Balko Corrects Error; Makes New One
Radley Balko is correcting his mistake in attributing a quote to the Supreme Court that actually came from a Court of Appeals decision. But in correcting the error, he makes another — implying that the Supreme Court’s failure to reverse the Court of Appeals decision somehow means that the Supreme Court approves of it (or at least didn’t strongly disagree with) the lower court’s holding:
In fact, the case was decided in the D.C. Court of Appeals (though the Supreme Court apparently didn’t object enough to review it).
Balko’s implication is based on a commonly held but entirely erroneous belief that the Supreme Court’s refusal to take a case signifies approval of the reasoning and/or the result. This is most assuredly not the case.
As this link explains, review in the Supreme Court is a matter of judicial discretion. The Supreme Court exists,
not to correct errors in lower court decisions, but to decide cases presenting issues of importance beyond the particular facts and parties involved. The Court grants and hears argument in only about 1% of the cases that are filed each Term. The vast majority of petitions are simply denied by the Court without comment or explanation. The denial of a petition for a writ of certiorari signifies only that the Court has chosen not to accept the case for review and does not express the Court’s view of the merits of the case.
The Supreme Court’s decision not to review the Court of Appeals case cited by Balko does not in any way constitute agreement with the case, and Balko is wrong to imply otherwise.
P.S. Xrlq tells me that the case Balko quoted held against jury nullification — so even if Balko’s bogus “denial of cert. equals approval” principle applied (which it doesn’t), that would argue against Balko’s view and not for it.
Yeah, he made a mistake. Kill him.
[And here I thought I simply observed the mistake. — P]
BlacquesJacquesShellacques (83acf5) — 8/25/2006 @ 6:43 pmI’m an occasional reader of your blog. I also read Radley Balko’s blog. I may have missed some more niggling and nitpicking entries over the years, but this one seems to be extreme and unusual.
You complain of Balko’s statement:
You say
Yet what you say he said is not what he said at all.
He said that the court
That’s a far cry from saying the court approved of it. Presumably the court would have reviewed the decision if it had disapproved strongly enough.
That is all that Balko said. He didn’t say that the court approved, only that the court didn’t disapprove sufficietly to review it. It is one thing to disagree with an opinion of what the law is or should be. It is another to interpret his words to mean something other than what he actually said.
I really don’t understand why you have devoted so much time and blog space to such a tempest in a teapot. I’d really rather read something of substance than a fight over such a minor misunderstanding.
[This does have to do with substance, and it is not a “misunderstanding.” You say: “Presumably the court would have reviewed the decision if it had disapproved strongly enough.” Evidently you missed both the P.S. (which I published at the same time as the main post) and the point of the post, which is that denial of cert. says absolutely nothing about the Supreme Court’s view of the merits. The Court might STRONGLY disagree with a holding, or with language in a decision, and still not review the case. You still seem not to grasp this, nor does Balko. It’s a common mistake, and it is a mistake of *substance* that I don’t apologize for raising. — P]
Sometime Reader (aef018) — 8/25/2006 @ 6:56 pmSo you’re telling me that statistically there was only a 1% chance the Supreme Court would take this case and that Balko is using the fact that they didn’t to indicate that they agree with him?
That’s not honest.
Chris from Victoria, BC (9824e6) — 8/25/2006 @ 7:11 pmThe link you cited is for indigent appellants. Why not go directly to the rules where it becomes clear that the court takes on the cases it wants.
You want to pile on Balko, it’s assuredly your site, your dime. I read you. I read him.
len (ab9696) — 8/25/2006 @ 7:12 pmSo you’re telling me that Patterico’s statistics were full of crap, len?
Chris from Victoria, BC (9824e6) — 8/25/2006 @ 7:17 pmIf he just kept his mouth shut he would,nt be always sticking his foot in
krazy kagu (52a738) — 8/25/2006 @ 7:25 pmYup, that’s what he’s telling you, all right, but in fact he was being too generous. As best I can determine, Dougherty was never appealed the Supreme Court in the first place, so love it or hate it, there was only a 0% chance the Supreme Court would take the case.
