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Scalia's Death Row Lunacy
In his most outrageous opinion yet, Antonin Scalia refused to spare potentially innocent inmates on death row. Paul Campos on the Supreme Court justice’s shocking argument.
Twenty years ago Wednesday night, Mark MacPhail, an off-duty Savannah, Georgia, police officer moonlighting as a security guard, was shot to death in a dark parking lot. MacPhail had tried to come to the aid of a homeless man who was being pistol-whipped by a local thug named Sylvester Coles.
Two years later, after what Justice Antonin Scalia described this week as a “full and fair trial,” Troy Davis was convicted of murdering MacPhail and sentenced to death. The evidence at that trial consisted of nine eyewitnesses who claimed Davis shot MacPhail (Davis had been inside a nearby pool hall and was part of a crowd that came out of the hall in response to the commotion in the parking lot where Coles was beating the homeless man).
• Alan Dershowitz: Scalia's Catholic Betrayal The prosecution’s star witness was none other than Coles himself. No physical evidence tied Davis to the crime—the gun was never recovered—and in the years since Davis’ conviction, seven of the eight other eyewitnesses who claimed to have seen Davis shoot MacPhail have signed sworn affidavits recanting their claims. Several now claim Coles was the killer and that they were coerced by police threats into testifying against Davis.
In retrospect, the case against Davis, which wasn’t strong to begin with, has almost completely fallen apart. But Davis has a big problem: As an exasperated Scalia explained in his dissent from Monday’s extraordinarily unusual Supreme Court order directing a federal court to hold an evidentiary hearing on Davis’ claims, there’s nothing illegal about what has happened, and continues to happen, to Troy Davis. (The order is unusual because the court almost never entertains direct appeals by defendants in Davis’ situation.)
Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.
“This court,” Scalia pointed out, “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 court that he is ‘actually’ innocent.”
Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.
Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.
What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)
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Paul Campos is a professor of law at the University of Colorado at Boulder.
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Paul Campos is a professor of law at the University of Colorado at Boulder.
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Hogwash! Scalia is one of those intellectual idiots who obviously like to play mind games instead of looking at a plain fact. BTW, there is nothing 'touchy' or 'feely' about it. If the person turns out to be innocent, he was bloody innocent. He did not commit the crime and so the entire thing is a farce, because it was not justice.
The innocent person is not responsible for the crime committed by the guilty person, even if he gets killed over the who-done-it argument, because the not guilty one couldn't promote his case. The end!
I have never seen a better argument for outlawing the death penalty for any crime. Either Scalia is insane or this conservative interpretation of the Constitution shines a blazing light on the basic flaw of the death penalty - we are basically legalizing institutional murder of innocent (i.e. they didn't commit the crime) people.
Two things come to mind: 1) how can Scalia think that the trial was fair? The witnesses lied and said so. and 2) According to this ruling it sounds as if Coles came forward and confessed right now Davis would still be subject to execution - as an innocent man convicted of a crime.
This is not justice. This is a very cold and conservative interpretation of the constitution. I'm sure the Republicans are happy with their man.
I believe Scalia would think it was a fair trial because while the trial was in progress nobody knew the witnesses lied. Once the trial was over that didn't alter - in Scalia's mind - that it was a fair trial. The man makes me sick, as do all the right-wing assholes who are trying to defend this scumbag of a man and his partner Clarence "watch some porn with me Anita" Thomas.
Frankly, Scalia should put his money where his mouth is. Have two very capable lawyers just roll dice and the highest number wins, but Scalia must go to jail for life or the lawyer for him gets the high number and he is free. The careless way he is talking about taking an innocent persons life is making a mockery out of our legal system.
Scalia must of forgot his previous opinion in BOUSLEY v U.S.(1998) where he stated almost the complete opposite, "...Procedural Default(ADEPA) is trumped if the convicted went to trial, and makes a claim of either Cause and Prejudice, or [Actual Innocence]." I think if the criminal justice system would let something like his obvious agenda burdened opinion prevail, this might be a prime indication for International courts to step in. Just a thought, since [every] problem has a solution, as we as Americans must never just "give-up."
