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.