The bigger issue, IMNSHO, is that Radley took one solitary sentence out of context to make a fundamentally anti-nullification decision look as though it said precisely the opposite of what it actually did say. Even the paragraph that sentence was yanked from sounds a lot less pro-nullification when read in its entirety:
Imagine how badly national debate would deteriorate if everyone played by Radley’s rules. Suppose, for example, that an abortion opponent were to claim that the Supreme Court supports his anti-abortion views, having written the following in 1973:
I’ll give you three guesses as to which 1973 case that paragraph was taken from, and the first two don’t count. I will give you one clue, though: unlike Radley’s Supreme Court case, this one really was handed down by the Supreme Court.
Xrlq (c70197) — 8/25/2006 @ 8:26 pmI just can’t find in Balko’s words what Patterico got out of them. Balko writes, “apparently didnt object enough to review it”. Patterico hears: “signifies approval of the reasoning and/or the result.” That’s simply not the same. We can at least infer that the court did not find the issues involved of sufficient importance to warrant a review. From my reading of Balko in plain English, that’s all he intended to say.
In short, there was no mistake or misrepresentation. Patterico’s “correction” didn’t tell me anything that contradicted what Balko wrote.
[He said: “I mistakenly refered to the opinion in U.S. v. Dougherty as a Supreme Court opinion. In fact, the case was decided in the D.C. Court of Appeals (though the Supreme Court apparently didn’t object enough to review it).” To me — based on the use of the word “though” — he is implying that the Supreme Court didn’t have a big problem with the *content* of the lower court ruling. It seems like a partial defense of his mistake — as if he were saying: “I got the court wrong, but if the Supreme Court really had a problem with it, it could have reversed. So I guess the Justices were good enough with the lower court ruling.” But failing to take a case says *nothing* about how the Supreme Court ruled. (Btw, the Court doesn’t just take cases to reverse; it affirms cases too.) And as I said in my P.S., the case’s *holding* is actually anti-nullification, so even if Balko’s “failure to review equals some level of acquiescence” principle applied, it would be acquiescence in an anti-nullification holding. The Court doesn’t take cases to correct dicta.
Now, that’s how I read his comment. You read it as saying, in essence: “I mistakenly refered to the opinion in U.S. v. Dougherty as a Supreme Court opinion. In fact, the case was decided in the D.C. Court of Appeals, though the Supreme Court didn’t find the issues important enough to review.” Huh? The word “though” is out of place there. — P]
Bradley J. Fikes (f912b4) — 8/25/2006 @ 8:28 pmXrlq,
You posted just before I did. If Balko did indeed misrepresent the decision, that of course changes everything. Some weekend reading for me ahead.
Bradley J. Fikes (f912b4) — 8/25/2006 @ 8:30 pmWell, it didn’t take that long. Balko got the decision totally wrong. Took me just 15 minutes of Googling to find out the answer. Balko needs another correction, although not the one Patterico suggested.
Bradley J. Fikes (f912b4) — 8/25/2006 @ 8:56 pm“I don’t think the error does much to undermine the larger point I was making in citing that case — that the founders intended for nullification to be part of our criminal justice system, and that it has a long tradition both in U.S. courts and in English common law.”
The above was Balko’s remark in his correction of his earth shaking error. Looks O.K. to me.
The paragraph that Xrlq quotes in comment #7 comes accross as sensible pro-nullification to me. Does Xrlq expect us to not read what he quotes? Sure, just take his word for it.
RJN (e12f22) — 8/25/2006 @ 9:43 pmBalko didn’t get the substance of Dougherty wrong; that case does stand for the proposition that jury nullification can be a good and valid practice. The court merely stopped short of holding that the court should instruct the jury on nullification. But it did accept and endorse the concept. As Dave Kopel (who writes at Volokh and I believe teaches law at NYU) puts it in an article for the Colorado Judicial Review Project, Fully Informed Juries:
Kopel offered that in support of his own pro-nullification piece, in which he goes on to write:
A three minute goggle found tons of sources citing Dougherty as standing in favor of jury nullification. Balk is righteous on that.
Mona (38e839) — 8/25/2006 @ 10:16 pmThe question to be decided was whether a jury had a right to be instructed in nullification. The court said no. That’s the crucial fact those who wish to interpret the decision as favorable to nullification overlook. The pro-nullification forces in the case lost. Balko was inaccurate in stating otherwise.
