Scalia and the Innocent

The L.A. Times delves a bit more into Justice Antonin Scalia's concurring opinion in last week's Connick v. Thompson Supreme Court decision, and finds that Scalia cited as authority a case in which SCOTUS sent an innocent man back to prison.

Scalia wrote a separate opinion citing the Youngblood case, which came to the court in Scalia's second year on the bench.

The case began when a young boy was abducted outside a church carnival and brutally raped. He said his assailant was a black man with a bad right eye. Youngblood was a black man from the Tucson area who had a bad left eye. The boy picked him from a photo lineup.

But in a crucial mistake, the police failed to refrigerate the boy's clothing and several swabs. Though Youngblood protested his innocence, forensic testing in the early 1980s could not determine whether he was or was not the perpetrator.

After two trials, he was convicted, but a state appeals court ordered him freed because the police had "permitted the destruction of the evidence" he needed to prove he was not guilty.

But the Supreme Court ruled the police and prosecutors had no duty to "preserve potentially useful evidence" for a defendant. The vote was 6 to 3, with Scalia in the majority.

Youngblood was sent back to prison in 1993, served his full term until 1998, and was later arrested because he had failed to register as a sex offender.

In 2000, the Tucson Police Department agreed to conduct DNA tests that were more sophisticated than what had been available earlier. They pointed to the true perpetrator, Walter Cruise, a black man with a bad right eye who was then in a Texas prison serving time for two sex assaults against children. He pleaded guilty to the Arizona rape.

In last week's opinion, Scalia cited the Youngblood case in arguing that prosecutors are not required to offer all the evidence that might free a defendant. "We have decided a case that appears to say just the opposite," he wrote. "In Arizona v. Youngblood, we held that unless a criminal defendant can show bad faith on the part of the police," the defendant does not have a right to obtain all "potentially useful evidence."

There is no duty under the Constitution for prosecutors to turn over test results "which might have exonerated the defendant," Scalia said, quoting the Youngblood decision.

Scalia is often credited for his consistency. But consistent or not, there's something pretty unsavory about a judicial philosophy that cites a ruling that we now know sent an innocent man back to prison as an authority to deny compensation to another innocent man who was nearly executed because the government hid the evidence that would have and eventually did exonerate him.

Scalia has written in the past that there's nothing in the Constitution to prevent the government from executing an innocent person. He also apparently believes there's no duty for the government to preserve or turn over evidence that would prove a person's innocence. Finally, from Connick we learn he also believes that prosecutors and municipalities shouldn't be held liable to people who are wrongly convicted and imprisoned, either, even if prosecutors knowingly concealed the evidence that would have exonerated them.

Those two decisions are based, respectively, on Scalia's interpretation of the Constitution, and his intepretation of federal civil rights law, and you could make a strong case that neither conflicts with Scalia's originalist view of the Constitution or his judicial philosophy about how to interpret the text of federal statutes. But in his time on the bench Scalia has also largely upheld and in some cases expanded the concept of absolute prosecutorial immunity. As former Bush Solicitor General Paul Clement pointed out in oral arguments for a case in 2009 is a concept that appears nowhere in federal law, common law, or the Constitution.

The net result of these decisions is an extraordinary faith in government officials—in this case prosecutors—to do the right thing, even when there are strong incentives to commit misconduct to win convictions, and little to no sanction for those who caught doing so—even those caught committing rather egregious violations of the rules of criminal procedure or of a suspect's constitutional rights. And keep in mind here that there's no question that there were constitutional violations in these cases. The question in these cases is whether the people whose rights were violated are entitled to damages. Or even to see or test the evidence that could exonerate them.

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  • Warty||

    Whoever Grego's sockpuppeter is, he's a genius.

  • Scalia Sucks||

    Scalia needs to be horse-whipped.

    This sentence needs to be fixed in the passage above:

    As former Bush Solicitor General Paul Clement pointed out in oral arguments for a case in 2009 ??? is a concept that appears nowhere in federal law, common law, or the Constitution.

  • ||

    Methinks the phrase "prosecutorial immunity" be it.

