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Dershowitz Corners Scalia on Death Penalty, Catholic Faith
Over at The Daily Beast, celebrity legal brain Alan Dershowitz tosses a provocative salvo in the direction of U.S. Supreme Court Justice Antonin Scalia. Earlier this week, the Court ordered (PDF) a federal judge to hold an innocence hearing for Troy Davis, a Georgia man convicted of murder and sentenced to death. Since Davis' conviction, a number of eyewitnesses have recanted their testimony, casting new doubt on Davis' guilt.
Joined by Justice Clarence Thomas, Scalia dissented from the order (PDF) arguing that the U.S. Constitution guarantees only a fair trial. Once that requirement has been satisfied, actual innocence is irrelevant, even if you can prove it, even if you're scheduled for execution.
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent.
Scalia made a similar argument in Herrera v. Collins in 1993 (again with Thomas joining him). Though Justice Sandra Day O'Connor wrote in a concurring opinion that a majority of the court held the view that the Constitution doesn't permit the execution of an innocent person, that wasn't the holding in the case, so the Court has never explicitly ruled one way or the other.
Dershowitz begins his challenge to Scalia with a hypothetical:
Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”
Putting the legal issues aside, Dershowitz then gets intriguingly personal. He points to a 2002 essay Scalia wrote for the journal First Things in which Scalia explains that if the Constitution ever contradicted his Catholic faith, he would have no choice but to resign from the Court. Despite the Church's general opposition to the death penalty, Scalia explained, he could justify upholding death sentences because the Church doesn't outright prohibit capital punishment, it merely discourages it.
That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for governor had to promise commutation of all death sentences (most of them would never reach the governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.”
But as Dershowitz points out, to say there's nothing immoral about capital punishment in principle is quite a different proposition than to say there's nothing immoral about upholding the execution of a factually innocent person.
...whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?
I suspect Scalia's answer would be that his only moral obligation as a judge is to ensure that a defendant has been given a fair trial with adequate constitutional protections. Once legal guilt has been established, the moral decision of whether or not to carry out the execution of someone with a strong factual innocence claim falls on the governor or pardon board. Any governor, for example, would of course immediately pardon the man convicted of murdering his still-living wife.
But given the pace of exonerations we've seen over the last decade, subjecting a strong innocence claim to the whims of an elected official or appointed pardon board doesn't feel like a particularly satisfying answer. Derschowitz seems to have cornered Scalia here, though. I'm not sure what other response he could give.
Any Catholic scholars out there want to take a crack?
|8.20.09 @ 1:56PM|#
Scalia is not saying innocent people should be put to death. He
is saying that it is not the Court's job to see that that doesn't
happen. It is the Court's job to see that the guy's procedural
rights were protected. We are supposed to have a thing called an
exectutive and clemency power that is charged with undoing unjust
results.
Sadly, all of our exectutives are elected for being tough on crime.
And the concept that it is the exectutive's job to do something
besides rubber stand court ordered sentences has disapeared. To ask
an obvious question, why the hell are we having an innocence
hearing on this guy when the governor could just pardon him?
The answer of course is that governors, at least in regard to these
matters, tend to be cowardly crap weasels. The system is broke. So
while I sympathize with Scalia's position, it is ultimately an
unrealistic one. And thus a wrong one.
|8.20.09 @ 2:01PM|#
We are supposed to have a thing called an exectutive and
clemency power that is charged with undoing unjust
results.
That's not what clemency is intended for; it's intended for
situations where someone truly did break the law but for whatever
reason punishing them is either unjust or is going to have other
bad effects (think Nixon, Confederate generals, draft dodgers).
It's certainly not a substitute for due process in the judicial
system!
Timmy|8.20.09 @ 2:03PM|#
The constitution does not protect your unalienable rights to life, liberty, or the pursuit of happiness either.
|8.20.09 @ 2:03PM|#
I would note that the Constitution doesn't just guarantee a fair trial, it guarantees that no man will be deprived of, among other things, his life, without due process. I think the due process clause encompasses appeals and habeas hearings, so that it does, in fact, require the Court to overturn convictions obtained at fair trials, based on the merits of the subsequent appeal.
The Angry Optimist|8.20.09 @ 2:05PM|#
Tulpa - tautologically speaking, due process is not impugned
(and this what Scalia is saying) because of facts. You are arguing
that facts outside of the process should dictate what is
and is not due process.
In other words, how would you draft the principle you're trying to
elucidate? "'Actual' innocence will vitiate any fair and honest
proceedings"? That's begging the question.
|8.20.09 @ 2:07PM|#
"That's not what clemency is intended for; it's intended for
situations where someone truly did break the law but for whatever
reason punishing them is either unjust or is going to have other
bad effects (think Nixon, Confederate generals, draft dodgers).
It's certainly not a substitute for due process in the judicial
system!"
It is called clemency and pardon power. Pardons are for the purpose
I describe. It goes back to the English common law where the king
had to approve every sentence. The point of the power is to undo
unjust results. It is supposed to be used. Sadly, it is never or
rarely used.
|8.20.09 @ 2:08PM|#
I'm no Catholic scholar, but given that the Church seems to
consider opposing laws against abortion to be sinful (the reason
given for denying pro-choicers communion), I don't see how one who
stands idly by while a likely innocent person is executed, despite
having the power to prevent this from happening, is not committing
a sin thereby. This would seem to fall under Scalia's promise that
he would resign if confronted with an issue where applying the law
would conflict with his faith.
Not that I want him to resign, cause him being replaced with an
Obama appointee would remove one of the few checks left against
lefty statism.
|8.20.09 @ 2:09PM|#
It's certainly immoral to execute a man that you know to be
innocent. Thus, if the executioner knows that the person on death
row is innocent, he is morally obligated to refuse to cooperate in
his execution.
Scalia's position is a little different. He (probably) doesn't
*know* that the petitioner before him is innocent. And even if he
did, his position is that he isn't obligated to stop the execution
(any more than it's George Bush's job to stop Saddam's executions
of dissidents--no, Scalia didn't say that; I did).
He might believe that if he were a judge in a criminal trial who
knew the defendant to be innocent, he would have a moral obligation
to refrain from imposing the death penalty, even if the jury
delivered a guilty verdict, but in his view an appellate judge is
only supposed to look for legal error, not factual error.
Jesus|8.20.09 @ 2:09PM|#
You have heard that it was said, "AN EYE FOR AN EYE, AND A TOOTH FOR A TOOTH." But I say to you, do not resist an evil person; but whoever slaps you on your right cheek, turn the other to him also.
Mad Max|8.20.09 @ 2:10PM|#
Please - you don't need to be a 'scholar' to see that Dershowitz
is being silly.
Innocent people are being killed in Sudan. Should the U.S. Supreme
Court order a 'humanitarian intevention' to stop the killing? If
the Court refuses to do so, does this prove the Justices to be
callous hypocrites who don't care about human life? Or does it show
respect for the legal limitations on judicial power?
'If it is immoral to kill an innocent fetus, how could it not be
immoral to execute an innocent person?'
