Patterico's Pontifications

7/11/2010

More on Balko’s Mischaracterization of a Court Decision on Factual Innocence

Filed under: General — Patterico @ 10:55 pm

On Saturday, I explained how Radley Balko had mischaracterized a court decision. But his misrepresentations are worse than I initially realized.

Balko claimed that, in the case in question, the appellate court had “acknowledg[ed] that the man has established actual innocence.” As I explained, the court explicitly said it had not addressed the issue of whether the defendant had presented “new” evidence of innocence. Indeed, a concurring judge found that he had not.

Re-reading the opinion yesterday, I noticed another problem with Balko’s post. He approvingly quotes criminal defense attorney Scott Greenfield as follows:

…in the rare case where a defendant can prove that he did not commit the crime, but the information or evidence doesn’t manage to come into his hands until more than a year after the exhaustion of remedies, even if the cause is concealment by the government or incompetence by his lawyer, the 9th Circuit told us their truth. They don’t care. They just don’t care.

Balko and Greenfield claim that courts will reject an appeal if it misses the statute of limitations, “even if the cause is concealment by the government” of evidence of innocence. Not so. As the Ninth Circuit decision itself explains, government concealment of evidence is a statutory exception to the statute of limitations:

So written, the statute establishes three “very specific exceptions” to the primary date for the running of the limitations period, that is, the date on which direct review becomes final. David v. Hall, 318 F.3d 343, 346 (1st Cir. 2003); Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (similarly contrasting the date on which direct review becomes final and the other “three circumstances”). Those exceptions involve state-created impediments, new constitutional rights, and diligent discovery of new facts. 28 U.S.C. § 2244(d)(1)(B)-(D).

I’d say government concealment of exculpatory evidence would count as a state-created impediment.

The bottom line: Balko would have you believe that courts overlook government action in hiding evidence favorable to the defendant. But courts don’t. Balko is, once again, stirring his audience up with hyperbolic claims that don’t survive scrutiny.

More on the problem of “actual innocence” below the fold.

(more…)

Violence Edges Closer to the Border

Filed under: International — DRJ @ 10:16 pm

[Guest post by DRJ]

An auto accident in El Paso, Texas, apparently led to an hour-long gun battle near the Zaragoza International Bridge that links El Paso to Juarez. The FBI is investigating because U.S. officers at the bridge may have shot at the SUV as it fled across the Zaragoza bridge into Juárez.

— DRJ

Green Room Posts

Filed under: General — DRJ @ 7:02 pm

[Guest post by DRJ]

Hot Air’s Green Room always has good stuff but these two posts are especially good:

Steven Den Beste’s NASESA — the National Arabic Self Esteem and Space Administration; and

DirectorBlue’s We Will Not Be Silenced — Democrats Produce Documentary Alleging Rampant Vote Fraud by Obama Campaign vs. Hillary in 2008 Primaries.

The point of the first link is painfully obvious. The second link discusses a Fox & Friends interview with Democrat “Gigi Gaston, a writer/director who has made a documentary outlining the rampant voter fraud perpetrated by the Obama campaign during the 2008 primaries against Hillary Clinton.”

— DRJ

Texas Physicians are Opting Out of Medicaid

Filed under: Health Care — DRJ @ 1:25 pm

[Guest post by DRJ]

The Dallas Morning News reports Texas physicians are opting out of Medicaid:

“Just 32 percent of primary-care doctors are accepting Medicaid, according to a survey by the Texas Medical Association. And fee cuts threaten existing doctor-patient relationships, especially in North Texas.”

The head of Texas Health and Human Services Commission explains why more Medicaid cuts are inevitable:

“[Tom] Suehs, head of the Health and Human Services Commission, has said he’s sensitive to doctors’ gripes about low Medicaid payments, even as state GOP leaders order him to scrub programs for savings.

“No one ever wants to cut Medicaid,” said commission spokeswoman Stephanie Goodman. “It’s 75 percent of [the commission’s] budget. So when you start to identify places to reduce our budget, it gets very hard to skip Medicaid.”

But things will only get worse when ObamaCare makes deeper cuts and adds more patients. Texas physicians see government health care in their future and are opting out. As Mike K explains, even physicians who opt-out won’t be able to escape the government regulations and oversight that will compromise their professional independence and the integrity of the medical profession.

— DRJ

Bahamian Authorities Catch Barefoot Bandit

Filed under: Crime — DRJ @ 12:36 pm

[Guest post by DRJ]

Bahamian law enforcement has captured Colton Harris-Moore aka the Barefoot Bandit:

“Colton Harris-Moore was arrested before dawn in northern Eleuthera, said Sgt. Chrislyn Skippings, a spokeswoman for the Royal Bahamas Police Force.
***
Harris-Moore, who has been running from American law enforcement since escaping from a Washington state halfway house in 2008, gained fame and thousands of fans who admired his ability to evade arrest. He is suspected of stealing cars, boats and at least five planes – including the aircraft he allegedly lifted in Indiana and flew more than 1,000 miles (1,600 kilometers) to the islands off Florida’s coast, despite a lack of formal flight training.”

These actions are not admirable and it distresses me Americans, especially young Americans, find them or him admirable.

— DRJ

Beheadings on the Border (Updated)

Filed under: International — DRJ @ 12:12 pm

[Guest post by DRJ]

Tom Maguire considers Arizona Governor Jan Brewer “claim that the collapse of border security and spillover of violence from Mexico had led to beheadings in Arizona,” and finds minimal/vague support for her claim. Here’s an article from the November 24th, 2009, edition of the El Paso Times that may be related:

“In Juárez, daytime shootings on busy streets, massacres inside bars and grisly mutilations and beheadings have become a common occurrence as drug traffickers battle for control of a lucrative smuggling corridor.
***
Phil Jordan, a retired U.S. Drug Enforcement Administration official from El Paso, said the safe city label for El Paso is misleading because cartels operate on both sides of the border.

“The narcotraffickers will not kill somebody in El Paso unless they absolutely have to,” Jordan said. “They will kidnap an individual, take them to Mexico, torture and kill them. There won’t be an investigation and the person will simply disappear.

I don’t know what’s happening in Arizona but in the border areas of Texas, it seems murders and beheadings are occurring in Mexico but that doesn’t mean the victims are all from Mexico.

[EDIT: Note that Maguire was responding to a column by WaPo’s Dana Milbank questioning and criticizing Brewer’s claims as “tall tales.” H/T daleyrocks.]

— DRJ

UPDATE Mark Tapscott at the Washington Examiner has a report of an American-side-of-the-border beheading:

“A friend on the Hill read Milbank’s piece and pronounced it “utter BS,” then produced a copy of a July 8, 2010, letter to Brewer from Arizona rancher J. David Lowell describing a recent incident involving one of his ranch hands:

“In January 2010, Congressman Rob Bishop visited our ranch here in Santa Cruz County, Arizona. During that visit, I related to him an incident that occurred on June 27, 2008, in one of our pastures west of the ranch house.

“On that day, one of our ranch hands was working horseback and discovered a human head near a trail believed to be used by drug and alien smugglers.

“Although the head was missing the lower jaw, it was immediately apparent that much of the mass and flesh of the head was still present. The cowboy searched the area in hopes of finding the remainder of the body to no avail.

“The Santa Cruz County Sheriff’s Office was notified and they took possession of the head on that same date. We suspect that the head may have been placed along side the trail as a warning to other drug and alien traffickers using the trail.”

A spokesman for Rep. Bishop told me they had confirmed the details of the incident described by Lowell.”

H/T commenter Mark.


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