  • dhex||

    attempts to clone dondero in the lab (scientists in their arrogance wanted to create a more perfect douche) have proven less than...savory. and yet more successful than our wildest nightmares.

  • Scruffy Nerd Herder||

    Please continue. I enjoy it when people make complete and total asses of themselves.

  • ||

    that's actually a TEXTBOOK example of "process analysis" and the response, a textbook example of results analysis. in brief, the constrained vs. non-constrained viewpoints (see: sowell) differ on what they MEAN by the term "justice" and thus, argue past each other.

    justice cannot be both simultaneously a results AND a process analysis. i see many people here leaning towards the results analysis, which is (typically) where progressives lean. i find that interesting.

  • Zeb||

    I think that the preference that you see here is for a few reasons. First, hyper-individualists, such as libertarians tend to be have a lot less use for the practical utility of law than many people. If a law (or process) treats a single case unjustly, then the law is unjust, even if in the aggregate, the law has the desired effects. Second, the horrifying possibility that one could be convicted of a crime because of prosecutorial misconduct and still have no recourse just strikes decent people as totally unacceptable.
    Of course, taken to extreme this all could make the legal system slower and less efficient in some ways. But who said it would be easy to be both moral and practical?

  • ||

    i totally agree on the prosecutorial analysis thang. one can definitely be for a process analysis *and* think that prosecutorial misconduct (willful or negligent) fails due process and is thus violative of that.

    but if one accepts process analysis, one must necessarily accept that an innocent person can be given due process, and everybody involved (to include civilian witnesses) can tell the truth, do their best, and the innocent person STILL can get convicted in those perfect storms of coincidence, etc.

    it's a sad fact, but it's a reality

  • Michael Ejercito||

    Second, the horrifying possibility that one could be convicted of a crime because of prosecutorial misconduct and still have no recourse just strikes decent people as totally unacceptable.


    There is a recourse.

    It is called the Second Amendment.

  • Jim||

    1) Agree with you on vagueness of the term "useful" and costs of evidence storage. Perhaps just a small frozen sample of DNA? Pretty easy to store v. keeping bags full of clothes, etc.

    2) You present a false choice between the current system as-is, or total lack of all enforcement. There are other options. It isn't about "winning", Mr. Sheen, it's about justice. Prosecutors should divulge evidence if a man is innocent, because their job should be to convict the guilty...not just to convict, period. Additionally, they should have liability for proven misconduct.

  • Gregory Smith||

    Jim, google "Judge Cashman," he once gave a pedophile who molested a girl for four years PROBATION!

    Anyway, what are the other options you propose?

  • Dave||

    I believe in RETRIBUTION! The judge should have allowed that girl to retaliate by molesting that pedophile for four years! That would have showed him!

  • db||

    You disgust me, you bootlicking sac of santorum. Your bootlicking is right up there with Drum and the rest of the shitstains that continue to apologize for Obama and Bush.

  • db||

    And, of course, that was directed at Gregory "I love boots" Smith, you fucking squirrels.

  • rather||

    what do you think of the 11500 tons of radioactive water to be dumped in the ocean?

  • rather||

    not to mention the 11500 tons of jizz i had dumped on me at last night's gangbang! and speaking of dumps, i'll do scat play if you got rock! READ MY BLOG.

  • don't use my ||

    handle

  • Gus||

    DIAF, useless cunt.

  • Gregory Smith||

    Aw, you must be one of the fans of Dan Savage, the pseudo-Nazi that wants CNN to stop interviewing "homophobes."

  • ||

    OK, this makes a lot of sense dude.
    www.anon-tools.no.tc

  • Gregory Smith||

    Gregory Smith is not my real name, but thanks for the link.

  • Fist of Etiquette||

    Can defendants ask for ownership of evidence after they are convicted?

    The state acting as the sole custodian of case evidence and the arbitor of what is useful as evidence and for how long. It's a good thing that the justice system is the one aspect of government not at risk for abuse or sloppy work.

  • robc||

    Reminds me of a line from Cryptonomicon (and I think it applies):

    Randy: How long do you want these messages to remain secret? Five years? Ten years? Twenty-five years?