Scalia's view on abortion is that, based on the positive law of the
U.S. Constitution, the federal government cannot second-guess a
state's decision either to permit or forbid abortion. In other
words, Scalia may believe in the right to life of the unborn as a
matter of natural law, but as a matter of positive law he believes
that legislating on abortion (one way or the other) is among the
powers reserved to the states or the people under the Tenth
Amendment.
In other words, Scalia has for years held the position that the
U.S. Constitution does not protect innocent babies from being
killed.
It is quite consistent to say that the U.S. Constitution does not
protect innocent Death Row inmates from being killed.
|8.20.09 @ 2:10PM|#
The point of the power is to undo unjust results.
Look, John, if you go around commuting sentences as governor, you
make your prosecutor buddies look bad, and you just can't have
that.
|8.20.09 @ 2:12PM|#
Of course, as Tulpa points out, there's an interesting question whether a judge simply failing to prevent the execution of an innocent man is in a different position from a legislator who simply fails to enact legislation aimed at preventing abortions. Perhaps the difference is that a legislator's job isn't as limited as an appellate judge's.
|8.20.09 @ 2:14PM|#
TAO,
Yes, my argument is a bit vague (though so is the concept of "due
process" itself!). I'd say that if crucial evidence that was used
to convict has been made dubious by some intervening event, there
should be a new trial. That determination should be made by a
court, not by an executive, which is why I prefer re-trial to
outright pardon, which would be much sloppier and have a higher
probability of letting the guilty go free.
The Angry Optimist|8.20.09 @ 2:16PM|#
But, Tulpa, on what basis would you state that the trial court made an error? Not due process. Not under the rules of evidence.
jorn|8.20.09 @ 2:16PM|#
The Catholic church does not recognize any moral obligation to
follow unjust laws. In some case you are morally obliged to break
the law.
You are morally obligated to do what you can to stop the killing of
an innocent man. If that means you need to stretch the meaning of
"due process" to require new trials in some circumstances, even if
it's a legal position you find unpersuasive, that's what you have
to do.
Scalia's moral obligation to protect the innocent is greater than
his obligation to craft consistent legal theory.
|8.20.09 @ 2:19PM|#
Innocent people are being killed in Sudan. Should the U.S.
Supreme Court order a 'humanitarian intevention' to stop the
killing? If the Court refuses to do so, does this prove the
Justices to be callous hypocrites who don't care about human life?
Or does it show respect for the legal limitations on judicial
power?
This is an incredibly bad analogy, Max. Ordering a new trial is not
even remotely comparable to ordering a military campaign.
|8.20.09 @ 2:21PM|#
Whatever happened to the old, "It is better one hundred guilty
persons should escape than that one innocent person should
suffer."
If I believed in hell, there'd be a nice warm spot reserved for
Scalia.
|8.20.09 @ 2:22PM|#
TAO, new trials are ordered in cases of bribery and perjury occurring during the trial all the time. Neither of those is an error made by the trial court, they just reflect the fact that the court did not have the facts available during the trial.
jorn|8.20.09 @ 2:22PM|#
@Mad Max
If it were to make a difference to the outcome of a case, Scalia
would also be obligated to find that killing fetuses is
unconstitutional, despite what he may feel about the 10th
Amendment.
The natural law is more important than constitutional law. The
constitution is just a piece of tissue paper when compared with
God's law.
The Angry Optimist|8.20.09 @ 2:25PM|#
If I believed in hell, there'd be a nice warm spot reserved for Scalia.
Because he won't overturn the rule of law to fit your preferred
outcome?
TAO, new trials are ordered in cases of bribery and perjury occurring during the trial all the time.
That's because the integrity of the process was compromised.
|8.20.09 @ 2:26PM|#
The constitution is just a piece of tissue paper when
compared with God's law.
"Brannigan's God's Law is like
Brannigan's God's love: hard and fast."
squarooticus|8.20.09 @ 2:26PM|#
The problem is that we have a legal system instead of a justice system, the natural result of giving one group a monopoly on justice.
|8.20.09 @ 2:30PM|#
That's because the integrity of the process was
compromised.
Speaking of begging the question...
One could just as easily argue that the integrity of the process,
whatever that means, is compromised by failing to include crucial
evidence. In any case, I don't see how a process without which a
probably innocent person will be executed can be considered not to
be "due" in any meaningful sense of the word.
Mad Max|8.20.09 @ 2:31PM|#
'This is an incredibly bad analogy, Max. Ordering a new trial is
not even remotely comparable to ordering a military
campaign.'
It's a jurisdictional issue - does the court even have the
jurisdiction, under the Constitution or laws, to remedy a given
injustice?
Let's look at the President of the U.S. instead of the Supreme
Court.
Assume that we had a case of an innocent Death Row inmate in, say,
Nigeria or Indonesia. Assume further that it is proposed to
liberate the prisoner with a quick, in-and-out, paratrooper
operation. If the President won't do it, does that mean the
President is a wicked hypocrite who doesn't care about human life
(I mean, he is, but not because of his refusal to send troops). If
he invokes international law (state sovereignty) or separation of
powers (Congress hasn't declared war) to justify his inaction, is
the proper response to say, 'blah blah blah, a true Christian
wouldn't care about such worldly matters'?
The Angry Optimist|8.20.09 @ 2:31PM|#
One could just as easily argue that the integrity of the process, whatever that means, is compromised by failing to include crucial evidence.
If you want to argue "the process failed because the process
failed", feel free. Just don't expect us rule of law folks to get
on board.
Antonin Scalia|8.20.09 @ 2:32PM|#
I've sent a lot of young men to the gas chamber. I didn't want to, I felt I owed it to them.
Mad Max|8.20.09 @ 2:33PM|#
'If it were to make a difference to the outcome of a case,
Scalia would also be obligated to find that killing fetuses is
unconstitutional, despite what he may feel about the 10th
Amendment.'
For the most part, even the pro-lifers who disagree with Scalia and
believe in a constitutional right to life for the unborn, base
their arguments on the 14th Amendment to the Constitution, not a
generalized power of federal courts to enforce natural law.
|8.20.09 @ 2:34PM|#
TAO, if the rule of law requires executing innocent people, who are known to be innocent at the time, fuck the rule of law. Period.
|8.20.09 @ 2:36PM|#
Because he won't overturn the rule of law to fit your
preferred outcome?
TAO, new trials are ordered in cases of bribery and perjury
occurring during the trial all the time.
That's because the integrity of the process was
compromised.
New material evidence overturns convictions all of the time. This
has happened for over a decade due to examining DNA evidence. Are
you saying that the Innocence Project is undermining our criminal
justice system?
Since the theoretical Heaven and Hell don't give two shits about
the rule of law, that doesn't matter. Last I checked, desert gods
aren't too fond of enabling the execution of innocents (unless
personally ordered by said desert god).
The Angry Optimist|8.20.09 @ 2:36PM|#
Guys, John is right here - the executive is morally obligated to pardon "wrongfully" convicted criminals. To argue that, in the face of 'actual innocence', courts have to find error, is to basically undo the criminal justice system. There isn't even an articulatable principle involved here.
|8.20.09 @ 2:38PM|#
If you want to argue "the process failed because the process
failed", feel free. Just don't expect us rule of law folks to get
on board.
