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?

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  • ||

    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.

  • ||

    If new evidence is insufficient to hold a new trial, the system is broken.

  • ||

    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||

    The constitution does not protect your unalienable rights to life, liberty, or the pursuit of happiness either.

  • ||

    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||

    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.

  • ||

    "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.

  • ||

    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.

  • ||

    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||

    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||

    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.

  • ||

    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.

  • ||

    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.

  • ||

    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||

    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||

    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.

  • ||

    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.

  • ||

    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.

  • ||

    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||

    @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||

    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.

  • ||

    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||

    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.

  • ||

    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||

    '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||

    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||

    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||

    '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.

  • ||

    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.

  • ||

    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||

    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.

  • ||

    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||

    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||

    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?

  • ||

    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.

  • Citizen Nothing||

    Yo, fuck the death penalty.

  • Tomcat1066||

    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.

  • ||

    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||

    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||

    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.

  • ||

    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.

  • ||

    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.

  • ||

    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.

  • ||

    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||

    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.

  • ||

    There's a well-known Biblical precedent for Scalia's position: Pontius Pilate.

  • ||

    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?

  • ||

    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.

  • ||

    Incidentally, Alan "Torture Warrant" Dershowitz can go to hell.

  • ||

    Mo, I think he's saying that the guy should hope that the governor pardons him.

  • d||

    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||

    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\'||

    "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||

    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||

    Why no Suderman aticles today? Couldn't he find anything in the media to "sample"?

  • The Angry Optimist||

    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.

  • ||

    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||

    "This has happened for over a decade due to examining DNA evidence."


    As we learned here recently, DNA can be scammed.

  • ||

    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||

    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||

    "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||

    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?

  • ||

    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?

  • ||

    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.

  • ||

    I'm basing this off the description of the order from this law blog, BTW.

  • ||

    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||

    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||

    I realized that the facts that were not highlighted earlier are being highlighted by John Thacker - the appeals are over.

  • Father Guido Sarducci||

    "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||

    @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.

  • ||

    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||

    "Brannigan's God's Law is like Brannigan's God's love: hard and fast."



    *groans*

  • Quick Quiz||

    "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||

    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||

    Jesus, robc, care to elucidate the difference?

  • The Angry Optimist||

    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.

  • ||

    Really? O.J. was found not guilty. Is he innocent?

  • ||

    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||

    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||

    @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||

    First google hit.

    http://www.massbar.org/about-the-mba/press-room/journalists'-handbook/6-not-guilty-does-not-mean-innocent

  • robc||

    So go be rude somewhere else.

    Fuck you. Calling bullshit bullshit isnt rude.

    Telling you to go fuck yourself is rude.

    Go fuck yourself.

  • ||

    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?

  • ||

    ""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||

    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.

  • ||

    Or are you just stick with the idea that it's the executive branch's job to clean up the judicial mess?

  • ||

    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||

    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||

    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||

    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||

    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.

  • ||

    """"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||

    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?

  • ||

    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||

    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||

    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||

    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||

    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||

    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.

  • ||

    """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||

    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||

    I'm moving on from the pedantry here. Please feel free to craft substantive responses.

  • thoreau||

    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||

    oh please. if I know where the burden of proof lies, thoreau. Argue the main point or shut up.

  • jhn||

    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.

  • ||

    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.

  • ||

    """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||

    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||

    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||

    well, let's get the "Innocence Project" to change its name to the "Not Guilty Project"

  • jhn||

    Yes. New evidence gives rise to new due process rights. End.

  • The Angry Optimist||

    Yes. New evidence gives rise to new due process rights. End.



    Forever and ever Amen, eh?

  • jhn||

    The "Innocence Project" makes proper use of the term: they only help people they believe didn't actually do it.

  • thoreau||

    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||

    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||

    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||

    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||

    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||

    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||

    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.

  • ||

    """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?

  • ||

    That should say without the executive stepping in.

  • The Angry Optimist||

    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?

  • ||

    """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.

  • ||

    """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||

    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?

  • Hot Geek Love||

    7 of 9 witnesses?

  • MattXIV||

    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||

    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||

    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.

  • ||

    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||

    you would think Jesus Christ Himself could get Dad's commandments right, but noooo...

  • thoreau||

    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||

    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.

  • ||

    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||

    Thoreau, are you retarded? I'm pretty sure there is no Bible where "thou shalt not kill" is the FIRST commandment.

  • ||

    Oh, that too. Good catch, spacey.

  • thoreau||

    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||

    actually, thoreau, I was referencing the fact that he said "first".

    so you're yelling at nobody.

  • thoreau||

    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.

  • ||

    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||

    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".

  • ||

    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||

    I He should have calibrated his words better during that press conference with Moses.

  • Michael Ejercito||

    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||

    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||

    "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.

  • ||

    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||

    "... 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.

  • ||

    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||

    "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||

    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.

  • ||

    I predict a 5-4 decision ;-).

  • The Wine Commonsewer (TWC)||

    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)||

    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||

    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.

  • ||

    """"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||


    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.

  • ||

    Major it could happen, unlike the unicorns. And anyway
    http://www.campdenwonder.plus.com/

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