    Avi: I wasnt to remain secret as long as men are capalbe of evil.

  • robc||

    Avi (and Neil Stephenson) both spell better than I do.

    capable.

  • Highway||

    Of course they can't. Why, if we let them have it, then the evidence might get tampered with! Only the state is trustworthy enough to take care of this valuable evidence!

  • Alan||

    I can understand some degree of immunity for prosecutors who make honest mistakes, or even minor negligence.

    But when it comes to gross negligence, much less deliberately framing defendants they know to be innocent, how could anyone want to offer them immunity? I expect prosecutors to be held to a much higher standard than ordinary citizens - and they are not being held to any standards at all. One more sign of the depravity of the U.S. "justice" system.

  • robc||

    Congrats to Gregory Smith, you managed to achieve something that Donderoooooo never did.

    Ah, the power of incif.

  • ||

    You have been amazingly lenient. I threw him out a month ago.

  • robc||

    For about the past 2 weeks, I have wondered why I havent done it.

  • ||

    Better ten thousand innocent men rot in jail than one prosecutor lose a case.

  • Almanian||

    If only one life is saved because of this, it will be worth it

  • ||

    Scalia has written in the past that there's nothing in the Constitution to prevent the government from executing an innocent person.

    He seems to have nothing but scorn for the plainly worded Fourth Amendment, so there's no point in pretending to be surprised by this.

  • JD the elder||

    Surprised, maybe not, but my hate-on for Scalia is now permanent. Any respect I had for any of his other views has pretty much gone out the window.

  • Barely Suppressed Rage||

    I believe you mean the Fifth Amendment, which states in relevant part that no person shall be deprived of life, liberty or property without due process of law.

    Scalia's point is that what the 5th Amendment guarantees is PROCESS, not result. It plainly allows mistakes to be made. It does not require the government to be right in every case; it requires the government to provide due process - i.e., procedures designed and intended to assure that the government must prove its case and that the accused gets an opportunity to confront his accuser and an impartial decider. There is no guarantee that even the best process of law will not end up arriving at the wrong result and convicting an innocent person.

    I'm not defending Scalia here or saying he's completely right in this case, but he is consistent in that regard - the question is whether a person got the "process of law" that he was "due". Assuming that the state did in fact provide all of the proper and correct "process of law", then the person constitutionally may be deprived of life - that is all that the due process clause plainly requires.

    Of course, if we know that the government got the wrong answer and the person is innocent, then there are writs and procedures for fixing the wrongful imprisonment - but absent wrongdoing by the state or its agents, there is nothing in the text of the Constitution saying that there is anything wrong with getting the wrong result - it requires "process".

  • ||

    Does due process of law include withholding exculpatory evidence? It has been my understanding ever since I watched My Cousin Vinny that the process includes letting the defense see your files.

  • ||

    the prosecutor *is* required to divulge exculpatory evidence, which is the primary difference between defense and prosecution.

    if the defense discovers evidence of guilt, they are NOT ethically bound (or procedurally bound) to turn it over to prosecution or admit to its very existence. an ethical defense attorney cannot otoh present testimony that he knows is perjurious, iow if it contradicts the facts he knows to be true, but he is under no duty to divulge

    a prosecutor IS under a duty to divulge, otoh, exculpatory evidence.

    where prosecutors play their unethical games is in claiming stuff that IS exculpatory, actually isn't.

    it's the same as cops who knowingly leave relevant shit out of search warrant apps to make their affidavits "look better' ot the judge. it's unconscionable

  • ||

    New professionalism FTMFW, I guess.

  • omg||

    I think P Brooks was talking about Scalia's rather dubious view of the fourth amendment as evidence that he is a jackbooted statist as opposed to saying the fourth amendment is relevant to this case.

  • ||

    Scalia is a selective statist. generally speaking, he's pretty good on speech issues, and pretty crappy on 4th amendment issues.

  • Michael Ejercito||

    He seems to have nothing but scorn for the plainly worded Fourth Amendment, so there's no point in pretending to be surprised by this.


    What has the Fourth Amendment have to do with this?