If the rule of law requires the innocent to be executed, the rule
of law won't last long in a just society.
The Angry Optimist|8.20.09 @ 2:38PM|#
TAO, if the rule of law requires executing innocent people, who are known to be innocent at the time, fuck the rule of law. Period.
The trial is the purpose in deciding what is known and what isn't.
Again, this is question-begging.
The Angry Optimist|8.20.09 @ 2:39PM|#
If the rule of law requires the innocent to be executed, the rule of law won't last long in a just society.
Innocence is determined at trial! How hard is this to
understand?
|8.20.09 @ 2:39PM|#
There isn't even an articulatable principle involved
here.
I know I'm not the most articulate (or clean) guy around, but
Tulpa | August 20, 2009, 2:14pm | #
....
I'd say that if crucial evidence that was used to convict has been made dubious by some intervening event, there should be a new trial. That determination should be made by a court, not by an executive, which is why I prefer re-trial to outright pardon, which would be much sloppier and have a higher probability of letting the guilty go free.
Tomcat1066|8.20.09 @ 2:41PM|#
Wouldn't witnesses later recanting testimony indicate that the integrity of the process was compromised also? If they recalled events well enough to say "no, that's not what happened, then they weren't telling the truth on the witness stand.
|8.20.09 @ 2:41PM|#
Innocence is determined at trial! How hard is this to
understand?
This is just...wow. Are you saying it's impossible for an innocent
person to be found guilty during a trial which was mechanically
correct as far as procedures go?
The Angry Optimist|8.20.09 @ 2:41PM|#
The rule of law is not just "due process". This likely-innocent person does not have to be executed, if the governor had a conscience. Part of the "rule of law" is "checks and balances", not "let the courts do whatever the fuck they want to do".
The Angry Optimist|8.20.09 @ 2:43PM|#
Tomcat - then get someone to get the ball rolling and file
perjury charges.
Are you saying it's impossible for an innocent person to be found guilty during a trial which was mechanically correct as far as procedures go?
no, but what you're saying is that if we really believe
that someone is innocent, trials don't count.
|8.20.09 @ 2:44PM|#
I don't think due process ends at conviction. Also, it's fairly
common that exculpatory evidence was known by the prosecution (and
sometimes even by the defense) at the time of trial and wasn't
shared, introduced, or allowed into evidence. In such cases, new
trials or even release sometimes result.
It serves no legitimate interest to allow people who are clearly
innocent to be imprisoned or executed. While making a mistake in
truth-finding at trial may not be legal error, allowing an innocent
person to remain incarcerated is a failure in due process. And, of
course, immoral and unjust.
|8.20.09 @ 2:45PM|#
TAO - No, guilt is determined at trial. Innocence is
presumed. At very least introduction of this kind of exculpatory
evidence is grounds for a new trial because it speaks to the
quality of the prosecution's case. IE - If a person is convicted of
a crime based on false testimony the government has failed to prove
guilt.
If your idea of "rule of law" means that even if a person is
conviced based on perjury he just has to deal with the
consequences, well, I can't see how your idea of "rule of law"
actually means anything.
|8.20.09 @ 2:45PM|#
TAO,
Ah. So the principle I and others have articulated is so
deleterious to the rule of law that it shouldn't be exercised by
the courts, but rather by political office holders. As we all know,
it's impossible for the pardon power to be used in a manner
contrary to the rule of law.
|8.20.09 @ 2:47PM|#
no, but what you're saying is that if we really believe that
someone is innocent, trials don't count.
Fuck yeah! You don't believe this, even in the case where someone
is scheduled to be put to death?
answerer|8.20.09 @ 2:47PM|#
TAO, the argument isn't that due process was violated in the old
trial, it's that a new due process right *poof* magically appears
when new exculpatory evidence comes around.
The old trial was flawless, but now something new exists that
didn't exist before, and some rights come along with it.
|8.20.09 @ 2:49PM|#
TAO,
What is your answer to Dershowitz's hypothetical? Execute the guy
with the living wife because the "facts" found by the court stated
that she wasn't alive?
|8.20.09 @ 2:52PM|#
The pardon/commutation power should be exercised very
rarely. It's an utterly unchecked power that is ripe for abuse, and
contrary to my sarcasm above can indeed destroy the rule of law in
the hands of an immoral person (eg, any politician).
It certainly should not be used as a substitute for a new trial,
both for the reason above and because an innocent citizen's life
should never be dependent on the whim of a politician.
d|8.20.09 @ 2:57PM|#
Guys, John is right here - the executive is morally
obligated to pardon "wrongfully" convicted criminals. To argue
that, in the face of 'actual innocence', courts have to find error,
is to basically undo the criminal justice system. There isn't even
an articulatable principle involved here.
Please, don't get all latter-Wittgenstein-ey on us here.
Tulpa's right. There may be some received legal scholarship that
says that the court is a brittle formal system that, if even one
aspect of its well-oiled system of cogs and gears is displaced,
will shatter like a coo-coo clock in a car wreck, but remember:
built into this machine is a back door (or escape hatch) where the
coo-coo [judge in this little parable] has wide latitude to re-hear
or change sentences and rulings of lower court justices.
Period.
Now shut up and stop trying to be amateur logicians in reaching the
conclusion that Scalia's hands are tied and he just can't prevent a
patently innocent man from dying. I wish law schools would do more
thorough background checks on potential students and weed out those
who failed symbolic and mathematical logic courses before trying
their hand at the theatrical logic we call legal
'scholarship'.
There. I feel better now.
thoreau|8.20.09 @ 2:57PM|#
TAO, I am obviously not a lawyer, but my naive, superficial,
uninformed reading of the newspaper tells me that courts frequently
overturn convictions if new evidence comes to light, irrespective
of whether there was a procedural or legal error in the original
trial. It isn't an easy process, but it happens. So either there
really is a lawful, orderly way to examine evidence of innocence
and consequently overturn a sentence, or those judges are a bunch
of lawless activists.
Given that there is a way to examine and act upon strong evidence
of innocence, surely any judge with an ounce of morality in him
(whether your moral standards are religious, secular, Objectivist,
whatever) must have an obligation to act upon strong evidence of
innocence if it is brought before him in the course of his official
duties.
15% of the GDP and Everybody\'|8.20.09 @ 3:01PM|#
"You have heard that it was said, "AN EYE FOR AN EYE, AND A
TOOTH FOR A TOOTH." But I say to you, do not resist an evil person;
but whoever slaps you on your right cheek, turn the other to him
also."
Say...didn't that get you killed?
The Angry Optimist|8.20.09 @ 3:02PM|#
What is your answer to Dershowitz's hypothetical? Execute the guy with the living wife because the "facts" found by the court stated that she wasn't alive?
I never said anything like that. I think that proper checks and
balances mandate the pardon power be used.
I mean, what's next, guys - a new trial if you show up with a fuzzy
picture of a woman who looks like your wife dining in a cafe in
Rio?
Meta4|8.20.09 @ 3:03PM|#
Why no Suderman aticles today? Couldn't he find anything in the media to "sample"?
