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.

THE IMPORTANCE OF ACTUAL INNOCENCE: I will reiterate in this post what I said in my previous post regarding actual innocence, and elaborate a bit here. As a prosecutor (and as a citizen) I want to make sure that only guilty people are convicted of criminal offenses. I want criminal defendants to have the ability (as they already do) to argue on appeal that the evidence that convinced 12 people beyond a reasonable doubt was legally insufficient to establish their guilt. I also want them to be able to come up with new evidence of innocence and have a court consider it, regardless of a statute of limitations.

I don’t want them to be able to have an arguable claim of innocence, deliberately refuse to present it to a jury, and hold on to it in case they’re convicted. If that sounds absurd, it’s not. Take a case where a defense attorney has alibi evidence, consisting of family members who testify that the defendant was home at the time of the crime. The defense attorney makes a strategic decision not to present that alibi, because their story can be impeached by statements the alibi witnesses made to police before trial. Defendant is convicted, and defendant now unearths his alibi claim. Withholding it didn’t work — so now, let’s try presenting it.

It’s called a second bite at the apple. You’re only supposed to get one — for good reason. We can’t relitigate these cases every time a defendant decides that a different strategy might have suited him better.

If he comes up with new evidence of innocence, that’s a different question. That’s what Balko implies happened in the current case . . . but did not.

WILL THE ERRORS BE CORRECTED? I note that Balko cross-posted his flawed post at Reason.com. He has previously declared that he will ignore my criticisms unless they are noticed by someone he respects:

This idiot doesn’t merit a response. If one of his inevitable future attacks on me includes allegations meritorious enough that a blogger or commentator I respect picks up and reposts, I’ll respond. Otherwise, it’s just not worth it.

(This is an interesting approach to journalism, by the way: you can ignore factual inaccuracies in your work as long as they are pointed out by someone you don’t like.) Query whether Reason.com as an institution shares his ad hominem argument that he can ignore my corrections simply because they emanate from me.

Time will tell.

30 Responses to “More on Balko’s Mischaracterization of a Court Decision on Factual Innocence”

  1. Time will also tell whether any correction is gracious, or one that peevishly discounts the importance of any inaccuracy.

    If history is any guide . . .

    Patterico (c218bd)

  2. Patterico – Maybe 24AheadDotCom could take a few moments away from pimping his own blog and prevail upon Balko for a correction. The only problem is that I don’t think anybody respects 24AheadDotCom.

    daleyrocks (1d0d98)

  3. Balko has a nerve calling anyone an idiot. Anyone would take offense at being classified with him.

    Adjoran (ec6a4b)

  4. Reason.com does have its problems.

    Jack (e383ed)

  5. off topic, but i figured Patterico would want to hear it. Just, um, brace yourselves…

    Polanski’s extradition has been denied. He is now a free man.

    i sh-t you not. http://artsbeat.blogs.nytimes.com/2010/07/12/polanski-free-as-swiss-reject-extradition-request/

    don’t know the so-called basis, but let’s say i am extremely skeptical of this ruling.

    Aaron Worthing (A.W.) (e7d72e)

  6. BREAKING: The Swiss have freed Polanski. Won’t extradite to U.S.

    They say U.S. refused to reveal confidential testimony. (re: the judges acceptance of a plea deal then deciding to re sentence later)

    I figured they wouldn’t let someone with his money and friends to be sent back to U.S.; sets a precedent that they don’t want on the books.

    jakee308 (174da3)

  7. jakee

    beat you by one minute! lol

    just kidding, really its more like a gmta moment.

    Aaron Worthing (A.W.) (e7d72e)

  8. Can we take away Balko’s Libertarian card?

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

  9. More on the child rapist being set free (Polanski)

    http://www.swissinfo.ch/eng/politics/Polanski_will_not_be_extradited_to_the_US.html?cid=15389712

    Btw, remind me again why liberals say the europeans are so much more civilized, especially on topics like crime and punishment?

    Aaron Worthing (A.W.) (e7d72e)

  10. I have a Polanski thread now.

    Patterico (72b32c)

  11. I just don’t get Radley.

    He’s got enough examples of real problems with criminal justice. There will probably always be dramatic stories out there he can use to show the need for improvements.

    So why does he often post stories that are embellished?

    Once I realized he did that, I no longer took anything he wrote seriously. He burned up his credibility and ruined a lot of his power to do good. He’s a smart guy who can write a compelling argument and yet he has no honor.

    I guess he wants to be at the front of the ‘F*** the Police’ movement, and if he only posts on well established stories, that’s going to be much harder than if he posts on stories of his own innovation. But what he’s really achieved is fame with the nutcases.

    Dustin (b54cdc)

  12. There is a niche for dishonesty on the internet – bradblog, mediamatterz, and Balko are proof.

    JD (afa5a9)

  13. I don’t want them to be able to have an arguable claim of innocence, deliberately refuse to present it to a jury, and hold on to it in case they’re convicted. If that sounds absurd, it’s not. Take a case where a defense attorney has alibi evidence, consisting of family members who testify that the defendant was home at the time of the crime. The defense attorney makes a strategic decision not to present that alibi, because their story can be impeached by statements the alibi witnesses made to police before trial. Defendant is convicted, and defendant now unearths his alibi claim. Withholding it didn’t work — so now, let’s try presenting it.

    Radley Balko also has posts on the Hank Skinner case . And another post as well. As it was pointed out, Skinner had an opportunity to test DNA during his trial, but his attorney feared that a DNA test would further implicate his client, and so he refused to have the DNA evidence in question tested.

