I get the distinct impression that Patterico doesn’t care much for Radley Balko.  I also get the distinct impression that he couldn’t care less about me.  Why?  Why is Balko worthy of hatred and vitriol, but me, I’m the dirt under his Patterico boots.  I feel so, so, used.

Patterico is busy trying to beat up on Radley. In the process, he pulls a quote from me that Radley used in one of his posts.

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.

Not even a link. Nothing.  Damn you, Patterico.  No love at all.  The problem, for me at least, is that he’s going after Balko for something I wrote.  How humiliating.  Am I not worthy of scorn?

But Patterico’s less then enthusiastic love of Radley has colored his reading.  I wrote that even where the statute runs due to, inter alia, concealment of evidence by the government, the defendant is screwed.  Patterico replies that the 9th Circuit decision in Lee v. Lampert “itself explains, government concealment of evidence is a statutory exception to the statute of limitations.”

Well, no.  Patterico, were he to knock off Alex Kozinski, might hold that, but the statutory exception which he first claims, but later extrapolates, to match his definition, is that which excepts “state impediments.”  While Patterico might believe that all government concealment should fall under that exception, Kozinski remains alive and well.  That’s problem number 1.  By the way, I’m all for Patterico’s definition.  If only he could convince the federal judiciary to join him in a rousing chorus of Kumbaya.  Alas, what’s obvious to Patterico remains elusive to judges, and therefore, defendants.

Second, there are a wide variety of government concealment issues, ranging from Brady non-disclosure to perjury to junk science and the like, that are best described as “soft issues,” in that they are interpretive.  State impediment issues generally refer to legislative, regulatory and administrative matters that prevent a defendant from getting to the church on time. 

Because I’m a criminal defense lawyer, I view the prosecution’s failure to turn over Brady material as government concealment.  A prosecutor would likely see it as an interpretive issue, whether it is Brady and whether it’s sufficiently material to require the turnover.  Some would say reasonable minds may differ. I don’t, but then it might be because Brady is the best joke Wild Bill Douglas ever came up with.  Now it’s possible that Patterico will agree with me wholeheartedly, that Brady should be disclosed, that the failure to do so is government concealment and that it should be part of the state impediment exception.  Are you with me, Brother Patterico?  Are you?

Unfortunately, I just don’t get to make this stuff up in the meantime, much as I would love to.  I’m no political pundit writing under a pseudonym trying to nail my political nemisis to the wall.  Heck, I’m just a trench lawyer who watches concealment of evidence, perjury and junk science used all the time to convicted the guilty and innocent alike.  I know it’s embraced by the courts, because it makes cases go smooooooth.  I know that it will never fall within the state impediment exception because, unless and until it’s conclusively revealed and put to good use, it doesn’t give the appearance of being much of an impediment at all.  If a court hasn’t held that concealed evidence was in fact concealed, then the argument wouldn’t even be addressed, no less upheld. 

It’s just another day in the trenches. 

So Brother Patterico, don’t blame Radley Balko for quoting me.  He just thought my trench lawyer notions were sufficiently credible to repeat (with a nice link, I might add).  Fellow criminal defense lawyers will likely understand exactly what I’m writing about, and agree without reservation.  You don’t.  You can’t see me right now, but I’m making a sad face. 

And I agree with you, Brother Patterico, that all government concealment should fall within the state impediment exception.  If only that were the case.  Until then, let me be worthy of your scorn and a couple thousand of your words.  After all, those were my words you went after.