. Matters of fact are weighed in terms of the admissablity of evidence, effectiveness of counsel, &c. A finding of excluded fact results in a REMANDING of the decision, often with directed judgement.

    JC (3c2292)

  14. “A finding of excluded fact results in a REMANDING of the decision, often with directed judgement.”

    JC – Isn’t that in fact what the District Court told Oregon in this case, that the State must retry Lee. The Ninth Circuit found the District Court in error, merely pointing out that Lee did not avail himself of any of the statutory exceptions which would have tolled the statute and that no new evidence was in fact introduced.

    daleyrocks (1d0d98)

  15. Habeas corpus petitions are a pretty complex thing, and a minefield for prisoners since they’re mostly not considered appeals of right so the prisoner has to write them himself, sometimes with a Crayola.

    nk (db4a41)

  16. Reason.Com also has a copy of the article
    I will repost my comments on that post here.

    Isn’t part of the reason for having judges and other actual human beings who are allowed to make decisions involved in the legal system to avoid shit like this? I can’t imagine that anyone doesn’t think that this guy deserves to be released, so why can’t these judges do some judging and say that the law clearly produces the wrong outcome here and release the guy?

    Judges in federal appellate courts are supposed to uphold the United States Constitution and federal stature, in that order.

    The human being who are “allowed to make decisions involved in the legal system” in this case is the governor of Oregon.

    so why can’t these judges do some judging and say that the law clearly produces the wrong outcome here and release the guy?

    That power is reserved for the governor of Oregon, not the judges on the Ninth Circuit.

    Which leads to the question of why the hell it even got this far without him being pardoned?

    That is a good question. Surely Lee’s attorney would mail a copy of the district court’s transcripts (the court that had made the finding of actual innocence) to the governor and the press.

    Furthermore, why is the mainstream media not reporting on this case? Where are CNN and MSNBC? Are they asleep at the switch?

    No they arent, they can overturn the law.

    Only if a higher law (and the precedential history behind the law) permits or requires them to do so.

    Overturning laws simply because they are bad is a bad idea for judges.

    Their hands arent tied at all. They can throw the deadline law out, its part of the appeals courts purpose.

    And what constitutional provision would allow them to do so?

    What is the precedential history behind that constitutional provision?

    The only justification for throwing the deadline out is if it were permitted by federal statute, or conflicts with a provision of the United States Constitution.

    Feel free to comment on the post in Reason.Com.

    Michael Ejercito (249c90)

  17. Back to the real topic. Balko may have overstated what the decision said, but his real point stands, and even you somewhat agree with him on that point: the court deemed the question of new evidence and possible innocence irrelevant. The statute of limitations was the only thing they were concerned with.

    The big question is this.

    If the district court did make a finding of actual innocence, why would not the defense attorney forward the transcripts to the governor and the press?

    Michael Ejercito (249c90)

  18. Balko’s bombshell claim demands more than a brief blog post. It demands examination of the ruling, citation of the pertinent parts, and quotes from a prosecutor, not just a defense attorney.

    Oh, I forgot. Only defense attorneys are fair. Prosecutors just want to lock up innocent people for the fun of it.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  19. If there is no standard on what constitutes “new [exculpatory] evidence” and no limit on when verdicts may be challenged on factual bases, there really isn’t a jury which makes determination of fact, is there? Isn’t it always, then, forever subject to some judge’s interpretation and some attorney or savvy inmate filing repeated requests?

    Our courts are already clogged with pending cases. Adopting the attitude of some here, we would grind those dockets to a halt and subject witnesses in criminal cases from years ago to attempts to induce them to change their testimony.

    The Constitution doesn’t guarantee anyone “justice,” that’s a vague and ethereal concept. It grants us the right to trial by jury, and rights to appeal their findings within a reasonable time.

    If reality is too harsh for your tender feelings, grab a tissue.

    Adjoran (ec6a4b)

  20. I would just point out that the district court judge is one Owen Panner.

    Born 1924 (making him 86).