The Angry Optimist|8.20.09 @ 3:07PM|#
There may be some received legal scholarship that says that the court is a brittle formal system that, if even one aspect of its well-oiled system of cogs and gears is displaced, will shatter like a coo-coo clock in a car wreck
Most law professors don't have any principled stances, so your read
of the legal field is dead wrong.
|8.20.09 @ 3:11PM|#
You are arguing that facts outside of the process should
dictate what is and is not due process.
I don't see how facts that are properly the basis for a habeas
petition or an appeal are outside the process. They are presented
to a court within the established due process framework. Unless a
court rules that they are inadmissable, they are before the court
as part of a judicial proceeding, and thus, ipso facto
part of the process.
I never said anything like that. I think that proper checks and
balances mandate the pardon power be used.
And if it isn't? Are you saying there should be no judicial
remedy?
Meta4|8.20.09 @ 3:13PM|#
"This has happened for over a decade due to examining DNA
evidence."
As we learned here recently, DNA can be scammed.
|8.20.09 @ 3:14PM|#
Imagine, please, that the US Supreme Court does not exist.
Imagine, then, that is is invented, by agreement of the several
states, for some very limited purposes. Imagine further, that the
contradiction of a sovereign state's trial and appellate courts and
the decision of a state's duly elected governor not to commute a
death sentence is not--under this set of circumstances--one of
them.
Your issue would not, then, be with the US Supreme Court, but the
state courts and governors.
It would be no more "moral" or "just" for the U.S. Supreme court to
expand its powers to avert the feared injustice than it would be
for us to form a posse and to break the accused man out of prison.
Conversely, our failure to act as vigilantes under the
circumstances is no less condemnable than Scalia's.
It is worse for a judge to take the law into his own hands than it
is for a regular citizen.
Mad Max|8.20.09 @ 3:17PM|#
Alan Dershowitz lives in a world in which Justice Scalia is clearly guilty of violating Catholic teachings, but there is arguably reasonable doubt as to whether O. J. Simpson committed murder
Meta4|8.20.09 @ 3:17PM|#
"no, but what you're saying is that if we really believe that
someone is innocent, trials don't count."
Isn't that Obama's position on Gitmo Detainees? Sure the court may
find them innocent, but we're keeping them locked up anyway.
The Angry Optimist|8.20.09 @ 3:19PM|#
And if it isn't? Are you saying there should be no judicial remedy?
Was there not a habeas hearing already? What else do you want, for
the judiciary to invent a power because of 'actual' innocence?
|8.20.09 @ 3:20PM|#
But given the pace of exonerations we've seen over the last decade, subjecting a strong innocence claim to the whims of an elected official or appointed pardon board doesn't feel like a particularly satisfying answer.
I agree that there obviously ought to be some sort of
appeals process for when new evidence is discovered, but are the
whims of an elected or appointed judge necessarily better?
This case seems fairly extraordinary. The man in question filed a
writ of habeas corpus directly with the
Supreme Court. He must have some fairly impressive evidence,
because I'm pretty sure that falls into no one's idea of normal
procedure.
Surely you don't think that the Supreme Court should
personally decide every single time when and where a lower
court should review a conviction?
|8.20.09 @ 3:21PM|#
What is your answer to Dershowitz's hypothetical? Execute
the guy with the living wife because the "facts" found by the court
stated that she wasn't alive?
I never said anything like that. I think that proper checks and
balances mandate the pardon power be used.
I mean, what's next, guys - a new trial if you show up with a fuzzy
picture of a woman who looks like your wife dining in a cafe in
Rio?
If a court determines that the new evidence is admissible and
warrants a new trial, yes.
See what RC for example.
|8.20.09 @ 3:24PM|#
Part of his problem is that other people had "abused the system"
by repeatedly filing appeals to get stays even when there wasn't
any new evidence. So Congress then in 1996 limited appeals even
further (apparently the
Oklahoma City bombings were part of the excuse.)
The defendent has already exhausted his allowable appeals, but
apparently convincing new evidence (or recantations) have come up
since then.
The Angry Optimist|8.20.09 @ 3:25PM|#
If a court determines that the new evidence is admissible and warrants a new trial, yes.
The evidence has already been rejected, multiple times.
The Angry Optimist|8.20.09 @ 3:27PM|#
I realized that the facts that were not highlighted earlier are being highlighted by John Thacker - the appeals are over.
Father Guido Sarducci|8.20.09 @ 3:31PM|#
"Isn't that Obama's position on Gitmo Detainees? Sure the court
may find them innocent, but we're keeping them locked up
anyway."
Obama he is a...not a good a Catholic.
jorn|8.20.09 @ 3:45PM|#
@Armchair
It would be morally obligatory for citizens to form a posse and
release an innocent man from jail if it were feasible and did not
lead to worse problems, just as it is morally obligatory to stretch
legal concepts if doing so is the only way to release an innocent
man from jail, if doing so wouldn't cause worse problems.
You are claiming some supra-moral principle that requires that
procedure be followed and legal formalities obeyed. I would submit
that the Catholic church teaches otherwise.
|8.20.09 @ 3:55PM|#
Here's the problem, and we've seen it over and over again.
"Darrell Collins was the star witness for the Chatham County
District Attorney's Office and signed a police statement
implicating Troy Davis in officer Mark MacPhail's 1989
murder.
"I told them over and over I did not see this happen," said
Collins. "They put what they wanted to put in that
statement.""
In a just world, some people from the Chatham County District
Attorney's office would be charged with a crime.
In Scalia's eye, he's guilty. Period. It doesn't matter that the
court accepted a fraudulent claims. The clown is down!!!!
"""Was there not a habeas hearing already? What else do you want,
for the judiciary to invent a power because of 'actual'
innocence?"""
But what should happen when it's discovered that the evidence was
false?
I'm not sure there is any new evidence to prove his innocents, but
there is proof that the evidence which supported his conviction is
false.
Removing a verdict based in false evidence is the right thing to
do. He should be granted a new trial.
Scalia has no problem accepting dishonesty in due process as long
as it's the prosecution. I bet he would have a totally different
attitude if his son was arrested while serving in Iraq or
Afghanistan and receive an equally honest trial.
Kif Kroker|8.20.09 @ 3:56PM|#
"Brannigan's God's Law is like Brannigan's God's love: hard and fast."
*groans*
Quick Quiz|8.20.09 @ 4:06PM|#
"It would be morally obligatory for citizens to form a posse and
release an innocent man from jail if it were feasible and did not
lead to worse problems, just as it is morally obligatory to stretch
legal concepts if doing so is the only way to release an innocent
man from jail, if doing so wouldn't cause worse problems."
Hey jorn! Where should we meet up with you for the Mumia posse?
robc|8.20.09 @ 4:09PM|#
Innocence is determined at trial! How hard is this to
understand?
Bullshit. Trials are for determining guilt. Innocence is the
default condition.
The Angry Optimist|8.20.09 @ 4:19PM|#
anyway, robc, to help you out: a trial is a factfinding exercise
to determine the question "Did X do Y crime, beyond all reasonable
doubt?" If the person is found not guilty, they are
innocent of that crime.
So go be rude somewhere else.
|8.20.09 @ 4:25PM|#
The whole innocence/guilt business is only there to justify
using force to take someone dangerous off the street. Among other
things. We're 99% sure you did it, based on this process we used.