[And the Supreme Court doesn’t take cases to correct dicta. — P]
Bradley J. Fikes (f912b4) — 8/25/2006 @ 10:58 pmInteresting.
I thought when the SCOTUS declined to review a case their acquiescence in the decision was at least implicit. I didn’t know it worked they was you describe Patterico – thanks for the info.
[It’s a common misconception. The Supreme Court takes several dozen cases a year and that’s it. The Justices leave standing scads of poorly reasoned and incorrect decisions. — P]
Dwilkers (a1687a) — 8/26/2006 @ 6:28 amThe pro-nullification forces in the case lost. Balko was inaccurate in stating otherwise.
Except he didn’t.
In Balko’s original column he wrote this:
And they are, as the Dougherty case supports.
Citation to Dougherty for the proposition that jury nullification is a respectable doctrine in American law is common — and one of those doing so, David Kopel, is hardly a fool — and not remotely confined to Radley Balko.
[My point is that, despite Balko’s implication to the contrary, the Supreme Court’s failure to take the case (whether it was appealed or not) means *nothing* — not support of (or disapproval of) the anti-nullification holding *or* the pro-nullification dicta. — P]
Mona (edf71a) — 8/26/2006 @ 6:52 amHowever, when Balko wroite this:
He betrays a misunderstanding of SCOTUS cert denials common to non-lawyers. That Court receives something like 5K applications for review each year, and accepts about 150-200 of them.
It is a matter of strict triage, dictated by stretched judicial resources. Unless a case involves issues of crucial and burning importance, and especially when there is also a split among the circuits, denial is otherwise very likely — regardless of whether the justices love or hate the holding below. Reading much of anything substantive into a cert denial is usually a mistake. I’ve had occasion in several (different) contexts to insist on that very point.
[Thanks for acknowledging that. You’ll note that I didn’t blast Balko for this, as some of the commenters imply. I simply noted the misconception, and allowed that it is a common one. — P]
Mona (edf71a) — 8/26/2006 @ 7:00 amBalko did more than merely cite Dougherty as evidence that “jury nullification is a respectable doctrine in American law.” He said the decision upheld nullification:
In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that “juries are not bound by what seems inescapable logic to judges.” And in 1972, that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”
In point of fact, Dougherty revolved around the question of whether a jury had a right to be told about nullification. The court majority said no. IANAL, but I interpret the verdict as giving the pro-nullification party some nice verbiage as a consolation, while the anti-nullification party got the decision it wanted. (I think there is a legal maxim on this point). Which would you rather have — the language or the decision?
Bradley J. Fikes (f912b4) — 8/26/2006 @ 7:09 amMr. Fikes: The issue of jury instructions is separate from what a jury is entitled to do. The Dougherty case ruled that the jury need not be instructed in its right to nullify, but also did not condemn that, on its own, the jury could. So Balko (and Kopel and legions of others) is not wrong that the Dougherty court embraced the doctrine of nullification; it simply ruled as to whether that doctrine — which it did not reject — needed to be included in the judge’s charge to the jury. IOW, the doctrine lives, even if it need not be incorporated in instructions to a particular jury.
Proponents of jury nullification seek to educate the public that it, as the pool from which jurors are drawn, do have this right. Opponents find such projects alarming, but Dougherty supports that jurors have the very right of which the nullification missionaries are infroming potential jurors.
Mona (edf71a) — 8/26/2006 @ 7:26 amMona,
The issue of jury instructions is separate from what a jury is entitled to do. The Dougherty case ruled that the jury need not be instructed in its right to nullify, but also did not condemn that, on its own, the jury could.
The bottom line is that the decision weakened nullification. It’s hard to exercise a right if you don’t know about it. The way Balko characterized the decision was misleading, and that is what I am objecting to.
[I think it’s wrong to call it a “right.” A jury has the power to nullify, simply because not-guilty verdicts aren’t reviewable for any reason. But they don’t have the *legal authority* to nullify, and in fact they are explicitly instructed that they must follow the law.
