Scalia, Thomas: Kill Him Anyway

This case is raising a few eyebrows, especially in the insight that the minority opinion gives into the thinking of the most conservative Supreme Court justices.

The question seems like a simple one: should the government execute a man who has been found guilty of a capital crime, even though later evidence reveals that he is in fact innocent? Common sense says no, you don't execute an innocent man. Justices Scalia and Thomas say, sure, kill the guy.

WASHINGTON — The Supreme Court on Monday ordered a federal trial court in Georgia to consider the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer. The case has attracted international attention, and 27 former prosecutors and judges had filed a brief supporting Mr. Davis.

Seven of the witnesses against Mr. Davis have recanted, and several people have implicated the prosecution’s main witness as the actual killer of the officer, Mark MacPhail.

The Supreme Court’s decision was unsigned, only a paragraph long and in a number of respects highly unusual. It instructed the trial court to “receive testimony and make findings of fact” about whether new evidence clearly established Mr. Davis’s innocence. Justice Sonia Sotomayor, who joined the court this month, did not participate. Supreme Court Orders New Look at Death Row Case

So the Supreme Court told a lower court to look at the new evidence. That sounds like a good thing, especially when a guy's life is at stake.

The decision set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.

“The substantial risk of putting an innocent man to death,” Justice Stevens wrote in a concurrence joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, “clearly provides an adequate justification for holding an evidentiary hearing.”

Justice Scalia, in a dissent joined by Justice Clarence Thomas, said the hearing would be “a fool’s errand,” because Mr. Davis’s factual claims were “a sure loser.”

He went on to say that the federal courts would be powerless to assist Mr. Davis even if he could categorically establish his innocence.

“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

You gotta love the quotes around the word "actually." Most of us operate under the assumption that defendants are actually guilty or innocent, and are not simply portrayed convincingly as one or the other by lawyers in court. The court may find incorrectly, and there may be ambiguous cases where the interpretation of the law is called into question, but usually, for instance in this case where somebody was murdered, the guy either did it or he didn't do it.

It may or may not be relevant to note that the defendant here is a black man convicted in Georgia for killing a cop. According to Wikipedia, "After the trial, seven of the nine prosecution eyewitnesses who had linked Davis to the killing recanted or contradicted their original trial testimony, claiming police coercion and questionable interrogation tactics." One of the remaining two is a possible suspect himself, and the other one identified the defendant in court two years later. Huh, interesting, "Many prominent politicians and leaders, including President Jimmy Carter, Pope Benedict XVI, Nobel laureate Archbishop Desmond Tutu, Presidential candidate Bob Barr, and former FBI Director and judge William S. Sessions have called upon the courts to grant Davis a new trial or evidentiary hearing." But Scalia and Thomas don't see any problem with executing the guy.

You remember that during the Sotomayor hearings there were complaints from the right about the question of "empathy." Conservatives argued that it was wrong to consider empathy as an important quality in a judge, they didn't want empathy, they wanted a literal reading of the Constitution.

This is what they were talking about.

You know, we could encode all the evidence from a criminal case into some kind of spreadsheet format and feed it into a computer program that had access to all laws and precedents. It could probably spit out a verdict within a few milliseconds, and that verdict would be perfectly defensible. There's a reason we don't do that. We have people decide, judges and juries, because it's better. Call it empathy if you want. Maybe it's legal to execute a man who you know is innocent, that doesn't mean we should do it.

A little more from The New York Times:

That question is indeed unresolved. In a 1993 decision, Herrera v. Collins, Chief Justice William H. Rehnquist wrote for the court that “we may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief.” But the showing of supposed innocence in that case, Chief Justice Rehnquist said, fell short.

Mr. Davis reached the Supreme Court by an unusually direct route, filing an original writ of habeas corpus with the court rather than appealing from a lower-court ruling. The court has granted such petitions just a handful of times in the last century, and Justice Scalia said the court had not taken the “extraordinary step” of ordering a federal trial court to adjudicate such a petition from a state prisoner in nearly 50 years.

There is no saying whether this guy would be found guilty in a new trial without all the lying witnesses that helped get him convicted the first time around. I hardly think it's a waste of time though, considering the consequences.