However, if that process proves mistaken--not misapplied but
wrong--due process demands that we have a methodology for undoing
that wrong decision. The pardon power can be used to do that, but
it's also clear that the courts have the power to act.
Incidentally, it's completely unethical and even illegal in some
jurisdictions for a prosecutor to sit on exculpatory evidence, even
post-conviction.
The burden on courts having to hear countless appeals sounds like a
good reason to limit appeals, but most of those appeals are on
matters of law, not fact. To even get a trial requires raising
something material, anyway, so I don't think there's a significant
utilitarian argument against freeing innocent people who were tried
fairly.
The Angry Optimist|8.20.09 @ 4:27PM|#
christ, what's with the pedantry? Yes, he is innocent
of that crime.
And I am glad you brought up OJ: everybody wants this defendant to
have yet another "bite" at vacating his sentence even though,
legally speaking, he's exhausted all of the avenues of approach. On
that note, the state "exhausted" its "bite" against OJ and
lost.
Should the state get another shot at OJ? I don't think so because I
am firm believer in double jeopardy and the defendant should have
the laws in his/her favor (overwhelmingly so), but still...either
you believe that the guy has exhausted his appeals, or you just
want to judiciary to invent yet another power they didn't have
previously.
jorn|8.20.09 @ 4:28PM|#
@TAO
You're wrong. Innocence is not determined at trial. "Not guilty"
does not mean the same thing as "innocent." "Not guilty" is the
legal status, "innocence" is the underlying reality.
OJ was not found "innocent." If he was, the later civil trial would
have been impossible. He was found "not guilty" which leaves open
the possibility of a tort with the lower preponderance
standard.
@Quick Quiz
I'm putting forth the Catholic position, which is that natural law
is supreme.
If it were possible without causing worse problems (it's probably
not) and if he were innocent (he's not) then, yeah, you'd have to
form a posse to free Mumia.
jorn|8.20.09 @ 4:30PM|#
First google hit.
http://www.massbar.org/about-the-mba/press-room/journalists'-handbook/6-not-guilty-does-not-mean-innocent
robc|8.20.09 @ 4:31PM|#
So go be rude somewhere else.
Fuck you. Calling bullshit bullshit isnt rude.
Telling you to go fuck yourself is rude.
Go fuck yourself.
|8.20.09 @ 4:34PM|#
Not that I want him to resign, cause him being replaced with
an Obama appointee would remove one of the few checks left against
lefty statism.
Ahoy!
Is Scalia's "righty" statism preferable?
|8.20.09 @ 4:35PM|#
""Should the state get another shot at OJ?""
If the state could show that OJ used false evidence at trial, then
yes, the original verdict should be vacated and a new trial
ordered. Not that it works that way, but I would support it because
the truth at trial is more important than procedure.
So, what is your idea of remedy when a prosecutor uses false
evidence at trail?
robc|8.20.09 @ 4:37PM|#
Innocence and guilt are absolutes.
We use trials to determine, as best humans can, if someone is
guilty or not, we assume they are innocent otherwise. If they are
found guilty beyond a reasonable doubt, then we tag them as guilty,
whether they are or not. That is about the best humans can hope to
do. The reason we have the reasonable doubt standard is because of
human error. And because of that, we have to consider the
possibility that new evidence that wasnt available at the time of
the trial may become available. Thus, the ability to apply that new
evidence and change the tag from guilty to innocent must, as an
obvious principle, exist.
The same cannot be said for the reverse. We have decided, for other
very good reasons, to not allow double jeopardy. Thus, if later
evidence comes up that proves guilt, it doesnt lead to a 2nd
trial.
|8.20.09 @ 4:37PM|#
Or are you just stick with the idea that it's the executive branch's job to clean up the judicial mess?
|8.20.09 @ 4:40PM|#
TAO,
I recall some discussion about innocent vs. not guilty in law
school. We free people for all sorts of reasons aside from whether
they committed the crime in question. For instance, if evidence is
suppressed due to a 4th Amendment violation and a defendant is, as
a direct result, found not guilty, that doesn't make him factually
innocent; it makes him legally so.
Is the adversarial system the best methodology for getting at the
truth? I'm not sure it is, and we exclude from the jury an awful
lot of evidence on pretty flimsy grounds. Jurors aren't always
competent to judge the evidence put before them, either.
We have some competing interests in all of this, too. We don't want
the state locking up people arbitrarily or without, literally, due
process. We don't want that more than we don't want criminals
walking around free. Historically, anyway. But the desire to have
safer streets and to get justice for victims does require us to
make compromises.
The Angry Optimist|8.20.09 @ 4:41PM|#
saying someone is not guilty of a crime and that they were found
innocent of the crime is the same goddamnded thing. Anyway, you're
not winning any points being an irritating pedant. Only people who
have nothing of substance to say think that some folks at the law
bar have an "interesting" point when talking about "innocence" and
"guilt".
So, what is your idea of remedy when a prosecutor uses false evidence at trail?
They didn't use false evidence!
Tony|8.20.09 @ 4:42PM|#
It is supposed to be used. Sadly, it is never or rarely used.
I'd think as a libertarian you'd be against the one absolute
monarchical power granted to executives in this country.
The Angry Optimist|8.20.09 @ 4:43PM|#
I'd think as a libertarian you'd be against the one absolute monarchical power granted to executives in this country.
That is because you are a moron, Tony-bot.
The Angry Optimist|8.20.09 @ 4:46PM|#
Thus, the ability to apply that new evidence and change the tag from guilty to innocent must, as an obvious principle, exist.
And it does exist - this is what appeals are for.
|8.20.09 @ 4:46PM|#
""""Darrell Collins was the star witness for the Chatham County
District Attorney's Office and signed a police statement
implicating Troy Davis in officer Mark MacPhail's 1989
murder.
"I told them over and over I did not see this happen," said
Collins. "They put what they wanted to put in that
statement."""""
So that's not false evidence in your book?
Seven of the nine state witnesses recanted their testomony.
"""saying someone is not guilty of a crime and that they were found
innocent of the crime is the same goddamnded thing. Anyway, you're
not winning any points being an irritating pedant.""
It's not the same, no matter what you want to believe, your failure
to understand that is making you the irrational pedant. But I know
you are way smarter than everyone else here.
The Angry Optimist|8.20.09 @ 4:50PM|#
It's not the same, no matter what you want to believe, your failure to understand that is making you the irrational pedant
By all means, illuminate the difference between "He was found
innocent of the crime" and "He was found not guilty of the
crime".
Go ahead - I'll wait.
So that's not false evidence in your book?
why should it be? On the say-so of a witness? I'm just asking: why
is it that you would assume that the evidence was falsified?
|8.20.09 @ 4:51PM|#
Scalia's point of view rests on the fiction that the court is
merely an umpire, and it is the jury of one's peers that decides
guilt or innocence. All the government (i.e., court) can do under
the Constitution is make sure the trial is fair. Actual innocence
is for others to deal with.