Maybe the guy who stole my money will give it to the poor (yeah, right), and can therefore rationalize the act. And he has gotten away with it. But his ability to rationalize the act and get away with it doesn’t mean he had legal *authority* to take it from me. He had the *power* to do it. That doesn’t make it a “right.” The analogy is imperfect because we have set up the system so that nullifying jurors can’t be caught, whereas thieves can — but that doesn’t change the fact that jurors are legally required to follow the law. — P]
Bradley J. Fikes (f912b4) — 8/26/2006 @ 7:48 amI think you’re not being correct in calling it an error. You said the statement:
“though the Supreme Court apparently didnt object enough to review it” is incorrect. When publicly calling someone on an error, it should be an actual error, not something where you disagree with a nuance on what you think it implies.
On a second note, to address your later comment that a jury does not have the legal authority to nullify, I’ll argue that when there’s clear precedence that jurors can’t be punished for whatever thought-processes were behind their verdict, it is clear that they have the legal authority to acquit for any cause they see fit.
[I refuted your argument in a February 2003 post, and you didn’t object enough to leave a comment then.
See? I just erroneously implied that 1) you saw my post in 2003 and 2) commenters’ silence is acquiescence in my pronouncements. — P]
GS From FL (efd484) — 8/26/2006 @ 11:18 amThis is a tempest in a teapot, no doubt, and Radley Balko is essentially correct in what he said; however, I will go a bit further and remark that Mona may well be wrong in comment #16 above.
If SCOTUS was convinced (enough members) that jury nullification was a fundamental wrong they might have intervened.
They select cases for review that illuminate important areas of law, and if they felt that nullification was importantly misrepresented in Dougherty they, more likely than Mona thinks, would have intervened.
[Balko was wrong; at least his clear implication was. Mona was right. — P]
RJN (e12f22) — 8/26/2006 @ 1:08 pmRJN, SCOTUS cannot simply just “intervene” in a case. Before SCOTUS can even decide whether to consider the merits of a case, a petition for cert. has to be filed by one of the parties. After a cert. petition is filed, it must be approved by at least four Justices, or else denied. If Xrlq is correct in stating in comment #7 that no cert. petition was filed in Dougherty, then SCOTUS never even had the opportunity to decide whether to decide. It all comes down to the same fact that Patterico and others have been reiterating all along: nothing about the Justices’ opinions on jury nullification can be inferred from the lack of SCOTUS review in Dougherty.
Jon C. (b162bd) — 8/26/2006 @ 1:34 pmMona:
Ah, but he did. The point of the original article was to show how the Supreme Court – or at least the D.C. Circuit – recognizes jury nullification as a right, not merely as a form of jury misconduct that the law cannot rectify. If the original article weren’t misleading enough, the correction certainly was, as has Balko’s non-point about the Supreme Court not seeing fit to review a case no one appealed to it seemed to be that there was something FIJA-related in the decision for the Supreme Court to have reversed, had it been so inclined. In fact, the majority opinion was a scathingly anti-nullification ruling, though the defendants did prevail on other grounds (right to proceed pro se). Here’s a sampling of this allegedly pro-nullification opinion:
The closest the court came to legitimizing jury nullifications (as opposed to merely noting their inevitability), was this:
Xrlq (599259) — 8/26/2006 @ 2:46 pmNext up, let’s watch as Patterico proves that the slightly out of date milk in his fridge is really a secret plot to poison him! Film at 11! Everybody, this is really important! Watch!
(For the record, I do agree that Balko shares a common misapprehension about SCOTUS. I think the impulse behind this post is similar to the one behind a class clown being proven demonstrably wrong about a taunt leveled at another student, and then immediately shifting to a taunt about the victim’s name. Classy.)
[It’s exactly like that! Except that I wasn’t shown wrong about anything, and I simply pointed out, without mocking Balko, a substantive error he had made. Writing one blog post is not making a huge deal out of the error, and I didn’t jump up and down and scream about it.
Other than that, you nailed it. — P]
fishbane (3389fc) — 8/26/2006 @ 3:23 pmTakes his foot out of his mouth only to reinsert it again what a pathetic fool
krazy kagu (956b5b) — 8/26/2006 @ 4:35 pmYour leading statements hinting that Balko is generally unreliable because he failed to swiftly make a correction (which he claims he didn’t see, and I see no reason to doubt him) on a technical mistake, combined with your apparent glee at pointing out that he shares a misconception common to nonlawyers, leads at least this reader to think that, just maybe, you have an ax and a grindstone, and think that employing them together is a good idea. I generally support attacking the idea, not the person.
