Patterico vs. Balko

From Patterico's Pontifications, Patterico looks at the misrepresentations in Radley Balko's recent tirade:

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.

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.

Balko has written a number of pieces exposing police and prosecutorial abuses. I've seen a couple of follow-up pieces giving "the rest of the story", and I'm beginning to think Balko is to police misconduct as Terry Karney is to torture.  Both see the object of their fixations where it doesn't necessarily exist.