Of course, that's not really how courts function these days. And
Scalia is, in essence, saying that courts can do the damage, they
just can't undo the damage they've done. BS, Nino.
thoreau|8.20.09 @ 4:55PM|#
saying someone is not guilty of a crime and that they were
found innocent of the crime is the same goddamnded thing. Anyway,
you're not winning any points being an irritating
pedant.
In terms of the practical effect on the defendant you may be right.
But the difference is not just pedantic, it actually reflects an
important point about burden of proof. If the jury did not find
enough evidence to find him guilty, it means that the prosecution
failed to prove its case. That's different from being found
innocent. If neither innocence nor guilt has been proven beyond a
reasonable doubt, the defendant goes free. He is not found
"innocent" because innocence has been proven, but they do not
return a verdict of "guilty" because that has not been proven.
The Angry Optimist|8.20.09 @ 4:56PM|#
Lamar - so, what's the answer? Dispense with the jury
trial?
Legal "fictions" are all we have: to say that because a court
wields much power over a trial is to speak a pragmatic truth. To
say that it should be the sole arbiter of that truth, without a
jury, is something else.
The Angry Optimist|8.20.09 @ 4:58PM|#
He is not found "innocent" because innocence has been proven
Um, again, how is that a substantive difference? If the jury said
"we, the jury, find Smith innocent of the crime of murder", is that
somehow not reflective of the truth?
Let's save the "meta-innocence" talk for religion class.
jorn|8.20.09 @ 5:01PM|#
TAO, am I being an irritating pedant to point out that you, TAO,
have no idea what you're talking about?
"Innocent" implies that the defendant has proved something. But
defendants have no burden whatsoever. A defendant can produce no
evidence, and call no witnesses, and be "not guilty." It would be
absurd to say that this means he's been found "innocent." It just
means that the prosecution didn't meet his burden.
Also, while a defendant can't be re-tried, a "not guilty" verdict
is not binding on the state as to whether the guy did it, say, in a
civil proceeding. Yet if "innocence" where a positive finding it
would be.
thoreau|8.20.09 @ 5:03PM|#
They don't have to find innocence. They can be unsure about whether he is innocent or not. They just have to find that they are unable to conclude that he's guilty beyond a reasonable doubt. There is a difference. A finding of innocence could only happen if the defense met a burden of proof. A failure to return a verdict of guilty just means that the prosecution failed to meet its burden of proof. There's an importance distinction between placing a burden of proof on the defense and placing a burden of proof on the prosecution.
|8.20.09 @ 5:03PM|#
"""By all means, illuminate the difference between "He was found
innocent of the crime" and "He was found not guilty of the
crime"."""
I'm not sure it will not matter to you, but I'll play.
Innocent means, in reality, he didn't do it. Not guilty means the
state couldn't prove it's case that he was guilt, thus the term not
guilty. He is innocent until proven guilty, so innocent is the
assumed position. It's the goverment job to prove he is guilty,
failing to do so does not make one innocent.
jorn|8.20.09 @ 5:05PM|#
More clearly: a finding of "innocence," which does not exist,
would be a finding by the factfinder that the evidence shows the
defendant did not do the crime.
A finding of "not guilty" means that the prosecution has not
brought forth evidence that the defendant did the crime.
See the difference?
If not, fuck off. I'll stick with the weight of legal authority and
the centuries long tradition of the common law, instead of some
random internet jackoff.
The Angry Optimist|8.20.09 @ 5:05PM|#
I'm moving on from the pedantry here. Please feel free to craft substantive responses.
thoreau|8.20.09 @ 5:07PM|#
If you consider different burdens of proof to be pedantry then you are the one who doesn't respect the rule of law, not us.
The Angry Optimist|8.20.09 @ 5:09PM|#
oh please. if I know where the burden of proof lies, thoreau. Argue the main point or shut up.
jhn|8.20.09 @ 5:09PM|#
By "moving on from the pedantry," do you mean you are tired of
arguing with people who are smarter and better-informed than
you?
I'd find that tiring, too.
If you can't see how your pathetic tissue of an argument has been
substantively demolished, then you are intellectually dishonest and
hardly worthy of debate.
In fact, the only reason I'm still posting is the sheer sadistic
joy of watching you collapse.
|8.20.09 @ 5:10PM|#
I suppose its only fair, if police find new evidence they can't
take you back to court so if you find new evidence why should you
get another go.
Oh wait, we have numerous exceptions that allow retrials on
completely new evidence. i guess its not so fair after all.
|8.20.09 @ 5:10PM|#
"""I'm moving on from the pedantry here. Please feel free to
craft substantive responses."""
I did craft a substantive response, but much like I expected, you
are willing to ignore it.
The Angry Optimist|8.20.09 @ 5:11PM|#
no collapse - the substantive point, for anyone paying
attention, is whether proof of 'actual' innocence should extend the
powers of the judiciary after all judicial and statutory
protections have already run.
The side issue of "innocent v. not guilty" is a little circus that
has bogged down the discussion.
thoreau|8.20.09 @ 5:11PM|#
Well, you whiny little bitch, you're the one who got going on how there's no difference between "not guilty" and "innocent", so I figured I'd follow the tangent that the thread had taken. And on the topic of that tangent, you're the one who is completely, epically wrong.
The Angry Optimist|8.20.09 @ 5:12PM|#
well, let's get the "Innocence Project" to change its name to the "Not Guilty Project"
The Angry Optimist|8.20.09 @ 5:14PM|#
Yes. New evidence gives rise to new due process rights. End.
Forever and ever Amen, eh?
jhn|8.20.09 @ 5:14PM|#
The "Innocence Project" makes proper use of the term: they only help people they believe didn't actually do it.
thoreau|8.20.09 @ 5:15PM|#
1) The name of a private organization is different from a
distinction in law.
2) An organization can choose to devote its resources to defending
people whom they believe (based on whatever burden of proof they
like) to be innocent.
3) Whatever the organization chooses to call itself, in a trial the
relevant question is still whether is reasonable doubt about guilt,
even if the defendant is represented by somebody from an
organization with "Innocence" in its name.
This shit isn't hard.
jhn|8.20.09 @ 5:16PM|#
Yes. ANY time there is new evidence strongly showing innocence,
forever, there's a due process right to a new fact-finding based on
that evidence.
This concept does no violence to traditional notions of due
process, and it doesn't find an "error" in the past trial. It
vacates it.
The Angry Optimist|8.20.09 @ 5:19PM|#
Yes. ANY time there is new evidence strongly showing innocence, forever, there's a due process right to a new fact-finding based on that evidence.
Ah, that word "strongly" is not a qualifier you included
previously. So, what's the standard (the legal standard - if you
want to craft a federal statute or something, feel free) for
"strongly"?
jhn|8.20.09 @ 5:20PM|#
Oh, and the only reason it's not perjury to plead "not guilty,"
nor a fraud on the court by defense counsel, in situations where
the lawyer and the defendant know full well the defendant did the
deed, is that pleading "not guilty" DOES NOT mean "I didn't do it."
It means "You can't prove that I did it."
Requiring that the prosecution be put to its test is not the same
as claiming that you did not do the underlying act.
jhn|8.20.09 @ 5:25PM|#
The standard would be probably be "clear and convincing."
Preponderance would be too low.