[Actually, Xrlq provided almost definitive proof that he *did* see the complaint about his error — and Xrlq has documented other instances of Balko making errors and failing to correct them. Despite all this, I stuck to substance in my latest criticism. Your statement that I showed “apparent glee” in making that criticism is completely baseless. It says much about you, and zero about me. — P]
fishbane (3389fc) — 8/26/2006 @ 4:41 pmI think both you and Xlqr are parsing, not reading. But I doubt my words will have much impact. I give up. Have fun.
[Your words will have impact when you make sense. — P]
fishbane (3389fc) — 8/26/2006 @ 6:08 pmPoor Radley, happy Radley. All he ever wanted was a little respect for juries. What he now has got is a demonstration, in the comments of Xrlq and the interjections of our most excellent host, of why this stuff of freedom is way too important for lawyers.
I have never had a bad result when I used a lawyer in business, or in home buying. God bless; freedom, however, is for us to worry about and look to.
[The jury nullification issue is old. What happened here is that Balko blew a gasket because I noted in a blog comment that he had been inaccurate. The current discussion is simply about accuracy. It’s important even for people whose views you agree with. — P]
RJN (e12f22) — 8/26/2006 @ 6:43 pmLike I said, kill him.
And I’m not too fond of the other long winded posters whose main objectives seem to be hair splitting and giving offence.
Do you lawyers ever listen to yourselves?
BlacquesJacquesShellacques (83acf5) — 8/26/2006 @ 8:46 pmBlacquesJacquesShellacques, if it is “hair-splitting” to point out that someone has misrepresented a case to make it sound as though it said precisely the opposite of what it really did say, then the hell isn’t hair-splitting in your book?
Xrlq (599259) — 8/26/2006 @ 9:29 pmOne last comment (I confess, I was watching). XRLQ, Patterico (Sorry, XRLQ, I got your handle wrong before) Riddle me this: Up or down: do you support jury nullification?
[That you have to ask proves you didn’t follow the link to my original post from months ago pointing out Balko’s error. Follow that link and you’ll have your answer. — P]
fishbane (3389fc) — 8/26/2006 @ 9:56 pmxrlq (and Patterico):
Even if Balko did it there’s a time to shut up and it’s long past. God grant us peace, you and Balko are essentially on the same side. What the bloody blue blazes are you doing energizing a feud?
I know Patterico is a lawyer and I guess from the ‘Damnum absque’ blah blah that xrlq is too. Do you people not understand why you are often despised?
Please just kill him, then me.
[Translation: don’t ever, ever point out an error by Radley Balko. Which is all I did. — P]
BlacquesJacquesShellacques (83acf5) — 8/26/2006 @ 10:28 pmIt would improve public discourse no end were people taught how to say what they mean.
Alan Kellogg (942921) — 8/26/2006 @ 11:13 pmFishbane, I oppose jury nullification. More than that, I oppose making inaccurate statements, resisting corrections, lamely claiming you never knew about the errors, and then correcting only the minor error (which court ruled on the case) while ignoring the major one (which way the court ruled on the issue in question) and trying so hard to minimize the one error you do acknolwedge that you introduce yet another (making an issue of the non-issue that the Supreme Court didn’t take a case that probably was never appealed to it at all, and would have faced roughly 1% odds of review if it had been). Show me a guy employing the same tactics on my side of the issue, and I’ll come down just as hard on him.
Xrlq (599259) — 8/27/2006 @ 6:47 amHow about “Balko made an error, but we know him to be basically a good man and we hope he will reconsider and retract” which seems better to me than “Balko lied, bloggers died”.
It was an error, you pointed it out and you should. No complaints about that.
But we are not left wing shriekers here. Civility. Tone. Manner. I’d say the same to Balko, but he has no comments.
Let me be clear – your blog is in my top 5. Mostly brilliant work. Same for Balko, the lying bad mouth evil schweinhund libertarian.
