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