From "Xtra Insight", An analogy made by Alan M. Dershowitz to explain what happened here:
"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."
Go here too:
http://obsidianwings.blogs.com/obsidian_wings/2009/08/two-readings-of-sc alia.html
Bless him and you, keepa..
I support Scalia 125%
Well, to some degree, I have sympathy with Scalia - it is not him who is a lunatic, it's the american law.
The idea that trials are final, in this way, that verdicts can't be overturned easily, and that additional hearings can't be held at the behest of what is right and just is, plainly, fucked up.
Scalia is washing his hands - it is not he who kills this man, it's the people in congress, the senate, and the white house, who allow this travesty to continue in place of real justice.
Because yes - the supreme court probably could save this poor sod - but as a precedent-setting court, does that mean that every dubious case needs to go through the supreme court? Because clearly there isn't capacity for that.
Legal reform is necessary to solve this problem; not supreme court activism, since this case is very unlikely to stand alone.
Good point and perhaps this is what Scalia had in mind with this opinion. I've been a juror on two trials (one murder and one rape) and in each case the judge instructed us (different judges each time) that the trial is effectively a contest between the two lawyers as to who puts forth the better case, and of course that the guilty verdict (if chosen) must be beyond a reasonable doubt. And the big point was that we needed to leave our feelings at the door.
In some ways, yes the system is messed up (sort of as you say), but I liken it to a computer program. I think the goal of our system is to make the decisions in the trial logical and devoid of emotion.
Wrong, the goal is justice. The emphasis on logic and control of emotion is to prevent illogic and emotion from subverting truth and justice. The process is a tool to help reach the goal. Instead we worship the process and allow it to subvert the goal.
I dont know anything about this case, but it is absurd to say a defendant must die to protect the process whose purpose is to protect him.
Umm... I think you just said the Supreme Court should let Mr Davis die because the actual mistakes of evidence were made in a lower court and it wouldn't be cost effective to have the Supreme Court correct that mistake because then other people with similar mistakes would turn up?
Is it not the primary purpose of each successively higher court to correct the mistakes of the lower courts?
Wonderful comment, keepa! Once again, Dershowitz nails it!
It would appear Scalia is losing sight of the primary objective - justice. Citing, or hiding, behind procedure and protocol is no substitute for judgment.
"Losing sight"? Where have you been for the past thirty plus years he's been on the Court? Scalia is a complete nutjob. And has been all along.
Um, interestingly enough, the entire Roman Catholic faith is based on the fact that an innocent man (Jesus Christ) suffered under the extremes of a death penalty. Food for thought.
With an endless stream of cases being overturned on DNA evidence Scalia's argument might make sense as applied to the constitution, but only to the constitution. It also illustrates Scalia and Thomases bizarre devotion to "Originalism" of interpreting the constitution. Nothing implied, just the "literal" words of the document. Scary and just a little sick.
Good Comments all - the standard hyperboly that comes with more controversial posts is not in evidence (I know it's early in the comment stream). Maybe this is something most of us agree on.
Has Scalia lost sight of Justice? Did he ever even glimpse it? I think Scalia has his eyes firmly on the prize of "full-spectrum dominance." He helped usurp the presidency, what makes anyone think he's the least bit interested in Justice?
FSD was announced on June 2, 2000. In terms of jurisprudence, it means never having to say "not guilty;" "case dismissed;" "you're free to go;" to comply with subpoenas; or serve prison time even when convicted. When a Scalia says it, or a John Yoo authorizes it, or a George Bush does it, that means it's the law.
Since its announcement 9 years ago, we can now see how some flesh on the bones of full-spectrum dominance. Take the Binyam Mohamed case: Secy Clinton has repeated threats to Britain made by Bush to keep from them terrorism-related intelligence, if the Brits reveal the manner in which we tortured Mohamed. Not reveal IF, but HOW; it's an open secret that we did, but getting that pronounced in open court threatens to unravel the tapestry of lies that is our bible: our "official" version of events.