  • Citizen Nothing||

    Seems Grego is capable of provoking homicidal rage in H&R commentariat. Best lock him up, just to be safe.

  • Gregory Smith||

    Words don't kill people, dummy.

  • rather||

    ya, but some of these little boys take it personally

  • rather||

    these little boys are just jealous cause they can't handle a bigger girl like myself. just because i'm 250 lbs doesn't mean i can't rock your world.

  • rather||

    don't use my handle! and you are lowballing by about 150 pounds

  • ||

    They're just eggs. Delicious, delicious eggs, whipped to a delicate froth, and mixed with the finest cheeses and tiny bacon crumbles.

  • Jersey Patriot||

    This all makes sense in a perverse way. An originalist would tell you that the Due Process clause only protects the process considered due at the time of the ratification of the respective Amendment. If it wasn't Due Process in 1868 or 1791, it isn't Due Process now.

    This should remind us that Originalist Constitutionism is not necessarily libertarian.

  • Fatty Bolger||

    No, they would tell you that the Constitution requires a due process, but does not specify exactly what that process is.

  • Michael Ejercito||

    This all makes sense in a perverse way. An originalist would tell you that the Due Process clause only protects the process considered due at the time of the ratification of the respective Amendment. If it wasn't Due Process in 1868 or 1791, it isn't Due Process now.

    This should remind us that Originalist Constitutionism is not necessarily libertarian.


    We have an Article V process for that.

  • IceTrey||

    "there's nothing in the Constitution to prevent the government from executing an innocent person."

    I guess if you're innocent it's not "cruel and unusual punishment", it's just murder.

  • ||

    the issue isn't whether the person is "actually" guilty or innocent, the issue w/scalia is whether the person received due process. i disagree with scalia, but his argument is often misunderstood.

    it's a process analysis vs. a results analysis argument.

    where scalia is wrong, imo, is in his analysis of what *is* due process, but he is technically correct that *if* due process is followed and a person who is actually innocent is convicted, that that is not a constitutional violation. omniscience is not, and cannot be required of process.

    no system that requires only "beyond a reasonable doubt" standard can ENSURE that an innocent is never convicted. however, it can ensure that technology (such as DNA) is available to the defense to help exonerate just as it is available ot the prosecutor to help convict. that right does not erode imo once one is convicted. it is MORE important imo that true innocents are afforded the opportunity to prove innocence, than that prior jury decisions are respected. that's where imo scalia is dead wrong.

    law enforcement, like poker, is a game of limited information. however, the scales should NEVER tip towards REMAINING ignorant when the truth can be found out with reasonable process (such as using DNA technology that wasn't available at the time of conviction)

    imo, a good solution would be some sort of legislative solution that mandated, at least periodic re-examinations of evidence in cases where persons remained incarcerated. this would of course cost money, but it's a worthwhile cause.

    we have the technology to increase the likelihood that we get and convict the RIGHT person vs. 20, 30, 50, 100 yrs ago.

    DNA, breathalyzers, etc. are all reliable ways to help PROTECT the innocent AND convict the guilty.

    scalia is a slave to minimal process. due process means a LOT more than scalia thinks it does

  • Highway||

    But what is 'due process'? If someone's been thrown under the bus because the State doesn't want to make the evidence available, that doesn't exactly indicate 'due process' unless the definition of that is 'whatever the State says it is.' And if that's the case, then due process could be anything.

    "We done felt he needed killin'." "Gosh, well, I guess that serves 'due process'."

  • Barely Suppressed Rage||

    Well here, the argument is whether the state withholding evidence that it knows might be exculpatory can be construed to accord with the notion of "due process" - it gets at what process is the accused due.

    My take on that would be FUCK YEAH the state has to share potentially exculpatory evidence - particularly where we're talking about the possibility of hard time in the big house or the death penalty.