Judges make these kinds of decisions on evidence routinely. You
can't reduce concepts like "more prejudicial than probative" to
anything more than some catch phrases. Eventually, you've got to
trust that judges tend to make good decisions.
English judges invented most criminal law, the law of evidence,
contract law, tort law, etc on a case by case basis. Nothing wrong
with that.
The Angry Optimist|8.20.09 @ 5:27PM|#
fine, jhn - you have your wish in this case. The Appeals Court is going to look at it again. now, what if they uphold the verdict?
The Angry Optimist|8.20.09 @ 5:33PM|#
I sympathize with the emotional idea of "this looks wrong, so we'll send it back over and over again until the 'right' result comes back", but that isn't the law. That is chaotic.
|8.20.09 @ 5:38PM|#
"""no collapse - the substantive point, for anyone paying
attention, is whether proof of 'actual' innocence should extend the
powers of the judiciary after all judicial and statutory
protections have already run."""
It doesn't extend the powers, courts have the power to overturn
verdicts already based on new evidence that supports actual
innocence. But that's neither here nor there for this case since
Davis is not offering new evidence, may be part of his problem.
Davis is claiming the evidence used against him was false. ie, the
DA's office entering things in the statement that the witness
didn't make.
Shouldn't the justice system be able to resolve issues of false
testomony with the executive stepping in? If so, how?
The Angry Optimist|8.20.09 @ 5:41PM|#
Tricky - like I said, how long does this go on? Should it be within the power of a state to declare a case "settled law", or should the federal system get infinite amounts of review on the case?
|8.20.09 @ 5:43PM|#
"""I sympathize with the emotional idea of "this looks wrong, so
we'll send it back over and over again until the 'right' result
comes back", but that isn't the law. That is chaotic."""
This isn't a question of looking wrong, 7 of the 9 witnesses
against Davis have recanted their testomony. One of the other two
witnesses is the other prime suspect. Even at least one of the
jurors are saying they would vote differently if they knew then
what they know now. That's not a small fish, that just smells
funny. It's evidence that the jury reached an improper verdict.
|8.20.09 @ 5:46PM|#
"""Should it be within the power of a state to declare a case
"settled law"""
Sure, but there are always exception, and one should be when 7 of
the 9 witnesses against you recant their testomony, and there is
evidence that the prosecutor interfered with a witness by adding
things to the witness's statement that the witness claims he didn't
make.
The Angry Optimist|8.20.09 @ 5:50PM|#
but there are always exception, and one should be when 7 of the 9 witnesses against you recant their testomony, and there is evidence that the prosecutor interfered with a witness by adding things to the witness's statement that the witness claims he didn't make.
And? What will you say if this additional review does not find
those facts compelling?
MattXIV|8.20.09 @ 6:07PM|#
TAO,
I interpret "due process" as not just meaning any old process, but
a process that does as good of a job as resonably possible of
excluding the innocent from punishment.
If the rules of evidence exclude exculpatory evidence from being
considered, that in and of itself is evidence that the process does
not reach the level of "due process".
If you don't interpret "due process" as including a suitability
requirement, I think you're wrong, but not being swayed in this
case would follow from your premise. If you do think suitability is
implied in it, then what would be better evidence of unsuitable
process than it's capacity for punishing an innocent person when
exculpatory evidence is available?
The Angry Optimist|8.20.09 @ 6:17PM|#
MattXIV - it is not really the rules of evidence that are
keeping this case from getting the outcome that we want. It is the
fact that, at some point, the appeals process is exhausted and the
Supreme Court can look and say "look, there's nothing
unconstitutional here"
I would ask, what amendment to the Constitution would you draft
that would say "'Actual' innocence vitiates a state
conviction"?
d|8.20.09 @ 6:32PM|#
There may be some received legal scholarship that says that the court is a brittle formal system that, if even one aspect of its well-oiled system of cogs and gears is displaced, will shatter like a coo-coo clock in a car wreck
Most law professors don't have any principled stances, so your read of the legal field is dead wrong.
There are some JD/PhD (in philosophy) folks who quibble about such
things. They're a rare breed, but they exist.
|8.20.09 @ 6:32PM|#
Speaking as a non-Catholic who is nevertheless theoretically
superior to the pope, I will cite the first commandment:
"Thou shalt not kill".
Mr. Justice Scalia, if you purport to follow Me, your duty is
clear.
The Angry Optimist|8.20.09 @ 7:13PM|#
you would think Jesus Christ Himself could get Dad's commandments right, but noooo...
thoreau|8.20.09 @ 7:19PM|#
TAO,
He's using the same translation that the Catholic Church uses in
the New American Bible. Obviously the Catholic Church knows far
less about Christianity than you, but such is life.
thoreau|8.20.09 @ 7:31PM|#
BTW, whatever you might think about the Catholic Church, since the topic here is Scalia and what he believes about religion, the translation authorized by the particular religious denomination that Scalia is a devout member of is more relevant than the translation that you prefer.
|8.20.09 @ 8:29PM|#
The NAB is the version used in the Catholic liturgy in the United States, but hardly the "official" Catholic bible. In other English-speaking countries, different versions are used, and the English translation of the Catechism of the Catholic Church uses the Revised Standard Version for biblical quotes.
Space Thoreau|8.20.09 @ 8:30PM|#
Thoreau, are you retarded? I'm pretty sure there is no Bible where "thou shalt not kill" is the FIRST commandment.
thoreau|8.20.09 @ 8:45PM|#
Yeah, missed the "first" part. I was focusing on the way that Randian was no doubt referencing the alternative "You shall not murder" translation preferred by some people. Say what you will about which translation is better, but "You shall not kill" is the one used in liturgy by the church that Scalia is a member of (and apparently a devout one).
The Angry Optimist|8.20.09 @ 8:50PM|#
actually, thoreau, I was referencing the fact that he said
"first".
so you're yelling at nobody.
thoreau|8.20.09 @ 8:52PM|#
Sorry. When that commandment comes up in debates over the death penalty, the translation issue of "kill" vs. "murder" usually comes up. Sorry for leaping ahead there.
|8.20.09 @ 8:56PM|#
If we're to take "kill" literally, that would exclude killing animals for meat or other reasons as well. In fact, with our modern biological knowledge it would exclude eating plants or using disinfectant or antibiotics, too.
The Angry Optimist|8.20.09 @ 9:03PM|#
I am willing to take "kill" in context and infer that God meant "kill people", given that he regularly demanded animal sacrifices and all, and surely even nomadic Judaic tribes recognized that animals were "alive".
|8.20.09 @ 9:14PM|#
He also demanded that the Israelites kill people too (quite often in fact!) so it looks like God was even more nuanced than that.
Obamessiah|8.20.09 @ 9:16PM|#
I He should have calibrated his
words better during that press conference with Moses.
Michael Ejercito|8.20.09 @ 9:29PM|#
If new evidence is insufficient to hold a new trial, the system is broken.
Is it the U.S. Supreme Court's job to fix the system if the system
itself is broken?
Innocent people are being killed in Sudan. Should the U.S. Supreme Court order a 'humanitarian intevention' to stop the killing? If the Court refuses to do so, does this prove the Justices to be callous hypocrites who don't care about human life? Or does it show respect for the legal limitations on judicial power?