Now that we've made the truth Public Enemy #1, how do we tell which is our true path forward? Every step taken on the false orders of Scalias and Yoos in their false cosmos, where the loser stole the insignia of office, is also false. They can only lead us further into the Waste Land.
^^^^^^^^^^^^^^^^^
Joint Vision 2020 Emphasizes Full-spectrum Dominance
http://www.defenselink.mil/news/newsarticle.aspx?id=45289
By Jim Garamone
American Forces Press Service
WASHINGTON, June 2, 2000 - "Full-spectrum dominance" is the key term in "Joint Vision 2020," the blueprint DoD will follow in the future.
Joint Vision 2020, released May 30 and signed by the chairman of the Joint Chiefs of Staff, Army Gen. Henry Shelton, extends the concept laid out in Joint Vision 2010. Some things will not change. The mission of the U.S. military today and tomorrow is to fight and win the nation's wars. How DoD goes about doing this is 2020's focus.
Full-spectrum dominance means the ability of U.S. forces, operating alone or with allies, to defeat any adversary and control any situation across the range of military operations.
While full-spectrum dominance is the goal, the way to get there is to "invest in and develop new military capabilities." The four capabilities at the heart of full-spectrum dominance are dominant maneuver, precision engagement, focused logistics and full-dimensional protection.
These four capabilities need the full capabilities of the total force. "To build the most effective force for 2020, we must be fully joint: intellectually, operationally, organizationally, doctrinally and technically," the report states.
The report says that new equipment and technological innovation are important, but more important is having trained people who understand and can exploit these new technologies.
[...]
Joint Vision 2020 addresses full-spectrum dominance across the range of conflicts from nuclear war to major theater wars to smaller-scale contingencies. It also addresses amorphous situations like peacekeeping and noncombat humanitarian relief. Key to U.S. dominance in any conflict will be what the chairman calls "decision superiority" -- translating information superiority into better decisions arrived at and implemented faster than an enemy can react.
The development of a global information grid will provide the environment for decision superiority.
[...]
Normally applied to communications and materiel, "interoperability" in the military became a catchword in the 1970s, when it became apparent that many of the NATO allies could not operate with each other. Joint Vision 2020 expands the term to include the development of joint doctrine and information sharing.
[...]
Joint Vision 2020 is available on the Web at www.dtic.mil/jv2020.
~~~~~~~~~~~~~~~~~~~~~~~~~
Combine that with the fact that the Rumsfeld Pentagon targeted and fired on us with weapons-grade domestic propaganda, as noted by Scott Horton back in February of this year:
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The Pentagon's Public Affairs Office has been one of the last redoubts of the Neoconservatives. Burrowed Bush era figures remain in key positions in the office, which had responsibility for implementation of some of the Rumsfeld Pentagon's most controversial strategies in which the American public was targeted with practices previously associated with battlefield psy-ops. http://harpers.org/archive/2009/02/hbc-90004359
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Jacking people into bogus holy wars, even against each other here at home, is how we use the power of myth to power weapons-grade domestic propaganda.
perhaps this is legal, but certainly it is not justice.
Legislative Branch ACTIVATE/WRITE/VOTE
Executive Branch INK UP THAT PEN
Judicial Branch STRIKE IN DOWN
Legislative Branch GET IT TOGETHER: It is AMENDMENT time
Executive Branch INK UP THAT PEN
Scalia EAT THAT STROMBOLI
The conservative movement is soulless!
Those of you who defend Scalia are as morally bankrupt as he.
What, you expect a reasonable appeal for justice from a right-winger like Scalia?
Hilarious. Look around you, every day in this country, the lunatic fringe is just that. Lunatics.
Scalia is just another right wing Supreme Court Justice.
The rest of us are too busy making a living and letting live and let live rule our lives, but we will face the day very soon when we finally start paying attention to the extreme right wing in this country and the liberities that bunch of crazies will take away from us. By then it will be too late.
I saw some fat assed gun totting redneck at a townhouse meeting featuring the President of the United States.
For those of you that will not give this a second thought.. you will be sorry one of these days.