  • ||

    ^^This^^

  • ||

    i agree. that's exactly my point. imo, it is NOT due process, but imo the right to due process should not END upon conviction, which is part of the problem imo of scalia's analysis.

    however, he is technically correct that conviction of an actual innocent does not defy due process, just as exoneration of an obviously guilty (such as through suppressed evidence under escobedo etc.) doesn't

    due process is OF COURSE subjective, but so is "reasonable search and seizure" and other shit in the constitution.

    imo, scalia's analysis does not respect defendant rights enough

  • ||

    I don't like Godwining....but since

    1. there's nothing in the Constitution to prevent the government from executing an innocent person.

    2. The precedent of Korematsu and Haryabaishi, and

    3. SCOTUS penchant for using bad precedent to further thier own political beliefs,

    I can only conclude that there would be nothing stopping the governemtn from killing 6 million people. And if they were from an ethnic group that we are at war with,...Scalia is OK with this.

  • Barely Suppressed Rage||

    Um, no.

    I can't imagine anyone on the SCOTUS citing with approval Korematsu. And in fact, as discussed above, Scalia is all about process. If you check out the dissents in Korematsu, that was the exact problem with what the government did in that case. There was no process given the individuals - basically you were rounded up and put in a camp for being of Japanese decent and in the wrong geographic area.

    Scalia's adherence to the requirement to provide due process would require an individual adjudication on the merits for each person before the state could carry out an execution.

    So in your genocide scenario, there would have to be 6 million trials, with proper procedures and Constitutional protections applied before the state could impose and carry out a death sentence.

  • Jim||

    But beyond the scenerio of a trial, the constitution doesn't really lay out the "process". You could potentially have 6 million quickie kangaroo-court trials churning people through, and as long as the law was passed beforehand making that the "process", then Scalia should support it, if he's consistent with these statements. His opinion gives waaaay to much leeway to the state to decide what is and isn't "process" (such as divulging evidence damaging to the state's case, for example).

  • ||

    Um... yes.. First,
    I could never have imagined that SCOTUS would have upheld WickLand....but they did.

    And sure, there might be 6 million trials. And that is kind of my point. Scalia would be OK with the genocide, so long as you gave them due process.

    That due process is supposed to be a means to an end seems to escape everyone. If the only thing that matters is the blind insistence on process, why do we need these fuckers. All we need is a computer.

    So as long as you have a show trial with all the right genuflections to the god of "process," what is the matter of a few million ordinary lives?

  • Michael Ejercito||

    That due process is supposed to be a means to an end seems to escape everyone. If the only thing that matters is the blind insistence on process, why do we need these fuckers. All we need is a computer.


    Maybe that is what we need, a computer.

  • ||

    Perfection in Justice might be nice but we live in a world where perfection is not an available option. The best we can do is a system that seeks to minimize the potential or real harm to us as individuals. Part of minimizing that harm is making it difficult for prosecutors to convict you of a crime you didn't commit. But those limitations must be balanced against the need to lock up the predators who are a demonstrated threat. Law needs to be based on how well it achieves the broader goals not whether it works perfectly in each individual case.

  • ||

    The broader goal is for justice to be found in each individual case.

  • robc||

    The key to achieving this goal is to never close the door on evidence of innocence.

  • Zeb||

    I don't think that requiring prosecutors and investigators to turn over potentially exculpatory evidence is a demand for perfection in the legal system. Simply a demand that these people not be evil fucking sociopaths. These people would rather win in court than make sure an innocent person is not imprisoned or executed.

  • Gus||

    Yup. There is in some schools of theological thought the concept of Lies Of Omission.

  • Jim||

    The ends justify the means? Can't make an omelette w/o breaking some eggs? Interesting, you don't see people make that argument on libertarian websites very often.

  • Alan Vanneman||

    There are times when Scalia votes to restrict government power--his dissent against the "liberal" majority that allowed the federal government to imprison sex offenders after serving their full term if they were "likely" to commit additional crimes, for example--but there are also times when his authoritarian leanings come to the fore.

    "Let's stop all the shilly-shallying and execute the son of a bitch, for Christ's sake! That's what we're here for! If a court decides it, it's not a mistake!"