    Appointed by Jimmy Carter as District Court Judge in 1980. Senior Status in 1992.

    Meaning he has been a Senior Status Judge for 6 years longer than he was an active judge.

    Decisions like his are not terribly uncommon from elderly judges. They don’t like ways the law has shifted over time, and simply say “to hell with it.”

    There is a one year statute of limitations for filing an initial habeas claim. This one year period begins to run from the date the judgment becomes final and all appeals are exhausted. I haven’t looked up the procedural history of this state court conviction, but often there is a period of several years that have passed between the trial court conviction and the expiration of the one year statute on an initial habeas claim.

    shipwreckedcrew (436eab)

  21. In Chicago, the petition would have first been reviewed by a staff attorney, then a magistrate, before going to a judge for seal and approval. I don’t know the procedure in Oregon.

    nk (db4a41)

  22. I don’t know. Balko is wrong, of course, but this is like classic misinterpretation of the law by non-lawyers. its kind of par for the course. Its so common its kind of hard to get too upset at any particular person for doing it.

    Aaron Worthing (A.W.) (f97997)

  23. The thing is, AW, while I want to be a fan of Balko’s and think his chosen field of investigation an important one, he makes far too many substantive errors for me to ever pay any attention to him.

    And that’s not good.

    SPQR (26be8b)

  24. As a habeas prosecutor I think the decision is correct. Moreover, I disagree with an assertion of “actual innocence” in this case.

    Assuming there is a psychologist who says the victim should not be believed for whatever reason, that does not mean the victim actually falsely testified, just that there are reasons to disbelieve the victim (it might have raised reasonable doubt at a trial, but that is a completely different issue).

    This case reminds me in some ways of McDaniel v. Brown, the Supreme Court’s summary reversal earlier this term of the grant of habeas corpus relief. In that case, a federal judge became convinced that evidence used to convict was unreliable and that, consequently, insufficient evidence had been presented.

    In both cases judges did more than the law allowed — and were properly slapped down for doing so.

    Dave N. (a183db)

  25. well, i am not a fan of balko. i truly don’t pay enough attention to him to care overly much about him.

    I am just saying non-lawyers screw this kind of stuff up all the time.

    Now, that being said, I think at some point he should recognize his error, or at least recognize he doesn’t know what he is talking about, and retract what he wrote.

    I just stopped getting mad at non-lawyers not understanding the law, is all.

    Aaron Worthing (A.W.) (e7d72e)

  26. Maybe he should refrain from describing court decisions if he can’t describe them correctly.

    No retraction I have seen. I’d bet the farm he has seen the post.

    Patterico (c218bd)

  27. Patterico

    Well, he is definitely being a dick. if he hasn’t seen this post or the follow up, or at least heard a good summary by now its probably because of his dickly decision to ignore you.

    And he definitely owes us a retraction.

    But God, legal reporting is so awful, its hard for it to even register. i have sometimes been tempted to try to get a job as a legal reporter with the WAPO because they are in sore need of someone who can bring any expertise to the subject. So to say a person shouldn’t talk about the law unless they knew what they were talking about, well of course i agree, but yeesh, there is alot of that going around.

    Aaron Worthing (A.W.) (e7d72e)

  28. A.W. – He is a zealot over these issues, and it is his focus. Is it too much to expect basic honesty? This is far too common to be a mistake.

    JD (2fdfce)

  29. JD well, maybe i don’t know his BG on the subject, but seeing one screw up is less than inspiring to me. i see people say stupid crap about the law all the time. i mean besides nk.

    Aaron Worthing (A.W.) (e7d72e)

  30. THis is pretty much a pattern.

    JD (2fdfce)

  31. er, BG = background.

    Aaron Worthing (A.W.) (b1db52)

  32. Amazing website, where did you come up with the material in this post? I’m glad I found it. i am going to be checking out back quickly to see what other articles you have.

    Peg Kandarian (ebc683)

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