    Michael Ejercito (249c90)

  14. I’m puzzled why Balko insists on shooting himself in the foot so much – heck, why he intentionally aims at his foot for that matter.

    SPQR (b298a4)

  15. He overcharacterizes for the sake of drama. He has done this before claiming that defendants were not entitled to attorneys “on appeal” where the fact was that it was collateral post-conviction relief, an entirely different animal.

    You are entitled to an attorney, free with a free transcript, in a direct appeal from a conviction.

    nk (db4a41)

  16. Balko and mischaracterization….
    Ho-Hum!

    AD - RtR/OS! (809c7f)

  17. After doing so more times than one could count, it is not very accurate to refer to it as mischaracterization.

    JD (0f9c01)

  18. His heart may be in the right place but it does not help the cause of prisoners to put out frivolous legal theories.

    The other thing is, that he has an ironic contempt for legal knowledge. This is his quote: “I do not understand legalese.” But then he goes out and speaks it.

    nk (db4a41)

  19. Dustin, I’ve been reading Balko for years, and I have to disagree. I think he’s serious and honest, just not very bright. He covers the injustice beat and IIRC went to law school for a year; I (NAL) shouldn’t be able to quickly find so many objective problems in his posts. The reasons I don’t think he’s a liar are that he’s generally not a zealot and regularly makes concessions that don’t strategically make sense.

    A quick example: he blogged about the kid arrested for calling in bomb threats with a qualifier like “don’t know if there’s any truth to this.” The crux of the story was that the FBI wouldn’t release details of the arrest. Obviously it’s because he’s a minor. I see two explanations: 1) He’s a cynical activist putting page views over substance. 2) He’s necessarily skeptical of the police but too dim to see really obvious explanations in cases like these.

    Eh, he’s good for links and occasional humor, but I don’t look to him for competent analysis.

    el duderino (fedc3d)

  20. “he’s generally not a zealot”

    That made me LOL!!!!!

    daleyrocks (1d0d98)

  21. That’s my impression from reading him for years. Exhibit A.

    el duderino (fedc3d)

  22. “I don’t look to him for competent analysis.”

    el duderino – Which is why you’ve been reading him for years. That made me LOL too!

    How is he on no knock raids? Any zealotry there?

    daleyrocks (1d0d98)

  23. I think he’s serious and honest…

    Serious and honest people correct glaring mistakes.

    Scrutineer (e1f362)

  24. “I don’t look to him for competent analysis.”
    el duderino – Which is why you’ve been reading him for years. That made me LOL too!

    No, it’s because “he’s good for links and occasional humor,” the same reason I read Instapundit. If he completely loses it a la Andrew Sullivan I’ll ignore him on principle. But I see him more as a better than average (low bar) long-form reporter/editorialist whose in over his head blogging daily without the opportunity to consult experts.

    How is he on no knock raids? Any zealotry there?

    Not anymore than you’d expect from someone who opposes widespread use of no-knock raids. Read his comments section if you want to see zealotry.

    Serious and honest people correct glaring mistakes.

    And stupid (or maybe “right brain”) people don’t understand that they’re mistakes. I submit that his corrections of some mistakes with apparent disregard for Balkobot purity supports my position.

    el duderino (fedc3d)

  25. Balko is a known anti-police activist… and he’s quite strident. To say he’s not a zealot is hilarious.

    TheNewGuy (114368)

  26. Yes, police are the only unionized bureaucrats exempt from criticism. Thanks for pointing that out NewGuy; I’m composing an e-mail now to my old 11B buddies so they know that there’s job opportunities that don’t have those pesky AAR’s.

    el duderino (fedc3d)

  27. dude,

    I agree with your original idea, that Balko’s repeated and extreme mistakes are so corrosive to his reputation that they are best explained by Balko just plain being an idiot.

    Yet the additional fact that he reacts to criticism with slimy defenses and outright hostility is best explained by him being dishonest. He knows he’s been caught wrong many times. He may have been to stupid to see it when he first wrote the story… I think that’s a human error many have made. But when it’s brought to his attention repeatedly, his reaction just doesn’t come across as a buffoon.

    And these are real people he is always calling out. He has a responsibility to get the facts straight. If he’s not up to it, he should at least have the decency to find a new shtick.

    Personally, I found him to be very persuasive with a powerful message about a horrible problem. Until I realized he was a liar. Which is a damn shame if he’s sincerely worried about these abuses, which do occur and should be discussed by someone smart and honest.

    Dustin (b54cdc)

  28. If we could get back to the underlying subject matter, maybe our host can clear up my confusion — would an allegation of a Brady violation, in our host’s view, be sufficient to overrule the time limit (at least until the validity of the allegation of the Brady violation can be reviewed by a court of competent jurisdiction)?

    Joel Rosenberg (af4c4a)

  29. I pointed this out in the comments to Balko’s post soon after it went up. It was a strikingly inaccurate claim.

    –JRM

    JRM (3256a8)

  30. Joel:

    Typically, you’d have to show a Brady violation and that the Brady violation was such as to cast doubt on the conviction. But if you find a Brady violation 10 years later which casts doubt (hey, they did the DNA tests and it wasn’t the dude they convicted) the discovery is typically what starts the clock.

    The case law is clear – including this one – that if the government cheats as by hiding exculpatory evidence – that’s going to toll the statute.

    –JRM

    JRM (3256a8)


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