Believe me.
to be a little fair to Scalia, everything has to go through multiple levels of appeal before it reaches the Supreme Court, so presumably if the wife turned up the court of appeals would have vacated the sentence, and it would never have reached the Supreme Court. He seems to be placing all of his faith in the lower courts, that at the Supreme court level it should only be about the law and not guilt or innocence. At least I hope this is what he thinks, if he truly believes an innocent man should be put to death to cover up for the mistakes of the lower courts, he is a disgrace as a human being.
If that's his logic, what's the point of having the Supreme Court review the cases at all? He's just way off base here in my estimation.
This reminds me of a friend / neighbor of mine. When I first met him, I offered him to come over for a drink, which he politely declined due to his religious convition. However, he added that he would "smoke some pot" if I had some! I had no knowlegde of his particular relgious teachings, but I could reasonably guess that he probably took the LETTERS of the scripture and not the SPIRIT of it.
I think the same goes for Scalia's (and other so-called "strictly Contructionist" judges) of the world who seemed to confuse the LETTERS of the Constitution from its underlying spirit.
Taken to extremes by these judges, the term "justice" becomes a mere process of going through the motions of trial with NO true intention to ascertain facts of the case (yes, ACTUAL facts).
We can not be expected to fully understand or guess our founding fathers' intentions in writing of Contitution, no more than we can guess the intention of Almighty in prohibiting the use of Alcohol. But, most reasonable man would agree that the Constitution and our Laws are more than just a simple, immutable frozen edifice not subject to (gasp!) interpretation.
After all, the LETTERS of the Laws must change constantly to keep up with new (and undreamed of) advances in technology -e.g. Cyberspace crimes, DNA testings, etc. The guidance for such change(s) must come from the underlying spirit of the Laws - namely, the true sense of "Justice", even if such thing may not have been specifically laid out and need to be (double gasp!!) inferred.
The remedy for actual innocence is a pardon from your governor. the Supreme Court is not the venue to retry a case. Appelate courts are not in the business of retrying cses, only correcting erros by the lower courts. Ergo the supremne court is not the venue for a retrial. but you are right these guys are assholes nonetheless.
Georgia is one of the few states in which our governor has no power of clemency. It is solely up to the Board of Pardons and Paroles to determine clemency or commutation. Troy is actually a dear friend of mine, and I spoke on his behalf at his clemency hearing in 2006. After initially staying his first execution date, they later decided that his execution should move forward. Everything is handled behind closed doors and they are not bound by public record. The inmate who appeared before the Board prior to Troy was an admitted murderer, and was granted clemency.
We have big problems in Georgia.
This is the same "legal reasoning" that he used in finding that GW Bush won the election. Judge Scalia is morally bankrupt, but in his mind, is a morally superior intellectual. He represents the worst that the law has to offer.
A far better "sypathetic translation" of Scalia's dissent would focus on Scalia's respect for the jury's constitutional role in criminal trials. Scalia, as an appellate court judge, does not have the authority to overrule the jury's factual findings and therefore cannot rest his holding on a rejection of the jury's guilty verdict. He can only hold for the defendant on the basis of law. And on what law he possibly do so? Campos does not say--indeed, he cannot, because there is no such legal basis. His entire argument rests only on outrage about the outcome. My response: the kind of discretion Campos suggests Scalia exercise rests, constitutionally, not with federal judges, but with the President. It's called the pardon power. The last thing we want is non-accountable public officials (like Scalia, who has a life appointment and was never elected) to exercise the kind of discretion Campos thinks is approrpiate. That discretion is best left to elected, accountable officials, in order to better ensure that that discretion is exercised properly.
I am never going to "get over it"!
I hope you have time to read this article.
Everyone should know bout this... Our future depends on it.
http://www.alternet.org/module/printversion/141819
Scalia pals around with Cheney. Need one say more?
Yes, one does need to say more. For one thing, Scalia is also pals with liberal Justice Ruth Bader Ginsberg--is she evil b/c of her association with him?