  • STEVE SMITH||

    HELLO ANAL. STEVE SMITH HAVE GOOD TIME WITH YOU THIS WEEKEND. NEXT TIME TRY NOT TO SCREAM SO LOUD. STEVE SMITH LIKE A GOOD RAPE SCREAM BUT HIS EARS STILL RINGING FROM THIS ONE.

  • ||

  • ||

    I believe you mean the Fifth Amendment

    You're wrong.

    The Fifth is a separate issue.

  • Barely Suppressed Rage||

    Sorry, then I guess I missed your point.

  • ||

    Ooh, scumphy's here to tell what he learned at community college.

    *oppresses scumphy with callous kneejerk bigotry, departs*

  • ||

    lol. as usual, the convo devolves into attacks on persons vs. issues. regardless, since YOU devolved there (D E V O), i'll respond. didn't go to CCollege. went to university. and grad school. hth

  • ||

    oh, and i recognize you may be sarcastic here and parodying the kneejerk bigots a la hmm (did i get the right # of "m's?". if so,... bravo!

  • Zeb||

    I'm glad you keep coming back in spite of the abuse. Nice to have the perspective of a cop who seriously thinks about these things.

  • Pip||

    Plus, it makes for an easy target to piss on.

    http://www.inventiveparent.com.....s-open.jpg

  • ||

    a policeman's lot is not a happy one - gilbert and sullivan

  • ||

    well, i tried the room for argument down the hall, but this abuse room is more fun.

  • hmm||

    This was forwarded to me via email since I've been a little busy. I'd bother to ride up on your ass like cheap vegas hooker after downing a bottle of vodka, but the opportunity cost of doing so is taking a good shit. The shit won...

  • ||

    troll-o-meter:.0023

  • Really?||

    Dunphy is right in this case.

  • ||

    Agreed. I have a serious kneejerk anti-cop bias. But in this case I think he makes sense.

  • ||

    i appreciate that. i guess you can call me the "stopped clock" today

  • Ben P.||

    I'd agree. I don't normally find your arguments persuasive, I must admit, but in this case, you're not really making an argument, just translating a train of thought. You've made it very clear you don't entirely agree with that train of thought, you're just helping lay it out. For which, I thank you.

  • RyanXXX||

    Scalia, Thomas, and the other "conservative" judges seem to have an unadulterated love of prosecutors, and absolutely no pity or sense of justice for those wrongly convicted or brutalized by the system.

    I'm interested in theories on why this is from other commentators. Why would SCOTUS judges have such a strong instinct to shield evil prosecutors?

  • Fatty Bolger||

    Why does Congress? They could fix this with a couple of changes to the law. Why don't they?

  • WTF||

    Because judges and prosecutors are all on the same team (government).

  • ||

    When prosecutors are more concerned with justice rates and less concerned with conviction(and re-election) rates, you will see far less in the way of evidence tampering, evidence manufacture and evidence destruction.

    Of course, if we are to accomplish this, we'd have to start by tossing out the prosecutorial immunity as well as immunity for the cops. Second, we would have to come up with a new system of representing the state in court proceedings. I would think having a public defender-like system would work just fine. Make every trial and defense attorney act as prosecutor, pro bono, every once in a while as a requirement for membership in the state Bar Association, and see how zealously these cases get *cough* prosecuted *cough*.

  • ||

    You're close to my proposal, sloopy, which is to combine the public defenders and the prosecutors into a single office, and randomly assign the attorneys to each case. You might be defending a half dozen cases and prosecuting a half dozen.

    Levels out the quality of counsel issue, blows up the cozy relationship of cop/prosecutor/hanging judge/corrupt "experts".

    Plus, imagine the intra-office hijinx!

  • ||

    Sounds good to me either way. It's not as if the prosecutors and defense attorneys don't intermingle as it is.

    One question, how would a defendant hire an attorney? Would they have to get one from the pool or could people have a private practice and not ever prosecute cases?

    One thing we can all agree on, I think: any public prosecutor should try as many cases annually as a defense attorney as those he prosecutes.

  • Zeb||

    I think that the pool would just be for people who need public defenders. Someone who can afford to hire an attorney can still hire anyone willing to work for him.