A swing and a hit!
Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: "Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she's dead, and as for you, Mr. Innocent Defendant, you're dead, too, since there is no constitutional right not to be executed merely because you're innocent."
Has this situation ever occurred in real life?
Has anyone ever been convicted of murdering a person who was still
alive at the time of conviction?
But I say to you, do not resist an evil person; but whoever slaps you on your right cheek, turn the other to him also.
Is this to be interpreted that child nolesters should not be
punished?
The Catholic church does not recognize any moral obligation to follow unjust laws. In some case you are morally obliged to break the law.
So I, as a Catholic, would be morally obligated to murder people
who pray to St. Mary?
(Under the Torah, from which the Roman Catholic Church derives its
moral tradition, idolatry is a capital offense.)
TAO, if the rule of law requires executing innocent people, who are known to be innocent at the time, fuck the rule of law. Period.
If you are not an elected or appointed government official, feel
free to take that route.
However, elected and appointed officials are bound by the law, even
if the law is bad.
It is worse for a judge to take the law into his own hands than it is for a regular citizen.
Another swing and hit!
You are claiming some supra-moral principle that requires that procedure be followed and legal formalities obeyed.
If you took an oath to enforce the law, yes.
Fortunately, I have not taken such an oath, so I can morally refuse
to obey the law if it were necessary.
I am willing to take "kill" in context and infer that God meant "kill people", given that he regularly demanded animal sacrifices and all, and surely even nomadic Judaic tribes recognized that animals were "alive".
1 Samuel 15
MattXIV|8.20.09 @ 9:45PM|#
TAO,
Based on a skim of the opinions, in this case specifically, I think
the problem lies in the Antiterrorism and Effective Death Penalty
Act of 1996 requiring an existing SC ruling to be contradicted
before a case can be appealed beyond the state SC. Automatically
rejecting appealing beyond the state SC would prevent the federal
courts clarifying when a denial of a new trial is a due process
violation in areas where rulings aren't established or where
existing rulings are overturned. The issue of when an intervening
change in law or evidence warrants an new trial of due process
should be something the district court can consider even in matters
where there isn't an existing ruling that's being contradicted.
Cap\'n Justice|8.20.09 @ 10:31PM|#
"The touchstone of due process is protection of the
individualagainst arbitrary action of government," Meachum,
427
U. S., at 226 (internal quotation marks omitted); Wolff, 418 U. S.,
at 558; County of Sacramento v. Lewis, 523
U. S. 833, 845-846 (1998). When government action is so lacking in
justification that it "can properly be characterized
as arbitrary, or conscience shocking, in a constitutional sense,"
Collins v. Harker Heights, 503 U. S. 115, 128 (1992), it violates
the Due Process Clause."
I think this reasoning would apply to a case where we execute a man
for killing his wife who is later found to be alive.
|8.20.09 @ 10:47PM|#
Scalia has no problem accepting dishonesty in due process as long as it's the prosecution. I bet he would have a totally different attitude if his son was arrested while serving in Iraq or Afghanistan and receive an equally honest trial.
Ah, now you're just being ignorant, TrickyVic. Have you forgotten
Melendez-Diaz so soon? Justice Scalia wrote the most
blistering opinion about the possibility of dishonesty by the
prosecution with forensic science being the underpinning of the
right to confront one's accusers.
MJ|8.20.09 @ 10:51PM|#
"... if new evidence comes to light, irrespective of whether
there was a procedural or legal error in the original trial."-
thoreau
The problem here is that it is a lower court's job to determine if
the new evidence is sufficient to warrant a new trial. If the lower
court rejects the new evidence, SCOTUS' job is only to determine if
the lower court rejected the new evidence in proper legal fashion.
You do not bring new evidence directly to the Supreme Court. It
seems to me some people are terribly confused about how the
appellate court system actually works, and don't like it when
told.
|8.20.09 @ 10:57PM|#
Shouldn't the justice system be able to resolve issues of false testomony with the executive stepping in? If so, how?
Via the appeals process. Congress, in their finite wisdom, voted to
limit the appeals process after the Oklahoma City bombings. He has
exhausted the appeals process before these recantations and new
evidence came up. So the first part of your complaint should be
aimed at the 1996 Congress and President Clinton.
Now, I suppose you can make a very reasonable argument that part of
the right to a fair trial guaranteed in the Sixth Amendment is the
right to a reasonable appeal if substantial new exculpatory
evidence comes up. I think you could make that case, but the Court
has so far not declared the appeal process as set up under the 1996
law as unconstitutional.
Unless they do so, the Court is acting more like an executive in
this particular case. They're stepping outside the normal process
in order to right what seems like an obvious injustice in a
particular case, rather than arguing that the fundamental process
is flawed. This is a truly unusual action.
How is this different from Terry Schiavo, except
who would view inaction as a moral outrage?
I certainly agree that in this case the man deserves a new trial.
The law has brought us to a bad situation that no one is truly
happy with.
MJ|8.20.09 @ 11:01PM|#
"By all means, illuminate the difference between "He was found
innocent of the crime" and "He was found not guilty of the
crime"."
"Innocent" means we KNOW the accused did not commit the
crime.
"Not guilty" means the prosecution has not sufficently proven that
the accused committed the crime. It's possible he's innocent and
it's possible he's guilty.
alice bowie|8.20.09 @ 11:25PM|#
Scalia has proven to be a very bad supreme court judge who has
NO interest in the interest of justice....but a mere paper
pusher.
A typical example of an incompassionate asshole.
The Wine Commonsewer (TWC)|8.21.09 @ 2:17AM|#
One again, TWC, harps on teh reality that the justice system is merely about tricks and technicalities and has no interest in determining the truth of a given matter. Roy Bean or these two beanheads? I'll take Roy Bean.
The Wine Commonsewer (TWC)|8.21.09 @ 2:22AM|#
BTW, Crime and Tee, I am old enough to remember when the Catholic Bible was in Latin and was only read by the clergy.
alice bowie|8.21.09 @ 8:52AM|#
Scalia and Thomas are CLASSIC examples of conservatives with
complete lack of compassion to people.
The justice system is a machine that works its logic and rules very
much like a computer program. The Judges/Justices are suppose to be
the HUMAN FACTOR of that machine...and are to intervene when
needed.
These characters are a couple of FAILURES...and very very
UN-Christian-Like. As much as I hate religion...I don't feel that
Christ would approve of their views/actions.
|8.21.09 @ 1:03PM|#
""""kill" vs. "murder""""
Yeah, that always comes up. What is the difference, with regards to
humans. Murder means the killing was not authorized by the state.
Come on, a cop killing an innocent man because the cop was confused
isn't murder. For some reason I don't believe God's definition of
murder would be dictated by government.
Michael Ejercito|8.21.09 @ 1:04PM|#
I think this reasoning would apply to a case where we execute a man for killing his wife who is later found to be alive.
You might as well talk about men who are convicted of cruelty to
unicorns.
The situation where a man was convicted of murdering
anyone who was later found to be alive has never
happened.
|8.22.09 @ 7:30PM|#
Major it could happen, unlike the unicorns. And anyway
http://www.campdenwonder.plus.com/
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