[I don’t really know him to be a good guy because I don’t regularly read him, just as I’m certain he doesn’t regularly read me. He used to be in my first-tier Bloglines list, but I found I wasn’t interested by what he writes about. That’s fine — as I say, I’m sure he feels the same about me. So I see his posts generally only when he is cited by someone I *do* read, like Xrlq.
The absolute worst I said about Balko is that I double-check the facts when he’s making the assertions. I said that in a relatively non-prominent place: a blog comments section. (And I had a reason to say it.) I know it’s fun to exaggerate what I said into some no-holds-barred attack, but your gross exaggerations are not only ridiculously nondescriptive of what I’ve written, they also do nothing to prevent the feud you claim you don’t want to see. You’re like a bystander to two guys squaring off who says: “Did you hear him? He called your mother a whore!” when nobody said anything of the sort — and then you bemoan the possibility of the fistfight you are trying so hard to cause.
He chose to write a whole post about my blog comment — and to engage in a screed questioning how I do my job. That was uncalled-for. I haven’t heard you say a word about that. How do you feel about that? Even if you don’t want to answer that, please stop serially exaggerating what I said about Balko. — P]
BlacquesJacquesShellacques (83acf5) — 8/27/2006 @ 7:57 amTrouble is, we don’t know Balko to be a good man. We know him to be one who makes little effort to get his facts right before asserting them, and less to correct his errors after the fact. This is not the first time he’s pulled this stunt, and I have little reason to believe it will be the last.
He has plenty of comments of his own, he just doesn’t allow others to post comments or even trackbacks on his blog. Between that, not reading most of his email, ignoring the substantive arguments from comments he does read on other blogs, and calling people nasty names for pointing them out, I’m not sure the guy even wants to be accurate. He seems to be one of those ideologues who thinks his ideology is so inherently right that he shouldn’t have to be bothered with such pedestrian nuisances as … um … facts.
Xrlq (599259) — 8/27/2006 @ 11:42 amXrlq: You are infernally wrong, and so peevish – may I mention insular – in your treatment of Radley Balko’s minor error.
Now we discover that you oppose the right of the people of a jury to nullify a wrong or unwholesome prosecution. Wasn’t the Magna Carta about stuff like this? I think so. The right to nullify has been jake for juries since ? can it be? 1215.
Nobody has argued that a judge must notify a jury of it’s right to nullify. That would be prejudicial; we understand, please. But when you say a jury should not have the right to nullify, I hear boots on the pavement.
RJN (e12f22) — 8/27/2006 @ 4:17 pmSounds like someone just bought a new thesaurus. In any event, if portraying Roe v. Wade as an anti-abortion decision is your idea of a “minor” error, I’m not sure dialog with you is going to be very productive anyway.
Xrlq (e7740a) — 8/27/2006 @ 7:10 pmWhat’s another word for fun?
RJN (e12f22) — 8/27/2006 @ 10:13 pmNobody has argued that a judge must notify a jury of it’s right to nullify. That would be prejudicial; we understand, please.
Uh, jury notification was precisely the issue at question in Dougherty. It would have been unrealistic to expect nullification could have been thrown out in that decision, because there was Supreme Court precedent allowing nullification. But Dougherty did the next best (or worse) thing. It chipped away at the practical exercise of that power on the grounds it could be abused.
In short, Dougherty was about as unfavorable to nullification as could be reasonably expected from a lower court. Balko misled his readers by omitting this context.
A criminal law class outline summarized the case this way:
U.S. v. Dougherty- nullification power is desirable, but the jury does not have to be told that they have right to nullify b/c explicit instructions invite too much exercise of this power, nullification in extreme cases only.
http://tinyurl.com/gfu68
Bradley J. Fikes (f912b4) — 8/28/2006 @ 6:10 amMy point was that the arguments in this comments section were not, in general, about the notification of juries as to their right to nullify, but were about the right to nullify itself.
Incidently, you make Radley Balko’s case for his remark: “(though the Supreme Court apparently didn’t object enough to review it).” That remark – which started this shebang – is less of an error if SCOTUS is known to be interested in nullification as a right.
For all we know SCOTUS can induce an appeal to itself and might do so if it thought nullification was threatened.
RJN (e12f22) — 8/28/2006 @ 12:17 pm