  • Zeb||

    Hey, that was my idea! Glad I'm not the only one. I think that would go a long way toward eliminating the win at all costs mentality among prosecutors while improving the quality of public defenders quite a bit.

  • Nipplemancer||

    I could be wrong, but doesn't the military do something like that with the JAG? I confess that all of my military law comes from the TV show JAG and Mawk Hawman on NCIS.

  • Mensan||

    That’s one of the few aspects of JAG that is depicted fairly accurately. I can’t speak to all branches, but in the Army they don’t have standing courts. When courts martial are convened, the judges, defense counsels, and trial counsels are assigned from the pool of available judge advocates. There isn’t (or at least there isn’t supposed to be) specialization in any of these roles. Additionally, when they’re not actively engaging in court martial proceedings, JAs serve as in-house counsel to their assigned commands.

  • Jersey Patriot||

    You're close to my proposal, sloopy, which is to combine the public defenders and the prosecutors into a single office, and randomly assign the attorneys to each case. You might be defending a half dozen cases and prosecuting a half dozen.

    You know, that's absolutely genius.

  • Gray Ghost||

    You'd need to work out the conflicts' issues, but other than that, it's not a bad idea.

  • ||

    OK, you know what. I want some credit for the idea, too.

  • ||

    they would have to construct some serious chinese walls in the offices, to put it mildly, but i kind of like the idea.

    both prosecutors and defense are officers of the court and they are both SUPPOSED to be concerned with a fair trial and due process.

    realistically speaking, many defense attorneys are concerned with getting their clients off at all costs (and god knows suborning perjury is a cost many are willing to pay) ,many prosecutors are also concerned with WINNING, not with justice, and that is also sad.

  • ||

    Why would SCOTUS judges have such a strong instinct to shield evil prosecutors?

    The easy obvious answer to that is the "selection process" eliminates anybody who hasn't got his mind right on the subject of the Supremacy of the State.

  • ||

    randomly assign the attorneys to each case.

    I like this idea.

  • ||

    imagine the intra-office hijinx!

    "Okay, if I make this shot, your guy pleads guilty to the main charge, and I'll offer time served, right? From here, backwards: off the file cabinet, through the transom, into Marcie's wastebasket. Deal?

  • Sam Crothers||

    Scalia truly is consistent. He has always been and will always be, an arrogant creep.

  • Colonel_Angus||

    There is nothing consistent about not holding a party liable for its mistakes. Fuck Thomas and Scalia and those pieces of shit.

  • ||

    I would probably put mistakes in quotation marks. More often than not, evidence is hidden out of malice, not because of a mistake.

    If lying to a policeman during an investigation is Obstruction of Justice, wouldn't perverting the legal system to get a conviction be at least the same crime? IMO, it should bear a severe penalty?

  • Colonel_Angus||

    "There is no duty under the Constitution"

    A lot of things aren't mentioned in the constitution, because they shouldn't need to be.

  • ||

    Isn't the whole fucking point of "due process" but to increase the likelihood that justice does happen?

    And all people banter that "we are a nation of laws, not men." Or some such nonsense. And it is nonsense because prosecutors are a protected class. A class that can unleash an incredible amount of suffering and misery without any accountability. And, apparently, SCOTUS is OK with that.

  • ||

    Scaila believes that due process includes a government's right to lie. What could go wrong with that?

  • ||

  • Alan Kellogg||

    Scalia and his cronys are all examples of ideological corruption, allowing one's beliefs and ideologue to reign over good sense and good law. Were it within my power, I'd have the bastard impeached

  • Eli Rabett||

    Scalia is an average, garden variety, Italian fascist. He has no idea about the US constitution.

  • Michael Ejercito||

    The big question is this.

    Why does not prosecutorial misconduct provoke acts of violence, the same way the burning of a Quran provokes acts of violence?

    Is the Quran really more important than the Constitution or justice?

  • ||

    I have a good explanation for this: Scalia is a nihilist, who doesn't give a rat's ass about anything but his own paycheck.

  • WJ||

    Barbara Streisand is amazingly annoying but it looks like she was also amazingly right.

  • دردشه عراقية||

    Thanks

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