Campos has written an effective propaganda piece and nothing more. Scalia and Thomas were right to dissent. For all you mindless liberal SHEEP who want Justices of the Supreme Court to do JUSTICE, I ask this question: WHAT IS JUSTICE? The answer is DISPUTED. Granted, no one, including Scalia, thinks justice requires an innocent man to be executed--BUT THAT IS NOT THE POINT. The point is, on what basis may a Justice of the Supreme Court issue a ruling? Upon JUSTICE or LAW--the two are not necessarily the same. Scalia's dissent was based on LAW, as it should be: for his actions to have legitimacy, he decisions must be cabined by law, not based on his subjective views of justice, because he is not an elected or accountable official. And what law dictates that Troy Davis get a new trial? There is none, and Campos, by his silence on this salient issue, all but admits this.
In truth, the discretion that Campos thinks Scalia should exercise lies in the executive branch, which has the pardon power. The executive is a much better repository of the discretion Campos argues for, precisely because governors and Presidents are accountable to the people--a characteristic not shared by Article III federal judges like Scalia.
My challenge to Campos and all you SHEEP who buy into his dangerous argument: stop the emotional appeals and cite us a LAW that allows Scalia to hold with the majority. If you can't do that, send your appeals for justice where they belong: to Georgia Gov. Sonny Perdue.
From the SHEEPfold: Okay, most high one. The LAW clearly allows for an appeals court to overturn a conviction based on certain technicalities, one of which is nondisclosure, the discovery that evidence was withheld by the prosecution that might have absolved the defendant. Coerced eyewitness evidence is also grounds for retrial if not outright overturning. Both of those situations apply in this case. Furthermore, the pardon power is indeed "accountable to the people," including the FOP who were out there the night Davis was almost executed waving nooses. You expect the governor to go against his police? That's why judges have lifetime appointments, so they can maker the unpopular decisions. Oh, and who's EMOtional here?
Well, I didn't want to get into the narrow legal details since most people who read this are not lawyers (I am one), but to explain the law more fully: the legal grounds you state above for granting Davis relief do not apply here because of the procedural disposition of the case. Davis filed an original petition to the US Supreme Court for writ of habeus corpus, which Congress has severely curtailed: the relevant statute bars the issuance of a writ of habeas corpus "with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." As Scalia explains in his dissent (which you should read), the GA Supreme Court rejected Davis' request for a new trial on its merits, and on grounds that did not violate Supreme Court precedent. Hence no relief. Your points about coerced testimony, etc. being the basis for Scalia to grant a new trial do not apply here because of the law Congress passed concerning the type of judicial relief Davis requested. To repeat my earlier points, Scalia just followed the law.
I do not understand your point about the pardon power being "accountable to the people," etc.
Yes, I would expect Perdue to go against his own police and grant the pardon in this case: my guess is that the overwhleming majority of voters in Georgia are opposed to executing an innocent man. It's silly to suggest, as you do, that such a decision would be unpopular.
My CAPS in the original post are for emphasis to aid the reader's understanding, not to express my emotion.
Before I pass judgement on Scalia, I would like to actually read his statement, because the author of this article has presented dissected comments from supposed statements and editorialized it a manner clearly aimed to discredit Scalia. That said, in general, the court is not supposed to overrule state law unless it overshadows federal law. If the man is innocent, and can prove it, then the state should issue the review not the federal court. If the evidence of civil rights has been violated in this case, then the feds should step up.
No one wants an innocent man to be put to death. However, no one should want the guilty to go free either by outsider pressure provided by second hand information.
Remember there is a states rights issue here, and self governing by the people of that state.
If you read a Supreme Court opinion, would you know who was right? Is the decision about which cases qualify for habeas petition under 28 U.S.C. 2241 (c)(3)? If you have no legal training or background, could you really tell a good opinion from a bad one?Peter Rabbit would do well to stay ut of Mr. McGregor's garden.
There's no Death Panel on President Obama's proposed health care plan; the Supreme Court, however, has its own
Death Panel, embodied by Clarence (dumber than a box of
rocks) Thomas and Antonin (Dick Cheney's hunting buddy)
Scalia.
Thank you.
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